[b]etween on or about 29 June 2018 and on or about 9 December 2019, Dr Gooch ... practised as a chiropractor without having appropriate professional indemnity arrangements in place contrary to section 129 of the National Law.

1. The particulars of Allegation 1 are as follows:

1.1 On 10 December 2012, Dr Gooch was first registered with the Board as a chiropractor.

1.2 At all material times Dr Gooch:

(a) was a registered chiropractor within the meaning of the National Law;

(b) owned and operated, jointly with his wife, Shannon Avenue Chiropractic, 53 Shannon Avenue, Geelong West, Victoria (Clinic);

(c) practised as a chiropractor at the Clinic; and

(d) was the only chiropractor working at the Clinic.

1.3 At some time prior to 13 January 2018, Dr Gooch was informed by Insurance House/Pro Risk that it would not be offering further professional indemnity insurance, that Dr Gooch's insurance was to expire on 29 June 2018, and he was to obtain the requisite insurance from an alternative provider.

1.4 On or about 29 June 2018, Dr Gooch's professional indemnity insurance policy with Insurance House/Pro Risk expired.

1.5 Dr Gooch did not have professional indemnity insurance coverage from on or about 29 June 2018 to on or about 9 December 2019 and practised as a chiropractor at the Clinic during that time.

1.6 On or about 5 July 2021, Ahpra selected Dr Gooch for inclusion in a practitioner audit. An audit checklist was sent to Dr Gooch, and he was required to complete a checklist form and provide supporting information, including a Certificate of Currency evidencing that he had professional indemnity insurance for the relevant periods.

1.7 Dr Gooch provided a response and some of the requested documents on or about 9 July 2021.

1.8 On or about 9 September 2021, Ahpra made a request for further documents from Dr Gooch including a request for evidence that he held professional indemnity insurance during the period 1 December 2019 to 12 January 2021.

1.9 On or about 15 September 2021, Dr Gooch provided further documents to Ahpra.

1.10 On or about 21 September 2021, Ahpra requested that Dr Gooch provide evidence that he held professional indemnity insurance from 1 December 2019 to 9 December 2019.

1.11 On or about 7 October 2021, Dr Gooch advised that he was unable to provide the documents requested and that he did not hold professional indemnity insurance for the remaining dates in the audit.

1.12 On or about 14 October 2021, Guild Insurance issued Dr Gooch a new professional indemnity insurance policy which had retroactive cover for the period of 29 June 2018 to 9 December 2019.

1.13 Pursuant to s 129 of the National Law, a registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner's practice of the profession.

1.14 The Board refers to:

(a) principle 9.5 of the [Chiropractic Board of Australia: Code of Conduct for Registered Health Practitioners (in effect from 17 March 2014 to 29 June 2022) ('Code of Conduct') as follows 'Practitioners have a statutory requirement to ensure that practice is appropriately covered by professional indemnity insurance']; and

(b) the Professional Indemnity Insurance Registration Standard [of 1 July 2016].

1.15 Dr Gooch's conduct was inconsistent with:

(a) the principles at paragraph 1.14; and

(b) s 129 of the National Law.

1. As already noted, Dr Gooch admits the conduct.
2. The particulars are well supported by the material in the Tribunal Book.
3. We were comfortably satisfied, and found, Allegation 1 proven.

Allegation 2: False declarations on renewal of registration

On or about 1 November 2018, on or about 13 October 2019, and on or about 8 October 2020, Dr Gooch ... knowingly and/or recklessly made false declarations to the Chiropractic Board of Australia when renewing his registration as a chiropractor.

1. The particulars of Allegation 2 are as follows:

2.1 The Board refers to and repeats paragraphs 1.1 to 1.12.

2.2 The Professional Indemnity Insurance Registration Standard sets out the requirements for appropriate professional indemnity insurance cover for chiropractors.

2.3 On or about 1 November 2018, in the course of applying to renew his registration with the Board, Dr Gooch declared that he had met the Professional Indemnity Insurance Registration Standard in the previous registration period.

2.4 This declaration was false, as from on or about 29 June 2018 until the date of the declaration, being on or about 1 November 2018, Dr Gooch did not hold any professional indemnity insurance cover.

2.5 On or about 13 October 2019, in the course of applying to renew his registration with the Board, Dr Gooch declared that he had met the Professional Indemnity Insurance Registration Standard in the previous registration period.

2.6 This declaration was false, as from on or about 29 June 2018 until the date of the declaration, being on or about 13 October 2019, Dr Gooch did not hold any professional indemnity insurance cover.

2.7 At the time when Dr Gooch made the declarations referred to at paragraphs 2.3 and 2.5, he knew or ought to have known that he did not hold any professional indemnity insurance cover between 29 June 2018 and 9 December 2019 and that the declarations referred to at paragraphs 2.3 and 2.5 were false.

2.8 On or about 8 October 2020, in the course of applying to renew his registration with the Board, Dr Gooch declared that he had met the Professional Indemnity Insurance Registration Standard in the previous registration period.

2.9 This declaration was false, as from on or about 29 June 2018 until 9 December 2019, Dr Gooch did not hold any professional indemnity insurance cover.

2.10 At the time when Dr Gooch made the declaration referred to at paragraph 2.8, he knew or ought to have known that he did not hold any professional indemnity insurance cover between 29 June 2018 and 9 December 2019 and that the declaration referred to at paragraph 2.8 above was false.

2.11 The Board refers to principle 1.2 of the Code of Conduct, as set out in the attached Schedule.

2.12 Dr Gooch's conduct was inconsistent with the principles at paragraph 2.10.

1. Save for the suggestion that he knowingly made the false statement on 8 October 2020, Dr Gooch admits the conduct the subject of Allegation 2.
2. The particulars are supported by the material in the Tribunal Book.
3. The Board submits that the Third Renewal Declaration was made 'knowingly' on the basis that:[3]

(a) on 9 December 2019, the Respondent had become aware that he did not have appropriate professional indemnity insurance arrangements in place, and obtained an updated policy from Guild Insurance;

(b) once he was told about the lapse in insurance it follows that the Respondent's mind would have been focussed on the issue of professional indemnity insurance, particularly given he was 'distraught' upon discovering he did not have professional indemnity insurance;

(c) the unambiguous questions posed by the renewal form ...;

(d) it is inherently unlikely that a chiropractor with the Respondent's experience would think that not having professional indemnity insurance in place would not need to be reported to the Board in some capacity, particularly when being asked questions in relation to professional indemnity insurance for multiple years in the lead up to the 8 October 2020 renewal; and

(e) later when audited by Ahpra ... the Respondent appeared to have attempted to conceal the lapse in his coverage by not providing full records despite being asked multiple times.

1. Dr Gooch contends that the Third Renewal Declaration was made recklessly. In this regard, he relies on the following matters:
   • He was a 'relatively inexperienced practitioner' from the 'perspective of clinical ownership and management', having purchased a practice in March 2016, around two years before the initial failure,[4] and he found the change from an employee to clinic owner 'a difficult experience', which involved a 'steep learning curve'.[5]
   • He was 'distraught' when he discovered that he did not hold PII and attempted to 'remedy the situation, albeit in an imperfect way', which again 'reveals his relative inexperience and lack of knowledge as to his responsibilities'.[6] He admits that he should have communicated the situation to the Board, but once he had updated the Guild policy to include PII, 'did not give much thought to the lapse'.[7]
   • He accepts that when he submitted his renewal on 8 September 2020, he should have answered no to the question about PII, given he did not hold it for a 'brief' part of the preceding registration period, namely from 1 to 9 December 2019.[8]
   • His failure to turn his mind properly to the question 'occurred in the context of personal change and social tumult and uncertainty', namely the birth of his first daughter, combined with the COVID-19 pandemic and the introduction of Stage 3 restrictions in Geelong in October 2020.[9]
2. Further detail in relation to the last point is provided in his affidavit of 1 September 2023 ('MG Affidavit') and the affidavit of his wife, Ms Hannah Gooch of the same date. They explain:
   • Ms Gooch was the practice manager for Dr Gooch's practice until she went on maternity leave before the birth of their first child in January 2020. As a result, Dr Gooch had to shoulder the administrative responsibilities for the practice from that time.
   • Ms Gooch believes she suffered from undiagnosed Postpartum anxiety following the birth and recalls 'just being in survival mode from the time'. This was compounded by the absence of support from friends or family following the first COVD-19 lockdown around six weeks after the birth.
   • Their daughter did not sleep well, both during the day and at night, and Dr Gooch would help to try and settle her, which 'took a heavy toll' on both of them.
   • At the time, Dr Gooch was also 'constantly updating and implementing policies and procedures in relation to Covid-19 and cleaning / hygiene requirements', as well as working very long hours and catching up with practice paperwork at night.
3. At the hearing, Dr Gooch gave evidence and was cross-examined about aspects of his affidavit. We accept his evidence.
4. While it may be accepted that Dr Gooch ought to have known that the Third Renewal Declaration was false (in light of his discovery, on 9 December 2019, that he no longer had PII in place), when the context set out at [25]-[26] is taken into account we are not satisfied that he 'knowingly' made a false declaration. Rather, we accept that it was also reckless, although (in light of the events of 9 December 2019) to a higher level than the recklessness in respect of the earlier renewal declarations.
5. For these reasons, we found that, on or about 1 November 2018, 13 October 2019 and 8 October 2020, Dr Gooch recklessly made false declarations to the Board when renewing his registration as a chiropractor.

On and from 6 July 2018, Dr Gooch ... failed to notify the Board in writing that that he no longer held appropriate professional indemnity insurance, which is a relevant event for the purposes of s 130 of the National Law.

1. The particulars of Allegation 3 are as follows:

3.1 The Board refers to and repeats paragraphs 1.1 to 1.13.

3.2 On or about 6 July 2018 Dr Gooch became aware that appropriate professional indemnity insurance arrangements were no longer in place for himself.

3.3 On or about 30 September 2021, Dr Gooch notified the Board in writing of his lack of appropriate professional indemnity insurance arrangements.

3.4 Pursuant to s 130 of the National Law, a registered health practitioner must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board established for the practitioner's health profession written notice of the event. In relation to a registered health practitioner, appropriate professional indemnity insurance arrangements no longer being in place in relation to the practitioner's practice of the profession is a relevant event.

3.5 The Board refers to:

(a) Principle 9.3 of the Code of Conduct ...; and

(b) the Professional Indemnity Insurance Registration Standard.

3.6 Dr Gooch's conduct was inconsistent with:

(a) the principles at paragraph 3.5; and

(b) s 130 of the National Law.

1. Again, Dr Gooch admits the conduct, the particulars are supported by the material in the Tribunal Book and we were comfortably satisfied, and found, Allegation 3 proven.

Findings as to characterisation of the conduct

1. Professional misconduct is defined in section 5 of the National Law and includes:
   • in paragraph (a): 'unprofessional conduct ... that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience';
   • in paragraph (b): 'more than one instance of unprofessional conduct that, when considered together ... is substantially below the standard reasonably expected'; and
   • in paragraph (c): 'conduct ... that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession'.
2. Unprofessional conduct is also defined in section 5 and, relevantly, includes a contravention of the National Law. In that regard:
   • Section 129 of the National Law sets out a prohibition on a registered health practitioner practising unless they have appropriate PII in place.
   • Section 130 of the National Law requires a registered health practitioner to notify the Board of a 'relevant event' within seven days of becoming aware of it. The phrase relevant event is defined to include circumstances where 'appropriate [PII] arrangements are no longer in place in relation to the practitioner's practice of the profession'.[10]

1. Clearly, Dr Gooch's failure to maintain PII for over 18 months, while continuing to practice, was in breach of section 129. As the Board contends, this was a 'significant period of time', was 'aggravated by the failure to seek retrospective cover until 28 September 2021' and 'the risk to the public has increased significantly as a result of these omissions'.[11]
2. In Elias, and also in Psychology Board of Australia v McDonald ('McDonald')[12] and Osteopathy Board of Australia v Zoch ('Zoch'),[13] similar conduct was found to represent professional misconduct under paragraph (a) of the definition. In McDonald, VCAT explained that the failure to maintain PII falls substantially below the standard reasonably expected of a practitioner given it is 'a base requirement' that is:[14]

for the protection of the public ... [and] is one of the pillars upon which the profession ... can stake its reputation ... [and] to give members of the public comfort that if anything does go wrong there are ways of dealing with it.

1. We were comfortably satisfied and found that the conduct the subject of Allegation 1 was substantially below the standard reasonably expected of a chiropractor of equivalent level of training and experience and, as such, amounted to professional misconduct within paragraph (a) of the definition of that phrase in section 5 of the National Law.

1. In Elias, it was observed that a regulator, like the Board, has an obligation to enforce compliance with PII requirements.[15] As indicated in Zoch,[16] in doing so, the Board necessarily relies on practitioners being truthful when they complete their annual registration renewals.
2. We have found Dr Gooch to have been reckless in stating that he complied with his PII obligations when completing his registration renewals on 1 November 2019, 13 October 2019 and 8 October 2020.
3. Consistent with the decisions in Elias, McDonald and Zoch, we were comfortably satisfied and found that Dr Gooch's conduct in recklessly providing a false statement on three occasions fell substantially below the relevant standard and as such within paragraph (a) of the definition of professional misconduct.
4. However, in the absence of a finding that Dr Gooch knowingly made the false statements, we were not satisfied that the conduct the subject of Allegation 2 was 'inconsistent with [him] being a fit and proper person to hold registration' and declined to make the finding that it also amounted to misconduct under paragraph (c) of the definition.
5. In that regard, the only case which we were referred to where a finding was made under paragraph (c) in respect of a false statement in a renewal was Podiatry Board of Australia v Moustakas ('Moustakas').[17] However, that was in circumstances where the Tribunal accepted that the practitioner had 'knowingly and deliberately made false declarations and provided false and misleading information' and also engaged in a 'protracted course of conduct designed to conceal it and mislead' Ahpra.[18]
6. By contrast, even where practitioners have recklessly made false declarations as to PII coverage on four or five occasions, this has still been considered to be professional misconduct within paragraph (a) (and/or (b)) of the definition.[19]

1. The Board submits the conduct the subject of Allegation 3 'demonstrates the Respondent's failure to take heed of his professional obligations'.[20] We accept that is the case and this justifies a finding of unprofessional conduct, as has been agreed between the parties.

1. The Board references VCAT's decisions in Medical Board of Australia v Jansz[21] and Medical Practitioners Board of Victoria v Naik[22] in terms of the principles relating to determinations.
2. We accept that the purpose of imposing determinations is to protect the public and, conversely, they ought not be punitive.
3. In considering the appropriate determinations, matters of specific deterrence, general deterrence and the facilitation of the practitioner's rehabilitation may all be relevant, although the balancing of those matters will depend on the circumstances, including the extent of the practitioner's remorse and insight.
4. Of course, any form of official censure - including a reprimand - is of consequence.

1. The parties jointly submit that Dr Gooch should be reprimanded and a condition imposed on his registration requiring him to provide a certificate of currency for PII coverage each year.

(The Agreed Statement also included a condition relating to ethical education. However, in light of the fact that Dr Gooch had voluntarily completed a program of ethical education with Dr Dent on 8 and 9 November 2023 and had produced a reflective statement following that education, the Board confirmed that it no longer pressed that condition.)

1. A reprimand is a form of official censure and we accepted that it is appropriate in this case.
2. The reprimand reflects the fact that Dr Gooch's conduct in respect of Allegations 1 and 2 has fallen substantially below the standard reasonably expected.
3. It will appear on Dr Gooch's registration and serve as a reminder to him of the importance of maintaining his PII at all times.
4. Moreover, members of the public who check the register will also learn of the reprimand and can, of course, ask Dr Gooch about his insurance if they have concerns.
5. We also accepted that it is appropriate to impose the proposed condition requiring Dr Gooch to provide an annual certificate of currency for his PII.
6. When taken with the education that has already been completed by Dr Gooch, this goes to rehabilitation. It serves to reinforce the need for Dr Gooch to be assiduous in maintaining his PII and to be open and honest in his dealings with the Board and Ahpra.
7. Of course, the remaining condition also provides a means for Ahpra and the Board to monitor any non-compliance.

1. In calling for a suspension of four months, the Board relies on the cases to suggest that 'where there is an element of dishonesty, knowledge or "high-end recklessness" a period of suspension should follow'.[23]
2. Dr Gooch contends that, in referring to other cases, the Board's submission 'disproportionately engages in a comparative exercise between other cases and what happened in those', 'fails to appropriately consider and apply the particular circumstances of Dr Gooch's situation' and 'places too high an emphasis on specific deterrence'.[24]
3. Dr Gooch suggests a feature which is significant and distinguishes his situation from other cases is that he had 'been paying for his PII previously' and, as such, 'but for his misunderstanding of the level and nature of coverage under the new Guild insurance policy [the Tribunal should conclude] that his PII would have been maintained'.[25]
4. It is also submitted the Tribunal should accept Dr Gooch's 'insight and his acute appreciation of the serious nature of his conduct and the steps he did take to remedy it' and avoid a repeat in the future.[26]
5. On this basis, Dr Gooch contends that the Tribunal should reject the Board's position that specific deterrence still has a role to play.[27]
6. We have been referred to a number of 'comparable' cases by each party.
7. As the Tribunal has made clear in other health practitioner disciplinary proceedings, care needs to be taken when looking at the determinations in prior cases, as each case will turn on its own unique set of circumstances.
8. In any event, those cases show that in a number of cases no suspension has been imposed, even though the period the practitioner was without PII was sometimes longer than 18 months.[28]
9. Further, apart from Moustakas,[29] the period of suspension was one or two months.[30] In Moustakas, apart from the findings already referred to (see [42]), no retroactive cover was obtained by the practitioner to cover the 28 month period that he was without PII, so the potential risk to patients remained.
10. In the present case, the following matters are relevant in assessing whether a period of suspension is necessary or appropriate:
    • Dr Gooch's co-operation with the investigation and the steps he took to rectify the insurance situation: The material in the Tribunal Book evidences that Dr Gooch has been co-operative throughout the investigation by Ahpra and the Board. Dr Gooch immediately obtained PII once he learnt that it had not been in place. Further, he also took steps to arrange retroactive insurance for the period in which he had not been covered as soon as he realised this was available. This has ensured there is no longer an ongoing risk to the public for any chiropractic services provided by Dr Gooch during that period.
    • Dr Gooch's personal circumstances during 2020: We accept that Dr Gooch and his wife were undergoing stress and other difficulties associated with his newborn child which was coupled with the uncertainties and difficulties thrown up by the pandemic and, while this does not excuse the Third Renewal Declaration, provides context about why it may have occurred.
    • References attesting to the conduct being completely out of character: Dr Gooch has produced references from a number of colleagues, each of whom attest to his caring and professional nature and how the failure to maintain his PII was out of character and likely explainable by reference to the matters referred to in the preceding dot point.
    • Dr Gooch has already undertaken the ethics education and provided a reflective statement: This evidences Dr Gooch's insight and remorse and his acceptance of personal responsibility for his past failures. In his Education Program Report dated 20 November 2023, Dr Dent reports that Dr Gooch:

demonstrated that he had reflected on the circumstances which gave rise to the complaint and acknowledged his monitoring of all professional practice requirements for registration has become a priority. When discussing PII specifically, Dr Gooch accepted responsibility for this poor oversight of this required documentation ... he was disappointed in himself [but] believed he responded quickly when he realised the PII had lapsed ...

...

... He noted that it is important that every chiropractor needs a good understanding of the National Law, and he was encouraged to regularly review relevant websites for updates that would enhance currency of knowledge and skills. Dr Gooch also reiterated that it was important for him to do the right thing clinically and put the profession and his patients above his own needs.

When taken together with the evidence he gave before us, we are confident that 'the conduct identified here is unlikely to ever occur again'. Moreover, having undertaken the training on his obligations more generally, we are confident he is better placed to avoid any other ethical shortcomings in the future.

• The absence of any other regulatory matters before or since the referral of this matter: Dr Gooch has now been registered for more than 10 years and has conducted his own practice for around eight years. There is no suggestion of any other regulatory matters being identified before or since.
• Any suspension would have a disproportionate financial impact on the practice and adversely impact on staff and clients: We accept the combined evidence of Dr Gooch, Ms Gooch and Mr Le Maistre (the accountant) that any period of suspension would have a significant financial impact on the practice and the family, which is disproportionate in the circumstances where the risk to the public has now been entirely mitigated (through the retroactive cover) and could (in a worst case scenario) result in loss of employment for his staff and significant inconvenience for clients, especially those who are longstanding or who are vulnerable or have particular needs that are not necessarily well catered for by other local chiropractors.

1. Having regard to all the circumstances, we did not consider the imposition of a period of suspension to be appropriate or necessary given the level or remorse and insight shown, as well as rehabilitation engaged in, by Dr Gooch, all of which indicates there is little or no need for specific deterrence.
2. While we accept there remains a need for general deterrence and to maintain standards within the chiropractic profession, in all the circumstances of this case, we were satisfied that it is appropriately served by the reprimand and conditions on Dr Gooch's registration.

1. The question regarding PII on the online health practitioner registration renewal form is in the following terms:

In the previous registration period, did you meet the Board's registration standard for professional indemnity insurance arrangements?

1. The Board's solicitor was unable to say whether any further information is provided to practitioners before they answer yes or no.
2. What is apparent, from both the present case and the other cases to which we have been referred, is that in circumstances where a practitioner has failed to obtain PII cover for a period, the way in which the question is posed does not seem to trigger a realisation on the part of practitioner that there is an issue which needs to be addressed (i.e. to obtain PII cover, including retroactive cover) or disclosed to the relevant health practitioner board and Ahpra (to comply with section 130 of the National law).
3. In Australia and elsewhere, there is a 'growing appreciation' as to how 'behavioural insights' can be used to improve regulatory compliance (known as 'nudge theory'), at least in a tax context.[31] '[B]y shaping the context in which people make decisions, they can be "nudged" towards making certain choices', i.e. those that 'procure desirable behaviours'.[32]
4. Ahpra and the health practitioner boards could consider how to improve the questions posed - and information provided - to practitioners at the time they renew their registration to 'nudge' them towards complying with the registration standard for professional indemnity insurance in real time. In our view, such an approach is consistent with the protective purposes of the registration scheme[33] and preferable to relying on audit activity to identify the issue and pursue disciplinary action many years later.

[2] [2020] VCAT 496 [8]-[10].

[3] Applicant's Outline of Submissions as to Facts, Findings and Determinations dated 5 March 2024 ('AOS') [33].

[4] Respondent's Outline of Submissions dated 22 March 2024 ('ROS') [7]-[8].

[8] ROS [20]-[21]; MG Affidavit [22].

[12] [2020] VCAT 158.

[13] [2023] VCAT 198/

[14] [2020] VCAT 158 [9].

[15] [2020] VCAT 496 [9].

[16] [2023] VCAT 198 [16].

[17] [2022] VCAT 1042.

[19] See Chiropractic Board of Australia v Oborne [2023] VCAT 770 (four false declarations) and Psychology Board of Australia v McDonald [2020] BCAT 158 (five false declarations).

[21] [2011] VCAT 1026 [368]-[373].

[22] [2009] VCAT 755 [60]-[61].

[23] AOS [70] (citing Podiatry Board of Australia v Moustakas [2022] VCAT 1042, Chiropractic Board of Australia v Oborne [2023] VCAT 770 [36] and [47]).

[28] Zoch [2023] VCAT 198 (30 months), Chiropractic Board of Australia v Carbery [2018] VCAT 147 (16 months), Psychology Board of Australia v Postlethwaite [2021] VCAT 569 (12 months).

[29] [2022] VCAT 1042.

[30] See Chiropractic Board of Australia v Northeast [2019] VCAT 1279 (one month), Chiropractic Board of Australia v Oborne [2023] VCAT 770 (two months), Psychology Board of Australia v McDonald [2020] VCAT 158 (one month) and Psychology Board of Australia v Elzo [2020] VCAT 345 (one month).

[31] E Millane and M Stewart, 'Behavioural insights in tax collection: getting the legal settings right', (2019) 16 eJournal of Tax Research 500.