His main medical problems being an artificial aortic valve, sleep apnoea, diabetes, morbid obesity, asthma and lymphodema of his left leg. He takes multiple medications, is being considered for lap band surgery. He also has depression, anxiety and mood swings for which he is on treatment ............... and receives a weekly physiotherapy from Dr Sheedy his psychiatrist.

1. By the time the matter came before the Board it had reports from the following practitioners: Professor Singh; Dr Sheedy who is the treating psychiatrist for the doctor; Dr Louise Vernieux, a clinical neuropsychologist; Ms Linda Williamson, a clinical neuropsychologist Associate Professor Warwick Brewer, a neuropsychologist; Dr Denis Velakoulis, a neuropsychiatrist; Dr Peter Drysdale, psychiatrist; Dr Carlisle Perera, psychiatrist; Dr Michael Sutherland, a respiratory physician and Dr James Taylor, General Practitioner.
2. Associate Professor Warwick Brewer described his findings on neuropsychological testing. He said at page 9 of his report:

The results indicate functional compromise in temporal right ........ and right frontal lobe regions in particular and in part are likely associated with his significant cardiovascular and respiratory issues.

1. Other examiners and practitioners have opined the possibility that the doctor has suffered multiple ischemic incidents, vascular degeneration in his cerebral areas and so forth. However various scans taken of his brain would seem to exclude these hypotheses. These scans are generally unremarkable for a man of his age, namely 55 years of age. Nevertheless, the Board has taken the view that the precise explanation for the cognitive deficiencies which it says these various practitioners have found are unnecessary to justify the finding under Clause 156 of the National Law. The Board has placed particular reliance on the views expressed by Dr Denis Velakoulis, the neuropsychiatrist who said at page 76:

Overall I do not believe that the doctor's current cognitive status is in keeping with safe psychiatric practice. His difficulties with memory, his tendency to become overwhelmed with more complex information and an apparent lack of knowledge regarding basic medical and psychiatric terms leaves me concerned.

1. Again, Dr Velakoulis offers explanations based on ischemic cerebrovascular changes related to underlying vulnerabilities and hypercholesterolemia, obesity, hypertension, valvular disease and sleep apnoea. He also refers to possible hypoxia. As previously noted the brain scans do not appear to bear out these hypotheses.
2. The practitioner draws attention to the reports of other practitioners, notably Dr Peter Drysdale, a psychiatrist who commissioned the negative brain scan reports and who observed:

There is likely to be significant debate about the doctor's ability to continue to practice. It would certainly appear that his abilities are somewhat compromised although this may now be less than at the time of his worst physical health problems and at the time the complaints were made to AHPRA.

There seems to have been some resolution of his physical health and possibly his mental health throughout 2011 which now places the doctor in a slightly better position than at the time of his confrontation with VicRoads.

1. The reference to the confrontation with VicRoads is that the VicRoads officers in addition to making a finding of fail for three driving tests accuse the doctor of what one might describe as confrontational and inappropriate conduct in the course of his interaction with them.
2. The doctor also refers to a letter from Dr Carlisle Perera, a former Chief Psychiatrist of the State of Victoria who is supportive of the doctor's continued entitlement to practice, notes that he has known him for a number of years, observes that he carries on practice from the same clinic as the doctor and offers any support or supervision which may be thought necessary to justify his continuation in practice. Further, the doctor draws attention to a report of Dr Michael Sutherland who is a respiratory physician which makes a very significant advancement in the control of his problems of obesity and Dr James Taylor his general practitioner who is generally supportive of the doctor's entitlement to continue in practice.
3. The doctor's representative today has spoken of his knowledge of the doctor over a number of years. He says that the doctor's problems are associated fundamentally with his sleep apnoea. When he forgets to activate the machinery to relieve that apnoea he is deprived of sleep and this affects his functioning. This is an explanation he says for the events that led to his difficulties with VicRoads. A late night before the consultation with Dr Velakoulis saw the doctor unfit to have a fair assessment by Dr Velakoulis but requests from the doctor for a rescheduling of that assessment were refused.
4. The Board through its counsel, Dr Freckelton concedes that Professor Brewer and Professor Singh are to some degree supportive of a controlled and supported continuation in practice for the doctor. Dr Freckleton said that other practitioners such as Dr Velakoulis on which the Board places particular reliance and Ms Linda Williamson, a clinical neuropsychologist who carried out an assessment of the doctor's capacities at his own request are not supportive of any continuation in practice for him.
5. I turn then to the legal issues which arise. The Tribunal's power to grant the stay which is sought here derives from Section 50 of the Victorian Civil and Administrative Tribunal Act 1998. Sub-section (1) of that section provides that the pendency of a review application does not stay a determination made by a first instance decision-maker, however the Tribunal is granted jurisdiction under Section 50(3) to grant a stay. Sub-section (3) states:

The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

1. The sub-section is quite open in its terms. It is apt to bestow a discretion on the Tribunal. See Section 45 of the Interpretation of Legislation Act 1984. But the grounds which inform the exercise of that discretion are not to be found in a section itself.
2. It is fair to say that the most important consideration that has been identified by the Tribunal's determinations over the years is a concern to grant stays where to fail to do so would render nugatory the right of review because irreparable damage has been done by the operation of the first instance decision before the review can be completed and that damage cannot be undone even if the applicant succeeds. The learned editors of Pizer Victorian Administrative Law at page 1-1616 update 125 refer to a statement attributed to me in AZD v Secretary to the Department of Justice [2009] VCAT 977 at paragraph [15] where I said:

... generally there should be a predilection in favour of not, if you will, putting people out of business until they have had the opportunity to prosecute their review applications ...

1. The doctor's representative has said that if this decision takes effect, the doctor will lose his patients. It will be very difficult for him to rebuild his practice even if he is successful on review. He says time is required to enable the doctor to obtain further assessments putting a more positive view on the doctor's ability to carry on practice. The review process would be rendered nugatory if the decision takes effect now, therefore this primary consideration is I think quite appropriately engaged in the present proceeding. Nevertheless, it is not the sole consideration which informs the exercise of the discretion. In Piddington v The Nurses Board of Victoria [2000] VCAT 42 the Tribunal stressed that in cases of occupational registration and regulation the public interest in having only properly trained and competent persons carrying on practice was of very significant importance and in particular circumstances could trump the concern to avoid a review application being rendered nugatory by irreparable damage done in the operation of the initial decision pending the review. Dr Freckelton submits that this is the consideration which should guide the Tribunal. He says that the conspectus of material before the Board and before me weighs heavily in favour of the view that there are serious concerns as to the appropriateness of the doctor's continuation in practice. Psychiatric patients are, he submits, by their nature vulnerable people and have the capacity even though they are patients of long standing for a particular practitioner to present with surprising and acute disorders. The psychiatrist to deal adequately with these difficulties must be fully alert and have a full and uncompromised cognitive function or at least a cognitive function which is not the subject of any very significant compromise. Therefore, says Dr Freckelton, a determination should be made today that the stay should be refused. He says further that even those practitioners relied on by the doctor as supportive of his continued practice are very qualified in their support and very tentative. Their views fall far short of what one might describe as a ringing endorsement of this practitioner's capacities to continue in practice.
2. In my view the two considerations which must be balanced have already been described, one the desire not to render a review right nugatory and not to inflict irreparable damage before a full and complete review can be completed and on the other hand the concern to preserve the public interest in the treatment of vulnerable patients such as those with psychiatric impairments. How then are these matters to be balanced out in the present proceeding? Frequently in cases of this type the Tribunal can be comforted in the knowledge that the public interest in the meantime will be catered for by the thought that a practitioner who has been found at first instance to be guilty of some type of wrongdoing, some lack of attention, some error of judgment can be thought if given a stay in an interim period to have the strongest possible motives to refrain from anything that might be inappropriate, to use extra care, to ensure that there is no failure to meet proper standards and generally to adopt the most cautious approach in any crises to avoid anything which might be regarded as a breach of proper judgment. To put it in colloquial terms, he or she will want to keep his or her nose clean pending the final hearing. Here, that consideration is either entirely absent on the hypothesis advanced by the Board or at any rate severely diminished. The Board's view is that this practitioner is no doubt doing his very best and will continue to do his very best but that his ability to perform to proper standards is compromised by matters entirely beyond his control. That being the case the consideration that the pendency of the final hearing will be a strong motive and perhaps the strongest motive to ensure that there is no departure from any proper standard has little or no weight in these circumstances.
3. In these unhappy circumstances I believe, albeit with great hesitation that the weight of considerations favours not granting the stay which has been sought and so the application for stay is dismissed.