SIVATHASAN and MEDICAL BOARD OF AUSTRALIA
[2024] WASAT 67
•15 JULY 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: SIVATHASAN and MEDICAL BOARD OF AUSTRALIA [2024] WASAT 67
MEMBER: JUDGE F VERNON, DEPUTY PRESIDENT
MR D AITKEN, SENIOR MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER
HEARD: 29 MARCH 2024 AND 10 APRIL 2024
DELIVERED : 15 JULY 2024
FILE NO/S: VR 23 of 2023
BETWEEN: NIROSHAN SIVATHASAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Medical practitioner - Holder of non-practicing registration - Application for general registration - Whether conditions on grant of general registration 'necessary or desirable' pursuant to s 83(1) of the Health Practitioner Regulation National Law
Legislation:
Nil
Result:
The decision of the Medical Board to grant the applicant general registration subject to conditions set aside and the applicant is granted general registration without conditions
Category: B
Representation:
Counsel:
| Applicant | : | Mr J MacLaurin SC and Mr D Gardner |
| Respondent | : | Ms H Cormann and Mr M Vethecan |
Solicitors:
| Applicant | : | Gardner Legal & Regulatory Pty Ltd |
| Respondent | : | Clayton Utz |
Case(s) referred to in decision(s):
Lee and Medical Board of Western Australia [2022] WASAT 28
LS v Mental Health Review Board [2013] WASCA 128
Medical Board of Australia v Adams [2023] WASCA 41
Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513
Thekkekara and Nursing and Midwifery Board of Australia [2020] WASAT 160
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
By an application dated 27 August 2022, Niroshan Sivathasan (Practitioner) applied to the Medical Board of Australia (Board) for general registration as a medical practitioner (Application). The Practitioner had previously held general registration but had been granted non-practicing registration effective from 23 July 2022.
On 28 December 2022 the Board told the Practitioner that the Board proposed to grant the Practitioner general registration with conditions. The Practitioner told the Board that he would not accept the proposed conditions and provided the Board with written submissions to the effect that the proposed conditions should not be imposed.
The Board was deemed to have decided to refuse the Application when it did not make a final decision within the required time to do so. On 29 March 2023 the Practitioner applied for review of that decision.
On 3 August 2023 the parties agreed to orders pursuant to s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) by which the Tribunal invited the Board to reconsider its decision.
By a letter dated 25 September 2023, the Board told the Practitioner that it had decided to set aside its original decision, pursuant to s 31(2)(c) of the SAT Act, and to grant general registration with conditions that differed from those originally proposed (Decision).
The Practitioner now seeks review of the Decision.
The matter came before the Tribunal for hearing on 27 and 28 March 2024. The issues to be determined were:
(a)whether the Practitioner should be granted general registration with, or without, conditions; and
(b)if conditions are to be imposed on the Practitioner's general registration, what conditions should be imposed.
On 10 April 2024 we decided that the correct and preferable decision was to set aside the Decision and to order that the Practitioner be granted general registration without conditions. We said that we would publish reasons for that decision. These are our reasons.
In these reasons we:
(a)set out the relevant legislative framework;
(b)summarise the parties' submissions;
(c)identify the issues;
(d)summarise the Decision;
(e)address the evidence, including our findings of fact on uncontroversial matters;
(f)set out our consideration of the issues including findings of fact on disputed matters; and
(g)explain our findings about the correct and preferable decision.
Legislative framework
As at 10 April 2024:
(a)the Health Practitioner Regulation National Law (Western Australia) (National Law) applied in Western Australia by s 4(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPR Act);[1]
(b)the Board was established under s 31 of the National Law and reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA);
(c)as the person the subject of the Decision, the Practitioner was entitled to appeal to the Tribunal: s 199(1)(h) and s 199(2)(a)(i) of the National Law and s 6 of the HPR Act;
(d)a reference to an appeal in the National Law was a reference to a review of the decision under the SAT Act Pt 3 Div 3: s 11 of the HPR Act.
Review proceedings in the Tribunal
[1] On 15 May 2024 the HPR Act was repealed, and the Health Practitioner Regulation National Law Application Act 2024 (WA) came into operation. By s 5 of that Act, the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner National Law and Other Legislation Amendment Act 2009 (Queensland) as in force on 10 October 2023 applies as the law in Western Australia.
The review is by way of a hearing 'de novo' (that is afresh) with the purpose of producing the correct and preferable decision at the time of the decision upon the review: s 27(1) and s 27(2) of the SAT Act. In doing so we have the same jurisdiction, functions, and discretions as those of the original decision-maker: Thekkekara and Nursing and Midwifery Board of Australia [2020] WASAT 160 (Thekkekara) at [32(b)].
The 'time of the decision upon the review' is the time of our decision: LS v Mental Health Review Board [2013] WASCA 128 at [93].
We are not confined by the Board's reasons for the Decision and may take into account new or additional material that was not available to the Board at the time of the Decision: Thekkekara at [32(e)].
Registration under the National Law
An individual may apply for registration in a health profession by meeting the requirements set out in s 77 of the National Law. By s 80 the Board may investigate, or seek information from, an applicant and require the applicant to undertake an examination or assessment. By s 81 of the National Law the Board must give written notice to the applicant of any proposal to refuse to register the applicant, or to register the applicant subject to a condition, and must invite the applicant to make submissions.
The basis upon which the Board may decide to grant, or refuse, an application is set out in s 82(1) of the National Law which provides:
After considering an application for registration and any submissions made in accordance with a notice under section 81, a National Board established for a health profession must —
(a)decide to grant the applicant the type of registration in the health profession applied for if the applicant is eligible for that type of registration under a relevant section; or
(b)decide to grant the applicant a type of registration in the health profession, other than the type of registration applied for, for which the applicant is eligible under a relevant section; or
(c)decide to refuse to grant the applicant registration in the health profession if —
(i)the applicant is ineligible for registration in the profession under a relevant section because the applicant —
(I)is not qualified for registration; or
(II)has not completed a period of supervised practice in the health profession, or an examination or assessment required by the Board to assess the individual's ability to practise the profession; or
(III)is not a suitable person to hold registration; or
(IV)is disqualified under this Law from applying for registration, or being registered, in the health profession; or
(V)does not meet a requirement for registration stated in an approved registration standard for the profession;
or
(ii)it would be improper to register the applicant because the applicant or someone else gave the National Board information or a document in relation to the application that was false or misleading in a material particular.
Conditions on registration may be imposed pursuant to s 83(1) of the National Law, which provides that:
If a National Board decides to register a person in a health profession for which the Board is established, the registration is subject to any condition the Board considers necessary or desirable in the circumstances.
The words 'necessary or desirable in the circumstances' are not defined in the National Law. Accordingly, those words must be given their ordinary and natural meanings. That meaning has not been the subject of detailed consideration in the context of the National Law.
The word 'necessary' is defined in the Shorter Oxford English Dictionary (SOED) as meaning 'that which is indispensable', 'an essential' and 'that which is required for a given situation'. In the Macquarie Dictionary it is defined as 'that which cannot be dispensed with'.
The word 'desirable' is defined in the SOED as meaning 'worth having or wishing for' and in the Macquarie Dictionary as 'advisable'.
Given the disjunctive 'or' the Board is not limited to deciding to impose conditions it considers 'necessary'; that is indispensable or essential. It may also impose conditions it considers to be 'desirable'; that is worth having or wishing for or advisable. Whether a condition is 'necessary' or 'desirable' must be determined in the context of the relevant surrounding circumstances.
Section 82(1)(a) requires the Board to register an individual if that person is eligible for the type of registration they have applied for. Conversely, s 82(1)(c)(i) of the National Law provides that the Board must refuse to grant registration if the applicant is ineligible for registration for certain reasons. The reasons identified in s 82(1)(c)(i)(I) to (V) refer to the applicant's failure to meet criteria corresponding to the criteria for eligibility for general registration set out in s 52(1).
Section 52(1) of the National Law provides:
(1) An individual is eligible for general registration in a health profession if —
(a) the individual is qualified for general registration in the health profession; and
(b) the individual has successfully completed —
(i)any period of supervised practice in the health profession required by an approved registration standard for the health profession; or
(ii)any examination or assessment required by an approved registration standard for the health profession to assess the individual's ability to competently and safely practise the profession; and
(c)the individual is a suitable person to hold general registration in the health profession; and
(d)the individual is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession; and
(e)the individual meets any other requirements for registration stated in an approved registration standard for the health profession.
Section 52(2) of the National Law provides that:
Without limiting subsection (1), the National Board established for a health profession may decide the individual is eligible for general registration in the profession by imposing conditions on the registration under section 83.
Section 52(2) of the National Law does not allow the Board to register a person despite deciding that person is ineligible for registration. In its terms s 52(2) allows the Board to decide that the conditions will render the person eligible for registration.
Under s 82(1)(c)(i)(III) of the National Law the National Board may decide an applicant for registration is ineligible because they are not a suitable person to hold registration, which is a criterion for eligibility under s 52(1)(c).
Section 55 of the National Law sets out the criteria upon which the Board may decide an individual is not a suitable person to hold general registration, as follows:
(1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if —
(a) in the Board's opinion, the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or
(b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practice the profession or it is not in the public interest for the individual to practice in the profession; or
(c)the individual has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against the individual but not finalised; or
(d)in the Board's opinion, the individual's competency in speaking or otherwise communicating in English is not sufficient for the individual to practice the profession; or
(e)the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or
(f)the nature, extent, period, and recency of any previous practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession; or
(g)the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or
(h)in the Board's opinion, the individual is for any other reason —
(i) not a fit and proper person for general registration in the profession; or
(ii) unable to practise the profession competently and safely.
(2)In this section —
relevant law means —
(a)This Law or a corresponding prior Act; or
(b)The law of another jurisdiction, whether in Australia or elsewhere.
Relevant to this matter is the criterion under s 55(1)(c) by which the Board may decide an individual is not a suitable person to hold general registration if that person has previously been registered under a relevant law and during the period of that registration proceedings under Part 8, or proceedings that substantially correspond to proceedings under Part 8, were started against them but not finalised.
In our view, the criteria in s 55(1)(a) to (g) are directed towards the Board's assessment of whether the applicant for general registration is not suitable because the applicant is not a fit and proper person for registration or is not able to practise the profession competently and safely, with reference to the wording of s 55(1)(h)(i) and (ii). This interpretation follows from the appearance of the words 'for any other reason' in the opening words of s 55(1)(h).
Accordingly, in order for the Board to rely on the fact that proceedings substantially corresponding to Part 8 proceedings had not been finalised, in order to find that the applicant was not a suitable person for general registration and, therefore not eligible to be registered, the Board would have to form the opinion that, by reason of those unfinalised proceedings, the applicant was either:
(a)not a fit and proper person for general registration; or
(b)unable to practise the profession competently and safely.
If the Board exercised its power under s 52(2) and s 83(1) to impose conditions to render an otherwise ineligible applicant eligible for registration, it would have to consider the condition to be 'necessary' as, without that condition, the Board would be required to refuse the grant of registration to an ineligible applicant. In the context of ineligibility under s 55(1)(c) the Board would have to decide the condition was necessary to overcome the applicant's unsuitability, evidenced by the incomplete Part 8 proceedings, or their equivalent: that is, the conditions were necessary to render the applicant a fit and proper person for general registration or enable the applicant to practise the profession competently and safely.
The reference to the imposition of conditions the Board considers to be 'desirable' must have a wider scope than that dictated by the word 'necessary'. This does not, however, confer an unfettered discretion on the Board. There was no dispute in this case that the scope of the Board's discretion must be considered in the legislative context, and, in particular, by the objectives and guiding principles of the national registration and accreditation scheme established by the National Law.
These objectives and guiding principles are found in s 3(2) and (3) of the National Law as follows:
(2)The objectives of the national registration and accreditation scheme are;
(a)To provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; and
(b)To facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practice in one or more participating jurisdiction; and
(c)To facilitate the provision of high quality education and training of health practitioners; and
(d)To facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and
(e)To facilitate access to services provided by health practitioners in accordance with the public interest; and
(f)To enable the continuous development of a flexible, responsive, and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
(3)The guiding principles of the national registration and accreditation scheme are;
(a)the scheme is to operate in a transparent, accountable, efficient, effective, and fair way;
(b)fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; and
(c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely consistent with best practice principles.
Of particular relevance in these proceedings are the objectives in s 3(2)(a) and (e) and the guiding principles in s 3(3)(c), directing attention to the protection of the public by ensuring that only health practitioners who are qualified to practice in a competent and ethical manner are registered and that restrictions on the practice of a health profession are imposed only if it is necessary to ensure health services are provided safely. Plainly, a condition is a restriction on practice.
In our view, a board could decide conditions on general registration were desirable to protect the public by ensuring that the practitioner practises medicine competently and ethically, or safely.
Part 8 of the National Law
As has been noted, s 55(1)(c) refers to proceedings under Part 8 of the National Law or that substantially correspond to such proceedings.
Part 8 of the National Law concerns notifications and proceedings in relation to the behaviour of individuals registered under the National Law, and to the behaviour while registered of individuals who are no longer registered: s 138 of the National Law.
Part 8 provides for mandatory and voluntary notifications to Australian Health Practitioner Regulation Agency (AHPRA) about a health practitioner. The mandatory provisions are not relevant to this matter.
Section 144(1) sets out the grounds on which a voluntary notification about a registered health practitioner may be made. That section provides for voluntary notifications to be made to AHPRA on the grounds (amongst other things) that:
(a)the practitioner's conduct is, or may be of a lesser standard that might reasonably be expected of the practitioner by the public or the practitioner's professional peers (s 144(1)(a));
(b)the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of the health profession is, or may be, below the standard reasonably expected (s 144(1)(b)); or
(c)the practitioner is, or may not be, a suitable person to hold registration, including that the practitioner is not a fit and proper person to be registered in the profession (s 144(1)(c)).
The process under Part 8 of the National Law by which a notification about a health practitioner is to be investigated and dealt with, relevantly to this case, is as follows:
(a)section 151(1) sets out the circumstances in which a board may decide not to take further action in relation to a notification. Grounds for not taking further action include that the board believes the notification lacks substance, that the practitioner is no longer registered and it is not in the public interest to deal with the notification, that the notification is being dealt with by another entity, or that the practitioner has taken appropriate steps to remedy the matter and the board believes there is no need for further action;
(b)by s 155 and s 156, a board may take immediate action in relation to a registered practitioner, including suspending the practitioner or imposing conditions on registration, if it believes that:
(i)because of the practitioner's conduct, performance, or health the practitioner poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety; or
(ii)the action is otherwise in the public interest;
(c)by s 160, a board may investigate a registered practitioner if, amongst other reasons, it has received a notification about the practitioner or it believes the way the practitioner practises the profession, or their conduct, is, or may be, unsatisfactory;
(d)by s 170, a board may require a registered practitioner to undergo a performance assessment if the board reasonably believes, because of a notification or for any other reason, that the way the practitioner practises the profession is, or may be, unsatisfactory;
(e)by s 182, a board may refer a matter concerning a health practitioner to a performance and professional standards panel for review. Such panels are bound to observe the principles of natural justice (s 185(2)) and the practitioner is entitled to legal representation at a panel hearing (s 186(1));
(f)by s 193, a board must refer a matter to the responsible tribunal if it reasonably believes that the practitioner has behaved in way that constitutes professional misconduct. Professional misconduct is defined in s 5 as unprofessional conduct which is substantially below the standard reasonably expected of a practitioner of an equivalent level of training or experience, or more than one instance of unprofessional conduct that, considered together, fall substantially below that standard, or conduct which is inconsistent with the practitioner being a fit and proper person to hold registration. If disputed by the practitioner, the matter will then proceed to a hearing before the tribunal;
(g)by s 178(1)(a)(i), (b) and (c) and s 178(2), if a board reasonably believes, because of a notification or for any other reason, that the way a notification or otherwise, that the way a practitioner practises, or their professional conduct, is or may be unsatisfactory, and the Board does not consider it is necessary to refer it to a responsible tribunal under s 193 or to a panel, the Board may decide to take certain action including issuing a caution, accepting an undertaking and imposing conditions. By s 179, the Board must first give the practitioner the opportunity to make submissions and consider those submissions.
The Parties' submissions
The Board's submissions
The Board submitted that it was both necessary and desirable that conditions be imposed on the Practitioner's registration to ensure that the Practitioner is practising in a competent and ethical manner.
The Board accepted that the Practitioner was eligible to be registered. In particular, the Board did not contend that the Practitioner was not a suitable person to be granted general registration. However, in determining whether conditions were necessary or desirable, the Board said it was necessary to take into account that proceedings against the Practitioner that substantially corresponded to proceedings under Part 8 of the National Law had been started but not finalised during the period when the Practitioner had previously held general registration.
The Board submitted that the circumstances warranting the imposition of conditions were that:
(a)before the Practitioner had applied for non-practicing registration the Practitioner was the subject of incomplete investigations raising concerns about the Practitioner's practice of medicine namely:
(i)five open notifications concerning the Practitioner's performance of cosmetic procedures, clinical care and follow up;
(ii) a performance assessment report dated 29 June 2022 (Assessors' Report) prepared for the Medical Council of New South Wales (Medical Council) in which comments critical of the Practitioner's practice and skills were made; and
(iii)an active performance assessment process had been commenced by the Medical Council whereby the Practitioner's performance had been referred to a performance review panel (PRP) as a result of the Assessors' Report;
(b)the resolution of the investigations referred to in (a) had been delayed and were incomplete because:
(i)the Practitioner had applied for non-practicing registration on 26 June 2022 which he was granted on 23 July 2022; and
(ii)when the Practitioner reapplied for general registration in August 2022, he nominated Western Australia as his principal place of business rather than New South Wales;
(c)it could be inferred from the evidence that the Practitioner had deliberately taken the action referred to in (b) above to avoid the Medical Council's investigation into his conduct;
(d)the Practitioner had a history of failing to co-operate with the regulatory authorities in that:
(i)in 2022, he had failed to provide the Medical Council with forms relating to his then current practice arrangements; and
(ii)in 2023, he had failed to comply with the conditions imposed by the Board on his general registration; and
(e)there was evidence that in September 2022 the Practitioner had practised medicine whilst holding non-practicing registration.
With respect to this last matter, s 75(1) of the National Law provides that a health practitioner who holds non-practicing registration must not practise the profession. Section 75(2) provides that contravention of s 75(1) does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. The Board did not invite the Tribunal to make a finding on the balance of probabilities that the Practitioner had breached s 75(1) by practising the medical profession within the meaning of the National Law. However, the Board submitted that AHPRA had told the Practitioner what fell within the meaning of the practice of medicine when he was granted non-practicing registration. The Board invited us to find that, despite that information, the Practitioner had engaged in conduct that fell outside what he had been told he could not do. The Board submitted this conduct added to the evidence that the conditions the Board sought to impose were necessary or desirable.
The Board accepted that the Medical Council's PRP process had not been completed. However, it said that the Assessors' Report had raised a question about whether the Practitioner was performing to a standard reasonably to be expected of one with his level of training and experience.
The Board submitted that s 83 of the National Law conferred a broad discretion to impose conditions that the Board considered necessary or desirable. The Board submitted that there was nothing in the subject matter, scope or purpose of the National Law which rendered the existence of open notifications and the Assessors' Report irrelevant considerations.
Ultimately, as we understood the Board's submission, the incomplete investigatory processes raised a question over whether the Practitioner was performing to a standard reasonably expected of one with his level of experience and training. As a result, the imposition of conditions was either necessary to render the Practitioner a suitable person to hold general registration and, therefore, eligible for registration or, alternatively, desirable to ensure that the Practitioner was practising safely and in a competent and ethical manner, in particular, with respect to the performance of cosmetic surgical procedures.
The Board submitted, to achieve those ends, conditions should be imposed to require the Practitioner to:
(a)practise only at approved places and not perform surgery until he holds admitting rights to a proximate private hospital;
(b)undergo mentoring; and
(c)undergo an audit.
The Board submitted that these conditions were consistent with the guiding principles in s 3(3)(c) of the National Law, that restrictions on practice are to be imposed only if it is necessary to ensure that health services are provided safely consistent with best practice principles.
The Practitioner's submissions
The Practitioner accepted that the Board had the statutory power to impose conditions on the Practitioner's registration if it was 'necessary or desirable' to do so. However, the Practitioner's counsel submitted that the conditions were not necessary or desirable because:
(a)the conditions were imposed in relation to matters that were under investigation and should be dealt with pursuant to Part 8 of the National Law; and
(b)the evidence before the Tribunal does not justify the imposition of conditions in any event.
The Practitioner accepted that a process substantially corresponding with Part 8 of the National Law had been started but not finalised by the Medical Council. However, the Practitioner said those proceedings did not fall within s 55(1)(c) because they did not occur during a period where the Practitioner had 'previously been registered under a relevant law', as required by that section. The Practitioner said that he had always held registration, either general registration or non‑practicing registration.
The Practitioner accepted that there were five open notifications in relation to his practice of medicine, and that the Medical Council had obtained the Assessors' Report and, subsequently, referred him to the PRP, which process was incomplete. However, the practitioner submitted that in the circumstances, including his evidence about the notifications and the contents of the Assessors' Report, it was not necessary or desirable for conditions to be imposed.
The Practitioner denied that he had applied for non-practicing registration to avoid the PRP or the investigation into any notification.
The Practitioner accepted that he had seen some patients in anticipation of regaining general registration but said that he did not understand that what he had done fell within the meaning of practising medicine, as he was only giving information about the procedures he might perform when he obtained general registration. It was submitted that AHPRA's definition of 'medical practice' was not a legal definition and there was no authority for the meaning of 'practice the profession' under s 75(1) of the National Law in relation to the practice of medicine.
The Practitioner submitted that reliance on incomplete proceedings under Part 8 of the National Law to impose conditions upon registration under Part 7 of the National Law (in which s 83 appears) amounted to a significant departure from the legislative intent that such matters be dealt with under the provisions of Part 8.
The Practitioner submitted that, under Part 8, the Board could only impose conditions on a practitioner's registration arising from notifications concerning a practitioner's professional conduct in one of two ways. The Board could take immediate action under s 156 on imperfect evidence because it believed the Practitioner's conduct posed a serious risk and action was necessary to protect public health or safety. Alternatively, the Board could take action under s 178 to impose conditions after making a finding on the evidence that the Practitioner's conduct was, or may be, unsatisfactory.
The Practitioner submitted that the Board's reliance on the Assessors' Report was misplaced as that report was simply a first step in the Medical Council's review process. The Practitioner submitted that, in any event, the conditions the Board had imposed went beyond those referred to in the Assessors' Report.
Issues
The primary issue for us to determine is whether we are satisfied on the balance of probabilities, on the evidence before us, that it is necessary or desirable to impose any conditions on the Practitioner's general registration as a medical practitioner, and if so, what conditions should be imposed.
In light of the parties' submissions, the issues to be determined in considering the primary issue are as follows:
(a)were the incomplete proceedings in New South Wales started and not finalised during a period when the Practitioner had previously been registered under a relevant law. If it was not, is the evidence of the incomplete proceedings relevant to the determination of whether conditions should be imposed on the Practitioner's registration;
(b)should any concerns about the Practitioner's practice of medicine be dealt with under Part 8;
(c)what concerns do the five open notifications raise about the Practitioner's practice of medicine and does that evidence support the imposition of conditions;
(d)what concerns does the Assessors' Report raise about the Practitioner's practice of medicine and does that evidence support the imposition of conditions.
(e)did the Practitioner apply for non-practicing registration or change the location of his principal place of practice with the intention of avoiding the Medical Council's investigation into his practice;
(f)does the Practitioner have a history of failing to co-operate with regulatory authorities;
(g)did the Practitioner practise medicine in September 2022 while holding only non-practicing registration; and
(h)what relevance do any findings in relation to (e), (f) and (g) have to our findings concerning whether the evidence supports the imposition of conditions.
The Decision
In the Decision the Board said, in summary, that:
(a)The Board 'has a responsibility to ensure that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.' The Board must decide, in accordance with the National Law, whether the Practitioner is a suitable person to practise the profession;
(b)Section 55(1)(c) of the National Law allowed the Board to decide that an individual is not suitable to hold general registration if, during the period they were registered, they were subject to proceedings that substantially correspond to Part 8 proceedings which were started but not finalised;
(c)Material before the Board, in particular the Assessors' Report, 'raised serious concerns about the Practitioner's ability to practice the profession safely and competently that may be mitigated by conditions' and the Board was imposing conditions on the Practitioner's registration 'as a protective measure for the public in response to the material before it and considered them necessary and desirable to support the Practitioner's return to practice'; and
(d)The conditions 'were necessary and desirable to enable the Practitioner to demonstrate safe and competent practice as a medical practitioner whilst minimising risk to public safety'.
The conditions imposed by the Board on the Practitioner's general registration by the Decision (Conditions) required that the applicant:
(a)practise at a place of practice approved by the Board and that the Practitioner must not perform surgery until he holds admitting rights to a proximate private hospital;
(b)be mentored by another registered health practitioner with experience in cosmetic surgery in relation to:
(i)pre-operative assessment including informed consent;
(ii)post-operative care including a review of complications, post-operative treatment plans and reviews and revision procedures;
(iii)professional and ethical obligations including the consequences of unethical professional conduct;
(iv)developing and applying insight and reflection for the purpose of improvement to patient care;
(v)clinical record keeping; and
(c)submit to an audit of practice within two months and thereafter on a quarterly basis, to focus on medical record keeping and good patient care, and which must include all cosmetic surgery procedures.
In relation to the Conditions the Board said, in summary:
(a)a condition that the Board approve the Practitioner's places of practice was necessary and desirable to provide the Board with appropriate oversight, in circumstances where the Practitioner had not provided timely disclosure about his practice;
(b)a condition that the Practitioner have admission rights to a proximate private hospital was necessary and desirable where the Practitioner was performing surgical procedures;
(c)a condition to undertake mentoring was necessary and desirable in response to the material before the Board given concerns in the Assessors' Report about pre-operative management including informed consent, post-operative management, the fact that the Practitioner may have sought to circumvent the Medical Council's regulatory processes, the concerns in the Assessors' Report about his lack of insight and the finding in that report that his clinical record keeping was unsatisfactory; and
(d)A quarterly audit was necessary because of the identified performance deficiencies and would provide the Board with 'a necessary feedback mechanism to objectively assess whether the Practitioner has implemented the learnings from the regulatory processes, including the mentoring, into his practice such that the Board can be assured that he is actively addressing the identified concerns and that any risks are appropriately mitigated.'
Uncontroversial evidence and findings
At the hearing of the proceedings the Board tendered by consent:
(a)the affidavits of Michelle Francis Kingston dated 5 March 2024 (Exhibit 2) and 28 March 2024 (Exhibit 6). Ms Kingston is the Operations Manager - Notifications for the Cosmetic Surgery Enforcement Team;
(b)the affidavit of another AHPRA employee, Theodor Emanuel Alecu, dated 4 March 2024 (Exhibit 3); and
(c)a bundle comprising of 18 documents tendered on 27 March 2024 (Exhibit 4).
The Practitioner relied on the Practitioner's witness statement dated 1 February 2024 (Exhibit 1). The Practitioner was cross‑examined by the Board's counsel at the hearing.
The evidence set out at [65] to [103] below was not in dispute and we make findings of fact in accordance with those paragraphs.
The Practitioner's background
In 2004, the Practitioner graduated from the University of London with a Bachelor of Medicine and a Bachelor of Surgery.
The Practitioner obtained provisional registration to practice medicine in the UK on 21 July 2004 and full registration on 2 August 2005. He continues to hold registration in the UK.
The Practitioner became a member of the Royal College of Surgeons in England in 2009. In 2011, the University of Greenwich granted the Practitioner a graduate diploma in aesthetic medicine. In 2012, he obtained a diploma of the Royal College of Obstetricians and Gynaecologists (UK).
In 2013, the Practitioner migrated to Western Australia and was granted general registration by the Board. Subsequently, he commenced practice in New South Wales.
Between 2014 and 2016 the Practitioner completed a two‑year fellowship with the Australian College of Cosmetic Surgery and Medicine.
Notification history
Between May 2017 and May 2020, the Practitioner was the subject of notifications concerning his professional practice that, ultimately, did not result in action being taken against him.
On 28 May 2020, AHPRA received a notification about the Practitioner's performance in July 2018 in Western Australia of breast surgery on, and post-operative care of, the complainant (Notification 1). The complainant alleged that the Practitioner should have referred her to a plastic surgeon, that she was told by the clinic that if she cancelled the surgery, she would not get a refund, there was no follow up call after surgery, and that she was not happy with the results of the surgery.
As the Practitioner was registered to practice in New South Wales at that time, AHPRA referred Notification 1 to the New South Wales Health Care Complaints Commission (HCCC). At some point Notification 1 was referred to the Medical Council.
On about 16 November 2021, apparently in response to Notification 1, a committee of the Medical Council resolved to refer the Practitioner to an assessment panel for a performance assessment because of the following possible performance issues:
(a)informed consent to multi-stage surgery;
(b)post operative care;
(c)level of insight into the issues raised by the complaint; and
(d)history of similar complaints.
The Medical Council subsequently appointed two assessors, a specialist general practitioner and a specialist plastic surgeon (collectively 'the Assessors').
On 16 January 2022 the HCCC received a notification concerning the Practitioner's performance, in August 2021, in New South Wales, of a procedure whereby a filler was inserted into the complainant's eye area (Notification 2). The complainant alleged that she had felt pressure to have the filler, had not given informed consent for the procedure, and her post-procedure care was not adequate. At some point Notification 2 was referred to the Medical Council.
On 1 February 2022, the HCCC received a notification concerning the Practitioner's post-operative care after bilateral explant surgery in October 2021, in New South Wales (Notification 3). The complainant alleged that she had suffered complications after surgery, that the Practitioner had not taken responsibility for post-operative bleeding, swelling and infection, and that she required additional surgeries. At some point Notification 3 was referred to the Medical Council.
In around 2020, the HCCC received a notification concerning the Practitioner's performance of a 'facetite' procedure in 2020 (Notification 4). The complainant alleged that the procedure resulted in wounds to her neck and that she required further surgery to remove burned and infected tissue. Whilst Notification 4 was described in Ms Kingston's affidavit of 5 March 2024, the Tribunal has not been provided with a copy.
On 11 May 2022 the Assessors undertook a performance assessment of the Practitioner at his practice in Wollongong. The Assessors' Report is dealt with further below.
On 26 June 2022 the Practitioner lodged an application with AHPRA for non-practicing registration. By an email dated 29 June 2022, AHPRA informed the Practitioner that his application had been granted and was effective from 23 July 2022. In that email, AHPRA said that:
As of this date you must cease practice as a Medical Practitioner.
Practice is defined as any role, whether remunerated or not, in which the individual uses their skill and knowledge as a practitioner in their regulated health profession. For the purposes of registration, practice is not restricted to the provision of direct clinical care. It also includes working in a direct non-clinical relationship with clients, working in management, administration, education, research, advisory, regulatory or policy development roles, and any other roles that impact on the safe, effective delivery of services in the profession and/or use your professional skills.
On about 29 June 2022 the Assessors finalised the Assessors' Report and provided it to the Medical Council.
On 24 August 2022 the Medical Council notified the Practitioner of its decision to refer the Practitioner to the PRP for further assessment pursuant to s 155C of the National Law (New South Wales). The stated purpose of the PRP was said to be to review evidence relating to the Practitioner's professional performance with primary focus on the issues identified in the Assessors' Report, to hear the Practitioner's submissions and to reach a decision about any further action that may be appropriate, which (it was said) might include the imposition of conditions on practice.
On 27 September 2022, AHPRA received a notification concerning the Practitioner's performance of a tummy tuck procedure in June 2018 (Notification 5). The complainant alleged that she experienced pain and swelling after the procedure, which complaints were dismissed by the Practitioner, that the result 'looked hideous' and that the Practitioner had subsequently refused to release her medical records to her lawyer.
On 21 October 2022 the Medical Council informed AHPRA that the performance assessment process would only be resumed if the Practitioner was granted general registration and nominated New South Wales as his principal place of practice.
On 8 December 2022 the Practitioner provided AHPRA with a detailed response to the Assessors' Report.
On 6 September 2022 AHPRA received an anonymous notification alleging that the Practitioner was offering patient consultations while he held non-practicing registration (Notification 6).
As at the date of the hearing the investigations into Notifications 1 to 6 (collectively 'Notifications') had not been completed.
The Practitioner's re-application for general registration
By an application dated 27 August 2022 the Practitioner re-applied for general registration. The Practitioner listed his place of practice as being in Western Australia.
On 17 November 2022, AHPRA wrote to the Practitioner and advised, that, given they were awaiting further information to enable his application for general registration to progress, they recommended that the deadline for finalising his application, which was 13 December 2022, be extended to 13 March 2023.
At a meeting on 29 November 2022, the Board's National Special Issues Committee (Cosmetic Practice Matters) considered Notification 5 and recommended that the Board investigate the Practitioner saying that there was insufficient information to form a view about the Practitioner's professional performance and further investigation was necessary to accurately assess any risk associated with him.
On 6 December 2022, AHPRA wrote to the Practitioner and again sought to extend the deadline for finalising his application to 13 March 2023 although said they hoped to be able to communicate a decision before Christmas. In correspondence later the same day AHPRA confirmed that the Board would consider the application and the assessment report at its next meeting.
On 20 December 2022, the Board determined to grant general registration to the Practitioner subject to conditions. On 28 December 2022 AHPRA advised the Practitioner of that decision.
On 3 January 2023 the Practitioner advised AHPRA that he did not accept the proposal. This was confirmed by the Practitioner's solicitors on 29 January 2023 at which time they provided detailed written submissions to the Board.
On 14 February 2023, AHPRA sought a further extension of time for the Board to make a decision to 13 June 2023. The Practitioner did not agree to the extension of time, and, on 13 March 2023, the Board was deemed to have refused the Practitioner's application for general registration.
On 29 March 2023, the Practitioner applied for review of the deemed refusal to grant registration.
On 15 June 2023, the Medical Council transferred management of Notification 1, Notification 2, and Notification 3 to AHPRA on the basis that the Practitioner's principal place of practice was Western Australia.
On 19 June 2023, the HCCC transferred Notification 4 to the Board, on the basis that the Practitioner's principal place of practice was Western Australia.
On 3 August 2023, pursuant to s 31(2)(c) of the SAT Act, the parties agreed that the matter be referred to the Board for reconsideration of the original decision.
On 23 September 2023, the Board advised the Practitioner of the Decision.
Failure to comply with the Conditions
The Conditions required the Practitioner to provide information to the Board by completing forms called 'practitioner declarations'. On 26 September 2023, AHPRA wrote to the Practitioner and advised him, in effect, that if he failed to provide the 'practitioner declarations' within the required time he may be considered non-compliant with the Conditions.
On 23 October and 1 November 2023, the Board wrote to the Practitioner reminding him of the requirement to return the completed forms to the Board.
On 10 January 2024 the Board sent a letter dated 3 January 2024 to the Practitioner's solicitors advising them that the Board proposed to issue him with a caution, which would not be published, for failing to comply with the Conditions by failing to provide AHPRA with the required documents.
By a letter dated 19 January 2024 the Practitioner's solicitors made submissions that a caution should not be issued in the circumstances.
On 21 February 2024, the Board issued the caution.
Consideration of the issues
Meaning of 'previously registered'
The investigations in New South Wales by the Medical Board and the HCCC were taken under Part 8 of the National Law (New South Wales). There is no dispute that those proceedings substantially correspond to proceedings under Part 8 of the National Law. However, the Practitioner submitted, in effect, that the Board's reliance on s 55(1)(c) was misplaced because the Part 8 proceedings did not occur during a time that the Practitioner had 'previously held' registration.
Self-evidently, the Practitioner did not hold general registration at the time of his application for general registration. However, the definition of a 'registered health practitioner' under the National Law includes an individual who holds non-practicing registration: s 5 of the National Law. Accordingly, at the time the Practitioner made the current application the Practitioner was 'registered' under the National Law, although he did not hold 'general registration'.
The Medical Council's referral to the PRP, in August 2022, was actually made during the period that the Practitioner held non‑practicing registration although the Medical Council subsequently decided not to proceed with the PRP because of that fact.
There is, in our view, some merit in the argument that s 55(1)(c) of the National Law does not apply where the Practitioner's 'registration' under the National Law has continued, albeit in a different category. The phrase 'general registration' is separately referred to in the introductory words of ss 55(1), and in ss 55(1)(h), and therefore, the reference to a previous period of 'registration' in s 55(1)(c) does not apparently refer to a previous period of a specific type of registration, but to a previous period of registration generally. In addition, registration under a relevant law may not equate to the same categories of registration that apply under the National Law, which mitigates against the word 'registration' in s 55(1)(c) meaning 'general registration'.
On the other hand, however, the phrase 'period of registration' is used in s 107, s 108 and s 109 of the National Law, which concern renewal of a practitioner's registration, and in which that phrase refers to the renewal of a particular type of registration rather than registration generally. This tends to allow for the interpretation of s 55(1)(c) as referring to the specific type of registration despite the separate reference to 'general registration' in that section that we have noted.
In our view the preferable interpretation is that the reference to a previous period of registration in s 55(1)(c) of the National Law is a reference to 'registration' generally, in particular, because Part 8 proceedings may survive the transition to non-practicing registration, although noting that, as a matter of practice, they may not do so.
In our view, however, if that is correct, the incomplete processes under Part 8 of the National Law may be considered by the Board in any event under s 55(h)(ii) in determining that the Practitioner was unsuitable for registration because the Practitioner was, for any other reason, unable to practise the profession competently and safely.
As has been said, the Board did not seek to rely on the incomplete PRP process, or the open Notifications, as evidencing the Practitioner was not suitable for registration. Rather the Board said those matters were relevant to the question of whether conditions were 'necessary or desirable', in particular, to ensure that the Practitioner was able to practise medicine competently and safely.
In our view there is nothing in the language of the National Law that prevents the Board from considering incomplete Part 8 proceedings, or their equivalent, in a suitable case.
Closed notifications
The Board conceded that it did not rely on any notifications against the Practitioner that had been concluded by the regulatory authorities. This concession was well made. There is, as far as we can ascertain from the evidence before us, nothing in any of the 'closed' notifications that would warrant the imposition of conditions on the Practitioner. However, it is in our view necessary to address those notifications because they are referred to in the Board's original decision to impose conditions, as well as in its assessment of Notification 5, and by the Assessors in the Assessors' Report, which is a principal plank in the Board's submission that conditions should be imposed on the Practitioner's general registration.
One of the documents in evidence, the Board's record of the Practitioner's 'notification history', notes that the Practitioner was the subject to two complaints in 2015 which resulted in conditions being imposed on his practice in July 2017.
There is no dispute, and we find, that:
(a)on 5 July 2017, the New South Wales Performance Standards Committee (NSW PSC) decided to impose conditions on the Practitioner's practice in relation to the 2015 complaints;
(b)the Practitioner appealed the NSW PSC's decision to the New South Wales Civil and Administrative Tribunal (NCAT);
(c)the HCCC did not oppose a finding that the subject matter of the complaints was not proved in light of the evidence relied on by the Practitioner; and
(d)as a result, on 23 July 2018, the NCAT overturned the decision to impose conditions.
The evidence of any other adverse comments about the Practitioner's practice was limited and came from the Practitioner's evidence, in particular his statement dated 1 February 2024 and the documents attached to it.
The Practitioner said that he had been told by the HCCC in 2018 that he should make sure that he was compliant with the appropriate legislation in respect of medicines. This is different in type from the concerns the Board says warrant the imposition of conditions. However, the Practitioner's unchallenged evidence was that the complaint that led to this comment concerned a clinic he had been contracted to work for. He said that he had raised concerns with the HCCC about the clinic before he stopped working there and assisted the HCCC with its investigations. The Practitioner said that the clinic had subsequently used his name to order medicines without his knowledge or authority despite his having informed the wholesaler of the medicines that he had left the clinic.
The Practitioner also provided a letter from the HCCC in relation to a complaint in 2021 about his 'treatment, attitude and manner'. The HCCC did not make any adverse finding about his treatment of the complainant but commented that he 'reflect on [his] attitude and manner when responding to his patients despite their dissatisfaction' (sic).
In another matter referred to in the notification history, which is noted to have been dismissed, the Practitioner's unchallenged evidence was that the complaint was, in fact, against a colleague of his and not against the Practitioner.
In a further matter referred to in the notification history, the Practitioner's unchallenged evidence was that a complaint that he had provided antivaccination misinformation to the notifier's adult niece was false and was closed with no action taken.
In light of this evidence, the Board's previous reliance on the Practitioner's notification history is difficult to understand and appears to give unreasonable weight to the fact of a complaint without regard to the substance or outcome of the complaint. It is particularly difficult to understand why AHPRA's record of the Practitioner's notification history (being document 9 in Exhibit 4) recorded the imposition of conditions in 2017 but did not record the ultimate reversal of that action by NCAT in 2018 other than by saying, in a separate table, that the result of a tribunal appeal on 14 May 2018 was 'substituted different orders'. A document attached to the report on Notification 5, being document 12 of Exhibit 4, listed the 2017 result of the 2015 complaints but not the result of the subsequent appeal.
The open notifications
In relation to the open notifications, or complaints, against the Practitioner the Board relied on the affidavit dated 5 March 2024 of Michelle Kingston, an AHPRA employee and Operations Manager - Notifications for the Cosmetic Surgery Enforcement Unit, and Ms Kingston's supplementary affidavit dated 28 March 2024. The Practitioner did not challenge the contents of Ms Kingston's affidavit or seek to cross-examine her.
Ms Kingston's evidence in relation to the status of the investigations into the notifications concerning the Practitioner was, in summary, that:
(a)The five notifications referred to were still open, that is still being investigated by AHPRA.
(b)The information obtained by AHPRA in the course of investigating the five notifications was as follows:
(i)information provided by the complainant;
(ii)responses provided by the Practitioner;
(iii)the complainant's clinical records;
(iv)in relation to Notifications 1, 2 and 3, information regarding the decision to refer the Practitioner for a performance assessment.
(c)As to Notification 1, the complainant had been contacted to confirm that the matter had been transferred to AHPRA and that she wished to proceed with the complaint, and further documents had been obtained from a practitioner who had performed revision surgeries as well as from the Practitioner.
(d)As to Notification 2, AHPRA had obtained further information from the Practitioner. AHPRA had not yet been able to contact the complainant.
(e)As to Notification 3, the complainant had been contacted to confirm that the matter had been transferred to AHPRA and that she wished to proceed with the complaint, and information had been obtained from the Practitioner.
(f)As to Notification 4, the complainant had given further information about her concerns and treatment and provided her clinical records and information in response to the complaint had been obtained from the Practitioner.
(g)As to Notification 5, the complainant had provided a statement and her clinical records and information in response to the complaint had been obtained from the Practitioner.
(h)The material obtained in relation to Notifications 1 to 5 is being analysed. In relation to each notification further investigative activities are required to progress the investigation. This may include obtaining an independent opinion.
Other than the content of notification forms themselves, for Notifications 1, 2, 3 and 5, and the description of the content of Notification 4, the Board did not seek to lead any evidence about those notifications. It was the Board's case that the fact of the Notifications, along with the other matters it relied on, supported the imposition of conditions on the Practitioner's registration. Much of the Board's cross‑examination of the Practitioner went to matters apparently concerning his credit, rather than to the substance of the allegations against him concerning his practice. Accordingly, the only detailed evidence before the Tribunal as to the merits, or otherwise, of each of the complaints, came from the Practitioner.
The Practitioner has denied that any of the five notifications concerning his clinical practice have merit. He went into some considerable detail in his written statement and his oral evidence in rebuttal of Notifications 1, 2, 3 and 5. He did not specifically comment on Notification 4, which was referred to the Board by the HCCC in June 2023. Neither was he cross‑examined about that complaint.
In our view, the Practitioner appeared to be a thoughtful and forthright witness. He answered questions directly and did not appear to be evasive in any way. We agree with his counsel's submission that his evidence was persuasive and measured. He impressed the Tribunal with his knowledge of the detail of the allegations against him and he was convincing in his responses to those allegations.
In our view it is not necessary, or desirable, to go into the detail of the Practitioner's evidence. He has raised matters that would constitute defences on the merits in relation to most of the notifications concerning his medical practice. As we have said those explanations were substantially unchallenged by the Board in these proceedings.
The Practitioner said generally that he regarded each notification as 'a chance for sincere reflection and improvement, always striving for the highest professional standards.' However, he said it was possible to reflect on conduct and determine not to do anything differently.
The Practitioner said that patients undergoing cosmetic procedures were predisposed to be dissatisfied with the outcome and to make complaints. He said he did not feel that he should have to apologise if he had done the right thing.
The Practitioner said, in effect, that he refused to give a refund simply because a client was unhappy with the outcome and threatened to complain, and he believed this was the reason behind some of the notifications. In particular, the Practitioner said that the patients the subject of Notifications 1, 2 and 5 had sought a refund.
In addition, with respect to Notification 1, the Practitioner said that the HCCC had originally dismissed that notification on 21 July 2020. This is consistent with the documentary evidence. The Practitioner says that the HCCC and the Medical Council decided to reconsider the complaint on 12 January 2021, after the patient continued to pursue the matter and had brought legal proceedings against him. He said those proceedings are ongoing in the District Court of New South Wales. He said at that point the Medical Council decided to refer him for a performance assessment, which evidence was consistent with the contents of the Assessors' Report.
With respect to Notification 2, the Practitioner said the patient brought proceedings against him in the NCAT to obtain a refund. He agreed that the amount the patient was seeking to recover was between $300 to $500 and agreed that he was prepared to stand his ground over that amount.
The Practitioner said that the patient ultimately apologised to him and withdrew her complaint. She told him she had been pushed to complain by another practitioner. Ms Kingston's evidence was to the effect that AHPRA had not been able to contact the complainant in relation to Notification 2. This would seem to be consistent with the Practitioner's evidence that the complainant did not wish to pursue the matter.
Criticisms in the Assessors' Report
As has been said, the Board relied on the contents of the Assessors' Report. It did not call the Assessors as witnesses or make them available for cross-examination. It accepted that the Assessors' Report was not a finding or an outcome under Part 8 of the National Law (New South Wales) but was a step in the proceedings under that part.
Again, the Practitioner has given a detailed rebuttal to the issues raised in the Assessors' Report, in his written and oral evidence.
The summary of the Assessors' Report states:
Based on the material before them, the Assessors consider there are indications that [the Practitioner's] professional performance is unsatisfactory in the areas of:
-Consent
-Postoperative care
-Ethical/medicolegal (insight)
-Medical records (systems)
The Assessors said that the Practitioner's practice was satisfactory in the areas of 'communication/rapport', 'history taking', 'clinical reasoning/diagnosis', 'management/advice/safety netting' and 'office facilities'.
The Assessors did not make any comments about the Practitioner's performance of any procedure. The Assessors said, 'no major concerns about his clinical care arose from the individual consultations reviewed' with the proviso that was 'if the content of [the Practitioner's] records are a true reflection of [the Practitioner's] clinical care.' The latter comment is speculative, as no basis for suggesting a discrepancy between the records and the Practitioner's clinical care is given in the report.
The Assessors relied on a regulatory history that, to that date, has largely been dismissed, or overturned upon review by NCAT. On a number of occasions, the Assessors refer to the 2015 complaints in terms from which it may be inferred they considered those complaints had substance. This is despite apparently noting in a summary of the regulation history on the first page of the report that the NCAT appeal in 2018 had been allowed. The Assessors relied on the Practitioner's failure to take responsibility for the matter underlying the 2015 complaints, and the failure to accept the complaint made in Notification 1, along with his failure to be fully co-operative with the Medical Council as the basis for concluding that the Practitioner lacked insight.
With respect to the finding concerning informed consent, the sole ground the Assessors appear to have relied on was the view of the specialist assessor, a consultant plastic surgeon, that the standard of care was that there be two consultations with the patient before surgery. The Assessors noted that the Practitioner offered all patients two consultations but said that may not happen if the patient did not follow up a second consultation. The Practitioner said that he did offer two consultations but that patients did not always attend for two. However, he also said that there was evidence in the medical records reviewed by the Assessors that he did undertake multiple consultations before surgery.
The Assessors said that they had not observed the Practitioner eliciting informed consent and said, 'there may be a discrepancy between what [the applicant] says he does and what actually happens when consultations are observed.' It is implicit in this that the Assessors did not fault what the Practitioner said he did in providing information to his patients before consent for a procedure was obtained. Again, the statement that there may be a discrepancy between what the Practitioner said he did and what he actually did, based on the fact that they had not observed a consultation, was essentially speculative.
With respect to the finding that the Practitioner's medical records were not adequate, the Assessors' comment was the paper records they looked at were not complete. The Practitioner said that he kept both electronic and paper records, and that the paper records were scanned into his electronic records. The Practitioner said that the Assessors did not ask to look at the electronic records. This is consistent with the contents of the Assessors' Report which records that they were informed that operation records were kept electronically and says that they were not given access to any electronic records on the day. However, the Assessors do not say that they asked to see the electronic records and were refused, which would be expected if that had occurred, given they do comment on another matter where they considered the Practitioner had not co-operated on their inquiry (being an alleged failure to return calls to confirm a start time).
With respect to the finding about post-operative care, the Assessors said that the Practitioner described a satisfactory post‑operative follow up but that there was no evidence of this in the medical records provided at assessment. However, as has been noted on the Practitioner's unchallenged evidence, the Assessors did not have the Practitioner's complete records. In any event, the only issue the Assessors identified with respect to post-operative care was that if there was a significant post-operative complication that required possible in‑patient care the Practitioner was unable to give this to his patients in Wollongong as he did not have admitting rights to local hospitals.
The Practitioner said in evidence that the Assessors were aware that he performed any major surgeries in Sydney where he had admitting rights to local hospitals. The Assessors' Report does note that they were informed that the Practitioner performed surgeries in Sydney, not Wollongong. The reference to concerns about complications in Wollongong appears (from Annexure G) to be limited to the risk of complication after abdominoplasties.
The Practitioner said that he had arrangements with surgeons with admitting rights in Wollongong to transfer patients to their care, should that be necessary. The Assessors noted this but said that 'most patients would expect that their original treating practitioner would be able to look after any complications postoperatively rather than having to be referred elsewhere, it should be considered that this is outside the standard of care.'
With respect to the Practitioner's 'lack of insight', in addition to referring to the 2015 complaints (as we have already noted), the Assessors based this observation on the Practitioner's stated failure:
(a)to accept the allegations in Notification 1, saying that he did not feel he 'had let that patient down in any way'. This appears to assume the notification had substance despite it not having been determined at that time (or to date);
(b)to adequately communicate with the Medical Council by failing to provide a current 's 164G form' about his practice or his medical records and delayed communication around the details of the assessment. However, the Assessors noted that the Practitioner had been pre-occupied with a court case; and
(c)to respond to calls on the day of the assessment which led to a delay in the start, although also noting the Practitioner was very pleasant and cooperative with the assessment on the day.
The Practitioner accepted the criticism in [146(b)] above and said he had been pre-occupied with a court case but did not accept the criticism in [146(c)].
The Practitioner makes a number of criticisms about the Assessors' Report in addition to the matters already referred to. Without making any finding in relation to these, without having heard from the Assessors, some of those criticisms struck as being plausible.
The Practitioner's motivation in applying for non-practicing registration
As can be seen from the summary of the Board's decision, the Board regarded the Practitioner's conduct in changing his registration status as suspicious. It appears that this suspicion was largely due to that application being close in time to the assessment and after Notifications 1, 2 and 3.
The Practitioner said that the reason for changing his registration status was that he thought that he was going overseas. He said that he wanted to take a break from Australia and return to the UK where he had family support and work that would be available. He said that he had multiple friends who could get him cosmetic work in the UK.
The Practitioner said that the situation changed within weeks after he obtained non-practicing status. He was then told by AHPRA that there was simply no pathway to undo what had been done. However, he said that he was told the process of applying for general registration again would be expedited.
When it was put to him in cross-examination that he did not need to change his registration status to move overseas and that he had done so to frustrate the New South Wales disciplinary process, the Practitioner said, 'if anything is clear, I am a man that stands up for myself and I fight.' He said that he did not think that there was any basis for the open notifications.
The Practitioner also said that he did not understand that the Medical Council process would cease if he obtained non-practicing registration as he was still a registered practitioner.
The Practitioner was not cross-examined about why, when he sought to re-obtain general registration, he changed his principal place of practice to Western Australia. However, he said that before 2022 he had practised in Western Australia and Victoria as well as in New South Wales.
We accept the Practitioner's evidence that, in applying for non-practicing registration, he was not motivated by a desire to avoid the PRP process, or investigation into the notifications that had been received to that time. In our view his evidence that he does not try to avoid a fight rang true. That evidence reinforced the impression already gained from other evidence before the Tribunal, including his successful defence of complaints against him in NCAT, and his ongoing refusal to accept the conditions the Board had imposed on him even though this has meant that he has been unable to work.
This also accords with the probabilities. If avoiding the investigation was the Practitioner's motivation in applying for non-practicing registration, it is difficult to understand why he chose to reapply for general registration only very shortly after being granted non-practicing registration. That conduct is consistent with the Practitioner's evidence that a sudden change in his personal circumstances resulted in his deciding to practise in Western Australia and to reapply for general registration.
There is no evidence that, when the Practitioner applied for non-practicing registration, the Practitioner knew or believed that would bring the PRP proceedings of the Medical Council to an end. His evidence was that he did not.
Whilst the choice not to pursue that investigation may be understandable, on the ground that pursuing the PRP was not in the public interest if the Practitioner was not practising medicine or not doing so in New South Wales, the Medical Council continued to have the power to pursue the investigation despite the Practitioner's change in registration status. As we have already noted, the Medical Council notified the Practitioner of the referral to the PRP in August 2022, two months after he had applied for non-practicing registration in June 2022. It did not formally relinquish its inquiries until June 2023.
Accordingly, we find that the Practitioner had personal reasons for seeking non-practicing registration which changed shortly afterwards, resulting in his reapplying for general registration. Whilst there was no direct evidence about his reasons for relocating to Western Australia there is no evidence before us to support a conclusion that it was to avoid the investigation of an inquiry into his conduct. Plainly, on the evidence of Michelle Kingston, it has not had that effect.
The relevance of these matters, as we understood the Board's case, was that the Tribunal should infer from a finding that the Practitioner obtained non-practicing registration and nominated Western Australia as his principal place of practice in order to avoid the investigation into his practice in New South Wales, that the Practitioner considered there was merit in the complaints against him to that point, in turn lending weight to the Board's concerns arising from the open notifications and the contents of the Assessors' Report.
We have not made the finding contended for by the Board. In our view, there is nothing to be made of the Practitioner's conduct in that respect in support of the merit of the matters relied on to justify the imposition of conditions on his registration as 'necessary' or 'desirable'.
History of failures to co-operate with regulatory authorities
The Board relies on the reference in the Assessors' Report that the Practitioner did not adequately communicate with the Medical Council. However, that report also noted that the Practitioner had been pre-occupied with a court case. Whilst the Practitioner conceded that there had been delay in providing certain paperwork to the Medical Council, he denied the allegation in the Assessors' Report that he did not respond to calls on the day of the assessment which led to a delay in the start of the assessment.
When asked about his failure to comply with the requirements of the conditions placed on his practice, which resulted in the Board formally cautioning him, the Practitioner said:
I was not practising and had no intention of practising. There were multiple reasons. Insurance premiums are higher where a practitioner has conditions on their practice. I didn't want to approach a mentor in the absence of having any intent to work. I had offered not to perform surgery.
The Practitioner said that he was in London during January and February 2024. However, he accepted that he should have responded to the reminder notices on 1 and 23 November and 7 December 2023. He said that he was really down and not working, and it was difficult to be motivated.
The Board accepted that it had been told that the Practitioner was not practising medicine. However, it submitted that the documents that the Practitioner was required to provide to the Board pursuant to the conditions were necessary to enable the Board to verify that the Practitioner was not practising, by enabling it to obtain information from Medicare and other sources about the Practitioner's billing practices.
We accept the Practitioner's evidence that it was difficult in all the circumstances to bring himself to comply with the Board's conditions on his practice, given he had determined not to accept those conditions, and was not practising. That he was unhappy about his situation is, in our view, understandable in all the circumstances.
Whilst it may be accepted that the Board wanted to check the Practitioner's information that he was not practising, the Board acknowledged that the required forms were provided in January 2024. No evidence was adduced to contradict the Practitioner's evidence that he has not been practising medicine since the Conditions were imposed.
These contraventions are not argued to constitute a basis for disqualifying the Practitioner from practice: that is, it was not argued that they rendered him an unsuitable person for registration. The reliance on these matters was limited to its relevance on the need to impose conditions. However, the Board failed to articulate a connection between this conduct and any of the conditions that it sought to impose on the Practitioner's registration.
In our view this evidence does not, either on its own or in combination with other evidence, warrant the imposition of conditions on his practice.
Practicing whilst holding non-practicing registration
The allegation that the Practitioner was practising medicine whilst holding non-practicing registration arose, as we have noted, from Notification 6 (in September 2022).
In relation to this allegation the Board relied on the evidence of Mr Alecu in his affidavit sworn on 4 March 2024.
Mr Alecu said that, on 21 September 2022, he has telephoned a clinic, Ignite Medispa, posing as a prospective client and had asked about the possibility of undertaking a cosmetic medical procedure. The receptionist said that she could arrange a consultation with the Practitioner on 23 September 2022. Subsequently, on 21 September 2022, Mr Alecu spoke to the Practitioner on the telephone. Mr Alecu said that the Practitioner told him that:
(a)he could offer him a consultation for the requested procedure either in person, in Wollongong, or by video;
(b)the consultation would be educational, and he would provide information relating to the procedure, including options;
(c)a physical assessment would be preferable;
(d)the Practitioner would be performing the procedure; and
(e)the procedure would need to be performed in January and, if not then, after that time, due to availability issues.
There was some evidence in the form of customer data records obtained by Mr Alecu, of numerous consultations apparently occurring at Ignite Medispa from 24 July 2022 to 22 September 2022. However, whilst the notice by which these customer data records were obtained sought the records of the Practitioner's appointments from 1 January 2022, the second page of the customer data records lists a number of people, some referred to by title and most having 'practitioner provider numbers'. That list does not refer to the Practitioner by name, although one of the people listed is identified by the title 'Cosmetic Surgeon' with a provider number. However, the list of appointments beginning on the third page does not identify in relation to any appointment the name, title or provider number of the person providing the service. Accordingly, in our view, the customer data records do not, in fact, evidence that the Practitioner had performed all, or any, of the services listed in the list of appointments.
In cross-examination, the Practitioner agreed that he understood that he was not allowed to practise medicine when holding non‑practicing registration. He also agreed that he had seen patients in New South Wales in September 2022. When it was put to him that he understood that he could not see patients he said, 'if seeing them as a medical doctor - yes'. The Practitioner denied seeing any patient for the purpose of assessment or examination before surgery and said that he did not perform surgery. He said that he did not speak to these patients about anything of substance nor did he examine them.
The Practitioner said that the only purpose in seeing the patients was to assess basic suitability for surgery and the information he gave them about the proposed procedures was something a person without any medical qualification (such as a nurse) could give them.
The Practitioner said that he had understood that there would be no difficulty with his application for general registration when applied in August 2022 given the short time he had been on non-practicing registration. He said that he had initially been assured the application would be dealt with within a month and then subsequently assured it was going to be done. In the meantime, the Practitioner said that he thought it was permissible for him to line patients up for the time when he had regained his general registration.
The Practitioner said that he did not understand what he had done amounted to practising medicine but accepted that he might be wrong about that.
The Practitioner denied that he had treated any patient in Melbourne as the Notification 6 alleged, saying that he had not treated a patient in Melbourne since 2018 or thereabouts. He said he had not seen any patients in Perth.
When it was put to him that he had told Mr Alecu over the telephone that the restraint on his performing surgery before January was 'availability', the Practitioner said at this stage, three years later, he could not recall what he had said.
The Practitioner said he had not seen any patients after September 2022.
As we have said we have formed a positive view of the honesty and reliability of the Practitioner's evidence. We accept that he has not seen any patients since September 2022. We also accept his explanation about the consultations he had with any potential patient. There is no evidence that the Practitioner performed any surgical procedure on any patient whilst he did not hold general registration.
The Board submitted that what the Practitioner had done amounted to the practice of medicine as AHPRA had informed the Practitioner that term was defined, in its email to the Practitioner on 29 June 2022.
Whilst that definition was arrived at after a process of deliberation by health practitioner boards, it is not a statutory definition, nor were we informed of any case where it had been the subject of the decision of any court or tribunal. Ultimately, the Board did not invite us to positively find that the Practitioner had practised medicine in breach of his non-practicing registration. Rather the Board submitted that it was a concern that the Practitioner was prepared to see patients, even to give them what he referred to as educational material, when he had been informed by AHPRA that he could not do so.
We accept that the Practitioner's description of what he did may fall within the wide scope of the definition of medical practice that he had been given by AHPRA when he was granted non-practicing registration. However, we also accept the Practitioner's evidence that he did not understand his conduct amounted to the practice of medicine and that what he did was done in the context of his genuinely held expectation, at that time, that his general registration would issue as a matter of course in the near future at that time. As we have said, we accept the Practitioner as an honest witness. He was frank in his admissions about what he had done and did not seek to cross‑examine Mr Alecu about his evidence. His evidence about his expectation concerning re-registration was not, on the face of it, unreasonable, given that at that point he had not been informed there were any difficulties with his application, and he had only very recently held general registration without conditions.
Put another way, we accept the Practitioner was not, by his conduct, deliberately doing something he knew to be prohibited.
The Board did not contend that this contravention was a basis for disqualifying the Practitioner from practice: that is, it was not argued that it rendered him an unsuitable person for registration. The reliance on this contravention was limited to its relevance on the need to impose conditions.
We agree, as the Board contends, that practising whilst holding only non-practicing registration is a serious matter. However, assuming for the purpose of these reasons that what the Practitioner did amounted to the practice of medicine within the meaning of the National Law, in our view this evidence does not, either on its own or in combination with other evidence, warrant the imposition of conditions on his practice in the circumstances as we have found them.
Additionally, the Board failed to articulate a connection between this conduct and any of the conditions that it sought to impose on the Practitioner's medical practice.
The Board submitted that conditions may be warranted if the Practitioner was confused as to what medical practice involved. However, this evidence goes to the Practitioner's understanding of what medical practice did not involve and not to any aspect of his practice of medicine.
Correct and Preferable Decision
It does not appear to be in dispute by the Board that it has not previously imposed conditions on an application for general registration based on evidence of the Practitioner's suitability arising from incomplete Part 8 proceedings (or proceedings substantially equivalent to those proceedings). However, the fact that a power has not previously been used does not mean that it cannot be used in an appropriate case. Ultimately, the Practitioner did not suggest that. However, the Practitioner submitted, as we understood it, that an appropriate case would be limited to one where a serious risk to public health and safety arose from the information before the Board; that is the circumstances were akin to circumstances where it was appropriate to take immediate action under s 156 of the National Law.
Plainly there must be some sufficient factual basis for the imposition of conditions as 'necessary' or 'desirable'.
In our view, when relying on incomplete Part 8 proceedings against a practitioner, what will be sufficient will vary depending on the seriousness of the risk that has been identified and the degree of evidence in support of any risk that has been identified.
This view is consistent with the existence of the process of immediate action under s 156 of the National Law. Under that section, in an appropriate case, a board may suspend, or impose conditions on, a registered practitioner without being positively satisfied that conduct has occurred, where the Board reasonably believes that a practitioner's conduct poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety: see Medical Board of Australia v Adams [2023] WASCA 41 at [93], Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513 at [23], Lee and Medical Board of Western Australia [2022] WASAT 28(Lee) at [73].
If a board is not satisfied that a registered practitioner's conduct poses a serious risk to public health or safety, the Board must follow the other processes under Part 8. Of those, proceedings before a panel, under s 182, or a tribunal, under s 193, will occur after a hearing, where findings of fact about the practitioner's conduct must be made before action may be taken: see s 191(1) in relation to a panel and s 196(1) in relation to a tribunal.
Under s 178 of the National Law, a board may impose conditions after inviting the practitioner to make submissions (equivalent to the process under s 81 and s 82), on the basis, in particular, that the practitioner's conduct may be unsatisfactory. However, those conditions may only be imposed if the board is satisfied that the matter does not warrant referral to a panel or require referral to a tribunal: that is where the board has reached a conclusion about the level of seriousness of the alleged conduct on the basis of the evidence before it. This requires the board to have formed some conclusions about what the practitioner's conduct was.
The Board submitted the proposed conditions were not onerous or arduous. However, that is not the test. The test is whether the conditions are necessary or desirable in the circumstances.
As we understood it, the Board did not ultimately submit that the conditions were necessary to render the Practitioner suitable for registration. In our view, in order for us to make that finding, we would first need to make a finding that, by reason of the conduct relied on by the Board, the Practitioner is not a fit and proper person for general registration or that he is unable to practise the profession competently and safely, before finding the Conditions could overcome that unsuitability. That in turn would require us to make findings on the balance of probabilities on the evidence before us about the merit of the allegations made in Notifications 1 to 5 and the Assessors' Report, which the Board did not seek to prove.
Rather the Board relied on the submission that conditions were necessary or desirable to guard against the risk that the Practitioner may be unable to practise the profession competently and safely, or that he may be some risk to persons by reason of his practice, arising from a concern that the matters raised in the Notifications and the Assessors' Report may have merit.
On the evidence before us we are unable to draw that conclusion. In our view the evidence does not allow for a finding that conditions are either necessary or desirable.
We accept that the Board could have regard to incomplete Part 8 proceedings, or their equivalent, in determining at the time of granting registration whether conditions on a practitioner's practice were necessary or desirable. However, such proceedings potentially fall in a wide range from the initial assessment of a complaint, through to a finding by a performance review panel, and ultimately, to the referral of the matter to a relevant tribunal for hearing, with statements and expert opinion evidence obtained. In other words, the allegations that are the subject of the incomplete process may be supported by a great deal more evidence than in this case where the proceedings under Part 8 of the National Law (New South Wales) stopped at an early stage.
In relation to Notifications 1 to 5, the Board relies on the allegations contained in the notification forms (or the oral evidence of what that notification says in the case of Notification 4). None of those notifications have yet been substantiated against the Practitioner and, as we have said, the Board has not attempted to do so in these proceedings.
AHPRA has obtained the results of the investigations of the Medical Council and the HCCC and conducted its own investigations. However, the results of those inquiries were not led in evidence. In addition, it appears from the evidence that expert opinion has not yet been obtained about the merit of any of Notifications 1 to 5 which concern the Practitioner's medical practice.
There is no suggestion that the concerns raised about the Practitioner's conduct were serious enough to warrant immediate action if he had held general registration. On the evidence, neither the Medical Council or the HCCC commenced immediate action in relation to Notifications 1, 2 or 3, of the Assessors' Report. The only comment we have seen in relation to Notification 5 was that there was insufficient information to form a view about the Practitioner's professional performance and further investigation was necessary to accurately assess any risk associated with him. We have no information about any assessment of Notification 4.
The critical opinions in the Assessors' Report are of greater weight than the contents of Notifications 1 to 5. However, the Assessors' Report was prepared after a day's review of the Practitioner's records, where it was the first step towards a hearing by a PRP, at which the Practitioner would be given the opportunity to respond to the criticisms of his practice, as the Assessors were aware. As we have said, the Assessors were not called to give evidence, and were not cross‑examined.
The Practitioner has, in his evidence, provided answers for the criticisms of his conduct and was largely unchallenged in that evidence. As we have said he impressed as an honest witness, and we have found his explanations to be cogent, without making any final determination on the evidence (given the lack of evidence adduced by the Board).
In our view, these considerations reduce the weight that can be given to either the Notifications or the Assessors' Report.
In addition, upon the analysis in the reasons above, in our view the criticisms in the Assessors' Report are, in fact, reasonably limited in scope.
As we have said, we do not accept the submission that the Practitioner deliberately changed his registration type, or the location of his principal place of practice, to avoid investigation. Accordingly, there is no basis for inferring in support of the Board's concerns about the Practitioner that, by doing so, the Practitioner understood there was some merit in the notifications that had been received against him to that date, even had he not given detailed evidence supporting the contrary conclusion.
In addition, we have not accepted that the Practitioner's conduct since he obtained non-practicing registration supports the Board's concerns about his practice in any general way.
In the context of all the evidence before us and the findings we have made, we consider that the disputed allegations before us are insufficient to support a finding that conditions are necessary or desirable.
Further, in our view, the conditions the Board seeks us to impose do not appear to be designed to ensure health services are provided safely (in accordance with guiding principle in s 3(3)(c)), or that the Practitioner practises in a competent or ethical manner (in accordance with the objective in s 3(2)(a) and (e)), or to minimise any perceived risk to patient safety. Rather the conditions appear designed to ensure oversight of the Practitioner's practice that might identify issues in his practice supporting the concerns raised by Notifications 1 to 5 and the Assessors' Report, after the fact.
In particular, the condition as to the approval of the place of practice is said to arise from the Board's expressed concerns about the Practitioner's timely provision of information about his practice to regulatory authorities, about which the evidence is limited and does not reflect on patient care. There is no evidence to support a finding that the Practitioner has performed surgery in a location where he does not have admission rights to a hospital, which would justify a condition that he be required to do so. The proposal for mentoring would appear to have little utility in circumstances where there has been no finding of error on the Practitioner's part. For the same reason, there would appear to be little utility in conducting an audit with the express purpose being to 'objectively assess whether the Practitioner has implemented learnings from the regulatory process' or to assure the Board that 'he is actively addressing the identified concerns' or mitigate any risk as stated in the Decision. There is, in addition, no persuasive evidence before us that the Practitioner has any relevant lack of insight, or that his medical record keeping is deficient.
There may be circumstances where unproven allegations warrant the imposition of conditions on practice before those allegations have been tested, because of the level of seriousness of the allegation and the cogency of the evidence in support of the allegation. However, in our view, on close analysis of the evidence before us, the allegations against the Practitioner do not warrant such action on the facts of this case.
Accordingly, we have determined that the Board's decision must be set aside and that the Practitioner be granted general registration without conditions.
This decision does not, of course, preclude the Board from pursuing the issues raised in the Notifications and the Assessors' Report under Part 8 of the National Law.
Orders
The Tribunal orders:
1.The respondent's decision to grant the applicant general registration as a medical practitioner subject to conditions is set aside.
2.The applicant is granted general registration as a medical practitioner without conditions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GH
Associate
16 JULY 2024
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