Bolton v Health Care Complaints Commission

NCAT Occupational|2023-11-06

REASONS FOR DECISION

Except where otherwise stated all statutory references are references to the Health Practitioner Regulation National Law (NSW) (the National Law).

Introduction

This is the application of Mr Benjamin Bolton (the applicant) for reinstatement to the Register of Optometrists.
On 12 October 2021, the Tribunal had cancelled the applicant's registration as an optometrist and ordered that there be a non-review period of 18 months: Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 (the Original Decision).
In summary, the Tribunal had found that: 1. the applicant had been convicted of criminal offences; 2. the applicant was guilty of unsatisfactory professional conduct (two complaints); 3. the applicant was guilty of professional misconduct; 4. the applicant was impaired;
The Tribunal did not find that the applicant was not competent to practise optometry.
The Commission opposes the application for reinstatement.
For the following reasons, the application for reinstatement is dismissed.

The applicant's evidence

Prior to the hearing, the applicant filed a bundle of 115 pages which included the following documents: 1. submissions; 2. professional references of Mr Alan Saks, Mr Justin Clunas and Mr Simon Vedova; 3. correspondence with the Commission relating to the costs of the previous proceedings; 4. Continuing Professional Development (CPD) certificates; 5. the applicant's submissions to the Tribunal in the previous proceedings; 6. reports of Dr Geeta Chauhary, psychiatrist, dated 9 February 2018, 3 October 2019 and 11 January 2021; 7. reports of Dr Craig Sadler, a drug and alcohol specialist, dated 30 October 2019, 8 April 2020, 18 January 2021; 8. reports of Dr Pamela Ambler, psychologist, dated 10 February 2019 and 4 November 2019; 9. an email from the applicant to the Optometry Council of NSW (Council) dated 14 March 2021, (collectively Exhibit 1).
At the hearing, the applicant filed: 1. a Court Attendance Notice dated 15 November 2023 (Exhibit 2); 2. custody management records of the NSW Police Force relating to his arrest on 23 October 2023 (Exhibit 3); 3. a Provisional Order Apprehended Domestic Violence Order (ADVO) dated 1 November 2023 (Exhibit 4).
The Commission required the applicant for cross-examination. Where relevant we will refer to his oral evidence below.

The Commission's evidence

The Commission filed a 176 page bundle of materials (Exhibit A) which relevantly included the Original Decision, a transcript of a s 150 hearing held on 13 February 2019 and the Council's reasons for decision; reports of the Impaired Registrant's Panel; and reports of Dr Anthony Samuels, psychiatrist.
The Commission also filed materials filed by the applicant in either the Council proceedings or the previous Tribunal proceedings.

The Previous Decision

It is appropriate at this point to summarise, at a generally high level, the findings of the Tribunal in the Original Decision.
The principal reason for doing so is that this will assist in understanding the applicant's submissions in relation to reinstatement.

Summary of complaints

The Commission made six complaints against the applicant being: 1. convictions for criminal offences: National Law, s 144(a); 2. unsatisfactory professional conduct under s 139B(1)(b) in that the applicant failed to notify the National Board of the criminal offences and convictions as required by the National Law; 3. unsatisfactory professional conduct under s 139B(1)(l) in that the applicant engaged in improper or unethical conduct relating to the practice or purported practice of Optometry. For the most part the factual basis for this complaint was that the applicant failed to disclose the charges and convictions in registration and renewal applications he completed to the Australian Health Practitioner Regulation Agency (AHPRA); 4. professional misconduct under s 139E arising out of the unsatisfactory professional conduct detailed in the second and third complaints; 5. impairment within the meaning of s 5, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affected or was likely to detrimentally affect the applicant's capacity to practise the profession of optometry; and that 6. the applicant was not competent to practise the profession of optometry in that the applicant lacks the mental or physical capacity to practise within the meaning of s 139(a).
The Tribunal found each of complaints (1) to (5) to be proven. The Tribunal did not find complaint (6) proved.
At [149] to [151] the Tribunal set out the circumstances of the applicant's convictions as follows: Circumstances of the Convictions 149. In considering whether the circumstances of the criminal offences of which Mr Bolton has been convicted render him unfit in the public interest to practice optometry, it is necessary to set out further details about the offences. 150. Mr Bolton has been charged with 22 offences since 2004 and convicted of 19 of those offences. The 19 convictions relate to 7 incidents between 2004 and 2018. 151. The circumstances of the offences are as follows: (1) 3 convictions for driving with a high range prescribed concentration of alcohol (PCA) on 17 January 2004, 25 December 2012, and 27 September 2014) (2) 7 offences committed in relation to events at a Hotel around 11 December 2013 including destroy property, resist arrest and common assault (3) 3 offences committed in relation to events at a Hotel around 3 October 2015 including resist arrest and excluded person remaining in vicinity of licensed premises (4) 3 offences in relation to a violent assault on his father in the early hours of 21 June 2017. For this offence Mr Bolton was sentenced to 16 months' imprisonment with the setting of a 5 months non parole period for Assault occasioning Actual Bodily Harm. This incident included the following circumstances: (a) Assault on his 67 year old father, in his father's home. (b) Punching his father in the head a number of times sufficient to cause bleeding. (c) Kicking and punching his father on the ground. (d) Forcing his father to do multiple push-ups. (e) Forcing his father to stand naked in front of a mirror. (f) Hitting his father with a plastic cricket bat. (g) The events occurred in front of a 14-year-old boy living in the house under the care of Mr Bolton's father. (5) Whilst on parole 3 offences in relation to a domestic violence incident on 19 January 2018. Arising from these offences Mr Bolton was sentenced to 16 months' imprisonment for Stalk/Intimidate Intend Fear and Physical Harm and Resist Officer in Execution of Duty. This incident included the following circumstances: (a) Mr Bolton attending the home of his employer, calling on him to exit the house. (b) Kicking and head-butting doors of the house and yelling into the house. (c) Resisting arrest when the Police arrived, asking Police to shoot him, and being subdued with capsicum spray. (d) In the house at the time was a woman with whom Mr Bolton was having a relationship, Mr Bolton's mother and his employer, as well as 4 children who were locked in their rooms for safety.
The Tribunal then considered whether or not the applicant was unfit in the public interest to practise optometry. The Tribunal's conclusions were: 168. With respect to the conduct of Mr Bolton, we agree with a number of submissions made by the Commission that considerations that weigh heavily towards a finding that he is unfit to practise in the public interest are as follows: (1) The serious and escalating nature of the offences, many of which involved damage to property, resisting arrest and violence including assault. (2) The offences of 21 June 2017 included a serious assault against a close and elderly family member, and were committed in the presence of a 14-year-old boy. (3) The offences of 19 January 2018 included a domestic violence offence and involved threatening conduct towards another optometrist at his home who was Mr Bolton's employer at the time. The employer's four children were in the house at the same time locked in their rooms. (4) The offence of the 19 January 2018 has a nexus with Mr Bolton's occupation as it was committed against his employer who was an optometrist and another employee at the practice (the wife of the optometrist), albeit the offence was committed at the employer's home and not in the workplace. (5) Domestic violence offences are a significant issue of concern in the Australian community. (6) The limited contrition Mr Bolton showed for the impact upon the victims of his crimes. (7) The number of offences, the long period over which they occurred, and the severity of the most recent offences are capable of causing disquiet if members of the public were aware of the details of his offences. The setting and maintenance of professional standards would be compromised in the event Mr Bolton was allowed to continue practising. … 170. Mr Bolton submitted that the assaults he committed were domestic in nature and were borne of personal relationship conflict over extended periods of time. He contended that none of his convictions occurred in the context of his professional role as an optometrist. 171. The nature and extent of the offences for which Mr Bolton has been convicted demonstrate that there has been a steady escalation to his criminal conduct culminating in two serious assaults for which he was imprisoned. In our view his conduct in assaulting his father and a work colleague is incompatible with respect for the health, welfare and safety of the public. Both assaults were serious and took place in the presence of children. The domestic nature of the assaults as asserted by Mr Bolton does not lessen their gravity nor does it detract from the violent nature of the offences. Mr Bolton's conduct was not consistent with a health practitioner's fundamental role to hold to mind the protection of the public and to care for the health and wellbeing of the community. 172. Given the matters referred to above we are satisfied that the circumstances of the offences of which Mr Bolton has been convicted render him unfit in the public interest to practise optometry.
The Tribunal's conclusion was as follows: 197. We have found Mr Bolton guilty of professional misconduct; and, unfit in the public interest to practise his profession. We are satisfied that each case independently justifies cancelling Mr Bolton's registration. 198. The factual matrix which underpins Mr Bolton's professional misconduct and his unfitness in the public interest are related. They stem from the circumstances of his criminal offences and convictions, and his failure to make proper disclosures of those offences and convictions. In view of this we do not think it is appropriate to accumulate time in the setting of a non-review period. 199. If Mr Bolton did wish to apply for registration as an optometrist in the future, the protection of public requires that he should only be able to do so when he is able to demonstrate that he is fit to make that application. We note that Mr Bolton has not completed any professional course in ethics. We make this observation not to direct or confine any future review but to enable Mr Bolton to consider possible areas that he could address. 200. In our view a period of 18 months during which Mr Bolton cannot apply for re-registration is appropriate and will provide the necessary period of time for him to address the deficiencies in his conduct which we have identified.

The applicant's submissions

The applicant filed 10 pages of submissions before the hearing, and an additional 15 pages of submissions after the hearing pursuant to directions.
We pause to note that the applicant's post-hearing submissions also included copies of the following: 1. the applicant's Bachelor of Optometry degree; 2. a letter from the Council to the applicant dated 14 May 2020 notifying him of public and private conditions on his registration; 3. an extract from Moslemi v Health Care Complaints Commission [2022] NSWCATOD 170; 4. information about the TAFE AHC31421 Certificate III in Conservation and Ecosystem Management; 5. the applicant's Emergency Department Discharge Referral from Manning Base Hospital dated 16 October 2023; 6. CPD information for the applicant from Optometry Australia's Institute of Excellence for the period 1 December 2022 to 30 November 2023.
The Commission objected to that material, submitting that it was all evidence for which no leave had been granted. We note that the information in items (1) and (2) is common ground in the proceedings. We agree that documents (4), (5) and (6) are evidence, but the information relates to matters that were discussed at the hearing. Clearly the extract from Moslemi is a public document.
While post-hearing materials will not be accepted without the leave of the Tribunal (see Sedghi v Liew [2024] NSWCATAP 6 at [62] - [65] for a recent statement of the relevant principles), as the applicant was not represented and we see no prejudice to the Commission in the Tribunal receiving these documents, we propose to receive them.

Summary of applicant's pre-hearing submissions

These submissions commence by the applicant commenting on certain passages of the Original Decision. He says that he accepts the Tribunal's findings and states that his actions represented a significant lack of respect to the regulatory bodies, for which he is remorseful.
The applicant says that he has not completed any Course in Ethics, but has maintained his membership of Optometry Australia and completed CPD to the extent that he can.
In relation to impairment, he says he "fully accepts" the Original Decision. He says that: I would like to add now that with hindsight, my denial of impairment in 2019 was not only based on what I believed were credible differences in medical opinion but also my association of impairment with incompetence to practice professionally. Until 2017 I had been involved in the profession of Optometry in either an academic or practice context, or both for over 20 years. I had always prided myself on academic, professional, and personal achievements within the Optometry field. The thought of being deemed an incompetent practitioner was unacceptable to me based purely on ego and professional pride. I appreciate now that in declarations before the OBA and AHPRA there is no room for ego. These are statutory processes to be respected and answered based on fact, not opinion. The fact that as of 27 March 2019 | have been diagnosed with an impairment within the meaning of The Law, by Dr. Anthony Samuels, will need to be disclosed on all if any future applications with the OBA and AHPRA.
In relation to the Tribunal's finding that complaint (6) was not established, the applicant states (additional paragraph breaks added for ease of understanding): The Tribunal has deemed me competent to practise, despite impairment, and that 18 months of non-review period was sufficient time to address my moral and ethical deficiencies. I have had no legal involvement in over 5 years and intend for this to remain so. I now appreciate the paramount importance of candour and absolute honesty with the regulatory boards and that there is no room for personal discretion where reporting is involved. I appreciate the primary role of the regulatory bodies as protectors of the public and confidence within the Professions. My last month of Optometry practise was January 2018. As such it is now over 5 years since l last consulted. In this period there has been 14 months of imprisonment, restriction on practise due to finding of impairment and ultimately cancellation of my registration as of 12 Oct 2021. At the outset of my release from prison I was acutely aware that a return to Optometry practise would be a protracted if not even a redundant process. Recency of practise concerns in addition to designation as an impaired registrant will see my practise, if any, restricted for an undisclosed period of time in the foreseeable future. Autonomy in practice will be unavailable to me despite 18 previous years of unbroken and mostly solo practise. I am aware that I will now be under scrutiny and review from each of the regulatory bodies including AHPRA, the OBA, the Optometry Council of NSW and the HCCC.
The applicant concludes his submissions with the following statement: For these reasons, amongst others, I realise that the enjoyment and satisfaction I once gained from the profession of Optometry may never be the same. This is however the motivating factor behind my intent to reapply for registration as an Optometrist. Optometry is a profession I grew to love. It provided a career that I sourced great personal satisfaction from. It is a profession I am not only competent in but rightfully believe I am very good at. Despite the glaring irony of my criminal history, I have had a genuine empathy for all of my previous patients to add to my sound technical skills and knowledge. Despite the passing of time and recency of practise I feel these personal and professional attributes remain. I have maintained my CPE requirements since 2020. This is not simply for satisfaction AHPRA requirements. I have a genuine interest in the Optometry profession, its current direction and scope, and all topics ocular and visual. Irrespective of a return to Optometry practise or not I will remain a member of the OA and complete CPE out of personal interest Irrespective of whether my application for re-registration to practise Optometry is successful, I have considered the possibility that a return to the profession may prove impractical. Ultimately my lack of recency of practice and declaration as an impaired practitioner, will see limitations and restrictions. Autonomous practise and locum positions will be exempt. Despite previous career and educational achievement the practicalities of these restrictions potentially see me as a less desirable employed Optometrist. I have been studying Cert 3. Conservation and Ecosystem Management since February. This may not eventuate in a career change. My primary focus is a return to the Optometry profession. This is by no means financially motivated, rather my goal for future employment is personal and professional satisfaction. If my previous enthusiasm for Optometry proves to be dampened by professional restrictions and limitations or otherwise, a career in environmental management may fulfill these personal goals. Hopefully this does not need to eventuate

The applicant's cross-examination at the hearing

It is appropriate at this point to now refer to the Commission's cross-examination of the applicant at the hearing.
The cross-examination focused on Exhibits 2, 3 and 4 tendered by the applicant. These relate to his arrest at his home on 31 October 2023 following an incident involving his mother. The "Full Facts" set out in the Court Attendance Notice state: The victim … is 76 years of age … while and the accused, Benjamin BOLTON is 46 years of age …. The victim and the accused are mother and son, and both currently resided at…, which is the victim's unit. The accused has been residing with his mother at the premises for the last 4 to 5 years. About 10:20pm on Tuesday 31st October 2023, the victim, …BOLTON and the accused, Benjamin BOLTON were at their unit … The victim and the accused had both been drinking prior, when the victim made a comment about a family issue that has set the accused off. As a result the victim has gone to her bedroom and closed the bedroom door and gone to bed. The accused has opened the victim's bedroom door and stood in the threshold of the door. The victim told the accused to get out of her bedroom, however the accused refused to do this and has remained standing in the doorway to the victim's bedroom. The victim got up out of her bed and approached the accused and pushed him a number of times in the chest area with the palms of her hands to removed the accused from her bedroom. The accused has stumbled backwards and the victim has closed her bedroom door. The accused started throwing items and pushing over furniture in the hallway area of the unit. The accused has pushed over a antique wooden side table, where a rear leg has broken off as a result. The victim called police in relation to the incident and waited for police outside of the unit complex. Police have arrived a short time later and activated their Body Worn Video Cameras and spoken to a visibly upset victim about the incident. Police attended the unit where the accused opened the unit door and allowed police entry to the premises. Police entered the premises where the accused escorted police to the hallway. The accused told police that he had turned things over. Police saw that there were a number of items long with furniture pushed over or strewn along the hallway to the unit. The accused was cautioned and questioned further in relation to the matter. The accused told police that the victim was siding with his brother about another matter. The accused was arrested, handcuffed and again cautioned in relation to the malicious damage. The accused was escorted out of the unit and searched before being escorted to a caged vehicle. Police confirmed that an antique hallway table leg had been damaged, and broken off as a result of the accused's actions. Police obtained a Domestic Violence Evidence in Chief DVEC) statement from the victim in relation to the matter. The accused was conveyed to Forster Police Station where he was entered into police custody. Due to the accused intoxication he was not read his Part 9 under the Law Enforcement (Powers & Responsibilities) Act 2002. Police also asked the accused if he wished to interviewed about the matter at a later date however he declined. Police also applied for and were granted an apprehended violence order for the victim protection which was served on the accused while he was in custody.
When questioned by the Commission's Advocate, the applicant broadly agreed with the contents of the Facts Sheet. He agreed that he had been drinking and had drunk "maybe 8, 9, 10 beers" just before 10.20pm that day, having commenced drinking around 3pm after work.
The applicant said he intended to plead guilty to the offence with which he had been charged, namely intentionally or recklessly destroying or damaging property (domestic violence related): Crimes Act 1900 (NSW), s 195(1)(a). The applicant accepted that his actions were a symbol of disrespect.
Because of the conditions on the ADVO he cannot reside at his mother's home, and was now "basically staying in [his] car", although he stayed in hotels from time to time.
While he has seen his mother since the incident, he has not apologised.
He has continued to drink since the incident.
In response to more general questioning from the Commission's Advocate, the applicant: 1. agreed that he had an issue with alcohol and that he drank to excess; 2. said that he had not reached the position that he could abstain from drinking, despite Dr Samuels' suggestion that he do so; 3. when asked what it would take for him to abstain, after a long pause, said that he did not know the answer, although he had abstained previously while incarcerated for 6 weeks; 4. said that only one of his two referees knew about the incident with his mother; 5. said that he had not been able to see a psychologist since he last saw Dr Ambler in November 2019.
The Commission's advocate then discussed with the applicant aspects of his pre-hearing submissions. The Commission's advocate also discussed with him that at the time of the previous hearing he had stated that cancellation of his registration was not appropriate. The applicant said that now objectively he thought it was appropriate. When asked if he had the deficiencies addressed by the Tribunal at the pervious hearing, namely his dependence on alcohol, he said that he "can't honestly say yes, given last week" (that is the incident involving his mother).

Summary of applicant's post-hearing submissions

The applicant's submission is part submission and part additional evidence. The additional evidence was not objected to by the Commission, so where relevant we will have regard to it.
After setting out details of his employment as an optometrist, the applicant then discusses his enrolling in and subsequent completion of the Post Graduate Certificate in Ocular Therapeutics at the University of NSW. He says that those studies caused his Obsessive Compulsive Disorder (OCD) to flare up as he became preoccupied with academic achievement throughout the course. He says that his OCD was initially diagnosed at the age of 12. He says: Ultimately 18 months of this consistent routine saw my physical and mental health decline to the point of breakdown. By November 2011 I had quit my job of 9 years and retreated to my home physically and mentally unwell. With no future plan and with no income protection in place relied on my redraw facility to finance a home mortgage I had otherwise successfully maintained since 2005. The following 2 months saw further health decline to the point that I was involuntarily admitted to the Manning Base Hospital (MBH) Mental Health Unit in January 2012, as an inpatient, without release for 3 months. The diagnosis was severe/acute depressive episode. In this time as a public and involuntary patient I was medicated and subject to courses of Electro-Convulsive Therapy (ECT), expressly against my will.
Upon discharge from Manning Base Hospital: I found a new full-time employer near my home town as my previous employer was unable to maintain my previous position. I also completed my final exams in the PG Cert. Oc. Ther[e] with a High Distinction result. Between April and November 2012 I maintained this full-time employment. I did encounter new found external pressures in this time, mainly related to mortgage deficit and poor relations with my previous employer (and personal friend), in regards to finding employment at another practice in the local area. These pressures mounted and in November I abruptly quit my employment, put my home up for sale and by January of 2013 had taken to locum Optometry positions Australia wide. One of these resulted in a 12 month, full-time tenure in Warnambool Victoria, during 2013/2014. I continued locum Optometry until 2017. My house had sold in 2013. In the interim locum positions were inclusive of accommodation for the weeks to months long positions. In between these I resided at my mother's home unit in Forster, NSW. In February 2017 I decided on a return to the Hunter Valley/Newcastle region, where I took a permanent part-time Optometry position and relocated to a rental property in Newcastle.
The applicant says that in the years 2000 to 2012 he had practiced Optometry essentially in full-time unbroken practice. The following 5 years consisted of practice for at least 10 months in any given year. For 17 years he had performed as a more than competent Optometrist, and had been well respected by his peers and patients alike for both my clinical ability and knowledge, as well as my attention to patient welfare. He says that at no stage in his career had he been the subject of any complaint, personally or professionally, by any patient under his care.
On 22 July 2017, he was arrested for assaulting his father, imprisoned and apart from a brief return to optometry in January 2018 following his prison release, he has not practiced Optometry since.
The applicant admits that he was reincarcerated in February 2018 for breach of parole and additional offences, and that between 2004 and 2018 he accrued 19 criminal convictions. He accepts that each of these convictions arose in the context of his alcohol dependence.
The applicant then submits (again paragraph breaks added for ease of understanding): It was not until final prison release in November 2018, that I took any active approach to moderation of alcohol consumption. As I have been open with medical and legal practitioners, NCAT and the HCCC I continue to consume alcohol, albeit at levels moderated relative to my consumption 2000-2017. I have previously only made one period of voluntary abstinence. This was upon release from prison in 2017 and was for a period of 6 weeks only. Given recent events in my personal life I have currently abstained from alcohol since Tribunal meeting with NCAT on November 6, 2023. This is in main because of my current living pressures and reduced mental wellbeing. I am fully aware of the physiological effect of alcohol as a depressant and the potential for negative impact on my diagnosed mood disorder- a tendency to depression. As I have also been open and honest with, to suggest a commitment to indefinite alcohol abstinence would an untruth on my part. I appreciate the health ramifications, mental and physical. I know that alcohol has underpinned my criminal conviction history and the majority of my interpersonal relationship issues. I am also acutely aware that this remains one of, if the not the most significant barrier to having consideration to my Optometry registration reinstated. To claim that I will not consume alcohol from this point forward in my life, simply to enhance my likelihood of a return to Optometry, however, would be spurious. While not currently drinking I still entertain the idea of a beer on the weekend or after work in the future. This has been part of the fabric of my, my family and friends' and my social outlets for over 25 years of my life. In itself there is nothing morally, ethically or legally wrong with this irrespective or role or profession.
After discussing his pathology results in 2020 to 2021, which he has not continued with since deregistration, he then describes the "positives" he has achieved since 2018. He does so by reference to various legal authorities.
The applicant identifies and addresses the relevant principles regarding reinstatement by reference to cases including Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655); Re Lenehan (1948) 77 CLR 403; [1948] HCA 45; Marquinez v Health Care Complaints Commission [2017] NSWCATOD 148 (and the various authorities referred to in that decision).
The applicant submits that there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners because the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance: Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85].
The applicant says that, unlike Moslemi, his original transgressions in reporting to AHPRA were actual failures in full disclosure, not premeditated fabrications of truth.
The applicant says his denying a diagnosis of impairment on reapplication with AHPRA in 2020, was not a lie with premeditation. He believed there were credible differences in medical opinion his suitability for practice.
Consistent with Marquinez, the applicant states: I too have remained committed to the Optometry profession since cancellation of registration through CPD. I remain a member of the Optometry Association of Australia and for the years 2020-21, 2021-22 and now 2022-23 I have completed the 90 hours of continuing education required by the OBA of AHPRA for Optometrists registered with the use of Therapeutic Medicines. (Annexure C). In my own time I still interact with Optometric colleagues, including personal friends and my own brother, to discuss current treatments and trends within the profession. I remain an avid participant on a number of private social media groups consisting of fellow Optometrists and Ophthalmologists, where subject matter relates to patient case studies and appropriate management. I continue to read Optometry and Ophthalmology Journals out of my own personal interest. In June of 2021 I had intended to undertake post graduate studies in advanced contact lens fitting at the UNSW. Unfortunately this course did not proceed due to lack of enrolment numbers. I then contacted the Australian College of Optometry who had a similar course beginning in the January of 2022. This course required clinical placements within private Optometry practices. I was under the misapprehension that conditions on my practice set out by the IRP in April 2020 were still applicable. I relayed this to the course staff at the ACO and that my registration had been cancelled in October 2021. I was advised against enrolment as I may prove to be in breach of conditions by proceeding with clinical placements. At this point I decided to concentrate on at least maintaining annual CPD requirements and decided to enrol in an online TAFE course in a Certificate 3 in Conservation and Ecosystem Management, beginning March 2022. While this was far from relevant to the practice of Optometry, I had concluded that an alternative qualification may prove beneficial should any future reapplication for registration and return to Optometry practice prove unsuccessful. I am currently half way through this 2 year course.
The applicant then refers to comments of the Tribunal in the Original Decision that he had demonstrated an inclination to act unethically and improperly when dealing with regulatory authorities. He then refers to the Tribunal's observation that he had not completed any professional course in ethics. He says that: I have noted previously that I have not completed any professional or protracted course in ethics but that the Tribunal made this observation not to direct or confine any future review. I also noted that as part of my 30 hours of CPD in the year of 20 I had voluntarily undertaken one particular course relevant to the ethical and moral responsibilities and obligations of the Optometrist in interacting with the regulatory bodies of the Optometry Council, AHPRA and the HCCC. I feel that at the Tribunal on November 6 2023, counsel for the HCCC was particularly dismissive of this in repeatedly relaying that this was only 2 hours of my required CPD. It was also observed by member of the Tribunal that such protracted courses in ethics (as those completed by Moslemi) are available online. I concede to this but also point to my being occupied with work, CPD and alternative studies as listed above.
The applicant then updates the Tribunal on the outcome of the property charge in relation to the incident at his mother's in October 2023. He notes that: I was forthright with the Tribunal and counsel for the HCCC as disclosed this in full. I note that 2 things here. 1 My court date was still pending and I had not yet received any conviction arising from these charges 2 I was not in any legal manner obliged to share this information with the Tribunal nor the HCCC at the time. At present being currently unregistered, I am not even obliged to share this information with AHPRA. I could have kept this information to myself, particularly given that my criminal conviction history between 2004-2018 was one of the factors in my deregistration by the Primary Tribunal in October 2020. Despite the damning/self- incriminating nature of this I decided I was morally and ethically obliged to do so. I do not seek to downplay the enormity of the charge nor the incident in any way. I do hope that volunteering this information, without legal obligation, is indicative of my own moral and ethical compass. My counts of unsatisfactory professional conduct and professional misconduct found at the Primary Tribunal were based upon failure to make proper disclosures to AHPRA of prior criminal charges and convictions
He concludes this section of his submissions by stating: I would like to add that since proceedings on November 6th 2023, I pleaded guilty to the charges of destroy/damage property. It is an incident I am highly ashamed of and frustrated in myself for. Despite my prior conviction record, the presiding judge was rather empathetic when the circumstances surrounding the incident, namely my own assault4, and the discussion on the night of my charge in regards this, were mentioned in court. I received a 12- month bond of good behaviour and the ADVO taken out by the police on behalf of my mother remains. I currently still reside at my mother's home and abide by the conditions of this ADVO, including no consumption of alcohol.
The applicant then addresses his lack of consultation with health professionals since the Original Decision, noting that his general practitioner had retired, Dr Ambler now practices on the far North Coast and that subsequent general practitioner had not recommended any follow up. He further notes that Dr. Chaudhary, his Clinical Psychiatrist, had previously expressed her opinion of the stability of the applicant's mental health. The applicant says that his mental health treatment regime has been unchanged now for over 10 years and consists of ongoing medication with Paroxetine 40mg and in person review with his general practitioner.
The applicant concludes by stating: I am aware that if re-registered I will be subject to ongoing review and scrutiny from multiple governing bodies. I made mention of this in my initial submissions for consideration for re-registration. I fully expect conditions to remain on my practice by the IRP of the Optometry Council of NSW, including restrictions on practice, requirements for multidisciplinary medical review including re-engaging with Psychiatry, Psychology and addiction medicine specialist. The time frame of 5 years out of practice will also see my registration subject to recency of practice concerns by AHPRA. Additional conditions on practice may result from this. I am also aware that any return to Optometry and re-registration within will require annual disclosure to AHPRA of my full criminal history 2004-2018 and recent conviction for damage of property 2023. As well as submission that I have been deemed an impaired registrant by Dr. Anthony Samuels since 2019. I would like to conclude my submission by noting that my hope for re-registration in Optometry is not financially motivated. I have managed to cope as a low income earner, in major part due to living situation afforded by my mother. A return to the profession is motivated by the professional and intellectual satisfaction it affords, the personal satisfaction gained from providing primary practitioner care to members of the public and the opportunity to regain autonomy in my personal and work lives. I would like to think also, that through my previous academic and professional achievements, a continued involvement within the profession in the period of my deregistration and a personal journey in character over the last 5 years, I have shown I have a valuable contribution to make to the profession of Optometry in the future.

The Commission's submissions

After setting out the relevant principles regarding reinstatement, the Commission submits that the power to reinstate should be exercised with great caution and only upon solid and substantial ground: Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [53].
The Commission submits the cancellation order remains appropriate because it operates to protect the public from the applicant in circumstances where the Tribunal cannot be confident that the applicant is a fit and proper person to hold registration in his health profession: Jan v Health Care Complaints Commission [2021] NSWSC 350 at [28].
The Commission submits that, in determining whether the applicant is a fit and proper person, it is necessary to consider whether the applicant has addressed the following concerns had by the Tribunal which culminated in the imposition of the cancellation order, namely: 1. the applicant's offending conduct was not consistent with the health and safety of the public, and he showed little regard for the impact his violence had on his victims and children who were present; 2. the applicant was not candid and honest with authorities; 3. the applicant did not appreciate the moral dimension to his conduct involving reporting, and showed a lack of insight as to its seriousness; 4. the prospect of the applicant engaging in such conduct in the future could not be ruled out.
After addressing each of these concerns, the Commission concludes its submissions by stating: 41. The Commission submits that the applicant has not addressed the Tribunal's concerns and thus the applicant is not a fit and proper person to hold registration. the cancellation order remains appropriate because [it]: a. acts to protect the public from the applicant (in circumstances where the applicant committed an offence when intoxicated one week before the reinstatement hearing and as such the Tribunal cannot be confident he is unlikely to reoffend, noting the difficulties in predicting how someone will behave in the future [Scully v Health Care Complaints Commission [2013] NSWNT 7] b. continues to denounce the applicant's conduct c. acts to deter the applicant from acting the same in the future d. will provide a further opportunity for rehabilitation (in circumstances where he is yet to show his has reformed, having not displaced the findings of impairment or even sought out psychological help) e. upholds the standards of the profession in the eyes of the community.

The practitioner's submissions in reply

At the time of preparing these reasons, the time for any submissions in reply having passed, and no submissions in reply had been received.

Relevant legislation and principles

Sections 163B and 163C provide: 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time. 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.
In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34];
To these principles can be added the statements of the Tribunal in Marquinez at [19] that: (1) The Tribunal's jurisdiction in relation to reinstatement orders is protective: Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155; (2) The power "is to be exercised in a way that ensures that any health practitioner who is the subject of a reinstatement order is of good character and both fit and competent to practise their profession": Donnelly at [12]; (3) The onus of proof lies on the former practitioner seeking reinstatement, requiring an evidentiary basis and with the standard of proof being the civil standard of the balance of probabilities: Donnelly at [12]. (4) The Tribunal "must approach the matter of reinstatement with a healthy scepticism" and "with the greatest caution and only upon solid and substantial grounds": Donnelly at [13]; (5) The Tribunal ought to be open to the possibility that a former practitioner has demonstrated that he or she is now fit for reinstatement to the register: Donnelly at [14]-[15]. There may also be public interest considerations served by permitting reinstatement: Mnyandu v Health Care Complaints Commission [2015] NSWCATOD 43 at [39]. (6) The passage of time since deregistration without further infraction does not imply that former practitioner is a changed person - clear proof is required to show that some years later the person has established themselves as a different person: Mnyandu at [38]; (7) Improved insight into conduct which led to the cancellation of registration in the first place, and into the personal factors which resulted in the complaints in question, will often be relevant to any application for reinstatement, as will any steps taken to demonstrate such improved insight as well as that the former practitioner is a changed person: see Donnelly, Mnyandu; Ristevski v Medical Council of NSW [2016] NSWCATOD 18.

Consideration

In terms of the practitioner who appeared before the Tribunal at the previous hearing, and the applicant who appeared before us, we see someone who has developed considerable insight into many aspects of his actions, in particular, appreciating the paramount importance of candour and absolute honesty with the regulatory boards.
We were impressed with the applicant's candour to us during the hearing, particularly in relation to the events of the previous week involving his mother and which resulted in the issuing of an ADVO and the laying of one criminal charge.
But it is of concern that despite the practitioner accepting each of his 19 previous convictions arose in the context of his alcohol dependence, the applicant has not taken any concrete steps to seek professional assistance to address that dependence. That is of particular concern when one considers that those 19 convictions do not include the most recent conviction in relation to the regrettable incident involving the practitioner's mother shortly before the hearing of his reinstatement application on 6 November 2023.
The applicant gave evidence that it was in the context of a family dispute that he had "flipped a table", "sworn" and "yelled" to his mother. He said that he was intoxicated at the time, having consumed ten beers during the afternoon and evening. he conceded in oral evidence that had he not been intoxicated he would not have acted the way he did.
The Commission submits that the resulting charge does not bode well for the applicant's prospects of rehabilitation, because the applicant stated that he had every intention not to come into contact again with the criminal justice system, but still refuses to abstain from alcohol contrary to the advice of health professionals. His evidence was "I can't say that I won't have a drink from now until the day I die". The Commission submits that that evidence, while frank, demonstrates a lack of insight into the impact of his drinking.
There is substance in the Commission's submission that the applicant has a history of offending when intoxicated, damaging personal and professional relationships, and jeopardizing employment prospects.
We note that the practitioner says that since 6 November 2023 he has abstained from alcohol, but we cannot accept that statement given that it only arose in post-hearing submissions and has not and cannot be tested by the Commission. It is additionally hard to accept given practitioner's evidence in cross-examination, less till given his submission we have recorded at [44].
We place little weight on the two personal references relied on, as these both pre-date the 23 October 2023 incident with the applicant's mother. Even if we accept, as the applicant claims, that he told Mr Saks about the incident, no updated opinion or reference has been provided.
In relation to impairment, in the Original Decision, the particulars of this impairment were that the applicant had a Mood Disorder, Obsessive Compulsive Disorder and a significant Alcohol Use Disorder, and a very significant history of alcohol abuse and continued to drink harmfully and above recommended guidelines after being placed on the Council's Impaired Registrant Program in June 2019.
The Tribunal found that: 111 In [his] reports Dr Samuels found Mr Bolton to have an impairment based upon a mood disorder, Obsessive Compulsive Disorder, alcohol use disorder, and personality vulnerabilities all of which have the potential to impact upon his professional functioning. Dr Samuels noted that although Mr Bolton had reduced his drinking he continued to drink in excess of safe drinking guidelines. 112 In his oral evidence, Dr Samuels stated that Mr Bolton's alcohol use disorder was likely related to his long history of criminal conduct and expressed concern that Mr Bolton continuing to use alcohol placed him at much greater risk of further criminal behaviour. Dr Samuels strongly recommended abstinence from alcohol.
There is no evidence before us that would enable us to find that the applicant no longer has an impairment as found in the Original Decision.
The applicant bears the onus of proving that he is a fit and proper person to be engaged in the profession optometry, and that any applicant who seeks to establish fitness to have their name restored to the Register having been earlier removed from it bears a heavy onus of doing so.
We are unable to conclude that the applicant has discharged that onus for us to order him to be reinstated to the Register given that: 1. the applicant's alcohol dependence remains unaddressed; 2. the applicant continues to have an impairment; 3. the power to reinstate should be exercised with great caution and only upon solid and substantial grounds; 4. we are not satisfied that the applicant can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession.
We propose therefore to dismiss the application for reinstatement.

Other

The Commission has not sought that the Tribunal impose a further order that the cancellation order is not to be reviewed until after a further specified time.
That means the applicant is free to make a further application for reinstatement at any time. He should understand however that he is unlikely to be successful if he does not present independent and probative evidence to the Tribunal of his insight, his rehabilitation and his fitness to practise. He would also improve his chances of reinstatement if he could provide proof of abstinence from alcohol, proof of ongoing engagement in alcohol counselling and rehabilitation services, and support from employers, friends and community workers, in references which make it plain that they are aware of the applicant's past and are therefore in a position to comment on his future. This list is not meant to be exhaustive, and we also suggest that the applicant obtain professional assistance before he reapplies.

Costs

The Tribunal has repeatedly indicated, as has the Court of Appeal, that this is a costs jurisdiction, and the ordinary rule is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
The applicant has been unsuccessful. He should pay the Commissions costs, as agreed or assessed.
However, we have not had the benefit of submissions on this issue. If the applicant opposes the proposed order, he may file submissions on the matter within 14 days of receiving these reasons. The Commission may respond within a further 14 days, and the applicant may reply within a further 7 days if he wishes.
We propose to determine costs "on the papers" and without a hearing. If either party opposes that course they must address that issue in their submissions.
Submissions are to be limited to 5 pages.

Orders

The Tribunal orders: 1. The application for reinstatement is dismissed. 2. If the applicant opposes the Tribunal's proposal that he pay the Commissions costs as agreed or as assessed: 1. the applicant must file submissions on or before 12 February 2024; 2. the Commission may respond on or before 26 February 2024; 3. the applicant may reply on or before 4 March 2024.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 29 January 2024 - No amendments made - done in error. 22 February 2024 - paragraph 5. - the word "Commission" corrected to "Tribunal" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 February 2024

violence related): Crimes Act 1900(NSW)

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