Singh v Medical Board of Australia - [2019] WASCA 51

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SINGH -v- MEDICAL BOARD OF AUSTRALIA [2019] WASCA 51
CORAM:   QUINLAN CJ
PRITCHARD JA
ALLANSON J

HEARD:   14 MARCH 2019
DELIVERED          :   28 MARCH 2019
FILE NO/S:   CACV 83 of 2017
BETWEEN:   ANISH DWARKA SINGH
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

ON APPEAL FROM:
For File No:   CACV 83 of 2017
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   JUSTICE J C CURTHOYS (PRESIDENT)
MS H LESLIE (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)

Citation: MEDICAL BOARD OF AUSTRALIA and SINGH [2017] WASAT 33
File Number : VR 235 of 2014

Catchwords:

Health Practitioner Regulation National Law - Appeal from decision of State Administrative Tribunal disqualifying medical practitioner from applying for registration - Professional misconduct - Prescription of anabolic steroids and other treatment without proper therapeutic indication - Whether disqualification period was so unreasonable or plainly unjust as to infer error - Whether Tribunal erred in exercise of discretion

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Medical Practitioners Act 2008 (WA)
Poisons Act 1964 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	Ms F A Stanton

Solicitors:

Appellant	:	In Person
Respondent	:	Tottle Partners

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

Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334
Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545
Health Care Complaints Commission v Do [2014] NSWCA 307
House v The King [1936] HCA 40; (1936) 55 CLR 499
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Legal Profession Complaints Committee v Love [2014] WASC 389
Medical Board and Singh [2017] WASAT 33
Medical Board and Singh [2017] WASAT 33(S)
Mustac v Medical Board of Western Australia [2004] WASCA 156
Northern Territory v Griffiths [2019] HCA 7
Pepe v Legal Practice Board of Western Australia [2016] WASC 54
Singh v Medical Board of Australia [2018] WASCA 125

QUINLAN CJ & PRITCHARD JA:

Introduction

The appellant seeks to appeal the penalty imposed upon him by the State Administrative Tribunal on 22 June 2017 pursuant to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law). [1]
[1] Medical Board and Singh [2017] WASAT 33(S) (Penalty Decision).
In particular, the appellant challenges the Tribunal's order, made pursuant to s 196(4)(a) of the National Law, that he be disqualified from applying for reregistration as a registered health practitioner for a period of 10 years.
The period of disqualification was made following findings by the Tribunal that the appellant had engaged in professional misconduct, carelessness and incompetence in his treatment of patients from 2008 until 2015.[2]
[2] Medical Board and Singh [2017] WASAT 33 (Misconduct Decision).
The appellant's case initially included 11 grounds of appeal, including a number of challenges to the Tribunal's findings of misconduct.
With one exception, those grounds of appeal, including all of the grounds challenging the misconduct findings, were struck out by Murphy and Mitchell JJA in Singh v Medical Board of Australia [2018] WASCA 125 as having no reasonable prospect of success.
Consequently, there remains one ground of appeal (Ground 6), which provides:
I believe that the judgment against me, which prohibits me from reapplying for registration as a physician for 10 years is excessively harsh and punitive, not only to myself, but also to my four children. Because I am unable to pursue my profession, I am left destitute. At this stage of my life, it will not be easy for me to create a new career. All that I know and all that I am expert and skilled in is internal medicine. I have no training, knowledge, or skill in any other area and I am currently relying on Centrelink to survive. Given that there has been no patient death, patient complaint, evidence of criminality or harm done, I believe that the judgement is unreasonable and warrants revision.
That ground, as Murphy and Mitchell JJA noted,[3] alleges the well‑recognised species of legal error implied from a decision which is unreasonable or plainly unjust. The relevant principles in that regard are well known and outlined in House v The King:[4]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 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.
[3] Singh v Medical Board of Australia [2018] WASCA 125 [61] (Murphy & Mitchell JJA).
[4] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504-505; Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Murphy & Beech JJA [179]).
The appellant requires leave to appeal.[5] His application for leave was referred to the hearing of the appeal.[6]
[5] State Administrative Tribunal Act 2004 (WA) s 105(1).
[6] Order made by Mitchell JA on 4 October 2018.
For the reasons which follow, the appellant has not demonstrated any error by the Tribunal in the exercise of its discretion. Leave to appeal should be refused and the appeal dismissed.

The appellant's circumstances and history as a medical practitioner

The appellant is 63 years of age. Until May 2015, the appellant had been a registered as a medical practitioner under the National Law. He had practised as a specialist physician in West Perth. He had been practising medicine for over 25 years.[7]
[7] Misconduct Decision [3].
By the time that 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 appellant is divorced. He has four children, the youngest of whom is a teenager.

Misconduct decision

It is convenient to begin by summarising the nature of the misconduct findings made by the Tribunal.
The findings of misconduct made by the Tribunal, as noted above, related to the appellant's conduct over a period extending from 2008 through to 2015.[8]
[8] Penalty Decision [57].
During that period, there was a change in the legislation regulating the medical profession. From 2008 until 17 October 2010, the relevant legislation was the Medical Practitioners Act 2008 (WA). The National Law came into operation on 18 October 2010. The terms of the Tribunal's ultimate findings reflect the change in the relevant legislation from that date.
The misconduct findings arose from three separate applications to the Tribunal, two of which related to individual patients (Patient J and Patient B) and one which concerned the appellant's practice generally. Those three applications were ultimately consolidated into a single application.[9]
[9] Misconduct Decision [5]-[8].
Much of the primary evidence upon which the Tribunal reached its conclusions as to the appellant's conduct consisted of his clinical patient notes and evidence as to his dispensing history from a number of pharmacies.[10] In addition, the appellant gave evidence and was cross-examined. It is clear from the Tribunal's reasons that it reached a number of its findings based, in part, upon the appellant's own evidence.[11]
[10] Misconduct Decision [34].
[11] See e.g., Misconduct Decision [83]-[98].
The Tribunal also heard evidence from a number of expert witnesses: Professor Gary Wittert, Professor David Joyce, Professor Sean Hood, Professor David Nutt and Professor Alistair Vickery.[12]
[12] Misconduct Decision [36].
In broad terms, the Tribunal's findings of misconduct concern the appellant's practice of inappropriately prescribing drugs and other treatments to patients, for which there was no proper therapeutic basis, and which unnecessarily put the patients at risk of the adverse effects of those treatments.
The drugs and treatments concerned included anabolic steroids, human growth hormone (HGH) and stimulants, inappropriate infusion of iron and fresh frozen plasma, the ordering of unnecessary DEXA scans and the prescribing of Clomid in contravention of the Poisons Act 1964 (WA). The respondent alleged, and the Tribunal accepted, that the appellant's non-therapeutic purpose in engaging in this conduct was to meet the patients' desires for weight loss, physical conditioning and body building.
The Tribunal's findings were that the appellant's conduct was widespread and extensive, involving many hundreds of patients.[13] In addition, given the specific allegations in relation to Patient J and Patient B, the Tribunal made detailed, and specific, findings concerning those two patients. The Tribunal also made a number of findings in relation to the widespread inadequacy of the appellant's clinical notes in relation to his patients.[14] In relation to a number of patients, who had filled prescriptions issued by the appellant, there were no clinical notes at all.[15]
[13] Penalty Decision [39], [44], [57].
[14] Misconduct Decision [317]-[338].
[15] Misconduct Decision [332].
As to the characterisation of the appellant's conduct, for the period from 2008 to 17 October 2010, the Tribunal found that the appellant had acted 'carelessly, incompetently and/or improperly', they being the relevant standards under the Medical Practitioners Act 2008.[16] For the period following the commencement of the National Law (18 October 2010), the Tribunal found that the appellant's conduct was 'professional misconduct'.[17]
[16] Misconduct Decision [449]-[451].
[17] Misconduct Decision [449]-[451].
There is relevantly no significance to the difference in characterisation of the conduct under the Medical Practitioners Act 2008 and the National Law for the purposes of this appeal. That is because the penalty imposed by the Tribunal, as permitted by the National Law, was a global penalty under the National Law in relation to all of the conduct.
The Tribunal's ultimate findings in the Misconduct Decision were as follows:
A.The Tribunal finds that disciplinary matters exist for the purpose of s 76(1)(b) of the Medical Practitioners Act 2008 (WA) in that between early 2008 and 17 October 2010 Dr Anish Dwarka Singh acted carelessly, incompetently and/or improperly for the purposes of s 76(1)(b)(i), (ii) and/or (iii), and that from 18 October 2010 Dr Anish Dwarka Singh behaved in a way that constitutes professional misconduct for the purpose of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that Dr Anish Dwarka Singh:
1.prescribed for patients anabolic androgenic steroids when there was no proper therapeutic indication for those prescriptions and when such prescribing unnecessarily put patients at risk of the adverse effects of those drugs;
2.prescribed for patients Clenbuterol when there was no proper therapeutic indication for those prescriptions and when such prescribing unnecessarily put patients at risk of the adverse effects of Clenbuterol;
3.prescribed for patients Ephedrine and Ephedrine, Aspirin and Caffeine capsules when there was no proper therapeutic indication for those prescriptions for body building;
4.failed to make any or any adequate clinical notes in relation to his consultations and treatment of patients who consulted him for obesity or consulted him seeking weight loss, physical conditioning and/or body building and/or patients for whom he prescribed anabolic androgenic steroids and/or Clenbuterol, Ephedrine and/or Ephedrine, Aspirin and Caffeine capsules;
5.prescribed for patients Human Growth hormone when there was no proper therapeutic indication for such prescribing and when such prescribing unnecessarily put patients at risk of the adverse effects of Human Growth Hormone;
6.prescribed for patients:
(a)Sibutramine (after it had been withdrawn);
(b)Tamoxifen;
(c)Anastrozole;
(d)Testosterone;
(e)Midodrine; and
(f)Fludrocortisone (with Midodrine);
when there was no recognised therapeutic indication for that prescribing when such prescribing unnecessarily put patients at risk of the adverse effects of those drugs;
7.ordered the infusion of iron for patients who did not suffer from iron deficiency;
8.ordered the infusion of iron for patients when the infusion of iron was contra-indicated because the patients suffered from haemochromatosis or beta thalaessaemia trait;
9.engaged in the general practice (that is on multiple occasions) of inappropriate prescribing of Erythropoietin for patients when there was no recognised therapeutic indication for the prescription of that drug;
10.ordered Fresh Frozen Plasma infusions for patients when there was no recognised therapeutic indication for such infusions in those patients;
11.engaged in the general practice of ordering excessive DEXA scans when there was no recognised therapeutic indication for the performance of any such scan or alternatively for multiple such scans of those patients; and/or
12.prescribed Clomid when the prescription of that substance in Western Australia contravened reg 38C of the Poisons Regulations 1965 (WA) made pursuant to the Poisons Act 1964 (WA).
B.The Tribunal finds that in relation to Patient J, disciplinary matters exist for the purpose of s 76(1)(b) of the Medical Practitioners Act 2008 (WA) in that Dr Anish Dwarka Singh acted carelessly, incompetently and/or improperly for the purposes of s 76(1)(b)(i), (ii) and/or (iii) in the course of his practice as a medical practitioner in that in or about December 2009 Dr Anish Dwarka Singh:
1.failed to make any or any adequate clinical notes in relation to attendances upon him by Patient J;
2.did not diagnose Patient J with body dysmorphic syndrome with binge eating disorder overlap, as he claimed to have done in his letter to the Medical Board of Australia on 8 April 2010;
3.prescribed Mesterolone, Oxandrolone and Primoteston for Patient J when there was no therapeutic indication for those drugs and when such prescribing unnecessarily put Patient J at risk of the adverse effects of those drugs;
4.failed to take any or any adequate steps to ensure appropriate monitoring of Patient J in order to detect any adverse effects suffered by Patient J as a result of Patient J taking androgens;
5.prescribed Clenbuterol for Patient J when there was no medical indication or necessity for the prescription of Clenbuterol;
6 failed to take any, or any adequate steps to ensure appropriate monitoring of Patient J in order to detect any adverse effects suffered by Patient J as a result of Patient J taking Clenbuterol; and
7.prescribed Clomid for Patient J when the prescription of that substance in Western Australia contravened reg 38C of the Poisons Regulations 1965 (WA) made pursuant to the Poisons Act 1964 (WA).
C.The Tribunal finds in relation to Patient B that between early 2008 and 17 October 2010, Dr Anish Dwarka Singh behaved in a way that constitutes professional misconduct for the purpose of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010 in that Dr Anish Dwarka Singh:
1.failed to make any adequate clinical notes in relation to attendances upon him by Patient B;
2.failed to consider, investigate or advise Patient B in relation to differential diagnoses which may have accounted for Patient B's hypertension;
3.prescribed Tamoxifen for Patient B when there was no medical indication for the prescription of Tamoxifen;
4.prescribed testosterone for Patient B when there was no medical indication for the prescription of testosterone;
5.prescribed Human Growth Hormone for Patient B when there was no medical indication for the prescription of Human Growth Hormone;
6.failed to take any or any adequate steps to ensure appropriate monitoring of Patient B.
7.prescribed Clomid for Patient B when the prescription of that substance in Western Australia contravened reg 38C of the Poisons Regulations 1965 (WA) made pursuant to the Poisons Act 1964 (WA); and/or;
8.sent a letter to the notifier, a medical practitioner, on or about 14 July 2012 which was:
(a)derogatory of that medical practitioner;
(b)lacking in professional courtesy; and
(c)offensive towards that medical practitioner.

Applicable law in relation to penalty

Section 196 of the National Law provides for the powers of the Tribunal where it finds that a practitioner has behaved in a manner that constitutes professional misconduct. That section includes the following provisions:
…
(2)If a responsible tribunal makes a decision referred to in subsection (l)(b), the tribunal may decide to do one or more of the following -
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration, including, for example -
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv)a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
(3)If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4)If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person from using a specified title or providing a specified health service.
The general principles in relation to the imposition of disciplinary sanctions are well known and were identified by the Tribunal at [23] - [29] of the Penalty Decision. Those principles have been well settled for some time and it is not necessary to repeat them in full.

As is evident from the authorities referred to by the Tribunal, a number of those general principles find their expression in cases relating to the regulation and discipline of legal practitioners. Those cases, and a number of the general principles identified in them, are, in our view, relevant to the regulation and discipline of medical practitioners.
Nevertheless, in applying the provisions of the National Law, it is important to bear in mind the institutional and functional differences between the two professions.[18] In some cases, those differences may be of significance. And, of course, in every case the Court's ultimate duty is to give effect to the relevant statutory provisions.
[18] Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334 [4]-[5] (Basten JA, Leeming & Payne JJA agreeing).
That said, in our view, the following principles in relation to disciplinary sanctions are applicable to the regulation of both legal practitioners and medical practitioners.
First, it is well established that the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.[19]
[19] Khosa v Legal Profession Complaints Committee [37] (Buss P), [188] (Murphy & Beech JJA).
This principle was usefully set out, in the case of a medical practitioner, in Craig v Medical Board of South Australia:[20]
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.
[20] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 [44] (Doyle CJ, Williams & Martin JJ agreeing).
Secondly, the protection of the public has various dimensions. They may include the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of their conduct and to the need to deter the practitioner from future breaches. So too, as Doyle CJ observed in Craig v Medical Board of South Australia, the protection of the public may require an order to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct.[21] Such an order may, in this sense, be regarded as akin to 'general deterrence'.[22]
[21] Craig v Medical Board of South Australia [47] (Doyle CJ, Williams & Martin JJ agreeing).
[22] Mustac vMedical Board of Western Australia [2004] WASCA 156 at [126].
Thirdly, as the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations.[23] Accordingly, while the personal circumstances of the practitioner are a relevant consideration, the weight to be afforded to personal circumstances cannot override the fundamental obligation of the disciplinary tribunal or court to provide appropriate protection of the public.[24]
[23] Legal Profession Complaints Committee v Detata [2012] WASCA 214 [47] (Martin CJ).
[24] Legal Profession Complaints Committee v Love [2014] WASC 389 [59] (Beech, Kenneth Martin & Edelman JJ).
Fourthly, of particular significance in any given case will be whether the findings of misconduct reveal that a person is unfit to practise their profession. In Khosa v Legal Profession Complaints Committee, Murphy and Beech JJA discussed this consideration in the context of disciplinary proceedings against legal practitioners and said:[25]
In general terms, where the conclusion is reached that a practitioner is presently unfit to practise, a choice may be made between suspension and striking off. If an order for suspension is made in that event, it must be made on the basis that, at the termination of the period of suspension, the practitioner will no longer be unfit to practise because, at the end of the relevant period, the practitioner's name will still be on the roll of practitioners and may resume practise. Suspension is a 'serious form of discipline which is usually imposed to discipline the legal practitioner, who has committed an act of unprofessional conduct but who, in the opinion of the court, at the end of the period of suspension, will be a fit and proper person to practise the law'. In the context of suspension, present unfitness to practise may be understood to include a serious breach of professional obligations 'reflecting, to a significant degree, upon the practitioner's fitness to practise'.
Where, however, the present unfitness to practise reveals that the practitioner lacks the character and trustworthiness necessary to discharge the responsibilities of legal practice, or that the practitioner is permanently or indefinitely unfit to practise, striking off rather than suspension will (at least ordinarily) be the appropriate response. (footnotes omitted)
[25] Khosa v Legal Profession Complaints Committee [37] (Buss P), [191]-[192] (Murphy & Beech JJ).
These principles may, in a qualified way, be applied by analogy to medical practitioners.
As Khosa demonstrates, in the context of legal practitioners, a choice may often arise between suspension and striking off (i.e. removing the practitioner's name from the roll of practitioners). In relation to the medical profession, the order under the National Law that is most analogous to 'striking off' is cancellation of the practitioner's registration. The analogy is not, however, perfect. For example, an order cancelling a medical practitioner's registration may be made by the Tribunal, whereas an order to remove a legal practitioner's name from the roll of practitioners may only be made by the Full Court.[26]
[26] Legal Profession Act2008 (WA) s 444.
Nevertheless, the approach identified by Murphy and Beech JJA in Khosa v Legal Profession Complaints Committee in our view provides a useful guide as to whether suspension or cancellation of registration of a medical practitioner is appropriate in any given case. Applying that approach, it may be said that where a medical practitioner is 'permanently or indefinitely unfit to practise, [cancellation of registration] rather than suspension will (at least ordinarily) be the appropriate response'.[27]
[27] Khosa v Legal Profession Complaints Committee [192].
On this approach, permanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioners' registration. It must be recognised, however, that permanent or indefinite unfitness to practice, is not a necessary condition for cancellation. As the Court in Chen v Healthcare Complaints Commission recognised, the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to that power.[28]
[28] Chen v Healthcare Complaints Commission [17] (Basten JA, Leeming & Payne JJA agreeing).
As Basten JA stated in Chen v Healthcare Complaints Commission:[29]
There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
[29] Chen v Healthcare Complaints Commission [20] (Basten JA, Leeming & Payne JJA agreeing).
However, in contrast to the disciplinary provisions concerning legal practitioners, the Tribunal has the power, under s 196(4)(a) of the National Law, to make an order specifying a period within which a person is disqualified from applying for registration as a registered health practitioner. It is from such an order that the appellant appeals in the present case.
There is no relevant analogue to this power in the regulatory framework for legal practitioners. That is, there is no period during which a person whose name has been removed from the roll of legal practitioners is prohibited from applying to the Court for readmission to the legal profession. At least in theory, such a person may apply for readmission at any time.[30]
[30] See Pepe v Legal Practice Board of Western Australia [2016] WASC 54.
This difference (between the legal and the medical profession) might be explained by the fact that, in the case of legal practitioners, the same body (the Full Court) is responsible for both the removal of a practitioner's name from the roll of practitioners, and, where appropriate, their readmission. In relation to medical practitioners, however, the relevant powers are reposed in separate bodies: the power to cancel the registration resides in the Tribunal, whereas the power to register a person resides with the Medical Board of Australia (the respondent).
In any event, the power under s 196(4)(a) of the National Law is to be exercised for the protective purposes that apply to the disciplinary proceeding generally. In that regard, in our view, all of the various aspects of the protection of the public (as discussed above) will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period should be.
The nature of the power under the New South Wales equivalent of s 196(4)(a) of the National Law was considered by the Court in Chen v Healthcare Complaints Commission. In that case, Basten JA stated: [31]
The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make.
[31] Chen v Healthcare Complaints Commission [22] (Basten JA, Leeming & Payne JJA agreeing).
It will be a matter for the Tribunal, in each case, as to the weight to be given to the various considerations relevant to the exercise of the power to impose a disqualification period. In Chen v Healthcare Complaints Commission, for example, Payne JA observed that the period of disqualification indicated the 'seriousness, from the Tribunal's perspective, of the conduct' and the 'general deterrence reflected by the order'. [32]
[32] Chen v Healthcare Complaints Commission [88] (Payne JA, Basten & Leeming JJA agreeing).
We turn, then, to the period of disqualification imposed by the Tribunal in the present case.

The application of the principles in the present case

It is apparent from the Tribunal's reasons that it correctly apprehended the law to be applied in relation to the imposition of a sanction on the appellant and it made no express error in that regard. Indeed, no such error is alleged by the ground of appeal.
By the time that the Tribunal came to impose a penalty, the appellant had allowed his registration to lapse. For that reason, the Tribunal did not order cancellation of the appellant's registration.
Nevertheless, 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'. [33]
[33] Penalty Decision [75].
The Tribunal's finding that the appellant was permanently or indefinitely unfit to practice is crucial to the outcome of the appeal. In reaching that ultimate finding the Tribunal referred to the following matters:
(a)the appellant's misconduct, in prescribing drugs when there was no proper therapeutic basis, was serious; [34]
(b)the conduct exposed patients to the risks of adverse side effects;[35]
(c)the conduct took place over a significant period of time involving very many patients.[36] As the Tribunal observed, some 740 patients were involved; [37]
(d)the appellant's failure to take adequate notes was extensive and a fundamental failing in his obligations to his patients; [38]
(e)the conduct posed a serious risk to public safety and there was a very substantial risk of the appellant engaging in such conduct again; [39]
(f)there was a need to deter other practitioners from engaging in similar conduct, given the ready market for anabolic steroids (and associated drugs) and the powerful financial incentive for a practitioner to engage in such misconduct; [40]
(g)the penalty needed to be of sufficient severity to reassure the public's confidence in the ability and integrity of medical practitioners; [41]
(h)the appellant's conduct involved dishonesty and, in particular, involved 'cloaking prescriptions with the veil of a proper therapeutic basis when in fact there was no proper therapeutic basis';[42] and
(i)the appellant failed to show any remorse or insight into the misconduct, such that the Tribunal could not have any confidence that he would not engage in misconduct again, if given the opportunity.[43]
[34] Penalty Decision [38].
[35] Penalty Decision [38].
[36] Penalty Decision [39], [44].
[37] Penalty Decision [57].
[38] Penalty Decision [40].
[39] Penalty Decision [42] - [44].
[40] Penalty Decision [45] - [47].
[41] Penalty Decision [48]-[49].
[42] Penalty Decision [51].
[43] Penalty Decision [64].
In imposing the period of disqualification of 10 years, the Tribunal again expressly referred to the lengthy period over which the misconduct occurred, involving multiple patients and multiple prescriptions and other treatments. It concluded that only a long period of disqualification could accurately reflect the seriousness of the appellant's misconduct.[44]
[44] Penalty Decision [77].
All of these considerations were relevant to the sanction to be imposed by the Tribunal. The Tribunal was correct to take them into account.
Given the nature of the implied error alleged by the ground of appeal, a number of the matters relied on by the Tribunal warrant further elaboration.
In relation to the exposure of patients to the risks of adverse side effects from the drugs prescribed by the appellant, the Tribunal accepted the evidence given by the respondent's expert witnesses. In relation to the prescription of androgen anabolic steroids, for example, the Tribunal accepted the evidence of Professor Joyce that the patients were exposed to the following adverse effects:[45]
[45] Misconduct Decision [121], [124].
1.water retention;
2.psychiatric disturbances;
3.spermatogenesis inhibition;
4.polycythaemia;
5.liver abnormalities;
6.jaundice;
7.acne;
8.alopecia;
9.gynaecomastia;
10.increased blood pressure;
11.lipid derangement;
12.increased myocardial infarction risk; and
13.benign and malignant tumour risk.
A similar list of adverse effects were identified by Professor Wittert.[46]
[46] Misconduct Decision [118].
Further, the Tribunal found, in the Misconduct Decision, that some patients had in fact suffered adverse effects as a result of the appellant's conduct. One of the patients, for example, required surgery for gynaecomastia, which the Tribunal found was caused by the appellant's prescription to him of anabolic steroids.[47] Indeed, Professor Wittert identified a number of patients in relation to whom, in his opinion, there was clear evidence of harm or serious harm as a result of the treatments administered by the appellant. [48] The risks of adverse side effects which were identified by the Tribunal were, therefore, not merely theoretical.
[47] Misconduct Decision [125], [129].
[48] Misconduct Decision [316].
Similarly, in relation to the appellant's prescription of the drug Clenbuterol, the Tribunal found that the appellant exposed patients to adverse effects including muscle cramps, increase in blood pressure, increase in heart rate, palpitations, insomnia, dry mouth, tremor, anxiety, nervousness and restlessness, headaches and sweating.[49]
[49] Misconduct Decision [155] - [157].
In relation to the Tribunal's findings as to the appellant's dishonesty and lack of insight, a matter of particular significance was the appellant's preparedness to provide explanations and justifications for his treatment of patients that were deliberately untrue.[50]
[50] Misconduct Decision [96].
In this respect, as the Tribunal found, at all times prior to the hearing before the Tribunal, the appellant had denied that he prescribed anabolic steroids to body builders. He so advised the respondent, in those terms, in a letter dated 26 October 2009.[51]
[51] Misconduct Decision [86]. See Green Appeal Book, Vol 3, 1349 – 1352.
Prior to the hearing before the Tribunal, the appellant had proffered various explanations as to the reasons why he claimed he had legitimately prescribed anabolic steroids. These included the treatment of anaemia, osteoporosis, tissue breakdown and poor healing, and obesity.[52] When faced with objective evidence contrary to these claims, however, the appellant ultimately accepted that he was prescribing steroids for body builders, who would otherwise be 'getting it on the street'.[53]
[52] Misconduct Decision [87]-[90].
[53] Misconduct Decision [91].
It was this kind of dishonesty that the Tribunal described as 'cloaking prescriptions with the veil of a proper therapeutic basis when in fact there was no proper therapeutic basis'. [54] It was a significant matter relevant to the Tribunal's assessment of the need for the protection of the public. Given the appellant's obvious intelligence, his capacity to cover his conduct with a veneer of scientific respectability gave rise, in the Tribunal's assessment, to a significant risk to the public.
[54] Penalty Decision [51].

Not only was the appellant's conduct in this regard properly characterised by the Tribunal as dishonest, it was also, in context, brazenly so.
As noted above, the Tribunal found that by letter dated 26 October 2009 the appellant told the respondent, who was then making enquiries of him, that 'I do not prescribe to body builders'. Yet, as the evidence revealed, at the very time he made that statement, he was doing just that: prescribing anabolic steroids, Clenbuterol and Clomid to body builders. Even more remarkable, in the face of the respondent's enquiries, the appellant continued to do so, in large quantities, for years afterwards.[55]
[55] Misconduct Decision [90].
Against these considerations, the only considerations before the Tribunal that were in the appellant's favour were the absence of previous disciplinary proceedings and the effect that the disqualification period would have on his ability to earn an income.
The Tribunal expressly took those matters into account.[56] However, as reflected in the authorities referred to above, the appellant's personal circumstances were secondary considerations[57] and could not override the fundamental objective of providing adequate protection of the public.[58]
[56] Penalty Decision [67].
[57] Legal Profession Complaints Committee v Detata [47] (Martin CJ).
[58] Legal Profession Complaints Committee v Love [59] (Beech, Kenneth Martin & Edelman JJ).
In our view, the Tribunal did not err in its consideration of the matters personal to the appellant.

Disposition of the appeal

As we have noted above, the Tribunal correctly apprehended the law to be applied in relation to the imposition of a sanction on the appellant and made no express error in that regard. To use the language of House v The King,[59] the Tribunal did not act upon a wrong principle, allow extraneous or irrelevant matters to guide or affect it, mistake the facts or fail to take into account some material consideration.
[59] House v The King 504-505.
In those circumstances, the question is not whether this court would have taken a different course were the discretion being exercised afresh. Rather, the issue is whether, in the absence of an express error, the period of disqualification was so unreasonable or plainly unjust that error can be inferred.
In all of the circumstances, we are not satisfied that it can.
In our view, the period of disqualification of 10 years was not unreasonable or plainly unjust. That period of disqualification is undeniably a long one, especially in light of the appellant's stage of life. Nevertheless, the combination of factors taken into account by the Tribunal required a long period of disqualification for the immediate protection of the public and to reflect the seriousness of the appellant's misconduct.
The appellant's conduct involved very serious breaches of the trust placed in him by the community, by virtue of his registration as a medical practitioner. One aspect of that trust concerned the authority, conferred by his registration, to prescribe drugs, which may carry the risk of adverse side effects for patients. The community is entitled to expect that a medical practitioner will not prescribe such drugs in the absence of a proper therapeutic basis for doing so. The appellant breached that trust over many years, and in relation to a very large number of patients. In our view, it was open to the Tribunal in the exercise of its discretion to conclude that a period of 10 years disqualification was required.
Nothing submitted by the appellant in this appeal, in our view, demonstrates otherwise.
At the hearing of the appeal the appellant, in essence, relied upon four matters.
First, the appellant sought to challenge the conclusions of the Tribunal in the Misconduct Decision. In particular, he took exception to the expert evidence of Professor Joyce and Professor Wittert (upon which the Tribunal relied), including the Tribunal's findings as to the potential adverse effects of his treatment. As we have already observed, however, the appellant's grounds of appeal in relation to the misconduct findings, were struck out by Murphy and Mitchell JJA in Singh v Medical Board of Australia [2018] WASCA 125 as having no reasonable prospect of success.
Having been struck out, the appellant's challenge to the Tribunal's misconduct findings cannot now be advanced as the basis for challenging the exercise of the Tribunal's discretion in relation to the sanction it imposed. The correctness of the exercise of the Tribunal's discretion in that regard, is to be determined in light of the facts that it found to be established. Nevertheless, the appellant's insistence, on appeal, that the misconduct findings were wrong in our view, served to confirm the correctness of the Tribunal's findings as to the appellant's lack of insight and the risk that, if given the opportunity, the appellant would engage in such conduct again.
Secondly, the appellant submitted that the period of the disqualification was too long, and that lesser periods of disqualification have been imposed on medical practitioners for other, more serious, misconduct. We are unable to accept that submission. Each case must be judged on its own facts and circumstances, and any penalty imposed must be directed to the objective of the protection of the public, having regard to the particular circumstances of the case. As we have explained, the Tribunal correctly characterised the appellant's misconduct as very serious, and a significant period of disqualification was warranted in all of the circumstances.
Thirdly, the appellant emphasised the significant effect that the inability to practise had had, and would continue to have, on him financially, including on his ability to provide for his children. The financial implications for the appellant were taken into account by the Tribunal.[60] However, as we have noted already, that was necessarily a secondary consideration, particularly in light of the risk that the appellant posed to the public.
[60] Penalty Decision [67].
Finally, the appellant relied upon a number of references from other medical practitioners, attesting to the appellant's training, skill and diligence.[61] Those references all date from September and October 2009. Indeed, it is apparent that they were provided by the appellant to the respondent under cover of the letter dated 26 October 2009.[62]
[61] Green Appeal Book, Vol 3, 1353 – 1370.
[62] Green Appeal Book, Vol 3, 1349 – 1352.
Three related observations may be made in relation to those references.
First, the findings of the Tribunal do not deny that the appellant may have been, in other respects, a capable practitioner. Indeed, the Tribunal referred to the fact that the appellant was highly qualified, highly experienced and highly intelligent.[63] The Tribunal went so far as to describe the result of the proceedings as a 'tragic fall from grace' of a very well educated and experienced physician. In those circumstances, it is perhaps not surprising that the appellant would have been, in a number of respects, highly regarded by his peers.
[63] Misconduct Decision [84]-[86].
This leads to the second observation, in relation to the references. Self-evidently, none of the practitioners providing the references were aware of the detailed findings of misconduct by the Tribunal, which were made over seven years after the references were given. Only one of the references acknowledges that the author had been made aware of a complaint to the respondent in relation to the appellant's practice.[64]
[64] Green Appeal Book, Vol 3, 1351 – 1370.
Finally, in relation to the references, it is notable that they were provided under cover of the very letter in which the appellant

dishonestly asserted: 'I do not prescribe to body builders'.[65] Given that context, the Tribunal could have had no confidence that the practitioners providing the references were in any way aware of the conduct upon which the Tribunal made its findings of misconduct.
[65] Misconduct Decision [86]. See Green Appeal Book, Vol 3, 1351.

For all of these reasons, in our view the Tribunal did not err in the exercise of its discretion.
We would refuse leave to appeal and dismiss the appeal.
ALLANSON J:
I have had the advantage of the reasons in draft of the Chief Justice and Pritchard JA with which I agree. I would, however, add the following additional comments.

The National Law

The National Law provides, in s 4, that an entity that has functions under the Law is to exercise it functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The objectives 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.[66]
[66] Section 3(2)(a).
Part 8 of the National Law provides for health, performance and conduct of registered health practitioners. It enacts a scheme of notification, including mandatory notification by other registered health practitioners and employers, who form a belief that a registered health practitioner has behaved in a way that constitutes 'notifiable conduct'.[67] Notifiable conduct is defined in s 140, and includes where a practitioner has
placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.[68]
[67] Section 141.
[68] Section 140(d).
Conduct failing to meet professional standards is dealt with according to different levels of severity.

Section 5 defines relevant terms, unsatisfactory professional performance, unprofessional conduct, and professional misconduct (original emphasis):
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience;
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers…
professional misconduct, of a registered health practitioner, includes -
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession;
The difference in gravity is reflected in the action that may be taken by the National Board.
If the National Board reasonably believes that that a practitioner has behaved in a way that constitutes professional misconduct, the National Board must refer the matter to a responsible tribunal.[69] Where a matter has been referred to a performance and professional standards panel under s 182, if the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct, the panel must stop hearing the matter and require the National Board to refer the matter to a responsible tribunal under s 193.[70]
[69] Section 193. The State Administrative Tribunal is the responsible tribunal.
[70] Section 190.
The powers of the responsible tribunal are found in s 196.[71] They include the power to cancel a practitioner's registration. If the Tribunal decides to cancel a person's registration, or the person does not hold registration under the National Law, the Tribunal may also decide to disqualify the person from applying for registration as a registered health practitioner for a specified period.
[71] At the time of the decision. Section 196(4) was amended in 2018. The amendment is not material to the appeal.
Notwithstanding the difference in gravity between unprofessional conduct and professional misconduct, the National Law does not mandate suspension or cancellation of a practitioner's registration where conduct is found to be professional misconduct. In the present case, because Dr Singh did not then hold registration under the National Law, the Tribunal had two options open to it:
(1)to make no order for disqualification, leaving the question of re-registration to the National Board; or
(2) to disqualify for a specified period.
Whether to order disqualification, and for what period, is a discretionary decision. But having regard to the finding made by the State Administrative Tribunal, and the scheme of the National Law, to have adopted the first option and made no order for disqualification would have, in my opinion, failed to reflect the seriousness of the conduct and would not have met the objective of protecting the public.
In Health Care Complaints Commission v Do, Meagher JA (Basten and Emmett JJA agreeing) said:
The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.[72]
[72] Health Care Complaints Commission v Do [2014] NSWCA 307 [35] (Meagher JA). See also Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 441 (Kirby P, Mahoney JA & Giles A-JA).
The National Law (NSW) contains an express statement in s 3A that in the exercise of functions under the law, 'the protection of the health and safety of the public must be the paramount consideration'. The National Law (WA) does not include an equivalent of s 3A. That difference does not, however, detract from the force of the statement.
The Tribunal may not impose a permanent or indefinite disqualification and may only order that a practitioner be disqualified from applying for registration for a specified period. That period should protect patients and potential patient from the risk of malpractice; it should protect the public from similar practice by other practitioners, by operating as a deterrent; and it should uphold public confidence in the standards of the profession by denouncing misconduct and 'signalling that those whose conduct does not meet the required standards will not be permitted to practise'.[73]
[73] Health Care Complaints Commission v Do [35] (Meagher JA).
To succeed on his appeal, Dr Singh must show that the decision to impose a disqualification for 10 years is self-evidently wrong as involving manifest excess.[74] On the Tribunal's findings, which have not been disturbed, the period imposed was within a sound exercise of discretion.
[74] Northern Territory v Griffiths [2019] HCA 7 [235] (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
28 MARCH 2019