Zhao v Medical Board of Australia

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03602

DR ANNIE BIN BIN ZHAO	Applicant
v
MEDICAL BOARD OF AUSTRALIA	Respondent

---

JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 November 2021
DATE OF JUDGMENT:	23 November 2021
CASE MAY BE CITED AS:	Zhao v Medical Board of Australia
MEDIUM NEUTRAL CITATION:	[2021] VSC 763

---

MEDICAL PRACTITIONERS — Medical Board of Australia — 13 allegations of ‘professional misconduct’— Admissions made and determinations proposed – Whether conduct comprises ‘professional misconduct’ within the meaning of paragraph (c) of the definition of ‘professional misconduct’ – Determinations stage – Oral evidence not given, but ‘reflective letter’ proffered – Issue of ‘prior notification’ — Issues of ‘aggravation’ and insight – Suspension and conditions affecting return to practice – Procedural fairness – Conduct of proceeding below— Application for leave to appeal on a question of law — Health Practitioner Regulation National Law Act 2009 (Vic), definition of ‘professional misconduct’ & s 193 & 196 - Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1) – Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 considered – Proceeding dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	SJ Moloney with E Zauner	Kennedys (Australasia) Partnership
For the Respondent	BW Jellis	Minter Ellison

HIS HONOUR:

A Introduction

The applicant qualified as a medical practitioner in China and practised in that country between about 1992 and 1997. In 1997, she moved to Australia and studied medicine at the University of Melbourne, graduating in 2001. In December 2001, the applicant obtained general registration as a medical practitioner in Australia.

After completion of her Australian degree and obtaining her general registration, the applicant practiced until about 2008 in positions at the Western Hospital, Ballarat Hospital and the University Hospital, Geelong.

In 2008, the applicant relocated to China and worked for about two years in family medicine. In about 2010/2011, the applicant undertook training in ‘regenerative medicine’ with the American Academy of Anti-Ageing Medicine (‘A4M’). In that context, she worked in a clinical role with ‘World Anti-Ageing’ for about three years.

The applicant returned to Australia in August 2014. Between October 2014 and September 2015 she worked at ‘Epigenix Integrated Medicine’ (‘Epigenix’). She says that she thought that the work at Epigenix was ‘in accordance with A4M training’.[1]
[1]Court Book (‘CB’) 723.

In September or October 2015, the applicant joined the Box Hill Family Clinic, working part-time. That was a ‘large group practice’, although the applicant says that ‘there was little interaction between practitioners’.[2]
[2]CB724.

In September 2016, the applicant joined the Boroondara Medical Centre. She was the only full time practitioner at that clinic. Another medical practitioner attended part time.

In March 2018, the Medical Board of Australia (‘the Board’) received a confidential notification relating to the applicant’s professional conduct. It was alleged, in substance, that the applicant had prescribed testosterone replacement therapy in the absence of conducting appropriate examinations and/or investigations. It was alleged that male patients ‘were being prescribed pharmaceutical injections for body building purposes and “for dealing purposes”’ and that the applicant had received money from male patients to whom she had prescribed testosterone.[3] Among other things, the applicant later asserted that her management of a particular patient was not unethical and was consistent with her training. She also denied ‘inappropriate financial agreements or billing practices’.[4]
[3]CB139.
[4]CB169-170.

The Board undertook an investigation and, in April 2019, took ‘immediate action’ under the Health Practitioner Regulation National Law[5] (‘the National Law’), which ultimately amounted to the Board accepting an undertaking offered by the applicant that, in substance, would permit her to continue to practise under certain specified conditions.
[5]Health Practitioner Regulation National Law Act 2009 (Vic) s 4 gives effect to the Health Practitioner National Law Act 2009 (Qld) in Victoria. ‘National Law’ for the purposes of this judgment is used to refer to both the Victorian and Queensland legislation, as the case may be.

In March 2020, the Board referred the applicant’s conduct to the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The Board came to contend that 13 allegations, taken as a whole, amounted to ‘professional misconduct’. The allegations covered the treatment of 12 different patients over specified periods, some of which spanned several years.

For example, in ‘allegation 1’, ‘professional misconduct’ was alleged in the period 5 March 2015 to 14 March 2018 in respect of the treatment of a patient identified as Mr ZL. It was alleged that the applicant failed to –

(a) provide good patient care; and/or

(b) undertake appropriate assessments and/or investigations; and/or

(c) consider therapeutic necessity; and/or

(d) maintain accurate, contemporaneous clinical records that can be understood by other health practitioners and which detail, amongst other things, relevant details of medication and clinical management,

when prescribing Testosterone, Mesterelone, Human Chorionic Gonadotropin and/or Pregnyl, Exemestane, Clomiphene, Tamoxifen, Letrozole and Anastrozole and/or when otherwise providing treatment.[6]

[6]It should be noted that ‘allegation 13’ related to what might broadly be described as ‘billing irregularities’ in respect of the treatment of Mr ZL. Among those allegations included the contention that the applicant had charged $200 for a consultation in respect of which she had billed Medicare a fee of $37.05. It was contended that there were no clinical records for a consultation with Mr ZL on that date or any information which justified charging Mr ZL $200 (CB428).

Similarly, in ‘allegation 5’, in respect of a patient identified as Mr GB and in the period 12 October 2017 to 23 August 2019, it was alleged that the applicant failed to –

(a) provide good patient care; and/or

(b) undertake appropriate assessments and/or investigations; and/or

(c) develop a suitable treatment plan (including, but not limited to seeking advice from other practitioners or relevant specialists as required); and/or

(d) maintain accurate, contemporaneous clinical records that can be understood by other health practitioners.

It later came to be of significance that allegations in respect of six of the 12 patients related to periods of treatment extending beyond 23 March 2018.

In an agreed statement of facts, findings and proposed determinations,[7] the applicant admitted to the conduct the subject of the 13 allegations and the parties jointly submitted that the conduct, taken as a whole, constituted ‘professional misconduct’ within the meaning of paragraph (b) of the definition of ‘professional misconduct’ in s 5 of the National Law.
[7]CB392-436.

The parties jointly submitted that it was appropriate that –

(a) the applicant be reprimanded pursuant to s 196(2)(a) of the National Law;

(b) the applicant’s registration be subject to an extensive set of specified conditions pursuant to s 196(2)(b) of the National Law; and

(c) the review period for the conditions be three years.

The Board submitted that –

(a) the conduct taken as a whole should also be taken to constitute ‘professional misconduct’ within the meaning of paragraphs (a) and (c) of the definition;

(b) the applicant should be suspended from practice for a period of 12 months; and

(c) specified conditions should take effect when the applicant resumes practice following the period of suspension.

The agreed statement of facts, findings and proposed determinations recorded that the applicant did not agree to the imposition of a period of suspension.

B The Tribunal hearing and determination

The proceeding was heard before the Tribunal on 21 July 2021. The Tribunal was constituted by a presiding judicial member together with two expert medical practitioners. Her Honour described the medical practitioner members as ‘both very experienced expert Panel members of the Tribunal’.[8] Neither counsel disagreed. The applicant was represented by very experienced counsel in the jurisdiction.[9]
[8]Transcript (‘T’) 1 (CB560).
[9]Counsel presently appearing for the applicant is different to counsel who appeared for the applicant below, although I should add that leading counsel presently appearing for the applicant is also very experienced in the jurisdiction.

Shortly prior to the commencement of the hearing, the applicant’s representatives had emailed a ‘reflective letter’ addressed to the Tribunal.[10]
[10]T5 (CB564). The ‘reflective letter’ appears at CB722-727.

In the reflective letter, the applicant stated that she wished to provide ‘reflections’ on her conduct. She stated that she had chosen to do that instead of giving evidence before the Tribunal. Among other things, she said that she was better able to express herself in writing and that she wished for the Tribunal ‘to understand why this conduct occurred’ and to refer to her subsequent education and changes in practice. She said that she was committed to treating patients safely.

In the narrative that followed, the applicant referred to her work history in Australia and China. In that, she referred to her A4M training and work at Epigenix between October 2014 and September 2015. She said that she thought ‘the work at Epigenix was in accordance with A4M training and thus did not highlight or cause me to consider that this type of practice was not in accordance with Australian regulations’.[11]
[11]CB723.

In the first paragraph after the heading ‘my reflection’, the applicant stated –

My prescribing of human growth hormones and androgens that has, in part, led to this matter was based on my overseas training. I now understand that this does not accord with professional standards in Australia. I am now acutely aware that off-label prescribing of androgens and prescribing of androgens on a private script is not permitted under any circumstances. I am now aware that prescribing of these medications can only be done by a specialist following specialist diagnosis of conditions for which treatment with androgens is appropriate and clinically indicated. I understand that where these medications are not clinically indicated, they have the possibility to cause harm to patients and which can give rise to further symptoms which require additional treatment. Such unnecessary treatment can be avoided by appropriate prescribing. Where I am unsure as to the prescribing of such medications, I now feel confident to inform the patient of the possible clinical risks and to offer them referral for specialist management.[12]

[12]CB725.

Thereafter, the applicant referred to education that she had subsequently undertaken, and concluded as follows –

It is a privilege to work as a medical practitioner and I am deeply remorseful for my errors and for not re-educating myself on prescribing regulations when I returned to Australia. I have undertaken this further training and education in a genuine attempt to further explore why my conduct was wrong and to ensure that I do not repeat this conduct in the future.
I am a medical practitioner because I have always wanted to help people. I have chosen to specialise in family medicine in China and general practice in Australia because I believe that general practitioners are uniquely placed to have a positive holistic impact in patient’s treatment outcomes. It is because of this strongly held belief that I committed myself to bettering my practice following this incident and continue to commit myself to learning from this experience in a positive way. I look forward to continuing to put these skills into practice and to assisting my community through general practice.
Thank you for the opportunity to provide my reflections to the Tribunal.[13]

[13]CB726-727.

The presiding member noted the applicant’s ‘perfect right’ not to give oral evidence, but indicated that the ‘reflective letter’ could be thought to give rise to ‘many issues’ that the Tribunal ‘won’t have the opportunity to ask the doctor about now’.[14]
[14]T5 (CB564).

Each counsel addressed the Tribunal concerning the ‘characterisation’ of the admitted conduct.

In that regard, counsel for the applicant submitted, in substance, that it did not really matter under what paragraphs of the definition of ‘professional misconduct’ the Tribunal acted. Counsel submitted that it was ‘absolute semantics’ as, ultimately, ‘it’s misconduct’.[15] That said, counsel submitted that paragraph (c) of the definition was not ‘enlivened’.[16]
[15]T20 (CB579).
[16]T21 (CB580).

Shortly thereafter, and following an adjournment, counsel for the applicant conceded that the admitted conduct also amounted to ‘professional misconduct’ under paragraph (a) of the definition. No further submissions were made concerning paragraph (c).

The Tribunal then turned to consider the ‘proposed determinations’ or, in other words, sanctions.

At that point, counsel for the Board provided the Tribunal with ‘supplementary material’ and stated that the applicant and her counsel were ‘aware of it’. The supplementary material was identified as ‘a prior notification involving Dr Zhao’.[17]
[17]T27-28 (CB586-587).

No objection was taken to the provision of the material. Indeed, the Tribunal took an adjournment to consider it.[18] It seems that the adjournment was 40 minutes in duration.[19]
[18]T30 (CB589).
[19]CB718.

By agreement between counsel, counsel for the applicant then addressed the Tribunal concerning the issue of determinations. Counsel referred to the applicant’s training, qualification and period of practice in China and described that as her ‘foundational, medical and cultural norms’.[20] Counsel thereafter submitted that ‘it was those norms that had directly led to her treating transgressions that are the subject of the matters in front of the Tribunal today’.[21] Counsel submitted that –

She’s reflected upon her conduct and shown insight into her conduct. She’s shown remorse and she’s rehabilitated herself. The issue of determination is not a light issue for the Tribunal to undertake.[22]

[20]T31 (CB590).

[21]T32 (CB591).

[22]T33 (CB592).

In the course of those submissions, counsel referred to the importance of looking to a doctor’s ‘past disciplinary history’ and, in that context, referred directly to the prior notification. In that regard, counsel submitted –

And for want of paraphrasing the issue it relates to the provision of chlorhexidine by mistake into a patient’s eye. The doctor undertook rectifying issues or rectifying systems at her practice and the Board took no further action. Now true it is between 2008 and 2014, Dr Zhao was not in Australia. But Dr Zhao qualified as a medical practitioner in Australia in 2001. And that is the sole totality of her previous disciplinary history. One medical mistake.[23]

[23]T34 (CB593).

Counsel then submitted that, in substance, a suspension of the applicant’s registration would be punitive of the applicant rather than protective of the public. It was said that such punishment would ‘cut across general deterrence’. Reference was then made to the disposition adopted in another case[24] and the conditions proposed in respect of the present case. Counsel drew a parallel with the other case in a setting in which it was said that the cases, generally, show a ‘wide range’ of sanctions ranging from reprimand to disqualification.[25]
[24]Medical Board of Australia v McCombe [2020] QCAT 511.
[25]T36-37 (CB595-596).

In the course of submissions, counsel acknowledged that the Tribunal could order that the applicant be suspended but submitted that in the context of the pandemic and the fact that the applicant was presently in general practice and administering vaccinations it would be more appropriate to impose a fine.[26]
[26]T40 (CB599).

Counsel for the Board also addressed concerning the ‘range’ revealed by reference to other cases. Counsel referred to the submission advanced on behalf of the applicant to the effect that she might be practicing in an area ‘a little outside the mainstream’ and emphasised that the applicant had been registered to practise in Australia for a considerable period of time.[27] In that, the Board stood by its contention that a suspension of 12 months would be ‘entirely consonant with the range’.[28]
[27]T44 (CB603).
[28]T45 (CB604).

In the course of his address, counsel for the Board explained precisely how it was that the Board sought to rely upon the prior notification –

At the outset I simply emphasised this submission, the Board does not submit that the prior notification is of great significance in and of itself. It was obviously a very minor incident. It was an error. The Board took no further action. The respondent cooperated immediately and addressed the notification in a proper way.
The point though to be made about that notification is that – is the timing of it, that the – one of the documents that’s been provided to the Tribunal is a letter from the respondent dated 23 March 2018. And it attaches a medication safety certificate for a course that the respondent completed on 9 March 2018. And it states at point 3 in the letter, ‘I have changed my work processes and those within the practice to ensure that the appropriateness of medications prior to their application and use is double-checked’.
And that’s the point that the Board makes about this prior notification. In and of itself it’s not significant, but the timing of that statement having regard to the current allegations is problematic, because a number of the particulars involving quite serious examples of prescribing without a therapeutic basis occurred after that date. So, it’s a matter of significance in that respect insofar as what it says about a limited amount of education or assertion on behalf of the respondent as to changed practices or steps taken towards rehabilitation in the absence of something that the Tribunal can take comfort from, that gives substance to those matters and addresses any ongoing risks.[29]

[29]T49-50 (CB608-609).

Counsel for the Board then referred to the ‘reflective letter’ as disclosing ‘some insight’ and noted that it was ‘very, very late’ and included assertions of changes to practice and refunds to Medicare. In that regard, however, counsel submitted that –

It’s not accompanied by anything that gives substance to it. It’s not accompanied by an explanation of how processes have changed to avoid this happening in the better [sic: future], it’s not accompanied with evidence of refunding of any of the Medicare matters. It’s not accompanied by the kind of independent reports from supervisors or education providers, which are exactly the kinds of things that were present in a number of the cases where practitioners were not suspended for this kind of conduct.[30]

[30]T51 (CB610).

Another point made by counsel for the Board was that the reflective letter did not include an acknowledgement of the harms or potential harm occasioned to the 12 patients involved.[31]
[31]T52 (CB611).

Counsel also submitted that the assertions made concerning the applicant’s practice and the administration of vaccinations in the time of the pandemic could be given only limited weight as there was nothing before the Tribunal to indicate in what way that might change if the applicant came to be suspended.[32]
[32]T53 (CB612).

Towards the conclusion of counsel’s submissions, the Tribunal noted that it was not apparent, on the face of the documents, how precisely the incident that had led to the prior notification had occurred. Following that, the Tribunal queried with counsel for the Board whether a more extensive suspension than 12 months could be warranted.[33]
[33]T54-55 (CB613-614).

Counsel for the applicant then addressed again. His submissions commenced by reference to an earlier case – Medical Board of Australia v Owen – in which there had also been a prior notification.[34] That led to several questions from the Tribunal concerning the applicant’s prior notification.
[34][2021] SACAT 9 (‘Owen’).

One of the matters raised by the Tribunal was that it was not precisely apparent from the documents how it was that the incident or incidents had occurred. The Tribunal stated –

Isn’t that the same as the example that you’re now raising, Assurances were given, I’ve changed my practices, won’t do this again, and we’re talking inappropriate medications being – having been applied or used and it did happen again, it happened immediately afterwards.[35]

[35]T58 (CB617).

In response, counsel for the applicant addressed the circumstances of the present case and sought to distinguish those events from those relating to the prior notification. Shortly thereafter, counsel also sought to contrast the circumstances of the present case with those apparent in Owen.[36]
[36]T61 (CB620).

In the course of that exchange, the Tribunal clarified that it was sought to understand what it was that the applicant had assured the Board that she had changed. In that regard, the Tribunal indicated that there appeared to be ‘serious issues in relation to insight’.[37]
[37]T59 (CB618).

The Tribunal then identified that the ‘reflective letter’ had left open what the ‘norms’ were that had led to the present errors.[38] In that regard, the Tribunal indicated that it did not consider that a fulsome explanation had been given concerning why the applicant had not had proper notes at the same time as having prescribed medications that could have had serious consequences. In response, counsel sought to advance an explanation, essentially from the bar table.[39]
[38]T60 (CB619).
[39]T63-64 (CB622-623).

In the course of that exercise, the presiding member sought to further clarify the concern of the Tribunal as follows –

I’m sorry again I say, I won’t keep asking the same question. Again, I say does that norm equate to not properly examining the patients, not taking a proper history or documenting that, and inappropriate – not satisfying yourself as to the appropriateness of relevant medications. Is that the norm you’re talking about?[40]

[40]T63 (CB622).

In respect to that request, counsel clarified that reference was being made to the ‘norms’ of ‘prescription’, not ‘documentation’. However, when a further explanation was sought to be advanced by counsel, it fuelled rather than quelled the concerns of the Tribunal. In that regard, the presiding member indicated as follows –

But without having evidence – direct evidence from her and being able – and she’s not. I’m not in any way suggesting that she is obliged to give evidence, but because she hasn’t and because there’s really no fulsome explanation as to her lack of apparent, on the face of it, lack of understanding as to why certain things needed to be documented, even for the sake of a patient wanting to go elsewhere or her suddenly not being available and another doctor taking over. It is so basic.
And even more alarming, and even if she hadn’t taken any notes that she prescribed medication appropriately. And even if she hadn’t applied medication appropriately, she then observed adverse reactions and amended her prescription but she didn’t do any of that. So it would be – it would have been very helpful for her sake, for the tribunal to have had some input as to all of those steps that went so dreadfully wrong.[41]

[41]T64 (CB623).

At the conclusion of that exchange, counsel indicated that specific instructions would be sought as to whether the applicant ‘wants to answer questions of the Tribunal’. In the course of that exchange, counsel referred to the ‘perfect right’ of the applicant not to give evidence, which the presiding member acknowledged in plain terms. That said, the following further exchange occurred –

HER HONOUR: Equally I think I mean I think it’s incumbent to point out where (indistinct) sits with medical experts. And we as a panel have to make an assessment as to - we can’t get into the mind of the doctor. If on the face of it there’s no evidence that gives an explanation or [sic] of extenuating circumstances beyond those which you apparently put before the tribunal, which I still have real problems with, then we have to make findings on that basis. So, it’s just to be fair to the doctor, we’re just alerting her and yourself to what appear to be inadequacies or a silence.
COUNSEL:Yes, I understand that Your Honour. I understand that entirely. It’s a question of whether I seek instructions, whether the doctor wishes to answer those questions and I can seek those instructions. But I caution that lack of giving evidence can only be used to say you cannot be convinced about insight, it can’t go any further than that.[42]

[42]T65 (CB624).

Counsel then requested ’10 minutes’ to which the presiding member replied ‘yes, certainly’ and an adjournment followed.[43]
[43]Ibid.

When the matter resumed, counsel confirmed that the applicant would not give oral evidence.

There then followed what was essentially a final exchange which present counsel for the applicant described in argument as being indicative of the ‘thinking’ of the Tribunal[44] –
[44]T45.

HER HONOUR: Yes. … The current practice, now excuse me if this is already in the materials but, the current practice where the doctor works, what number of doctors does that consist?
COUNSEL:One point five. So it’s doctor Zhao and another practitioner, Dr Shama I believe is the name of the other practitioner. So, there’s 1.5 practitioners.

HER HONOUR: And Dr Zhao works full-time or what does the - - -
COUNSEL:Yes, so Dr Zhao is the full-time practitioner and indeed the partner or the principal of the practice. There’s a reference from the other doctor in the tribunal book - - -

HER HONOUR:        Yes, I agree, yes, that is - yes.
COUNSEL:- - - that shares a part-time doctor a point five so a four sessions per week doctor.
HER HONOUR:        Yes. All right. In fact there were two references and I got the impression that they were both at the practice but - - -
COUNSEL:They are. They are Your Honour. The practice manager and the point five - no three references. The point five and a - from an obstetric and gynaecologist.
HER HONOUR:        Yes, thank you. All right. Is there anything else that you wish to - - -
COUNSEL:No, Your Honour, other than to reiterate that the role of the tribunal is to be protective rather than punitive and we thank you for the time we’ve been afforded.[45]

[45]T66-67 (CB625-626).

The Tribunal made orders and published extensive reasons on 9 September 2021.[46] Among other things, the Tribunal ordered that the medical registration of the applicant be suspended for a period of 12 months. The Tribunal also ordered that the applicant undertake various education during the period of suspension and that the subsequent medical registration of the applicant be subject to various conditions including that –

The Practitioner may resume medical practice, but only within an RACGP accredited general practice of not less than three full time equivalent medical practitioners, including the Practitioner, approved by the Board.

[46]Medical Board of Australia v Zhao (Review and Regulation) [2021] VCAT 1053 (‘Zhao’).

That condition was the most significant of those additional to the suite of conditions that had been proposed to the Tribunal in the agreed statement of facts, findings and proposed determinations.[47]
[47]CB435-436.

In its reasons, the Tribunal referred to the prior notification,[48] particularly at [18]-[19], and in terms with which the applicant presently takes specific issue.
[48]Zhao (n 46) [14]-[19].

The Tribunal also referred to the uncontested expert opinion of Dr Gillian Singleton to the effect that, as the Tribunal found, the applicant had engaged in –

… substantial mistreatment of 12 patients, which in all cases involved prescriptions without a proper therapeutic basis or proper clinical records, exposed the patients to potential significant adverse physical consequences and, in at least one case, continued in spite of an adverse side effect becoming apparent.[49]

[49]Ibid [22].

The reasons referred to the agreed statement of facts, the fact that the applicant had practiced on conditions, an audit report undertaken in respect of the applicant’s practice and the ‘reflections letter’. In respect of the latter, the Tribunal noted that it had expressed ‘serious concerns’ in the course of the hearing in respect of the applicant’s ‘comprehension of her responsibilities as a medical practitioner, under Australian regulation, at the relevant time’.[50]
[50]Ibid [28].

The Tribunal thereafter identified various inadequacies in the ‘reflections letter’ and its concern in relation to the applicant’s ‘insight into her misconduct’ and the assertions made by her counsel in the course of the hearing concerning ‘cultural and medical norms’.[51]
[51]Zhao (n 46) [29]-[33].

The reasons then referred to the written references provided by the applicant, the relevant statutory regime and the applicable standard of proof. The Tribunal then embarked upon a survey of the various other determinations placed before it by the parties. In that context, the Tribunal noted that a determination should ‘in no sense be punitive’.[52]
[52]Ibid [116].

The Tribunal considered that when formulating the appropriate determinations it should take account of the ‘minimal insight and remorse demonstrated’ together with the ‘risk posed by the practitioner’.[53] In that, the Tribunal noted that the public interest in the practitioner remaining in practice had to be weighed against the public interest in protecting patients.[54]
[53]Ibid [119]-[120].
[54]Ibid [125].

The Tribunal thereafter analysed the conduct of the applicant. The Tribunal noted that the parties had agreed that the conduct contained in the 13 allegations, taken as a whole, constituted ‘professional misconduct’ under paragraphs (a) and (b) of the definition.

In respect of an issue in dispute between the parties, namely whether the applicant’s conduct also constituted ‘professional misconduct’ under paragraph (c) of the definition, the Tribunal quoted a recent decision of the Tribunal in which the issue had been considered[55] and itself stated –

Paragraph (c) of the definition of professional misconduct requires an assessment of whether the conduct of the practitioner is ‘inconsistent with the practitioner being a fit and proper person to hold registration in the profession’. Accordingly, the focus is upon the misconduct perpetrated by the practitioner, rather than the practitioner per se.[56]

[55]Medical Board of Australia v Arulanandarajah [2021] VCAT 85 (‘Arulanandarajah’).

[56]Zhao (n 46) [133].

The Tribunal then referred to the respective arguments of the parties and stated –

In our view, the Respondent’s [applicant’s] conduct was clearly not an isolated error or inadvertent; her treatment caused adverse side effects to at least one of the patients; and had the potential to cause more serious harm. The nature of the conduct is fundamental to medical practice; the proper assessment, diagnosis and therapeutically based treatment, which is properly documented, in such a manner that is clear to another practitioner, what has been done and why. None of these fundamental competencies were fulfilled in the case of the 12 patients over an extended period of time. Furthermore, the Respondent [applicant] committed basic billing irregularities. Such conduct also has the effect of seriously undermining public confidence in the competence and integrity of the medical profession.[57]

[57]Zhao (n 46) [138].

In this context, the Tribunal stated further –

An adequate clinical assessment of a patient, which can inform an appropriate prescription of medication is fundamental to competent and responsible medical practice. The expert opinions of Dr Singleton, extracted above, give a damning assessment of the Respondent’s [applicant’s] conduct in both respects. In our view, Dr Singleton’s conclusions also raise serious concerns as to the Respondent’s [applicant’s] competence in and understanding of appropriate clinical assessment and treatment.[58]

[58]Ibid [140].

Notwithstanding the above, the Tribunal had regard, among other things, to the latest audit report, and also acknowledged that the applicant had complied with the conditions imposed by the Board and had admitted to the allegations and particulars. The Tribunal specifically described those latter matters as ‘significant’.[59]
[59]Ibid [141]-[142].

In respect of the stance adopted by the applicant at the hearing, however, the Tribunal considered the ‘reflections letter’ to give ‘a confused and mixed account of her conduct’, such that the Tribunal was left with ‘serious concerns as to her competence, comprehension of wrongdoing, level of insight and genuine remorse’. The Tribunal considered that the applicant had demonstrated only ‘limited insight and remorse’ and that the determinations should be approached on that basis.[60]
[60]Ibid [145]-[146].

The Tribunal then returned to the conduct the subject of the allegations and, in substance, determined that the following was comfortably established by the evidence –

(a) an entrenched pattern of inappropriate prescribing and poor clinical practice spanning three years and 12 patients;

(b) the conduct in allegations one to 12 was ‘multifaceted’ and involved failures in numerous areas including responsible prescribing, record-keeping and proper patient management, assessment, investigation and advice;

(c) the conduct entailed multifaceted and widespread failures across a multitude of domains on repeated and persistent occasions;

(d) allegation 13 involved 33 examples of inappropriate Medicare and PBS billing practices spanning a period of approximately three years;

(e) the breaches of professional duty and obligation were not technical or theoretical – the breaches exposed the 12 patients to risk of harm;

(f) the unchallenged expert evidence is that the conduct involved in each of allegations one to 12 is serious enough on its own to warrant findings under paragraph (a) of the definition;

(g) the applicant had repeated and frequent opportunities to reflect, consider and/or desist from her conduct but it continued unabated for many years;

(h) the extent of the conduct supports inferences that, at the time of the conduct, the applicant had serious deficits in her understanding of the clinical indications for the medications involved, limited insight into ethical, professional and responsible practice in Australia and/or deliberately flouted her professional obligations and, in any case, her conduct was inconsistent with holding registration as a medical practitioner;

(i) the applicant had relevant experience of practice involving hormone therapies and ought to have well understood the risks involved and her concomitant obligations to ensure safe and ethical prescribing, care and record-keeping;

(j) public confidence in the ability and integrity of medical practitioners is essential and was undermined by the applicant’s conduct – indeed, her conduct was ‘of such seriousness, persistence and diversity as to seriously undermine the reputation of the profession; and

(k) such widespread departures from ethical practice, breaches of professional obligations and non-compliance with prescribing and billing practices fall substantially short of the standards the community expects from medical practitioners.[61]

[61]Zhao (n 46) [147].

Upon those findings, the Tribunal concluded that the applicant’s conduct, as a whole, ‘readily falls within paragraph (c)’ of the definition.[62]
[62]Ibid [148].

Thereafter, in respect of the ‘determinations’, the Tribunal considered the ‘compelling’ need for ‘general and specific deterrence’[63] and addressed submissions advanced by the applicant’s counsel. In that, the Tribunal again acknowledged that the applicant had been complying with the conditions imposed by the Board and had agreed to remain subject to those conditions.[64]
[63]Ibid [151].
[64]Ibid [152]-[154].

However, the Tribunal then stated that –

Having regard:
(a)       to the number of patients affected;
(b)       the duration of the misconduct;
(c)       the nature, gravity and range of such misconduct;
(d)      the limited demonstration of insight and remorse; and
(e)concerns as to the Respondent’s [applicant’s] genuine understanding of her errors,

there is no question that the paramount objective of protecting the public warrants a period of suspension during which the Respondent [applicant] can more fully address deficiencies in her medical knowledge and experience, including ethical standards. In addition, the conditions attaching to the Respondent’s [applicant’s] registration, upon a return to practise, will be expanded to include a requirement that she only practise within an RACGP accredited general practice of not less than three full time equivalent medical practitioners, including Dr Zhao, approved by the Board.[65]

[65]Zhao (n 46) [155].

In respect of suspension, the Tribunal further explained its reasons[66] as well as explaining why it was that the further condition on the applicant’s registration had been imposed.[67] In that regard, the Tribunal endorsed submissions that had been advanced before it on behalf of the Board and then stated –

… once Dr Zhao recommences practice, following the period of suspension, it is in the public interest for her to work within an RACGP accredited general practice of not less than three full time equivalent medical practitioners, including herself. Such arrangements will afford Dr Zhao the opportunity of working in a collegiate environment of mutual professional support and thereby assist her transition back into clinical practice of an appropriate standard. Given the uncertain risk of recidivism, such a group practice will provide an opportunity for further collective reflection and mentorship and thereby mitigate the increased risk of recidivism that may be posed by solo practice.[68]
[66]Ibid [158]-[171].
[67]Ibid [172]-[176].
[68]Ibid [175].

C The present proceeding

The applicant commenced proceedings in this Court by notice of appeal dated 1 October 2021. That document came to be superseded by a further amended notice of appeal dated 5 November 2021.

Between times, the applicant made application for a stay of the orders made by the Tribunal. The application was resisted by the respondent. The solution seems to have been an eminently a practical one: the application for a stay was dismissed and the application for leave to appeal and, if leave is granted the appeal, was listed to be heard on an expedited basis.

The further amended notice of appeal states the following ‘questions of law’ in respect of which the appeal is said to be brought –

1Did the VCAT take an irrelevant consideration into account, being an earlier notification and finding concerning Dr Zhao made in 2018 as referred to at [14]–[19];

2Did the VCAT at [18] and [19] impermissibly re-open the earlier notification and finding concerning Dr Zhao in 2018;
3Did the VCAT act ultra vires by considering a matter at [14]-[19], being the earlier notification and finding concerning Dr Zhao when that matter had not been referred to VCAT by the Board pursuant to s 193 of the National law;
4Did the VCAT at [137] misapply the test for professional misconduct found in paragraph (c) of section 5 of the National Law;
5Was the decision of VCAT made in denial of procedural fairness:
(i)In the use by it in the findings made at [18] and [19] arising from the earlier notification and the earlier finding of the Board given 11 May 2018; and
(ii)In the making Order 5 Condition B1 by failing to put the Plaintiff on notice of the making of that decision?

6Did the VCAT fail to take a relevant consideration into account, namely the remorse and acknowledgment of error in the way of her past practice as had been expressed by Dr Zhao, in the making of Order 4 and the conditions in Order 5B (1)?
7Did the VCAT act reasonably in the exercise of its power in disposition of the matter by the imposition of the penalty of suspension in Order 4 and the conditions in Order 5B (1) as ordered in the premises of the questions raised in (h) [8] hereof?
8Did the VCAT act in error in the exercise of its power to impose sanction upon Dr Zhao by the making of Order 4 and the conditions in Order 5B (1):
(i)Without any or any sufficient regard to the sufficiency of the requirement to protect the public?
(ii)Without any or any sufficient regard to the admissions made and remorse expressed by Dr Zhao?
(iii)On an occasion of manifest excess?
(iv)In such a way as to fail to properly exercise that power having regard to the unreasonableness and injustice of Order 4 and Order 5B (1) of the Orders of VCAT?[69]

[69]CB18-19.

The further amended notice of appeal thereafter states a sequence of seven grounds of appeal that are, in a sense, a more elaborate, but also in a way a slightly condensed version of the stated questions of law.[70]
[70]CB19-22.

The respondent notes the limited nature of the applicant’s ‘real’ complaints, in that, in a practical sense, she directs attention to –

(a) only one of the findings that she engaged in ‘professional misconduct’ (namely the finding made with respect to paragraph (c) of the definition); and

(b) only limited aspects of the determinations imposed, namely the 12 month suspension and the condition concerning resumption of practice in a group of three or more medical practitioners.

That said, the applicant seeks, in substance, that the whole of the orders of VCAT be set aside in lieu of an undertaking given to the Board by the applicant ‘pending any remittal’.[71]
[71]CB22.

More broadly, the respondent contends that each of the applicant’s proposed grounds are either an ‘impermissible attack on the factual merits of the VCAT decision’ or are based in a misapprehension of the Tribunal’s reasons. The respondent contends that none of the applicant’s grounds have any real prospect of success and that leave to appeal should therefore be refused.[72]
[72]Cf., Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, [28]-[29].

D Appeal on a ‘question of law’

Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act) provides, relevantly –

A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding –
(a) …
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

Section 148(1) does not confer a general right of appeal. Appeal is by leave; from an order; and only on a question of law.

The identification of a ‘question of law’ is both the threshold question and the subject matter of such an appeal. In this regard, any identified question of law must be ‘involved’ in the decision of the Tribunal. It is ‘not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal’.[73]
[73]Patsuris v Gippsland and Southern Rural Water Corporation (2016) 218 LGERA 167, [43]-[44] (‘Patsuris’).

Further, appeal will not lie in respect of complaints concerning the weight afforded to evidence. A question of law will only arise if a finding of fact was ‘not open’ in the sense that there was no evidence to support it.[74]
[74]Ibid [45]-[46]. See also, Psychology Board of Australia v Mair [2010] VSC 628, [61] (‘Mair’).

It is, perhaps, important to add that the Court will be reluctant to overturn the decision of an expert tribunal on questions of fact in respect of which it has particular expertise. The evident understanding of the expert tribunal members concerning the area of practice concerned must be afforded due deference.[75]
[75]Mair (n 74) [12].

E Grounds 1, 2 and 3: the ‘prior notification’

Grounds 1, 2 and 3 are each directed to the prior notification, which, in her grounds of appeal, the applicant refers to as the ‘earlier complaint’ and associated ‘earlier finding’.

By those grounds, the applicant contends that the Tribunal –

(a) took into account an irrelevant consideration, namely the ‘earlier complaint’ and ‘earlier finding’ (ground 1);

(b) ‘impermissibly re-opened’ that matter (ground 2); and

(c) acted ultra vires as the ‘earlier complaint’ and ‘earlier finding’ were said not to have been a ‘matter’ that had been referred to the Tribunal under s 193 of the National Law (ground 3).

Before coming to the substance of the applicant’s arguments in respect of grounds 1, 2 and 3, it is important that the issue of what the Tribunal described as the ‘prior notification’ be considered in its proper context.

In that regard, the confidential notification that gave rise to the present matters before the Tribunal was received by the Board on 13 March 2018. The Board thereafter investigated, which included obtaining the independent opinions of Dr Singleton concerning the conduct of the applicant – which opinions were expressed in reports dated 4 July 2019, 30 July 2019 and 25 January 2020. It is not evident that any contrary expert opinion was ever proffered to the Board by the applicant’s representatives. By notice of allegations dated 25 June 2020, and pursuant to s 193(1)(a)(i) of the National Law, the Board referred the applicant’s conduct to the Tribunal.[76]
[76]CB71-119.

The matter before the Tribunal ultimately proceeded by reference, in significant part, to an agreed statement of facts, findings and proposed determinations.[77] That agreed statement was signed by the solicitors for the applicant on 7 April 2021.[78]
[77]CB392-436.
[78]CB394.

Immediately prior to that, on 2 April 2021, the solicitor for the Board had emailed the solicitor for the applicant and requested the return of a signed copy of the ‘updated’ agreed statement. That email also stated –

We are instructed to put your client on notice that the Board may rely on further material in respect of Dr Zhao’s notifications history at the determinations stage of the hearing.[79]

[79]CB721.

It is not evident that any query was raised by the solicitor for the applicant concerning the ‘notifications history’ referred to in that email or how it was proposed that any such history would be relied upon at the ‘determinations stage’. Nor was any objection seemingly taken to the course foreshadowed by the solicitor for the Board.

There cannot have been much doubt about what was likely to be relied upon, as the Board’s notice of proposed action in relation to what has come to be referred to as the prior notification was dated 9 March 2018,[80] and so was relatively recent. Further, when later addressing the issue before the Tribunal at the hearing on 21 July 2021, counsel for the applicant described that notification as the ‘sole totality of her previous disciplinary history’.[81]
[80]CB129-130.
[81]T34 (CB593).

In the circumstances to which I have referred it is, perhaps, unsurprising that when the material relating to the prior notification came to be provided to the Tribunal at the ‘determinations stage’, it was not said by counsel for the applicant to come as any surprise or to be irrelevant or otherwise to be objectionable.

After the provision to the Tribunal of the material relating to the prior notification, an adjournment was taken in order that the Tribunal members could consider it. As I have earlier noted, counsel for the applicant then addressed. That address contained at least the following relevant contentions, or themes –

(a) the importance of the ‘background’ to the applicant’s ‘story’ that, it was said, was touched upon in both the agreed statement of facts and ‘expanded on’ in the ‘reflective statement’;

(b) in that regard, the contention that the applicant’s ‘foundational medical and cultural norms’ had been established in China which, it was said, had ‘directly led to her treating transgressions’ the subject of the present matters;

(c) that the applicant accepted that her conduct was ‘professional misconduct’ and it was appropriate that she be sanctioned;

(d) that the applicant had admitted the conduct, undertaken further education and been compliant with restrictions on her practice;

(e) that the purpose of the Tribunal’s determination must be to protect the public, not punish the applicant;

(f) that –

It’s important to look at the doctor’s past disciplinary history. In that context the Board has provided the tribunal with, as we understand it the totality of Dr Zhao’s past disciplinary history.
And for want of paraphrasing the issue it relates to the provision of chlorhexidine by mistake into a patient’s eye. The doctor undertook rectifying issues or rectifying systems at her practice and the Board took no further action. Now true it is between 2008 and 2014, Dr Zhao was not in Australia. But Dr Zhao qualified as a medical practitioner in Australia in 2001. And that is the sole totality of her previous disciplinary history. One medical mistake.
That is an important consideration when looking at the risk and protection of the public.[82]
[82]T34, CB593.

(g) that the imposition of a suspension would ‘cut across general deterrence’;

(h) that the relevant authorities show a range ‘from a reprimand to disqualification’, although, it was said, the cases at the ‘higher end’ were ‘readily distinguishable from this case’;

(i) that, in the context of the pandemic, the Tribunal should consider the imposition of a fine rather than a suspension in light of the applicant’s involvement in the vaccination of patients.[83]

[83]T31-40 (CB590-599).

In short, it was submitted that the applicant had ‘reflected upon her conduct’, ‘shown insight into her conduct’, ‘shown remorse’, ‘rehabilitated herself’ and ought not be punished as the public had been and would be protected by the conditions which she had abided.[84]
[84]T33 (CB592).

At the conclusion of that element of counsel’s address, the Tribunal referred to the case of Owen,[85] which had been provided by counsel for the Board. Counsel for the applicant apologised for not having addressed the case earlier and sought to address it in reply.
[85]Owen (n 34).

Counsel for the Board then addressed the Tribunal concerning, among other things, the ‘parallels’ with the case of Owen and what were said to be ‘five unifying principles with respect to these kinds of cases’, namely –

(a) the importance of the proper handling and prescribing of drugs;

(b) that prescribing drugs without a therapeutic basis amounts to ‘professional misconduct’;

(c) that choosing to practise outside the mainstream does not absolve the practitioner from practising in accordance with applicable standards – which meant, it was submitted, that ‘there’s a limit to how much weight can be attributed to her background’;

(d) the failure to keep adequate records can be a significant and aggravating feature; and

(e) that a ‘full range of disciplinary sanctions may be appropriate’.[86]

[86]T41-45 (CB600-604).

In substance, and for various identified reasons, it was submitted that ‘this case is considerably more serious than the case of Owen’ and that other various cases – in which no suspension had been imposed – were ‘outliers’ and therefore presently distinguishable for reasons that included that there had been no ‘prior notification’.[87]
[87]T46-49 (CB605-608).

In that respect, counsel for the Board identified precisely how it was that the ‘prior notification’ was relied upon in the present instance, namely that the applicant’s assertion to the Board on 23 March 2018 that she had changed her work processes to ‘ensure that the appropriateness of medications prior to their application and use is double-checked’ was problematic as ‘a number of the [present] particulars [involve] quite serious examples of prescribing without a therapeutic basis [which] occurred after that date’.[88]
[88]T49-50 (CB608-609).

That submission then linked to various identified deficiencies in detail in the ‘reflective letter’ that the applicant had provided to the Tribunal that morning.[89]
[89]T50-52 (CB609-611).

Towards the end of the address by counsel for the Board, the Tribunal sought to clarify the nature of the ‘error’ that had led to the prior notification and counsel referred to the ‘documents provided’ and said that he was unable to ‘take it any further’. The Tribunal then enquired whether the 12 month period of suspension sought by the Board was ‘a minimum’.[90]
[90]T54-55 (CB613-614).

In reply, counsel for the applicant went directly to the case of Owen, in which, as I have earlier noted, there had also been a ‘previous notification’. As counsel submitted, ‘it’s an aggravating factor for a doctor to make assurances to a regulatory body and then be found to have not complied with those assurances’. Counsel then sought to distinguish the present case from that of Owen and, in so doing, said that it was necessary to go to the ‘detail’ of the prior notification in the present case.[91]
[91]T56-57 (CB615-616).

That led to a series of exchanges between counsel for the applicant and the Tribunal concerning the nature of the earlier event, what the applicant had said that she had done in response to it and how it could be that the further and admitted events had occurred; in the course of which counsel acknowledged that the earlier event, and the applicant’s response to it, could be relevant to a present assessment of the applicant’s ‘insight’.[92]
[92]T57-59 (CB616-618).

It is evident from the transcript of the hearing before the Tribunal that an essential problem in that which unfolded was that counsel and the Tribunal were working from the documents alone.

In that regard, for example, counsel submitted that the earlier incident – concerning the use of chlorhexidine solution to cleanse a person’s eye – was a ‘different factual circumstance’.[93] However, the material concerning that event included the suggestion that not only had the applicant used the chlorhexidine solution, but that when using it she had said that it was ‘fine’ to be used in a clinical setting.[94] It was essentially common ground, however, that it was both not ‘fine’ to be used and had been used in error.
[93]T59 (CB618).
[94]CB124.

Absent further explanation, that element of the earlier events might be thought to be similar to parts of the applicant’s response to the subsequent and presently accepted allegations, in that it was now sought to be said that the applicant had effectively thought that it was ‘fine’ to prescribe testosterone because of what were described as being her ‘foundational medical norms’ established several years earlier in China.

A very similar problem arose from a consideration of the applicant’s written response to that earlier complaint in which she had referred to her reading concerning the safe use of medicines, refresher on ‘medication safety’ and asserted that she had ‘changed [her] work processes … to ensure that the appropriateness of medications prior to their application/use is double checked’.[95]
[95]CB134-135.

In a context in which an important aspect of the submissions of counsel for the applicant was directed to the asserted influence over the applicant of ‘foundational medical norms’ said to have been established in China, absent further explanation it was not clear how those ‘norms’ could not have been displaced by the changes that the applicant had earlier said had been placed into effect in March 2018.

In this regard, the arguments presented to the Tribunal by both parties, the applicant included, gave rise to a need to interpret the documents concerning the prior notification and, for at least the reasons that I have identified, had the distinct potential to and in fact did intensify the debate concerning the significance of those earlier events rather than resolve it.

That debate, in turn, highlighted at least two further difficulties in the stance that the applicant sought to adopt before the Tribunal.

The first was that the same essential problem arose in respect of the contents of the applicant’s ‘reflections letter’ provided to the Tribunal on the morning of the hearing. In that regard, as the Tribunal observed in the course of argument, ‘the reflections raise more questions than they answer’.[96] In respect of the so-called ‘norms’, the Tribunal asked –

…does that norm equate to not properly examining the patients, not taking proper history or documenting that, and inappropriate – and not satisfying yourself as to the appropriateness of relevant medications?[97]

[96]T60 (CB619).

[97]T63 (CB622).

Counsel for the applicant said that he was referring to the ‘norm of prescription’ rather than the ‘norm of documentation’, but a significant problem in the ‘reflections letter’ was clearly exposed: it had sought to skate across the top of a sequence of multifaceted professional deficiencies that had occurred over a lengthy period by seeking to characterise them as ‘norms’ derived from elsewhere and without descending into anything much in the nature of detail. However, once the Tribunal sought to examine any details that might be said to support that characterisation, the assertions in the ‘reflections letter’ concerning the causal role of ‘foundational norms’ derived from China came to be exposed as at least incomplete if not, in a forensic sense, dangerously flimsy.

The second problem became equally evident in the course of argument: once the debateable character of the applicant’s earlier response to the prior notification and present ‘reflections letter’ were exposed, the only way that that could readily be remedied – if any of it could be remedied at all – would be to call the applicant to give oral evidence. However, unlike the mere provision of correspondence or written ‘reflections’, calling the applicant to give oral evidence would, of course, expose her to the risk of questioning.

As I have earlier noted, an adjournment was specifically obtained in which such instructions were sought, following which it was confirmed that the applicant would not be called. In those circumstances, as counsel for the applicant correctly observed, while the applicant could elect not to give such evidence, it would be open for the Tribunal not to be ‘convinced about [her] insight’.[98]
[98]T65 (CB624).

In the circumstances explained –

(a) the prior notification material was provided to the Tribunal without objection;

(b) indeed, the applicant specifically acknowledged that the past disciplinary history could be a relevant and aggravating factor as it had been in the earlier case of Owen;

(c) the applicant sought to distinguish Owen, and to make positive assertions concerning the events comprising the her prior notification;

(d) in that sense, the applicant sought positively to rely upon the events constituting the prior notification as distinguishable from the circumstances in Owen and therefore to the applicant’s benefit;

(e) those submissions – based, as they were, in the documents alone – ran the risk of and in fact did lead to debate and further questions from the Tribunal concerning the effect of the documents, what had happened and how the subsequent and further allegations could have arisen in light of what might be taken to have been said by the applicant in response to the prior notification;

(f) which problem was –

(i) acutely compounded by the submissions simultaneously advanced concerning the so-called ‘foundational norms’; and

(ii) not ameliorated by the calculated risk evidently taken by the applicant in electing not to give oral evidence in order to explain the documents and events and otherwise reassure the Tribunal.

As is evident from the above, it was not the position of the applicant before the Tribunal that the prior notification was –

(a) an irrelevant consideration such that any consideration of it by the Tribunal would give rise to jurisdictional error;

(b) being ‘re-opened’, impermissibly, by either the Board or the Tribunal; or

(c) ultra vires in that it was not a ‘matter’ referred by the Board to the Tribunal.

In that sense, none of the three grounds or ‘questions of law’ now relied upon by the applicant in connection with the prior notification, were raised before the Tribunal.

As I have already indicated, in an appeal sought to be brought under s 148(1) of the VCAT Act, it is ‘not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal’.[99] That would seem to be an insuperable obstacle to the success of those grounds now, certainly in respect of grounds 1 and 2.
[99]Patsuris (n 73) [43]-[44].

Even if that were not so, none of the applicant’s arguments in connection with grounds 1, 2 or 3 seem to me to give rise to any ‘question of law’ or otherwise disclose error in the course ultimately taken by the Tribunal.

As developed, the applicant’s arguments in respect of grounds 1, 2 and 3 tended to overlap, but the gravamen of the overall argument seemed to be to the effect that –

(a) the ‘matter’ of the prior notification was not among the ‘matters’ referred to the Tribunal in the notice of allegations dated 25 June 2020, so the Tribunal lacked jurisdiction to address it (ground 3);

(b) for the same reason, essentially, in considering that ‘matter’ in its reasons, particularly at [18] and [19], the Tribunal took into account an irrelevant consideration (ground 1);

(c) further, in considering that ‘matter’, the Tribunal ‘impermissibly re-opened’ the prior notification that had otherwise finally been determined by the Board and in terms that, in fact, stood to the benefit of the applicant;

(d) more broadly, it was said that the prior notification should never have been put forward as, in effect, ‘a prior conviction’ as, among other things, it was a ‘different matter’ that had given rise to no adverse finding, no sanction and, indeed, a ‘finding’ by the Board that the applicant had demonstrated ‘insight’; and

(e) in this combination of ways, the prior notification was said fundamentally to have been misused by the Tribunal.

The jurisdiction of the Tribunal was said to be founded in s 193 of the National Law, which relevantly refers to the reference of a ‘matter’[100] about a registered health practitioner to the Tribunal if the Board ‘forms a reasonable belief’ that the practitioner ‘has behaved in a way that constitutes professional misconduct’.
[100]Cf., Hartley v Dental Practice Board of Victoria [2009] VCAT 2217.

Under s 196 of the National Law, the Tribunal may hear and decide the ‘matter’ and, where applicable, impose one or more of the sanctions referred to in s 196(2), including a caution or reprimand, conditions on the practitioner’s registration, a fine of up to $30,000, suspension of the practitioner’s registration for a specified period and/or the cancellation of the practitioner’s registration.

In the present instance, it may be accepted that the matter or matters referred to the Tribunal by the notice of allegations dated 25 June 2020 did not include the prior notification.

That said, at no point during the hearing on 21 July 2021 was the issue of the prior notification approached on the basis that the Tribunal was required to determine whether that conduct constituted any form of ‘professional misconduct’ (as defined). As earlier observed, the prior notification material was provided at the ‘determinations stage’ and identified in argument as capable of being an ‘aggravating factor’ and/or going to ‘insight’.

Further, as I have also earlier observed, the submissions advanced at the hearing by both parties made relevant and propelled the Tribunal to seek to understand the detail of that ‘disciplinary history’ as well as the applicant’s response to that notification in order to determine whether or not there was an ‘aggravating factor’ as well as whether those earlier events could be relevant to an assessment of the applicant’s ‘insight’.

Perhaps unsurprisingly, in light of the manner in which the prior notification had come to prominence in argument, the topic was addressed specifically in the Tribunal’s reasons at [14]-[19].[101]
[101]Zhao (n 46) [14]-[19].

At [14]-[15], the Tribunal recorded accurately the circumstances in which the material relating to the prior notification came to be provided, as well as the substance of its content.

At [16]-[17], the Tribunal also recorded accurately the detail of the ‘unanswered questions’ that might be said to have arisen. In substance, those ‘unanswered questions’ relate to the circumstances of the underlying event and the applicant’s response to the prior notification.

Then, at [18]-[19], the Tribunal concluded as follows –

18The Tribunal does not speculate as to likely answers to these questions. However, the Tribunal is bereft of any objective evidence which would support a finding that the Respondent [applicant] adequately acknowledged a deficiency in her knowledge of appropriate treatments or exhibited insight or genuine remorse following the notification.
19Furthermore, contrary to the submissions of the Respondent’s [applicant’s] Counsel, and consistent with the Board’s submissions, we find that the coincidence of the 23 March 2018 letter and the misconduct reflected in the Particulars under a majority of the Allegations indicates that, as at March 2018, the [applicant] did not implement any effective change to work processes or otherwise undertake adequate additional education in medication safety and treatment.[102]

[102]Ibid [18]-[19].

In argument, counsel for the applicant focussed upon those paragraphs and submitted that the ‘finding’ at [18] was ‘pernicious’ and the ‘finding’ at [19] was ‘completely to the opposite’ of that which had earlier been made by the Board.[103]
[103]T19.

As is evident, however, at no point at [18] or [19] (or, for that matter, elsewhere in its reasons) did the Tribunal conclude that the conduct the subject of the prior notification was any form of ‘professional misconduct’ (as defined).

Nor, in my view, did either of those paragraphs (or any other relevant paragraphs in the reasoning of the Tribunal) amount to a ‘re-opening’ of the matter of the prior notification in order to re-determine that ‘matter’.

As earlier explained, in argument before the Tribunal the circumstances of the prior notification were made relevant to the determinations in the present case. There was no attempt or endeavour to re-open the prior notification for re-determination. The fact that the Tribunal asked questions about the earlier event and the applicant’s response to it was provoked by the need for the Tribunal to consider and understand the issues of aggravation and/or insight in respect of the admitted allegations the subject of the present matter.

In that regard, a considerable number of those allegations related to conduct in the period immediately after the applicant had responded to the prior notification in correspondence and said that she had undertaken reading, refreshed her knowledge of medicine safety and changed her processes to ensure that the appropriateness of medications prior to their use was double-checked. Whilst that was then accepted by the Board, and that acceptance was not queried by the Tribunal, it did not follow that the Tribunal was not permitted to consider and explore how it might be that those changes had not prevented the significant number of admitted allegations that had occurred in the period after that correspondence was sent and the prior notification settled.

In this sense, the circumstances of the present case are unlike those in Kabourakis v The Medical Practitioners Board of Victoria, which the applicant relied upon in argument.[104] In my view, the principles discussed in Kabourakis have no application to the present case.
[104](2006) 25 VAR 449 (‘Kabourakis’).

In my view, the comments of the Tribunal at [18] and [19] were entirely explained by context, and there is nothing ‘pernicious’ or erroneous about either of them –

(a) [18] does not constitute a ‘finding’ and is essentially directed to the issue of acknowledgement of deficiency or ‘insight’, which, as I have noted, was a relevant issue identified in argument before the Tribunal;

(b) [19] is a ‘finding’, but it concerns the ‘aggravation factor’ also identified as a relevant issue in argument before the Tribunal.

In respect of the latter, in particular, I consider it to have been quite open for the expert Tribunal to so conclude on the face of the documents relating to the prior notification and having regard to the chronology of events, especially in light of the absence of any other explanation by the applicant. The fact that counsel for the applicant had submitted that the documents and events should be understood differently did not require that those submissions be accepted.

Grounds 1, 2 and 3 also point to the reasons of the Tribunal at [148], [165] and [170]. However, those are merely conclusory paragraphs stating the ultimate findings of professional misconduct, suspension and the condition affecting the manner in which the applicant might return to practice.

For the reasons that I have identified, there was no error of the Tribunal in considering the prior notification as either an aggravating factor or as going to insight and so as relevant to the present determinations, including as to suspension and the condition upon a return to practice. In that sense, nothing arises in respect of [165] or [170].

The finding at [148] – concerning professional misconduct – might, conceivably, be said to stand slightly differently. However, the terms of that paragraph make no reference to the prior notification, and both [119] and [146], which obviously precede [148], each refer to ‘insight’ as going to ‘determination’ – which, as I have noted, is the basis upon which the documents relating to the prior notification were provided to the Tribunal. For those reasons, I am not convinced that the Tribunal took the prior notification into account when concluding that the conduct of the applicant amounted to ‘professional misconduct’.[105]
[105]In any event, as in my view correctly acknowledged by counsel for the applicant at the hearing, in the present instance whether or not the conclusions of the Tribunal concerning the prior notification informed the decision as to ‘characterisation’ or ‘level of departure’ ‘doesn’t really matter very much because the level of departure as to professional misconduct was omitted [sic: admitted] in respect to paragraphs A and B, just not C [of the definition of ‘professional misconduct’]’: T7.

That said, even if ‘insight’ were taken into account by the Tribunal in coming to a conclusion that the conduct of the applicant amounted to inclusively defined ‘professional misconduct’, I am not convinced that in the present case that would necessarily amount to any error of law. ‘Insight’ seems to me to be capable of affecting the manner in which the subject conduct of the applicant could have been viewed and characterised, although I express no final view on the issue.

All of this is a long way of saying that, to my way of thinking, the prior notification was not irrelevant, not objected to, sought to be dealt with in imperfect circumstances by very experienced counsel and in a manner that came to be comprehended by the Tribunal and expressed in its reasons. None of that, it seems to me, gives rise to any ‘question of law’ and certainly not a ‘question of law’ that was raised for the consideration of the Tribunal below.

For these reasons, grounds 1, 2 and 3 must be rejected.

F Ground 4: ‘fit and proper person’

In the course of argument in the present application, considerable detailed attention was afforded to this ground. The applicant contends that the Tribunal misconstrued paragraph (c) of the definition of ‘professional misconduct’, which error was said to be evident in the Tribunal’s reasons at [137], which reads as follows –

The Board submitted that it does not say that the Respondent [applicant] was not a fit and proper person at the time of the conduct or at the time of the Hearing. However, it submits that the conduct, taken as a whole, justifies a finding that it is inconsistent with fitness and propriety and therefore justifies a finding under paragraph (c) as well as paragraphs (b) and (c) of the definition of professional misconduct. The Tribunal agrees.[106]

[106]Zhao (n 46) [137].

The applicant submits that the error was in the Tribunal so finding without also finding that the applicant was ‘unfit and improper’; either at the time of the conduct or at the time of the hearing. In advancing that submission, counsel for the applicant referred to, among other things, passages in two High Court authorities concerning the discipline of legal practitioners.[107]
[107]Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279 and A Solicitor v Council of Law Society of New South Wales (2003) 216 CLR 253, 267.

No such argument was advanced below. The submission below was different, and is reflected (and essentially rejected) in the reasons of the Tribunal at [136].[108]
[108]Zhao (n 46) [136].

Otherwise, as I have earlier noted, experienced counsel for the applicant submitted to the Tribunal, that, in effect, the overall issue was one of ‘absolute semantics’ as the applicant had admitted ‘misconduct’.[109]
[109]T20 (CB579).

For these reasons alone, it seems to me that no ‘question of law’ arises of the present kind and ground 4 must be rejected.

In any event, I do not accept that the Tribunal made any error in the manner in which it approached the issue. Paragraph (c) of the definition of ‘professional misconduct’ in s 5 of the National Law, reads as follows –

conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

Paragraph (c) is a specific form and is directed to the conduct concerned rather than, explicitly, any wider or subjective consideration of the fitness and propriety of the applicant.

The proper interpretation of paragraph (c) of the definition of ‘professional misconduct’ was considered by the Tribunal (differently constituted) in the recent case of Medical Board of Australia v Arulanandarajah.[110] In that case, the arguments appear to have been essentially identical to the arguments presently advanced in respect of ground 4.[111] The Tribunal essentially accepted the argument there advanced by the Board.
[110]Arulanandarajah (n 55).
[111]Indeed, opposing counsel in Arulanandarajah (n 55) were the same as were opposed in the present application. Opposing counsel in the Tribunal below were different.

In that regard, in Arulanandarajah, the Tribunal accepted that paragraph (c) is directed to an assessment of the conduct of the practitioner and a consideration whether that is inconsistent with the practitioner being a fit and proper person; with any wider consideration or subjective consideration of the practitioner’s fitness and propriety to be undertaken at any later and discretionary stage of considering and, if appropriate, making ‘determinations’ under s 196 of the National Law.

In the present instance, the Tribunal quoted, considered and implicitly may be said to have applied the reasoning in Arulanandarajah.[112] To me, that construction is preferable as it adheres more closely to the text and structure of the National Law.[113]
[112]Arulanandarajah (n 55) [133]-[135].
[113]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14]. Noting also that the Tribunal in Arulanandarajah (n 55) referred to and gave weight to a similar approach to interpretation preferred by Emerton J (as her Honour then was) in Legal Services Commissioner v Turner [2012] VSC 394.

The approach favoured by the applicant is a more strained construction and seeks to draw momentum from decisions in quite different contexts. Whilst, perhaps, arguable, it seems to me to be less in keeping with the contemporary emphasis in the approach to statutory construction.

For these reasons, ground 4 must be rejected.

G Ground 5: procedural fairness

This ground is directed to both the consideration by the Tribunal of the prior notification and, separately, the ordering by the Tribunal of condition B1, which reads as follows –

The Practitioner may resume medical practice, but only within an RACGP accredited general practice of not less than three full time equivalent medical practitioners, including the Practitioner, approved by the Board.[114]

[114]CB439.

In my view, there is nothing in the procedural fairness complaint advanced in respect to the prior notification. The prospect of reliance on the applicant’s notification history was raised at an early time between the solicitors and no indication of surprise was given or objection taken or adjournment sought by very experienced counsel when the material was provided to the Tribunal at the hearing. Indeed, the applicant might be said to have sought to turn the prior notification to advantage in a submitted contrast with the case of Owen.

In respect of condition B1, however, the applicant submitted that the Tribunal had erred in that, it was submitted, the Tribunal ‘held a duty to warn either party’.[115] In that connection, counsel for the applicant described condition B1 as a ‘very, very serious imposition’[116] that ‘came from left field’ in the judgment.[117] It was submitted that the applicant had been deprived of the opportunity to lead evidence to the effect that her practice would be ‘up in smoke’,[118] and otherwise to make further submissions about the conditions, education and supervision measures sought.
[115]CB46.
[116]T45.
[117]T42.
[118]T43. In that submission, counsel referred to the affidavit of Robert Jones sworn after the Tribunal’s judgment was delivered and in the present proceeding (CB629-689).

In advancing submissions concerning the so-called ‘duty to warn’, counsel for the applicant referred to observations made by the Full Court of the Federal Court in Commissioner forAustralian Capital Territory Revenue v Alphaone Pty Ltd, particularly –

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature of the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.[119]

[119](1994) 49 FCR 576, 591-592. See also, Re Refugee Review Tribunal & Anor; Ex Parte Aala (2000) 204 CLR 82, [101].

The requirement to afford procedural fairness may, of course, be breached when a judge takes into account a matter or submission that is outside the knowledge or contemplation of the parties.[120] The ultimate issue, however, is one of degree, which must be assessed in context. In that regard, even if there has been a breach of procedural fairness, it must be shown to have been material in the sense that the decision could realistically have been different.[121]
[120]Steen v Worksafe Victoria & Bupa Australia Health Pty Ltd [2014] VSCA 299, [84].
[121]Minister for Immigration and Border Protection v SZMTA and Anor (2019) 264 CLR 421, [45]-[48], Municipal Association of Victoria v Victorian WorkCover Authority [2021] VSC 128, [75] & [78] and MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590.

In the present instance, as I have noted, the hearing at the Tribunal proceeded substantially with reference to the agreed statement of facts, findings and proposed determinations. In that context, the issue of suspension was contested, but the essentially serious nature of the applicant’s conduct was not.

The Tribunal referred to nature, extent, duration and gravity of the applicant’s conduct and concluded that it was ‘of such seriousness, persistence and diversity as to seriously undermine the reputation of the profession’.[122] The Tribunal – which, as I have noted, included two medical practitioner members – described the assessment of the applicant’s conduct in the only expert evidence before it as ‘damning’.[123]
[122]Zhao (n 46) [147].
[123]Ibid [140].

In that context, it seems to have been open on the known material, and realistically must have been within the contemplation of the parties, that there was a risk that the Tribunal could or would come to have concerns in relation to –

(a) the applicant’s ‘clear deficiencies in her knowledge and understanding’;[124]
[124]Ibid [119].

(b) the applicant’s ‘competence, comprehension of wrongdoing, level of insight and genuine remorse’;[125]

(c) the circumstances being such that ‘she cannot currently be regarded as being at no risk of similar conduct in future’;[126] and

(d) issues of specific and general deterrence bearing upon the ‘determinations’ to be ordered.

[125]Ibid [145].

[126]Ibid [159].

Perhaps in anticipation of the position and risks described, the parties presented an extensive suite of conditions by way of proposed or agreed response,[127] but it must have been understood that the Tribunal was not bound by that which was presented. Among other things, much would depend upon the Tribunal’s impression of the degree of risk presented as well as its impressions of the applicant and her degree of insight into her conduct and deficiencies.
[127]CB435-436.

In that regard, it was also evident and relevant that the applicant was the only full time medical practitioner in the clinic where she was presently working, although it was also evident that, historically, she had practiced in a larger clinic and also in hospital settings.

At the hearing of the present proceeding, counsel for the applicant pointed to several questions from the Tribunal concerning the circumstances in which the applicant was working. That questioning is extracted above at [50], and commenced after the last of the adjournments, and immediately after counsel for the applicant had confirmed that, having obtained specific instructions, the applicant would not be giving oral evidence. The sequence of questions commenced: ‘where the doctor works, what number of doctors does that consist?’[128]
[128]T66-67 (CB625-626).

In the course of argument in the present proceeding, counsel for the applicant submitted that the exchange demonstrated that ‘the tribunal was thinking’ of what came to be condition B1, ‘but they didn’t take it further’. Counsel said that counsel for the applicant below ‘wasn’t to know what they were up to, until the reasons came down’.[129]
[129]T45.

Later, when I asked counsel for the applicant about that exchange, and what the Tribunal’s questions could have gone to other than ‘the professional environment in which she should best be working’, he initially indicated that it could not have gone to anything else. Shortly thereafter counsel changed tack and submitted that ‘they might have been idly interested to know about how much money she makes, what’s her practice arrangements’.[130]
[130]T107-108.

No criticism is intended or made of counsel for the forensic pirouette to which I have referred, however the latter explanation is difficult to accept. It is even more difficult to accept that it would have been so understood by counsel for the applicant before the Tribunal, coming as it did after he had spent a considerable period fielding searching questions and had just announced that despite the evident questions of the Tribunal his client would not be giving oral evidence. In that situation, counsel is not unnaturally attuned to the significance of any questioning, let alone questions that might well indicate that the Tribunal is turning to consider the circumstances or ‘professional environment’ in which the applicant ought be permitted to practise.

Notwithstanding the above, the fact of the exchange with the Tribunal to which I have referred shows the difficulty for the applicant, in the present instance, in demonstrating that what came to be condition B1 was not generally or even specifically in the contemplation of the Tribunal and the parties at the hearing.[131] In the absence of evidence from those involved, one is left to consider and debate the transcript; and the transcript, it seems to me, is at least equally consistent with very experienced counsel, after announcing that his client would not be giving evidence, appreciating the risk evident in the questioning of the Tribunal and the critical issue towards which the Tribunal may well be moving, but determining that there was no perfect way to remedy a very imperfect forensic situation. In the circumstances that I have described, I cannot accept that appreciating a forensic risk and determining to take it could ultimately amount to any denial by the Tribunal of procedural fairness.
[131]In that regard, it was not submitted that a condition of the kind ultimately ordered was unknown. I note that the facts of a recent case reveal that a condition that a psychiatrist ‘work in group practice’ was imposed by a Professional Standards Committee in 1992: Hampshire v Health Care Complaints Commission [2021] NSWCA 283, [6].

In the circumstances, I am not satisfied that the risk that the Tribunal would order a condition that would directly deal with the ‘professional environment’ in which the applicant was working was not within the contemplation of both the Tribunal and the parties. Put another way, I consider that the context generally, and the questions to which I have referred in particular, were sufficient to identify the critical issue in the mind of the Tribunal – namely any conditions or restrictions upon the professional environment in which the applicant might be permitted to practise.

I am also not satisfied that if the issue had been more specifically identified by the Tribunal it would have led to any different course of events. The hearing had already been adjourned on several occasions and for several reasons, the last of which was to permit the applicant to again consider whether or not she was going to give oral evidence. If, in the exchange to which I have referred, the Tribunal had specifically identified the terms of the condition in contemplation (if, in fact, those precise terms were at that point in contemplation), the most obvious source of evidence to address the potential effect of such a condition would have been the applicant herself. However, it seems very unlikely that at that point she would have been called to give evidence for any reason. Again, the most likely answer is that the forensic risk would have been taken and the applicant not called.

Other possibilities might be thought to have been tossed around in the course of argument in the present application, such as an adjournment and the later provision of evidence of a kind now sought to be proffered from the applicant’s practice manager, Mr Jones.[132]
[132]CB629-689.

Part of the problem with that submission is that much of the affidavit of Mr Jones relates to events after the decision of the Tribunal and therefore after the applicant commenced her period of suspension. In that sense, any evidence that Mr Jones might have given in the hypothetical situation posited would not have been all of that which now appears in his affidavit.

I am also not at all convinced that that affidavit of Mr Jones demonstrates that the applicant’s practice has irrevocably been ‘destroyed’ by condition B1, which was the gravamen of the submission advanced. It seems somewhat more likely that it is the applicant’s present suspension which, at this time, has affected the extent to which she can attract others to work in the practice.

Otherwise the affidavit of Mr Jones speaks to the future of the practice and advances a prognostication that it ‘will have to close by mid-November 2021’.[133] It is not clear that that has yet occurred. In any event, it is not clear that the practice might not be able to be re-established in a different form in a year, or that the applicant could not then obtain employment as a medical practitioner elsewhere when her period of suspension is complete.
[133]CB633.

In short, I am not satisfied that any adjournment to facilitate the giving of evidence of someone like Mr Jones would realistically have resulted in any different decision by the Tribunal. Again, the best source of any evidence going to the likely effect upon the applicant’s practice of the imposition of any condition directed to the numbers working in her professional environment is and was always going to be the applicant herself, and it is pretty evident that she was not going to be called.

Another possibility was suggested to be the making by counsel of further submissions about the efficacy of the conditions already proffered, but in light of the risks and concerns that were both evident and in contemplation, it seems to me to be most unlikely that such submissions would ever have resulted in a different outcome.

In these circumstances, while it can be said that it might have been more desirable if the Tribunal had signalled the condition more specifically (if, indeed, it had the specific terms of it in mind at the time), the ultimate issue is one of context and degree, and I do not accept that the issue was not within the contemplation of the Tribunal and the parties at the hearing. Indeed, in my view, in the context discussed, the issue seems to me sufficiently to have been identified. It follows that I cannot accept that there was any denial of procedural fairness; certainly not one that was realistically likely to have altered the ultimate decision.

Whilst I would grant leave to appeal in respect of ground 5 and its associated ‘question of law’, for the reasons that I have identified the ground must be rejected.

HGrounds 6 & 7: ‘manifest unreasonableness’

Grounds 6 and 7 were argued together under the general heading of ‘manifest excess’ or ‘manifest unreasonableness’. The argument was sought to be advanced by reference to the principles stated in House v The King;[134] particularly, I infer, the fifth category of error there identified concerning the exercise of a discretion.
[134](1936) 55 CLR 499 at 505 (‘House’). In this regard, counsel also relied upon Stirling v Legal Services Commissioner [2013] VSCA 374.

In this general sense, the applicant argued, in substance, that –

(a) the reasons of the Tribunal betray an ‘iron willed’ and ‘curious determination to visit extinction on the right of Dr Zhao to practise’ and not acknowledge her ‘remediation’;[135]
[135]CB53-54 and T46.

(b) the Tribunal made only ‘begrudging reference’ to what were described as the applicant’s ‘fullest of full admissions’ and ‘considerable insight’;[136]
[136]T46-47.

(c) in that regard, the ‘reflective letter’ was treated ‘curiously’ because, it was said, there was ‘nothing left to be said, unless you don’t believe her. And you can’t not’;[137]

(d) the Tribunal had paid insufficient regard to the auditing of the applicant’s practice and her practising within conditions which, it was said, had been sufficient for the Board prior to the hearing; and

(e) all of which, it was said, demonstrated that the Tribunal had unreasonably gone beyond what was necessary for the protection of the public.

[137]T47-48.

In response, among other things, the respondent contended that these grounds really amount to an attempt to re-argue the underlying proceeding on the merits.

In my view, while it may be accepted that the applicant is aggrieved by the result, it does not follow that the reasoning and decision of the Tribunal is ‘manifestly unreasonable’.

In that regard, I accept the submission of the respondent that care must be taken with grounds of this general kind not to, in effect, conduct a re-hearing and re-determination of the underlying proceeding on the merits. The essential question is whether there was any specific error or whether the determination was otherwise open. In respect of the latter, the issue is whether there was any evidence which supports the decision.

For reasons that may already be apparent, there was, in my view, plenty of evidence, together with reasoned impressions, that support the determinations of the Tribunal. I could not form the view that the determinations were either affected by specific error or ‘unreasonable or plainly unjust’ in the sense identified by the High Court in House.

I will not repeat all of the features that emerge from the lengthy reasons of the Tribunal, but a significant part of the substance of it is that there was evidence of serious ‘offending’ by the applicant over several years and with numerous patients. Following complaint to the regulator, the applicant practiced pursuant to conditions and auditing had not detected any irregularities. She had also undertaken some education. The parties came to the Tribunal with many elements of agreement and some areas of difference in emphasis. A particular area of dispute concerned suspension. That said, the ‘range’ of cases considered show that suspension is not unusual in respect of ‘offending’ of this kind. A very significant issue in such determinations is the protection of the public, but it is not the only issue. It is also important not to punish the applicant. That said, the stance adopted by the applicant in the ‘reflections letter’ gave rise to questions and concerns, as did the notifications history. The Tribunal perceived that there were ongoing risks relating to the applicant’s competence, insight and remorse.

In these circumstances, it seems to me to have been well open to the Tribunal to impose a suite of measures including a 12 month suspension and a condition directed to the professional environment in which the applicant would resume practice following suspension. That, it seems to me, is sufficient to indicate that the determinations of the Tribunal were open and not manifestly unreasonable.

Several specific complaints advanced by the applicant under these grounds should, however, probably be mentioned for completeness.

By ground 6 the applicant contends specifically that her admissions, including in the ‘reflective letter’ were not taken into account or ‘not sufficiently taken into account’. The latter is a complaint about weight, which cannot give rise to a question of law. The former cannot be accepted – the Tribunal referred at various points to both the applicant’s admissions and the ‘reflective letter’.[138] In that regard, the Tribunal identified the applicant’s admissions as ‘significant’ and explained the difficulties attending the ‘reflective letter’.
[138]Zhao (n 46) [13], [24]-[33], [141]-[142], [145].

For reasons that I have earlier identified, it was open to the Tribunal to regard the ‘reflective letter’ as insufficient to answer its questions and, indeed, to give rise to its own concerns in relation to the present ‘insight’ and stance of the applicant.

The same two points are raised in connection with ground 7, but the answer in respect of them remains the same.

In connection with ground 7, the applicant also refers to her ‘absence of any prior disciplinary history’, the further education that she had undertaken, the ‘express conditions’ under which she had been practising and ‘the necessity to have regard to the requirement to protect the public’ (and, implicitly, not to punish the applicant).

It is not quite to the point to claim that there was ‘no prior disciplinary history’; there was a prior notification, and a response to it, and that went to the issues identified by counsel in argument before the Tribunal. For reasons earlier identified, it was open to the Tribunal to consider the prior notification and the applicant’s response to it to have been an aggravating factor in light of the considerable degree of admitted conduct after that event; as well as bearing upon an assessment of the applicant’s insight.

In any event, the prior notification and other matters referred to above were all taken into account by the Tribunal in its reasons.[139] Indeed, the Tribunal also identified the applicant’s compliance with conditions as having been ‘significant’.[140]
[139]Zhao (n 46) [13], [14]-[19], [23], [114]-[118], [141]-[142], [154], [155], [169] & [174]-[175].
[140]Ibid [142].

In the course of argument, counsel for the applicant also submitted, in effect, that there was no basis for the references in the reasons of the Tribunal to ‘ongoing risk’ and ‘the risk of recidivism’. It is sufficient, at this point, to observe that I consider there to have been both evidence and impressions arising in the hearing below which amply supported those assessments, and for the reasons identified by the Tribunal.

In particular, the combination of the difficulties that emerged in argument in connection with the applicant’s response to the prior notification in the setting of ongoing events of professional misconduct to which she now admits, together with the flimsy and ultimately unpersuasive nature of the references to ‘norms’ sought to be relied upon in the ‘reflective letter’ were amply sufficient to support the concerns of the Tribunal that the applicant continued to present as lacking in insight and therefore a potential risk despite her recent compliance with conditions. In that, the unpersuasive nature of the ‘reflective letter’ handed up on the very morning of the hearing was plainly of particular significance.

More broadly, ground 7 contends that there was an ‘insufficiency in the proper regard’ paid by the Tribunal to the matters to which I have referred. In form, that is a complaint that goes to the merits of the Tribunal’s synthesis rather than to any question of law. In any event, it should be plain that I am not satisfied that there was any error of law in the Tribunal’s approach or ultimate conclusions.

The final matter to mention is the submission that the Tribunal held an ‘iron willed’ determination to ‘visit extinction’ upon the ‘right’ of the applicant to practise.

It is not easy to speak of or claim ‘rights’ to a professional practice: all such ‘rights’ are really privileges which, in the interests of the community, subsist in the practitioner while he or she conforms within professional strictures and regulatory oversight.

In any event, I have considered the various aspects of the hearing and the Tribunal’s reasons to which counsel for the applicant went in argument and, equally, those to which counsel for the respondent referred. I am much more persuaded by the submission advanced on behalf of the respondent to the effect that various aspects of the Tribunal’s lengthy reasons, in particular, reveal it to have been ‘wrestling’ with what findings to make and what determinations to reach in dealing with a difficult case.

In that, I have not formed the impression that the Tribunal formed any ‘iron willed’ determination or sought to ‘visit extinction’ upon the applicant. In the latter respect, I note that whilst there were asserted to be practicalities attending the applicant’s practice following her suspension, which meant that it was now ‘up in smoke’, formal ‘extinction’ of the applicant from medical practice is not the effect of the determinations which the Tribunal ultimately reached and reflected in its orders.

For these reasons, grounds 6 and 7 must be rejected.

Conclusions

Both the application for leave to appeal and appeal if leave is granted are before the Court.

As I have indicated, I would grant leave to appeal in respect of ground 5, but am otherwise not satisfied that any of the other proposed questions of law or grounds of appeal identify any ‘question of law’ important to the success or failure of an appeal if leave were allowed.

Notwithstanding the grant of leave in respect of ground 5, for the reasons which I have identified I would dismiss the appeal.

For these reasons, it will be ordered that the proceeding is dismissed. I will otherwise hear the parties concerning the appropriate form of orders and the issue of costs.

[2021] VSC 763

23 November 2021