(ii) the orders made by and reasons for decision of the Original Tribunal in the original proceeding;

(iii) the respondent's amended application in the original proceeding;

(iv) transcript of the evidence received by the Original Tribunal in the original proceeding;

(v) a copy of the exhibits received by the Original Tribunal in the original proceeding.

1. Orders were also made on 6 November 2009 setting dates for the Respondent to file and serve of any request for particulars of the grounds of appeal and for the Appellant to respond to such a request. No request for particulars was made by the Respondent.
2. Although no express orders were made by the Tribunal that the appeal was being conducted as a review of all or part of the original decision,[16] it is clear that the appeal was not conducted as a new application. Regardless of whether this appeal is characterised as an appeal in the strict sense or an appeal by way of rehearing, it is clear from the orders of 6 November 2009 that no further evidence was admitted in the appeal proceedings. Where an appellate Tribunal is conducting an appeal in the strict sense it cannot receive further evidence[17] and its powers are limited to setting aside the decision under appeal and, if appropriate, substituting a decision that should have been made at first instance.[18]
3. As stated by the High Court in the Coal and Allied Operations Case:[19]

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law ... a court or Tribunal entertaining an appeal by way of rehearing could exercise its appellate powers only if satisfied that there was an error on the part of the primary decision-maker. ... That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate ... otherwise, the power is to be exercised for the correction of error.

1. Given that the orders of 6 November 2009 confined the Appeal Tribunal to the evidence led in the original proceeding, it is clear that this appeal has not been dealt with as a new application under section 82(a) therefore the role of the Appeal Tribunal is limited to addressing any errors in the reasoning of the Original Tribunal.[20]
2. As stated above, section 79(2) of the ACAT Act states that an appeal may be made on a question of fact or law. It is has been difficult for the law to find a satisfactory test of universal application to distinguish questions of fact and questions of law.[21] Indeed it has been held that the twin formulations "question of law" and "question of fact" exhaust the whole sphere of discourse. [22]
3. Where an appellate jurisdiction is exercised in respect of decisions involving discretionary judgment there is:

a strong presumption in favour of the correctness of the decision appealed from, and that decision should therefore be affirmed unless...clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist when there has been an error which consists in acting upon a wrong principle, or giving weight to erroneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.[23]

1. The Appellant's task is to convince the Appeal Tribunal that the Original Tribunal made such an error as to allow its order to be varied or reversed. It is not enough that the members of the Appeal Tribunal would themselves have imposed a different occupational order, or that they regard the occupational order as overly severe.[24]
2. At the hearing of the appeal, there was some initial discussion between the parties as to whether this was solely an appeal on severity. It was agreed, however, that some factual matters relied upon and found by the Original Tribunal were in issue in so far as they were raised by the grounds of appeal.

1. The Appellant's first ground of appeal was that the Original Tribunal failed to adequately consider the subjective circumstances of the Appellant medical practitioner. It was particularly emphasised that the Original Tribunal should have acknowledged that this was the first complaint against the Appellant. The Original Tribunal did acknowledge this in paragraph 73 of its reasons. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
2. The 2nd ground of appeal related to section 66 of the ACAT Act. The Appellant argued that the Original Tribunal failed to properly or at all consider the structure of that provision when it made the order. In particular the Appellant argued that the Original Tribunal "jumped straight down" to suspension rather than considering the other potential orders that may be made under section 66(2) of the ACAT Act. The Appeal Tribunal notes that the Original Tribunal stated in its reasons[25] that it considered that a fine or reprimand was an inappropriate penalty for a serious breach of the Appellant's obligations. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
3. The first part of the 3rd ground was that the Original Tribunal failed to, or inadequately considered, how the Appellant "explained that he could not have a relationship but the Complainant persisted."[26] This was similar to the 7th ground of appeal which maintained that the Original Tribunal was in error "when it incorrectly concluded under s 65(3)(a) of the ACAT Act that the [Appellant] took no reasonable steps to avoid the action that was the ground for occupational discipline."[27] In particular, the Appellant relied on the facts that he told the Complainant his behaviour was not permitted by professional standards and gave her literature to that effect prior to sexual intercourse taking place, but that she persisted in pursuing the relationship, knowing it was not permitted by the Appellant medical practitioner's regulating authority. The Appellant further argued this was not a clandestine relationship, there was no exploitation, that it would have all been very different if the patient was incapacitated, that the relevant regulatory authorities should "get out of the dark ages" and that "doctors were no longer like gods."
4. The Tribunal is unable to discover any error of the Original Tribunal on this 3rd or the related 7th ground. The Appellant appears to be arguing here that the Original Tribunal was in error in not imposing a responsibility upon the patient Complainant to make sure that the Appellant medical practitioner complied with his professional responsibilities. This is unacceptable reasoning. It is doctors not patients who have responsibilities under the professional practice standards. This is made clear from the wording of the Sexual Misconduct Standards Statement, in particular clause 5 which states that sexual violation may include practitioner-patient sex, whether or not initiated by the patient (emphasis added).
5. The Appellant relied upon the case of Peeke v The Medical Board of Victoria,[28] an ex tempore decision of the Marks J of the Supreme Court of Victoria in an appeal against a penalty imposed by the Medical Board of Victoria ("the Victorian Medical Board"). Marks J considered in that particular case that the doctor had not taken advantage of a patient in a subservient position in order to exploit her. It was found in that case that the patient admittedly "made an offer of her body"[29] and that she had made a complaint to the Victorian Medical Board as an act of revenge for the medical practitioner's termination of their relationship.[30] Importantly, Marks J in Peeke's case relied upon the findings of the Victorian Medical Board there was no evidence that the complainant suffered any adverse physical or psychological consequences as a result of the association. Peeke's case is distinguishable from the present case because of the finding in that case that the complainant had suffered no adverse physical or psychological effects from the relationship.
6. In any event, the approach taken in Peeke's case differs significantly from the approach taken by courts and disciplinary tribunals in the case law discussed above. Generally speaking, the case law indicates that even in circumstances where a patient has invited sexual contact, once a doctor-patient relationship is initiated by the usual words, deeds and documentation of the doctor, sexual interaction would constitute a boundary violation and the doctor's conduct could well still be held to so endanger public protection and safety that a suspension was justified. This is because the jurisdiction of the Tribunal (as the Original Tribunal pointed out[31]) has a strong deterrence element and is designed to ensure the public and professional colleagues can place their confidence in the practitioner.[32] The medical practitioner in such a case cannot concoct an excuse for a sexual violation of patient and public trust by pointing to the motives of the patient. This is reflected in the comments of Kirby P and O'Keefe AJA in Richter v Walton quoted above and in Dowsett J's comments in Re A Medical Practitioner as follows:

There can be no question of "blame" attaching to the patient who owes no relevant duty to the doctor, the profession or the public. The [patient] was in a position recognized as being vulnerable. That she should have succumbed to that vulnerability is not a matter for criticism.[33]

1. Further, the Original Tribunal was justified in drawing some adverse inferences against the Appellant's discussion of professional responsibilities with, and provision of documents to, the Complainant patient because there was so little time given to the Complainant to independently consider that information or seek separate advice about it. There was no substantial cooling off period involving no professional contact and establishment of alternate care for the patient, which is critical in permitting such a relationship ethically and legally.
2. The 4th ground of appeal was that the Original Tribunal erred in not considering or giving proper weight to the facts that the Appellant medical practitioner was overworked, lacked support of the Medical Board and was vulnerable to the advances of the Complainant, who seemed to consider he was her patient. The Tribunal is unable to discover any error of the Original Tribunal on this ground. Being overworked is not by itself exculpatory of the relevant professional practice standards.
3. It was not established that the Appellant had ever sought the assistance of the Medical Board or any of the doctors help services that were shown to have existed at that time. The attempt to portray himself as the victim of this patient, given her history of illness and social circumstances in fact suggests that he lacked insight into the gravity of his breach of the professional standards.
4. The 5th ground was that the Original Tribunal erred in considering evidence from the Complainant's treating doctors that she was ill when the Appellant had a relationship with her. The Appellant asserts that the evidence was that the Complainant was not vulnerable and was independent in her thoughts when the relationship developed, therefore to say that a breach is severe because of the views of Complainant's current treating doctors is unfair to the Appellant in deciding what order to make against him. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground. The Appellant persisted in arguing that this patient was "normal" and "not vulnerable," was "strong willed". These arguments are a variation of the arguments made on the 4th ground and must similarly be rejected for the reasoning given above.
5. The Appellant submitted in ground 6 that the Original Tribunal made an error in concluding that suspension was permitted because the Appellant, by his conduct with the Complainant, put public safety at risk. The Appeal Tribunal refers to its discussion above concerning the interpretation of section 43 of the HP Act and further notes that the Original Tribunal's statement implying that consideration of the circumstances of one patient may constitute consideration of public safety[34] must be read in the context of the whole of the reasons of the Original Tribunal, which demonstrate an appropriately wide view of how the Appellant's breach of the relevant standards might impact on public safety.
6. The 7th ground has been dealt with previously and the 8th ground was not pressed.
7. The 9th ground chiefly related to the inferences that could be drawn from the fact that the Medical Board failed to call a psychologist who had seen both the Appellant and Complainant. In this ground of appeal, the Appellant stated that the Original Tribunal failed to consider the evidence that the psychologist told the Complainant and the Appellant together in October 2006 that he thought the couple would make a good pair. This evidence was given by the Complainant in the original proceedings. The Appellant argued that Original Tribunal failed to address the Jones v Dunkel[35] inference when statements prepared and filed in the original proceedings by the same psychologist were withdrawn by the Medical Board after the original hearing commenced.
8. The Original Tribunal did not expressly consider the submission that a Jones v Dunkel inference should be drawn from the decision of the Medical Board not to put the psychologist's statements into evidence. Even if the Appeal Tribunal found that the Original Tribunal should have expressly referred to the Jones v Dunkel inference, there is no indication that the Original Tribunal needed to rely upon a Jones v Dunkel inference of the type suggested by the Appellant and no indication that such an inference would have changed the findings of the Original Tribunal. The absence of an express statement regarding the inference does not constitute a material error or otherwise constitute an error causing a miscarriage of justice.[36]
9. The 10th ground was not pressed.
10. The 11th ground was that the Original Tribunal erred when considering section 65(3)(e) of the ACAT Act in that it incorrectly concluded that the Appellant has no real insight into the gravity of the breach of the "standards statement"[37] and further failed to explain what "standards statement" it was referring to.
11. Several submissions made in the appeal proceedings appeared to support the Original Tribunal's findings that the Appellant lacked insight. First, the Appellant maintained that he was prepared to do a general "ethics" course at Monash University but not the more specific course recommended in the orders by the Original Tribunal. Second, when the relationship did end (having known it was contrary to his professional standards) the Appellant sought no independent professional advice as to what he should do. Third, the Original Tribunal accepted evidence from the Complainant that after the break up the Appellant asked her to keep the existence of their relationship secret from her future doctors. Fourth, his arguments that the Complainant wasn't vulnerable, wasn't ill, was "normal" was in fact his "doctor" clearly indicate that he lacks the required insight. In relation to the latter consideration, the Appeal Tribunal repeats its conclusion on the 4th ground of appeal that the attempt by the Appellant to portray himself as a victim of the Complainant suggests that he lacked insight into the gravity of his breach of the professional standards. The Appeal Tribunal does not consider that it was necessary for the Original Tribunal to refer to particular standards statements when considering the elements of section 65(3)(e) of the ACAT Act. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
12. The 12th ground was not pressed.
13. The 13th ground related to the weight given by the Original Tribunal to the testimonials about the Appellant. The Appellant argued that the Original Tribunal incorrectly concluded that the Appellant had not told the authors of the testimonials about the issue of the complaint and was in error when it failed to give proper or any weight to the testimonials. The Original Tribunal was provided with about 30 statements and testimonials written in support of the Appellant. These statements and testimonials were also before the Appeal Tribunal. The Appeal Tribunal notes that the Original Tribunal did not conclude that the Appellant had not told the authors about the issue of the complaint, rather that in none of the statements or testimonials was it clear that the Appellant had "made full disclosure of the conduct he has subsequently admitted before the Tribunal".[38]
14. Whilst many of the testimonials and statements refer expressly to the complaint, the Appeal Tribunal agrees with the Original Tribunal's conclusion that none of testimonials or statements demonstrates that the Appellant has made a full disclosure of the conduct that was admitted before the Original Tribunal. The Appeal Tribunal also agrees with the Original Tribunal's observation that a number of the testimonials disputed that the Appellant could be guilty of the conduct complained of and doubted the honesty of the Complainant.[39] On the other hand, the Original Tribunal clearly accepted that "the [Appellant] is highly regarded by many of his patients, and that he seeks to act in their best interests."[40] The Appeal Tribunal is therefore unable to discover any error in the weight given by the Original Tribunal to the testimonials and statements.
15. The 14th and 15th grounds were not pressed.
16. The 16th and 17th grounds claimed that the Original Tribunal erred in not giving any or greater weight to the doctor shortage in Canberra or to the impact of the suspension upon the Appellant's 3000 patients. The Appellant argued that this is a relevant consideration for the Tribunal to take into account before making an occupational discipline order involving a suspension or cancellation of registration under section 43(2)(b) of the HP Act. Whether these considerations are relevant to public safety is a complex question of law. Although the Appeal Tribunal expresses no concluded view on this point, it notes that the Original Tribunal did take these factors into account in relation to severity.[41] In the view of the Appeal Tribunal, such an approach is proper when the Tribunal is exercising its power to make an order for occupational discipline under section 66 of the ACAT Act, without recourse to the interpretation of "public safety" in section 43 of the HP Act that was pressed by the Appellant in the current proceedings. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
17. The 18th ground was not pressed.
18. The 19th ground reprised the workload issues and lack of prior complaints mentioned in grounds 1 and 4. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.
19. The 20th ground argues that the Original Tribunal did not take into account that suspension of the Appellant from practice meant that he will effectively "lose his practi[c]e." This is incorrect. The 3rd order made by the Original Tribunal and the reasons for it[42] clearly show that the Tribunal considered this issue. The Appeal Tribunal is unable to discover any error of the Original Tribunal on this ground.

1. The Appeal Tribunal is not satisfied that there is a basis for setting aside the decision of the Original Tribunal and the appeal is therefore dismissed.

MEMBERS Professor. P. Spender, Presidential Member

DATE/S OF HEARING: 18th February 2010 and 19 February 2010 PLACE: CANBERRA

DATE/S OF DECISION: 17 September 2010 PLACE: CANBERRA

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] ACT Medical Board & The Medical Practitioner [2009] ACAT 34

[2] Paragraphs 78 - 88 Original Decision

[6] See for example, De Gregory v General Medical Council [1961] AC 957; Re A Medical Practitioner [1995] 2 Qd R 154; Medical board of Western Australia and Smith [2006] WASAT 213; In the matter of Dr Gary Beckhurst (Unreported decision of the medical Board of Western Australia, 18 September 2001 at [46]-[52] & [54].

[7]Medical Board of Western Australia and Smith [2006] WASAT 213Smith para 115

[8] Richter v Walton, NSW Court of Appeal, 15 July 1993, unreported - CA 40309/93

[9] Richter v Walton, NSW Court of Appeal, 15 July 1993, unreported - CA 40309/93, page 2

[10]Richter v Walton, NSW Court of Appeal, 15 July 1993, unreported - CA 40309/93), page 9

[11] Re A Medical Practitioner [1995] 2 Qd R 154 at 163

[12] Re A Medical Practitioner [1995] 2 Qd R 154 at 164

[13] Clyne v N.S.W. Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-202; New South

Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-184

[14] Re A Medical Practitioner [1995] 2 Qd R 154 at 165

[15] Respondent's Submissions dated 23 March 2010 at paragraph 18

[16] Pursuant to section 82 of the ACAT Act

[17] See Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259; Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1

[18] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 202 -203, citing a Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

[19] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203 -204

[20] Lai-Ha v McCusker [2000] FCA 1173 at 463 per Emmett J

[21] Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 394.

[22] Attorney-General for the State of New South Wales v X [2000] NSWCA 199 at 661 per

[23] Australian Coal & Shale Employees Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627

[24] Scanes v Commissioner of Police for the Australian Capital Territory (1974) 3 ACTR 20 at 25-26

[28] Unreported, Supreme Court of Victoria Practice Court 19 January 1994, BC 9400966

[29] Peeke v The Medical Board of Victoria at page 3

[30] Peeke v The Medical Board of Victoria at page 2

[32] Health Care Complaints Commission v Fairbrother 18 December 2008, Case 40020 of 2007; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 441, 471.

[33] Re A Medical Practitioner (1994) 2 Qd R 154 at 165

[35] [1959] HCA 8; (1958) 101 CLR 298

[36] Rudder v ACT Planning and Land Authority & Anor [2010] ACAT 24 at para [20]