Tolis v Medical Board of Australia

[2023] SASC 69

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

TOLIS v MEDICAL BOARD OF AUSTRALIA

[2023] SASC 69

Judgment of the Honourable Justice Nicholson  

11 May 2023

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS

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

Appeal against an order of the South Australian Civil and Administrative Tribunal.

The appellant has appealed against an order prohibiting them from providing any health service for seven years, pursuant to subsection 196(4)(b) of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA). The appellant seeks orders to the effect that the order is set aside or varied so that the appellant can be permitted to provide naturopathy services.

Held:

1.      The process errors asserted by appeal grounds 1, 2 and 3 have not been established.

2.The making of the prohibition order was well within the discretion of the Tribunal; it cannot be seen as unreasonable or plainly unjust. Appeal ground 7 also fails.

3.      Appeal dismissed.

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) ss 193, 196, 196(4)(b), sch 2; Health Practitioner Regulation National Law (South Australia) (Amendment of Law) Regulations 2017 (SA); South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 33, 60(2), 71(3), 71(4), referred to.
Bhoola v Optometry Board of Australia [2022] SASCA 20; House v The King (1936) 55 CLR 499; Marin v Chiropractic Board of Australia [2020] SASCFC 74; Nadkarni v Medical Board of Australia [2022] WASCA 109; Northern Territory v Griffiths [2019] HCA 7; Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47, considered.

TOLIS v MEDICAL BOARD OF AUSTRALIA

[2023] SASC 69

Appeal to a Single Judge: Civil

1. NICHOLSON J: The appellant, formerly a registered general medical practitioner, has appealed against an order made by the South Australian Civil and Administrative Tribunal (the Tribunal) prohibiting him from providing any health service for a period of seven years from 9 August 2022. The prohibition order was made pursuant to subsection 196(4)(b) of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the National Law).

2. On 9 August 2022, following a successful complaint by the respondent, the Medical Board of Australia ordered as follows.

   1. Pursuant to subsection 196(1)(b) of the National Law, [the appellant] has behaved in a way that constitutes professional misconduct.

   2.Pursuant to subsection 196(2)(a) of the National Law, [the appellant] is reprimanded.

   3.Pursuant to subsection 196(2)(e) of the National Law, [the appellant’s] registration is cancelled.

   4.Pursuant to subsection 196(4)(a) of the National Law, [the appellant] is disqualified from applying for registration as a registered health practitioner for a period of seven (7) years.

   5.Pursuant to subsection 196(4)(b) of the National Law, [the appellant] is prohibited from providing any health service for a period of seven (7) years.

   6.[The appellant] is to pay the [respondent’s] costs of and incidental to these proceedings in a sum to be agreed or assessed.

   7.Pursuant to subsection 60(2)(g) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) the publication of the name of or any material tending to identify any patient referred to in the documents or evidence before the Tribunal in this matter is prohibited.[1]

   [1]     SACAT Case 2019/SA003161 (Senior Member Ms McEvoy, Member Dr Moy and Member Dr Cherry, 9 August 2022) 15.

3. The appeal is confined to order 5 (the prohibition order).  There is no challenge to orders 1 to 4, 6 or 7.  The appellant seeks orders to the effect that the prohibition order is set aside or varied such that, in practical terms, the appellant would be permitted to provide “naturopathy services”.

   Grounds of appeal

4. The grounds of appeal, set out in the notice of appeal, are as follows.

   1. The Tribunal erred in that it failed to adequately grapple with (i.e., identify and consider) the question of “risk” in the context of the particular circumstances of the case before it, having regard in particular to the nature of the professional misconduct and the [appellant’s] proposal to provide naturopathy services.

   2. The Tribunal erred in that it failed to properly identify and consider how and/or why the prohibition order, in addition to the orders for cancellation and disqualification (“the primary orders”), was a necessary and proportionate aspect of sanction in the context of the facts of the case before it, having regard in particular to the intrinsic differences between practising as a GP and providing naturopathy services.

   3. The Tribunal erred in that it misapplied the principle falling from the cases of Marin and Ratcliff (viz. that a prohibition order may be necessary in order to prevent a “back door” subversion of the primary orders), having regard to the particular circumstances of the case before it.

   4. The Tribunal erred in its findings, characterisation, and/or use of the evidence about the [appellant’s] disciplinary record and other material presented by the Respondent that was said to include “reflection on [the appellant’s] professional medical practice”.

   5. The Tribunal erred in its findings, characterisation, and/or use of the evidence about the [appellant’s] “dishonest and misleading” conduct, competence, reflection, acknowledgement, insight, contrition, remorse and/or rehabilitation generally.

   6. The Tribunal erred in that it failed to properly consider and/or impose a prohibition order limited in scope and/or shorter than the disqualification period.

   7. The sanction, having regard to Order 5, is disproportionate and/or is manifestly excessive.

5. In his written submissions on appeal, the appellant abandoned grounds 4, 5 and 6.

   Background

6. The appellant was first registered as a medical practitioner on 1 January 1998 and thereafter held general and specialist (general practitioner) registration.  The complaint was filed with the Tribunal by the respondent on 18 August 2018, pursuant to section 193 of Schedule 2 to the National Law.  The respondent alleged that the appellant had engaged in professional misconduct, within the meaning of section 5 of Schedule 2 of the National Law with respect to his treatment of patients between 2013 and 2018.  According to the particulars of the complaint the appellant had:

   ·failed to assess patients and formulate diagnoses appropriately;

   ·failed to keep adequate records;

   ·arranged for tests to be taken that were unnecessary;

   ·prescribed medication that caused harm or contributed to causing harm;

   ·prescribed peptides and anabolic androgenic steroids;

   ·prescribed medications for the purpose of countering the effect of anabolic androgenic steroids thereby facilitating the abuse of those medications; and

   ·breached the Good Medical Practice: A Code of Conduct for Doctors in Australia March 2014.

7. On 28 May 2020, the respondent filed an amended complaint with the Tribunal which alleged that the appellant had engaged in professional misconduct by breaching conditions imposed with respect to his registration on 14 December 2018, in relation to three patients.  In due course, the Tribunal found that the appellant had breached a condition on his registration, by prescribing Tramadol[2] to each of the three patients.

   [2]     An opioid pain medication used to treat moderate to severe pain.

8. On 18 January 2021, in reply to the amended complaint, the appellant filed written admissions and admitted to engaging in professional misconduct with respect to eleven sample patients who were representative of the allegations alleged with respect to 33 patients.  On 16 July 2021, the appellant filed an interlocutory application seeking to retract the admissions made on 18 January 2021.  The Tribunal, ultimately, dismissed the appellant’s application to withdraw the admissions.

9. On 1 October 2021, the substantive aspect of the complaint was determined by the Tribunal.  It concluded that the appellant had engaged in professional misconduct pursuant to subsection 196(1)(b)(iii) of the National Law.[3]This finding concerned inappropriate prescribing and breaching conditions previously imposed with respect to the appellant’s registration as a medical practitioner.[4]  The Tribunal was satisfied that the respondent’s complaints, supported by expert evidence, had been established.[5]  The Tribunal determined that it would conduct a further hearing concerning the issue of whether or not the appellant was a fit and proper person to retain his registration as a medical practitioner.[6]

   [3] Tribunal Reasons of 1 October 2021 [51].

   [4] Tribunal Reasons of 1 October 2021 [46].

   [5] Tribunal Reasons of 1 October 2021 [28].

   [6] Tribunal Reasons of 1 October 2021 [58].

10. The respondent sought the further sanction that the appellant be prohibited for a period of seven years from providing any health services, including naturopathy.  The appellant opposed such a prohibition order.  This and other matters were ventilated at a hearing on 27 April 2022 (the sanction hearing).  As a consequence, on 9 August 2022, the seven orders set out at the beginning of this judgment, including the prohibition order, were made.[7]

    [7]     Tribunal Reasons of 9 August 2022, Orders of the Tribunal (7), 15-16.

11. On 8 September 2022, the appellant filed a notice of appeal to a single Judge of this Court against the prohibition order made by the Tribunal on 9 August 2022.

    
    

    The appeal was instituted within time, in accordance with subsection 71(3) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act).

    The nature of the appeal and general principles

12. The Tribunal sat in its original jurisdiction pursuant to section 33 of the SACAT Act, and sections 193 and 196 of the National Law.  Pursuant to section 71 of the SACAT Act, an appeal against a decision of the Tribunal lies to a single Judge of the Supreme Court and is to be by way of rehearing.

13. According to subsection 71(3b) the appeal court may draw inferences of fact from evidence or material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it.  Pursuant to subsection 71(4) the appeal court may:

    (a)affirm the decision appealed against; or

    (b)vary the decision appealed against; or

    (c)set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the court considers appropriate.

14. In this case, the aspects of the Tribunal’s decision, the subject of the appeals, involved the exercise of its discretion to impose a sanction for proved professional misconduct by a practitioner.  An appeal from such a decision is governed by the principles articulated by the High Court in House v The King.[8]  There will be appellable error where the Tribunal has acted upon a wrong principle; allowed extraneous or irrelevant matters to guide or affect its decision; has mistaken the facts; has not taken into account a material consideration; or where such an error cannot be identified, nevertheless has reached a decision that is unjust or wholly unreasonable.  An appeal court is not permitted to substitute its own view of the matter in the absence of any such error of reasoning or error of outcome having first been identified.

    [8] (1936) 55 CLR 499.

    Appellant’s submissions

15. The following is taken from paragraph [5] of the appellant’s written submissions.

    5. The grounds of appeal are several but effectively allege,

    5.1.    process errors, namely that the Tribunal erred in failing to properly articulate the risk the appellant posed (Ground 1), then having made that error failed to properly apply s196(4) of the National Law consistent with the principle of parsimony as articulated in Yeo and Adam (Ground 2), and consistent with the proper purpose for the imposition of a prohibition order (Ground 3).

    5.2.    an outcome error, in that the order that the appellant be prohibited from engaging in the practise of any “health service” is manifestly excessive, that is, is unreasonable or plainly unjust (Ground 7).

    5.3.    Grounds 4, 5, and 6 are abandoned.

    Process errors: ground 1, 2 and 3

16. Appeal grounds 1, 2 and 3, being the asserted process errors are set out earlier in these reasons.

17. The appellant submits that the Tribunal erred in failing to properly articulate a relevant risk that the appellant posed.  The starting point is the principle of parsimony, namely that “any sanction imposed should be of the minimum force necessary to achieve a degree of protection of the public which the Tribunal believes necessary”.[9]  This is reflected in Schedule 2, Part 3A, subsection 2(d) of the National Law:

    (2) The other guiding principles of the national registration and accreditation scheme are as follows:

    …

    (d)     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 and are of an appropriate quality.

    [9]     Optometry Board of Australia v Bhoola (No 2) [2020] SACAT 47, [11].

18. The appellant submits that only by precisely identifying and articulating the risk posed, can the Tribunal determine what prohibitions, if any, are the minimum necessary to protect the public and the profession;[10] the Tribunal did not do this.[11]

    
    

    The appellant contends that the findings made by the Tribunal were only conclusory as to the appellant’s personal characteristics and did not identify any risk posed to the public consistent with the Tribunal’s reasons delivered on 1 October 2021.[12]

    [10] Appellant’s written submissions [49].

    [11] Appellant’s written submissions [51].

    [12] Appellant’s written submissions [53].

19. The Tribunal concluded that, without the prohibition order, the appellant likely would continue to present a risk if he provided health services to naturopathy patients,[13] but made this finding without precisely articulating the risk posed.[14]  The appellant submits further that the skills required for the practice of medicine are different in nature to the skills required for the practice of naturopathy.  Any risk posed was addressed by removing his ability to prescribe.[15]  This would be sufficient to ensure that the appellant would not be in a position to practise medicine “by the back door” through his proposed practice of naturopathy.[16]

    
    

    The cancellation and disqualification orders completely addressed any relevant risk to the public.[17]

    [13] Tribunal Reasons of 9 August 2022 [90].

    [14] Appellant’s written submissions [59].

    [15] Appellant’s written submissions [67].

    [16] Appellant’s written submissions [68].

    [17] Appellant’s written submissions [69].

20. The appellant submits that the Tribunal failed to properly apply the principle of parsimony.  It misapplied subsection 196(4) of the National Law by imposing a sanction which was more than was necessary to protect the public.[18]

    [18] Appellant’s written submissions [74].

    Outcome error: ground 7

21. In support of the alleged outcome error in appeal ground 7, that the prohibition is disproportionate and/or manifestly excessive, the appellant relies essentially on the same arguments.

22. The appellant submits that the decision to impose the prohibition order is self-evidently “unreasonable” or “plainly unjust”.[19]  The starting point is that the appellant has accepted cancellation of his registration and disqualification from applying for registration for a period of seven years,[20] which demonstrates his acceptance of and insight into the seriousness of his conduct and the need for significant, albeit appropriate, sanctions.  However, the prohibition order in respect of the appellant is so severe as to be unreasonable and plainly unjust, given the lack of connection between the appellant’s risk profile and his proposed practice of naturopathy.[21]

    [19]   Northern Territory v Griffiths [2019] HCA 7, [235] (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ); Nadkarni v Medical Board of Australia [2022] WASCA 109; Bhoola v Optometry Board of Australia [2022] SASCA 20.

    [20] Appellant’s written submissions [78].

    [21] Appellant’s written submissions [89].

    Respondent’s submissions

23. The respondent’s submissions focus on the Tribunal’s ultimate finding that the appellant is not fit to be a medical practitioner, such that he ought to be prohibited from providing health services.[22]  The Tribunal found defects in the appellant’s “qualities of character and trustworthiness”.  These were evident from the appellant’s failures to properly assess and treat patients.  Further, there had been the deliberate disregard of limits previously imposed on the appellant’s practice.  The respondent contends that the Tribunal’s findings of bad character and lack of trustworthiness meant that the appellant presented a similar risk to members of the public who might consult the appellant as a naturopath.[23]

    [22] Respondent’s written submissions [4].

    [23] Respondent’s written submissions [5].

24. According to the respondent, the appellant’s character flaws, as found by the Tribunal, were not confined to his prescribing of medication to patients.[24]

    Further, aspects of the deficiencies in his knowledge, integrity and character were revealed by his prescribing for patients – but they do not arise from prescribing and nor can they be sensibly confined to it. His prescribing activities demonstrated a practitioner that was willing to place his patients at risk on the basis of unproven treatments. It further demonstrated a practitioner that in fact harmed them by the adoption of those treatments. But that willingness to place his patients at risk of harm is characteristic of him – as demonstrated no less than by his consultation with patients while knowing he was infected with COVID-19. All of that bears equally on the provision of “health services”.

    The Tribunal’s findings of fact as to aspects of the appellant’s character and consequential unfitness not only to practise medicine but also to provide health services more generally, are relied on by the respondent as a complete answer to the appellant’s contentions on appeal.  Further aspects of the respondent’s submissions which, in all material respects, I accept, are reflected in my conclusions in the following section.

    [24] Respondent’s written submissions [6].

    Consideration and resolution

25. Subsection 196(4) of the National Law empowers the Tribunal to take further action by making a “prohibition order” which operates apart from the cancelling of a health practitioner’s registration.  The Tribunal has power to:

    (a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

    (b) prohibit the person, either permanently or for a stated period, from doing either or both of the following—

    (i)      providing any health service or a specified health service;

    (ii)     using any title or a specified title.

    A “health service” is defined in Schedule 2 of the National Law and includes services provided by naturopaths.

    health service includes the following services, whether provided as public or private services—

    …

    (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists;

1. An explanatory note referable to amendments recently made to subsection 196(4)(b) addressed the rationale for the provision.[25]

   To implement the first part of the review's recommendation, the Bill amends section 196(4)(b) to allow a responsible tribunal to issue a prohibition order to prohibit a person from providing any health service or a specified health service or using any protected title or a specified title (see clause 36). The amendments to section 196(4)(b) also clarify that a prohibition order may be for a stated period or may be permanent. The approach in the Bill aligns with section 149C(5) of the Health Practitioner Regulation National Law (NSW). The revised wording provides greater flexibility for responsible tribunals, particularly to make appropriate orders where a person is not a fit and proper person to continue providing any kind of health service.

   (Emphasis added)

   [25]   Health Practitioner Regulation National Law (South Australia) (Amendment of Law) Regulations 2017, 19 December 2017, 5158.

2. In Marin v Chiropractic Board of Australia,[26] Kourakis CJ observed that, with reference to the prohibition order before him, that it was made “to make more effective the cancellation and disqualification orders”.  The Chief Justice explained:

   … If order 5 were not made, Mr Marin may have been free to provide, for example, massage or naturopath health services, despite the cancellation of his registration as a chiropractor, because under the National Law a practitioner need not be registered to provide those services.  The description of the proscribed health services by reference to the use of Mr Marin’s chiropractic skills is problematic but necessary in the absence of any delineation of the scope of practice of a health practitioner.

   A prohibition order can be made preventing a practitioner from performing not only the same services that are the subject of complaint, but also, prohibiting a different service.  As the respondent submits, this is more likely to be necessary when a practitioner is found not to be “fit and proper”.

   [26] [2020] SASCFC 74, [44] (Kourakis CJ).

3. The respondent asserts that the complaint was not limited only to prescribing. The respondent’s submissions include reference to Professor Gary Wittert’s two reports, which were before the Tribunal.[27]  The first report included patient-by-patient summaries of the treatment provided, with Professor Wittert’s opinion on the adequacy or inadequacy of the treatment. Professor Wittert’s supplementary report was directed to the issue of harm.  Examples of harm to patients caused by the appellant’s treatment included liver damage, kidney damage, gynaecomastia, hypertension and structural cardiac abnormality.[28]

   [27] Respondent’s written submissions [43].

   [28] Respondent’s written submissions [46].

4. At the sanction hearing on 27 April 2022, the appellant conceded and accepted that his conduct rendered him not fit and proper to hold registration as a health practitioner.[29] However, the appellant maintained opposition to the prohibition order which had the effect of precluding him from practising as a naturopath, which did not require such registration.

   [29]   Tribunal Hearing on 27 April 2022, transcript p 21-23.

5. The appellant’s previous disciplinary history is relevant.  In December 2009, the Medical Professional Conduct Tribunal (as it was then called) found.[30]

   The unprofessional conduct admitted by the Respondent is serious. The repeated nature, the neglect of his medico-legal patients makes that aspect of his conduct particularly serious. Steps taken by the Board in 2005 and 2006 to protect those patients have proved unsuccessful. They remained unsuccessful right up to the time of judgment being delivered in this matter. There has been a complete disregard of the Board’s authority by the Respondent…

   In late 2015, the appellant was dealt with by a Performance and Professional Standards Panel for inappropriate supplying without the valid authority from the Drugs of Dependence Unit, as well as for treating family members.[31]

   [30]   Appeal Book 2407, [42].

   [31] Respondent’s written submissions [55].

6. It is apparent from the appellant’s disciplinary history, including his conduct the subject of the present proceedings, that the appellant is not a fit and proper person to be registered as a health practitioner.  The Tribunal was correct to make such a finding.  Such a finding was inevitable given the evidence advanced by expert psychiatric witnesses, Dr Lim and Dr Mills.

7. The Tribunal had before it evidence concerning the scope of the practice of naturopathy.  I agree with the respondent’s submission that such practice involves “diagnosis and treatment, clinical work, public health, pharmacology among other matters”.[32]  The Tribunal had evidence before it concerning the potential risk to patients if the appellant were to practise as a naturopath, such as in the context of naturopaths working alongside general practitioners.  The following response from Dr Lim when asked a question by Mr Andrew Forbes, solicitor for the respondent, in the Tribunal proceedings is telling.[33]

   Mr Forbes: The college talks in terms of naturopaths are to work along with GPs. So in other words, if it gets outside the scope of what a naturopath does, the patient gets handed on to a GP. Isn’t that where the risk lies? In other words, because of his medical training, [the appellant] is going to step in and find it hard to say no to a patient, isn't he?

   Dr Lim: Based on my assessment of his personality, he is going to have – experience difficulties with refraining from crossing those boundaries.

   [32] Respondent’s written submissions [63].

   [33]   Tribunal Hearing on 26 April 2022, transcript p 28.

8. The Tribunal accepted Dr Lim’s evidence concerning the appellant’s risk if allowed to practice as a naturopath.[34]

   Dr Lim indicted she was unable to comment specifically in relation to any practice of naturopathy in which [the appellant] might engage. However, she expressed the view that, broadly speaking, dysfunctional personality traits apply over different aspects of a person’s life, and if [the appellant] were practising as a naturopath, those same personality traits as impacted on his practice of medicine were likely to come into play, although she did not know how they might be manifested in that context. However, she believed it was always a risk [the appellant] would seek to provide medical services, although she could not speculate on the extent or significance of such risk. She believed it was a real risk because of [the appellant’s] personality traits, including difficulties in avoiding crossing boundaries, and she expressed the view this presented a risk because of [the appellant’s] medical training.

   [34]   Tribunal Reasons of 9 August 2022 [25]-[26].

9. I accept the respondent’s submission that, contrary to the appellant’s first ground of appeal to the effect that the Tribunal erred in failing to adequately grapple with the question of risk, the “risk” posed by the appellant if permitted to provide health services, including naturopathy, is made clear in the Tribunal’s findings.[35] 

   It is our view this proposed order prohibiting [the appellant] from providing any health service for seven years should be made. It is our view [the appellant] has demonstrated in his disciplinary history that he is either prepared to breach conditions placed on his registration or careless about doing so, and he demonstrates a lack of awareness of relevant boundaries: we note both Dr Lim and Dr Mills commented on the difficulty of [the appellant] recognising and complying with applicable boundaries, and his disciplinary history reflects this. These considerations lead us to conclude that without a prohibition order [the appellant] is likely to continue to present a risk if he provides health services to naturopathy patients.

   We do not accept [the appellant’s] assurance he would be a safe naturopath because of his medical knowledge and training: we are satisfied that, despite his medical knowledge and training, [the appellant] is not a safe medical practitioner, ands [sic] indeed, he has conceded this in his admissions and his acceptance that his conduct as a medical practitioner amounts to professional misconduct.

   Such a prohibition order would prevent [the appellant] from practicing naturopathy and we appreciate he intended to replace his medical practice with this practice; that is, this would be his means of earning his income. Preventing a person from earning income from their chosen area of work for which they have trained is a very serious and significant action, but we are satisfied that it is appropriate and proportionate to the risk [the appellant] has presented to his patients and to the public, as well as to the medical profession. [The appellant] has demonstrated over a lengthy period that he is not prepared to review or modify his conduct despite repeated disciplinary proceedings and adverse findings, and has displayed no relevant insight or contrition concerning the risks he has presented and the harm caused to patients. It is our view, supported by Dr Lim’s evidence, is very possible [the appellant] will continue to conduct himself and any naturopathy practice with the same disregard for regulatory or disciplinary requirements as he has demonstrated in his medical practice in the past, and that risk can no longer be tolerated, given the Tribunal’s findings and [the appellant’s] admissions in this matter.

   We note in particular the comments of Kourakis CJ in Marin, and of VCAT in Ratcliff, where they respectively emphasised the importance of supporting the primary orders sought to be put in place: namely, the cancellation and disqualifications orders. We accept the view expressed in those cases that failure to support such orders with a prohibition order can enable the undermining of the effectiveness and reputation of the regulatory system, as a disqualified medical practitioner could provide similar health services to a similar cohort of patients (many of them vulnerable for a variety of reasons), by the provision of other health services such as naturopathy.

   [35]   Tribunal Reasons of 9 August 2022 [90]-[93].

10. I agree with the following submission by the respondent.[36]

    It follows that having identified the risk, and in the way it had (which findings are not subject to appeal) there was equivalently no failure by the Tribunal to apply the principles found in the Objects in s 3(1) and s 3(3)(c) of the National Law to make an order that “was necessary” for the purposes of a sanction under s196 of the National Law (to protect the public and maintain confidence) – and no greater order (ground 2). That followed because the inherent risks posed by his lack of fitness justified an order of equivalent duration to the order of his disqualification as a health practitioner. There was no error in approach by the Tribunal to the reasons for making the order because the risk, as explained, is not confined to prescribing (ground 3).

    (Footnotes omitted)

    [36] Respondent’s written submissions [71].

11. I also accept the respondent’s contentions that every health service has, as its core value, the advancement of the best interests of the patient in the provision of that service.  Issues of character, skill and integrity, as demonstrated in the work as a health practitioner, have equivalent significance to health services generally.[37]

    [37] Respondent’s written submissions [76].

12. None of the Tribunal’s findings of fact have been challenged.  The Tribunal’s reasons for the making of the prohibition order, based on those findings, are comprehensive and compelling.  Plainly, the Tribunal understood the harsh effects such an order would have on the appellant and exercised necessary caution before making the order.  The process errors asserted by appeal grounds 1, 2 and 3 have not been established.  The Tribunal has not relied on irrelevant considerations, or failed to rely on or take account of relevant considerations.  Appeal ground 7 also fails.  The making of the prohibition order on the facts here was well within the discretion of the Tribunal; it cannot be seen as unreasonable or plainly unjust.  Indeed, a failure to make the order might well have attracted a contention of manifest inadequacy.

13. The appeal is dismissed.  I will hear the parties on the question of costs.