Crickitt v Medical Council of NSW

Interlocutory Decision

1. During the course of the proceedings, and after the evidence had closed, the respondent sought to introduce new evidence and reopen its case for this purpose. The appellant asked that we allow the appeal or otherwise terminate the proceedings at that stage. In an interlocutory decision issued on 20 August 2015, (Dr Crickitt v Medical Council of New South Wales [2015] NSWCATOD 86), we declined to allow the appeal or otherwise terminate the proceedings, and permitted the respondent to reopen its case and to adduce fresh evidence. The proceedings were stood over for a further period. Our reasons for decision dealt with some of the evidentiary material produced in the proceedings as at that date and discussed a number of the legal issues and principles which we now need to consider in determining the overall proceedings. Rather than refer back to portions of that interlocutory decision, we have preferred to reproduce some of the material contained within it, so that these reasons for decision may be read as a discrete document.

The Nature of the Appeal

1. It is also necessary to make some observations concerning the nature of the appeal with which we are dealing under section 159 of the Act. The provisions of this section have been set out earlier. The important part of the section for our current purposes is subsection (3). This describes the manner in which the appeal is to be dealt with and uses the words "reconsideration of the matter". It is necessary to identify with some precision the "matter" that needs to be reconsidered. Later in the subsection there is a reference to evidence in addition to or in substitution for that which was before the Council "when it considered the matter…..". The matter must, in our opinion, be that which was being considered by the Council. For the purposes of these appeal proceedings, we regard the "matter" as being the circumstances which applied to the practice of medicine by the appellant in the context of the factual background against which the charge was brought against him that he had murdered his wife. There is further reference to this at [24] of our earlier decision, which we do not need to reproduce for present purposes.
2. Both parties submitted that the use of the word "reconsideration" in section 159(3) rendered the hearing before us a hearing de novo. We understand that this accords with the approach to construction of this provision adopted by this Tribunal and the parties who habitually appear before it. Accordingly, in determining these proceedings we are, in effect, hearing the matter afresh, and our decision will be based upon such information and evidence as is adduced during the course of these proceedings. We have available to us considerably more material than was available to the Delegates, and there is no need for us to refer to their decision further.

The Conduct of the Appellant

1. As will become clear, our consideration of the conduct of the appellant relevant for the purposes of these proceedings is confined to that which it is appropriate to take into account under section 150 in determining whether any orders should be made. This is a matter which we will need to consider in some detail later in these reasons for decision. For present purposes we note that in the course of endeavouring to refine the issues in the proceedings for the purpose of our Interlocutory Decision, we confined our consideration to three matters, based on our understanding of the nature and extent of the information and evidence which was available. At [22] we identified the issues as: 1. The circumstances surrounding the issue of certain scripts; 2. The circumstances surrounding the treatment by the appellant of his wife including the state of his clinical records relating to this treatment; and 3. The allegation that the appellant had lied to the police.
2. The subject matter of these issues will be become clear as we discuss the information and evidence available to us to determine these proceedings.

The Evidentiary Material

1. For completeness, we note a concession made by Senior Counsel for the appellant that records made available by Medicare indicate that during the period 1988 to 2009 the appellant afforded medical treatment to his then wife.
2. The State Coroner found that the appellant's wife "died either on the evening of 31 December 2009 or the early hours of 1 January 2010 at Woodbine but the evidence has not allowed either the cause or the manner of her death to be determined."
3. We have been provided with the police charge facts sheet which contains significant detail concerning a number of matters. We understand from submissions made by Senior Counsel for the appellant that that document was produced to the Local Court when determining whether bail should be granted to the appellant. In considering the material contained within the police charge facts sheet, we should make it clear that that material is evidence of the fact of the allegations made by the police against the appellant but is not in any way evidence of the truth of those allegations. For completeness, we also note that it is a public document, and rather than attempt to summarise the detail contained in it we reproduce its contents verbatim: 1. About 8:I5 am on Friday the I st of January 20 I 0, the victim, Christine CRICKlTT (born 6 December 1951) was located deceased at her home at 2 Clontarf Close, Woodbine. The accused, Brian CRICKITT, (deceased husband and also her treating Doctor) caused her death by administering fast acting insulin to her by way of a subcutaneous injection. Insulin, when injected in high doses has the effect of causing the brain to shut down, followed closely by death. Police allege that the accused had a number of motives for wanting his wife dead, which included a large financial gain, loathing of his wife and his involvement in an adulterous affair. 2. The Accused and victim were married in 1991 and resided together at 2 Clontarf Close, Woodbine. They both had children from previous marriages. It is clear from evidence obtained by Police that their relationship was deteriorating quite rapidly in the period leading up to victim's death. Evidence has been obtained that the accused was involved in an extra-marital affair with a woman by the name of Linda LIVERMORE of 14 Barrie Place, Leumeah, in the weeks prior to Christine's death. 3. At the time of her death, the victim was unemployed, whilst the accused was employed as a General Practitioner at the Campbelltown Medical and Dental Centre, 296 Queen Street, Campbelltown. There is also a pharmacy within this medical centre that dispenses prescription medication. 4. About 8:47am on the 151 of January 2010, "000" operators received a call from the accused informing the operator of the death of the victim at the residence of 2 Clontarf Close, Woodbine. Emergency services were dispatched to the residence and on attendance Police established a crime scene. Detectives from Campbelltown Police were notified and later attended. Police from the crime scene unit also attended and processed the crime scene perfotmi1ig a number of examinations. 5. An examination of the main bedroom of the house found the victim deceased on the floor to the right hand side of the bed she shared with the accused. At the time she was dressed only in a half length "nightie", was lying on her left hand side with her right arm resting against the right hand side of her torso. Her legs were slightly bent. The victim's head was wedged awkwardly between the bedside table and the bed. She was later conveyed to Glebe Morgue for autopsy. 6. The accused provided an electronically recorded interview setting out his version of events leading up to the death of the victim at Campbelltown Police Station. The accused told to detectives that; on 31 December 2009, he was at work at the Campbelltown Medical and Dental Centre. He stated that he got home about 8pm and the victim had been drinking and her speech was "slurry". He further stated that he shared a meal with the victim consisting of steak, potatoes and coleslaw. 7. The accused stated that he and the victim watched a movie titled "Casino Royale" and at some stage in the evening they argued about their relationship and they both went to bed about l0:30pm. He stated that they woke up at 1am on the morning of l January 20 l 0, where he made the victim a cup of tea. They had a further argument about their relationship and as a result he left the residence of 2 Clontarf Close, Woodbine, about 2am. The accused told detectives he drove to a local park for a while then drove to Picton and then back to Campbelltown via Menangle. During this time he stated to detectives that he made a phone call to Linda LIVERMORE, a woman with whom he was involved in an extra marital affair. He arrived home about 8:15am where he fed the cat and did a couple of other chores before discovering the victim deceased in their bedroom. The accused told detectives he checked for the victim's vitals and could not find a pulse and that the victim felt "cold". He then called police via '000', using landline service 02 4620 9767. Enquiries revealed that the accused was lying about his movements between 2am and 8:15am on 1 January, 2010. The accused was re-interviewed by detectives where he admitted telling police a number of lies when he was initially interviewed. The accused then informed police the following; once leaving the residence of 2 Clontarf Close, Woodbine, he attended the residence of Linda LIVERMORE where he stayed until he returned to 2 Clontarf Close, Woodbine about 8:l5am. 8. In addition evidence obtained from the accused and Linda LIVERMORE's mobile telephone records indicate the following; 9. Between ll:23pm and 11:58pm on 31 December 2009, Linda LIVERMORE called the accused. Call Charge Records (CCR'S) indicate about 1:28am on l January 2010, there was an attempted call from the accused to Linda LIVERMORE, followed by a 26 second call. About l :50am, there was a second call that lasted for five minutes and 50 seconds from the accused to Linda LIVERMORE. These calls show that the accused was in contact with his Ms LIVERMORE prior to leaving his home to visit her. On I January 2010, after the accused stated he located the victim deceased, phone records indicated there were four calls made from the accused to Linda LIVERMORE. Those calls were made at 8:21am lasting for 39 seconds, 8:23am lasting 15 seconds, 8:26am lasting 4 seconds and 8:26am for 25 seconds. About 8:32am on the same day, Linda LIVERMORE called the accused with the call lasting 37 seconds. It was not until 8:47am that the accused called "000", 14 minutes after speaking to Linda LIVERMORE for the last time and 26 minutes after speaking to her for the first time. Investigators believe during this time the accused had plenty of time to contaminate the crime scene, dispose of implements used the murder and to place the victim's body in a position that would confuse investigators as to the cause of her death. 10. The death of victim was deemed suspicious by police and Strike Force CHIPPEN was formed to investigate the circumstances surrounding her death. 11. The autopsy of victim took place on 2 January, 2010 at Glebe Morgue and was performed by the Pathologist Dr Rebecca IRVINE. The cause of death was undetermined. Of interest, two faint contusions were noted on the victim's left upper outer buttock. There was no investigation of the contusions carried out by the Pathologist. A number of samples were taken at autopsy and tested extensively. There were no alarming indicators as a result of toxicology testing. Of note, there was no alcohol detected in the blood sample, even though the accused had indicated that the deceased had been drinking the night before her death to such an extent that her speech was slurred. 12. The death of victim was reported to the State Coroner and the matter was put down for inquest. The NSW Crown Solicitors Office was assigned to assist the Coroner in the inquest. The Crown Solicitors office coordinated their enquiry in conjunction with enquiries made by Strike Force CHIPPEN. The accused was officially notified by the Crown Solicitors Office that he was a "Person of Interest" in the death of the victim. 13. Some 18 months after the death of the victim, police conducted a post mortem review with the Pathologist Dr Rebecca IRVINE. This included a review of the injuries noted by Dr Rebecca IRVINE during the post mortem and a review of the photographs of these injuries taken by Dr Rebecca IRVINE. 14. On reviewing the photographs of the injuries to the victim's left buttock police suggested to Dr IRVINE that one of these injuries in particular resembled an injection mark. Dr IRVINE did concede at that point that the injury could "possibly" be an injection mark. The location of this mark was in such a spot as to make it extremely difficult for the victim to have self injected any substance. 15. As a result of the investigation Police seized a number of computers used and owned by the accused. These computers underwent extensive analysis over a number of weeks. The browsing history of one of victim's computers records the following; 16. On 30 December 2009, two searches were conducted on one of the accused home computers under the user profile of drbrian@mac.com. This profile has been confirmed to belong to the accused. The first search he conducted was titled "Insulin Overdose", whilst the second search resulted in the viewing of a paper titled 'Intentional overdose with insulin: prognostic factors and toxicokinetic/toxicodynamic profiles. The findings of this paper indicate that a person can die from an insulin overdose within six hours of it being administered. It also discusses the shelf life of insulin in the blood after death, which is a somewhere within 12 to 24 hours. The review of this paper is important when as the accused indicates that he was away from the home for some 6 hours on the night of the murder. He would also have been well aware that insulin would not have been present in the blood when reviewed at autopsy. 17. A number of motives has been explored. Evidence obtained from stored communications warrants on the mobile phones of the accused and deceased clearly show that their relationship was in trouble. There is an indication that the deceased believed that the accused was going to leave her. This is augmented by statements from witnesses that indicate that the relationship appeared to be deteriorating quite sharply in December 2009. The accused had begun to spend time away at night from the home and the victim did not know where he was going. Even though there is clear evidence that he was having an affair with Linda LIVERMORE, the accused denied this affair to the deceased. Their problems reached a climax on the 17 and 18 December, 2009 when he stayed away for two nights. The exchange between the couple about this is captured in their text messages, and the deceased's concerns are clearly spelt out in texts she sent her daughter Kayleen RILEY and a friend, Cherly BALL. On the 17 December, 2009 the accused prescribed the victim Zyprexa, which is an anti depressant. A text message from that date suggests that the accused also used some samples to give to the deceased while the prescription was on order. 18. The accused has indicated to Police that he had been having an affair with Linda LIVERMORE and he had also seriously contemplated separating from the victim. The victim was aware that the accused was seeing another woman and she also well aware that there was a threat of separation. 19. Financial gain is also considered part of the motive for the murder. The couple's finances were tied up in various investments such as real estate portfolios, all of which were negatively geared. The deceased had an off shore life insurance policy with MLC which the accused stood to gain over $500,000 should the victim die. The accused contacted MLC on the 26th of February 2010 to inform them of the death of the deceased. Following completion of the inquest he lodged a claim on deceased life insurance Policy on the 16th of April 2012. 20. The accused is an experienced General Practitioner well used to administering injections to persons. He also had access by virtue of his position to insulin. 21. During the investigation police and the Crown Solicitors Office sought opinion from a world renowned expert in insulin murders, Professor Vincent MARKS from Surry University in England. 22. Professor Vincent MARKS stated that the time frames the accused provided in his version of events would have facilitated the opportunity to administer a lethal injection of insulin and that the insulin would have had the time to induce the death of the deceased. 23. Extensive enquiries were conducted into whether toxicology tests could be conducted to determine excess insulin in the blood. Professor Mario THEVIS a chemist at the German Sport University in Cologne, Germany, was sent several blood samples however the blood samples had degraded to the point where they could not be tested with any reliability. 24. The matter went to inquest on 16 May 2011, and it was presided by the State Coroner Mary JERRAM. At the end of the inquest the Coroner found; "That Christine CRICKITT died either on the evening of 31 December 2009, or in the early hours of 1 January 2010, at Woodbine but the evidence has not allowed either the cause or the manner of her death be determined." 25. The investigation by Strike Force CHIPPEN continued. Police examined the accused activity whilst he was at work on the afternoon/evening of 31 December 2009, and discovered the following; 26. About 3:24pm, on the afternoon of 31 December 2009 the accused saw a patient Kristina MITCHELL who is a type two diabetic. As a result the accused prescribed a number of medications including a brand of insulin called Lantus•Solarstar. About 3:41 pm, Kristina MITCHELL attended the Priceline Pharmacy at Campbelltown Mall and had these prescriptions dispensed. Lantus Solarstar is a long-activity insulin used to treat adults with Type 2 diabetes as well as adults and pediatric patients (Children 6 years and older) with type l diabetes for the control of high blood sugar levels. 27. About 5:01pm, on the same afternoon about an hour and a half later a second prescription for a brand of insulin named Nova-Rapid in the name of Kristina MITCHELL was generated using the computer identification of the accused on the computer terminal assigned to him in his consultation office at the Campbelltown Medical and Dental Centre. 28. About 5:02pm on the afternoon of 31 December 2009, some one minute later, this prescription was "Deactivated" from Kristina MITCHELL's medical records using the computer identification of the accused on the computer terminal assigned to him at the Campbelltown Medial and Dental Centre. The reason for this "deactivation" was entered on record as "not needed." 29. Sometime, between 6:00pm and 7:00pm, the Novo-rapid prescription in the name of Kristina MITCHELL that had by now been deactivated on the accused's computer was dispensed at the Campbelltown Medical and Dental Centre Pharmacy. The signature in the patient field collecting the medication is not Kristina MITCHELL's and is identical in appearance to that of the accused. Investigators believe this places the insulin in the hands of the accused on evening prior to the death of the deceased. The accused could had no other purpose or reason for illegally prescribing and collecting this medication other than to use it for the pre-intended murder of his wife in line with the computer searches he had conducted the previous day on his home computer. 30. Kristina MITCHELL has subsequently supplied a statement to Police stating that she did not receive or collect that prescription of nova-rapid about 5:01pm on the afternoon of 31 December 2009. Kristina MITCHELL was also shown the signature that appears on the script as a patient signature and she stated this was not her signature. In addition this script was compared to scripts issued to Kristina Mitchell earlier in the day. The patient signature on the script for Nova-rapid is different to the patient signature on the earlier scripts. 31. About 10:52am on the morning of Thursday the 24th of November 2011 this "false" script issued by the accused in the name of Kristina Mitchell was "reactivated" using the computer identification of the accused on the computer terminal assigned to him at the Campbelltown Medical and Dental Centre. The date is relevant as this is some six months after the initial inquest into the death of the victim. The act of "reactivating" the script is also relevant as the prescription now appeared on medical records later obtained by police as they further investigated the matter. 32. Police have interviewed and obtained statements off the majority of persons working at the Campbelltown Medical Centre on the 31/12/2009. All of them have stated having no knowledge of the issue of this prescription for Nova-rapid for Kristina Mitchell, furthermore from the evidence obtained in these statements it is clear that staff employed at the Centre did not have a culture of exchanging passwords and using other persons computer logon details to issue scripts. 33. Investigators will allege the accused generated the "false" prescription of Nova-rapid insulin using his computer identification, deleting it from existence to hide the creation of the prescription. He then collected this prescript\on at the pharmacy within the Campbelltown Medical and Dental Centre thus providing himself with the means and equipment to murder the victim. Nova-Rapid is rapid-acting insulin used to treat diabetes mellitus in adults and children. The prescription allowed the chemist to dispense 5 boxes of Nova-rapid each box containing 5 flexi-pen each containing pen containing 300 units / 3ml of insulin.Therefore the accused had available 1500 units I 75ml of insulin. The insulin takes only 30 minutes to take effect. Maximum dosage using a flexi-pen is 60 units. However, Police allege the accused gave the victim a lethal dosage of insulin by emptying an amount of insulin from the flexi pen into a syringe. 34. This' "false" prescription has been seized by Police and subsequently examined for fingerprints. Several fingerprints have been located on the script. None of these fingerprints match the fingerprints of Kristina MITCHELL or the agents who collected prescription on her behalf. Statements have been obtained from MITCHELL and the agents who all indicate they have no knowledge of the prescription. There are a number of outstanding fingerprints that have yet to be identified. 35. About 5.45pm, on Wednesday the 29th of October, 2014, Investigators attend 2 Clontarf Close, Woodbine where they spoke with Julie CRICKITT regarding the prescription and signatures contained on the share document. Following Investigators leaving the premises, Police captured on a lawful telephone Interception on Optus mobile service 0421040824 a conversation between the accused and Julie CRICKITT. 36. At 6.05pm, Investigators have captured a conversation on a Lawfully issued Surveillance Device where the accused in presence of his now wife Julie CRICKITT appear to pray. During the prayer the accused is heard to say among other things, "...lord this nonsense that police are coming up with lord. Stop their non sense, just stop them in their tracks right now, lord you known I not the one to go asking you to do things like that but lord, lord just take this away, let them see them realise the faulty nonsense that they're saying, just expose their lies expose their manipulation their trying to fabricate evidence, lord we all know they have been doing that, from tampering with autopsy photos to fabricating things from my computer.." 37. There are a number of other lawfully intercepted conversations involving the accused where he indicates that the police have fabricated the evidence against him. This is clearly not the case and. investigators believe he has done this in an attempt to persuade others of his innocence. 38. Later that night on Wednesday the 29th of October, 2014, Investigators had a telephone conversation the accused requesting him to consent to a Forensic Procedure, supplying a sample of his fingerprints. During the conversation Brian CRICKITT said, "If I issued the prescription, of course my prints are going to be on there. That's stupid." 39. It was explained to him that investigators were seeking to identify who the Agent was that received the Nova Rapid Insulin at the pharmacy in the Campbelltown medical and dental centre on the 31st of December 2009. This was done with the hope of generating conversation between Brian CRICKITT and a third party on this point. Brian CRICKITT informed Investigators that he would seek Legal Advice. 40. Police believe that the outstanding fingerprints on the illegal prescription will be found to belong to Dr Brian CRICKITT. 41. Furthermore police have examined documents obtained from Dr Brian CRICKITT's accountant. Relevant to the investigation are documents relating to a share transfer between the victim and the accused. Both parties were co-directors in two companies one being 'Brian Crickitt Pty Ltd ' and one being 'Crickitt Investments Limited '. Both parties had shares in these two companies. 42. According to the documents a meeting of directors was held on the 1st of January 2010. The documents list Christine CRICKITT as the "Transferor" and Brian CRICKITT as the "Transferee". The documents state that the Transferor transfers all shares to the transferee for one dollar ($1). The issue is that the document bears the signature of the victim and the accused. The signature on the share transfer for Brian Crickitt Pty signed by the accused bears a striking similarity to the signature on the "false" prescription for Nova-rapid issued to Kristina Mitchell on the 31 December 2009.This document was also witnessed by the accused new wife Julie CRICKlTT nee RULE. 43.As a result of the above information, Investigators believe they are able to clearly show that the accused had a number of motives for wanting the deceased dead. He pre planned his act by reviewing papers on his computer that outline the method in which he then carried out the murder. Through his position as a medical practitioner he had the ability to gain access to the insulin, which he then intended to use in that murder. He was able to acquire the insulin by creating a false script in one of his patient's names, before deactivating that same script to hide is existence from investigators. In the early hours of the 1st of January 20l0, he used that insulin to inject into his wife. He then left the home to attend his girlfriend's house allowing the insulin the required time to kill the deceased. ARREST:- 44.About 8am on Wednesday the 3rd of December, 2014, the accused was arrested at his home address. He was cautioned and conveyed to Campbelltown Police Station where he was entered into custody. He was explained his rights and the responsibilities of Police whilst in custody. Following advice from his legal representative he declined to participate in any sought of interview. The accused was charged. 45. Investigators executed a search warrant at his premises which was approved at Campbelltown Local Court 2 December, 2014. Police seized further documentation containing the identical signature as contained on the 'False' prescription.
4. We readily acknowledge that these are allegations only and that the appellant is entitled to the presumption of innocence. The appellant has entered a plea of not guilty and, as we understand the situation, intends to strenuously defend the proceedings. In these circumstances, it is arguably inappropriate to consider the matter by reference simply to the fact that the appellant has been charged with the murder of his then wife.
5. There are a number of factual matters made by way of allegation which are referred to in this document which arguably impact upon the practice of medicine by the appellant. These include: (1) That the appellant had prescribed for his then wife an antipsychotic drug Zyprexa on 17 December 2009. This may be indicative of medical treatment afforded to a family member contrary to best practice. (2) That the appellant had lied to the police concerning his movements on the evening of 31 December 2009 during which his then wife died, and that the appellant had admitted to this. This is arguably indicative of conduct which is inconsistent with the ethical standards expected of medical practitioners. (3) That at approximately 3:24pm on 31 December 2009, the appellant prescribed a brand of insulin, Lantus Solarstar to a patient which was dispensed at about 3:41pm that day to that patient. At about 5.01pm on the same afternoon the respondent generated a second prescription for the same patient being another brand of insulin, Nova-Rapid. About one minute later, the respondent deactivated this second prescription from the medical records of this patient contained on his computer, noting that the reason for deactivation was "not needed." However, that prescription was dispensed at a pharmacy between 6 pm and 7 pm that day. The signature on the documentation acknowledging receipt when the script was dispensed is purportedly in the name of this patient, however it is said to be a forgery. The signature is alleged to be in the handwriting of the appellant. These allegations are arguably indicative of a course of conduct in which a script has been inappropriately created, a record relating to it has been inappropriately deleted and the respondent has falsely had the prescription dispensed in the name of the patient and inappropriately taken possession of the insulin medication. This course of conduct would, prima facie, be inconsistent with the standards expected of a medical practitioner.
6. We again emphasise that these matters are allegations only, and have not been proven to the satisfaction of a criminal court. However, they are allegations that are relevant and appropriate to be considered in the context of the conduct of the appellant as a medical practitioner and as to whether the power to order suspension under s150 is enlivened.
7. We shall deal with the remaining evidence, which is more confined in its nature, by reference to each of the three issues we have earlier identified for consideration in determining these proceedings. In doing so, we shall attempt to confine the narration which follows as much as possible to the three issues which we have set out above, and we shall anonymise the evidence as much as possible, all with the intention of minimising any prejudice to the conduct of the criminal proceedings against the respondent which we have been told remain current. We should add that the appellant did not personally give evidence in the proceedings. Given the obvious concern expressed by his counsel that he did not wish to expose the appellant to any situation which might conceivably prejudice the conduct of the criminal trial, the respondent, properly, did not proffer any criticism of the appellant for not having given evidence. The fact remains, however, that the information and material available to us is that which was adduced by the respondent, save for an affidavit sworn by the appellant's solicitor indicating that the medical practice where he worked prior to his suspension was anxious to have him return, as were some of his patients.
8. We also note that the statements and other material to which reference will be made have not been the subject of any forensic examination and no oral evidence has been adduced. Accordingly, they are to be considered on their face value, but subject to such qualifications as we deem appropriate.

The Circumstances Surrounding the Issue of the Scripts

1. The factual background is set out in paragraphs [26]-[36] of the police charge facts sheet. There is some material which corroborates that contained in the charge facts sheet. The patient concerned, Kristina Mitchell, gave a statement to the police. She said that she was a long-standing patient of the appellant, and had been prescribed both Lantus Solarstar and Nova Rapid by the respondent and an endocrinologist for diabetes. At times she would have the scripts for both items filled at the same time at the same pharmacies, and sometimes they would be filled on separate occasions. She normally had her scripts filled at the Priceline pharmacy in Campbelltown, and would only attend in the pharmacy at the Campbelltown Medical Centre if the Priceline pharmacy did not have the medication in stock. She was unable to recollect what she had done on 31 December 2009.
2. The clinical notes for Ms Mitchell from 1 October 2009 to 31 December 2009 were printed out on 13 October 2011. These confirm that on 31 December 2009 the appellant prescribed Lantus Solarstar injections for her. There is no reference to any prescription for Nova Rapid being issued tor her on that date. In his statement to the police, the appellant confirmed that he worked at the surgery on the afternoon of 31 December 2009.
3. We have available the patient history for Ms Mitchell at the Campbelltown Medical Centre Pharmacy for the period 1 October 2009 to 31 December 2009. There is no record of a prescription for Lantus Solarstar having been filled during this period, but there is a record of a prescription for Novo Rapid being filled on 31 December 2009. No other script for this patient was dispensed at that pharmacy that day.
4. A photo copy of the second script issued on 31 December 2009 is in evidence before us, together with an expert certificate from Melanie Holt who is attached to the Document Examination Unit of the Forensic Services Group, New South Wales Police Force and who has qualifications as an expert in the examination of handwriting. Ms Holt compared the handwriting of the appellant when he issued the script with that which appears later above the words "Patient's or agent's signature". It was the opinion of Ms Holt that "there is slightly more support for the proposition" that the writer of the specimen signature on the script when issued is the writer of the signature indicating receipt of the medication "as opposed to the questioned signature being a "chance-match" or a skilled simulation by another writer."

The Circumstances Surrounding the Treatment by the Appellant of his Wife Including the State of his Clinical Records Relating to This Treatment

1. Senior Counsel for the appellant conceded that records made available by Medicare indicate that during the period 1988 to 2009 the appellant afforded medical treatment to his then wife. In a statement made to the police, the appellant described himself as her "treating doctor".
2. During the course of his first recorded interview with the police, the appellant was asked a number of questions about the medical condition of his wife and her treatment. He detailed the medication which she was taking including Lexapro, an antidepressant and Zyprexa, which was described as a tranquilizer and which had been prescribed for a bipolar disorder. She had recently been referred to, or was currently under the care of, an endocrinologist and an ophthalmic surgeon. He described his wife as having been "depressed for as long as I've known her...". He described her as having "always been a fairly volatile sort of person" and that she had been on antidepressants for a long time.
3. Mrs Crickitt's treating endocrinologist was Dr Harry Grunstein. A statement made by him indicates that he first treated her on 3 May 1999, having been referred by the appellant for hyperthyroidism. He prescribed medication and continued to treat her until her last consultation on 19 May 2008.
4. A Patient Medical History form pertaining to Mrs Crickitt from Campbelltown Medical and Dental Centre indicates that she attended on the appellant on 34 occasions between 30 January 2009 and 17 December 2009. There is a note in these records dated 5 March 2009 that "Avanza not helping. crying all day." There is also a note on 11 April 2009 of "Depression." Zyprexa is prescribed for the first time on 17 December 2009. We observe that these clinical notes contain very brief reference to medication prescribed and, very occasionally, the name of a medical condition being; Graves disease, glaucoma, osteoarthritis and depression.
5. The appellant had provided a medical certificate for his wife in connection with an application for travel insurance, and that certificate is part of the documentation produced to us. The certificate is dated 14 February 2005. In it the applicant noted that he had been treating his wife since 1988. He provided a Mental Health questionnaire in which he indicated that his wife was suffering from depression and that he had advised her of this condition on 15 October 2004. He said that his wife had previously presented with depression in 1988, 1992 and 2001. The date of her last symptoms was said to be 30 December 2004, and that she had "nil" current symptoms because they were controlled on medication. He said that there was no current mental health management plan in place and that his wife had not consulted a psychiatrist or psychologist.
6. The Crown Solicitor assisting the Coroner in connection with the inquest into the death of Mrs Crickitt retained Dr Michael Diamond, a consultant psychiatrist, to provide an expert opinion concerning the circumstances surrounding her treatment by the appellant. Dr Diamond provided two reports, both of which are before us. In providing his opinion, he had available to him only the medical reports to which we have earlier referred, extracts from medical records of specialists to whom she had been referred, and statements given by the appellant to the police.
7. With respect to the medical records, Dr Diamond noted that they were "cryptic and mainly lists diagnosis and treatment." He commented that: This is a brief clinical document that covers a period of less than 12 months. There are 22 separate notations, although some are listed on the same date. There is no documentation of a comprehensive history from the patient. There is no documentation of a comprehensive physical examination. There are no copies of reports from specialists who may have seen the patient. There is no management plan. There is no documentation of progress or deterioration of the patient. He noted that Mrs Crickitt had a number of "significant medical diagnoses" which were reflected in the prescriptions which had been issued to her. He noted also that there were no results or discussion of laboratory tests contained within the clinical notes. He concluded that: The clinical record provided is overall scant. It is an inadequate clinical record for an individual with long-standing illnesses requiring management of these conditions together with intercurrent illnesses requiring specific treatment at the time. It provides me with very limited understanding of what Dr Crickitt knew or understood about the condition of his patient at any particular time. The clinical record is little more than a list of prescriptions written. There is no notation to suggest consultation with other practitioners, or even contemplation of referral to other practitioners.
8. Dr Diamond did have available to him extracts of the medical records of Dr Grunstein from which he was able to derive some information concerning Mrs Crickitt's overall medical condition.
9. Dr Diamond was asked to comment about the diagnosis made by the appellant concerning Mrs Crickitt's mental health condition and her treatment. This was in the context of the appellant having referred to her depression and bipolar condition and the medications which he had prescribed, as contained in his interview with the police. Having regard to what had been told to the police Dr Diamond said: ….it appears that Dr Crickitt is not well versed in the use of antidepressant medication with regard to dosage, indications for use, appropriateness of choosing such medications as opposed to others in the management of different types of depressive illness or in the management of bipolar disorder.
10. He did not think that the appellant had sufficient expertise in the field of psychiatry to have considered whether the diagnosis of depressive illness was "a reactive illness to environmental and emotional circumstances, or whether it was essentially a biochemical or biological illness primarily." Furthermore, the appellant failed to explore or clarify the association between Mrs Crickitt's thyroid dysfunction and the existence of her long-term depressive illness. He thought that it was more likely that she was suffering from a significant biological or neurochemical disorder. Furthermore, the appellant did not appear to have considered Mrs Crickitt's family history.
11. Dr Diamond also said: …changes in mood state are a common phenomenon, and in themselves are not indicative of bipolar disorder. The diagnosis of bipolar disorder, according to the material I have examined, was never properly considered or assessed by someone with sufficient expertise to make that diagnosis. It is apparent to me from the answers of Dr Crickitt, that he did not have that expertise. The use of antidepressant medication in someone with a diagnosis of bipolar disorder is problematic because of the propensity of the antidepressant medication to precipitate mood switches from depression to elevated mood states. The management of individuals with bipolar disorder, who benefit from taking antidepressant medication is usually combined with a mood stabilising agent. There is no indication in the past that Mrs Crickitt ever took any mood stabilising medication except in the final months of her life when she started taking Zyprexa. Dr Diamond then went on to suggest that Zyprexa was not "amongst the more effective forms of mood stabilisers." Furthermore, he said that "The choice of 10 mg of Zyprexa as the appropriate starting dose is questionable and probably excessive, in my view."
12. Dr Diamond then turned his attention to the circumstances in which the appellant, as a general practitioner, had purported to treat his wife for chronic depression and/or bipolar disorder. He referred to general policy considerations applying generally to medical practitioners, that they should generally not treat members of their immediate family, except in the case of an emergency. We observe that such a proposition is well-established and that members of the medical profession are generally aware of it, or ought to be aware of it. Dr Diamond referred to a publication issued by the former New South Wales Medical Board in 2008 and the need for a medical practitioner to be able to treat patients with objectivity. Dr Diamond referred to the "conflict nature of the doctor/patient relationship when a doctor is treating a partner or spouse." He thought that it would be difficult for a doctor to maintain an objective professional position when treating a spouse. This was particularly so where the treating doctor is a general practitioner whose role it is "to maintain objective oversight, to provide the best possible treatment for the patient by way of making comprehensive assessments, appropriate referrals and appropriate adjustment to management."
13. There was information contained within the statements given by the appellant to the police that indicated that there was a continuing breakdown in his relationship with his wife in the period prior to her death. Dr Diamond commented: It is not uncommon for relationships to have an impact on mood disorders. When the relationship is with the treating general practitioner, the role of treating practitioner and the personal role of spouse is merged. It is compounded when the patient has views that their unhappiness is, in part at least, the result of the relationship with the spouse. Promotion of a good therapeutic alliance, trust in the clinician and objective assessment of clinical phenomena, are all likely to be compromised in such a setting.
14. Dr Diamond gave a number of instances of the possible adverse effect of a medical practitioner treating a spouse for conditions of this kind. It is not necessary for present purposes that we pursue this matter further. Dr Diamond concluded that "it is inappropriate for a general practitioner to treat his wife for chronic depression and bipolar disorder. It is in addition more inappropriate when the marital relationship with the spouse is a conflicted one."
15. Furthermore, Dr Diamond thought that without more specialist training, a general practitioner was not appropriately qualified to diagnose and treat a patient with bipolar disorder. Even if the general practitioner were able to make such a diagnosis, it would still be necessary to refer the patient to a specialist for specialist treatment. This was particularly so in the circumstances of Mrs Crickitt. He said that: When depressive illness fails to remit to simple measures of basic pharmaceutical treatment, the need for referral increases. With depressive illness that does not resolve despite appropriate basic treatment, the need for more expert assessment and diagnosis increases. Individuals with complex other medical illnesses that may be associated with depression, such as thyroid disease, would also benefit from referral to a specialist. He was concerned that the appellant would seek to treat a depressive illness in his spouse without referral to a specialist.
16. Dr Diamond was also asked to make specific reference to the medication prescribed by the appellant for his wife, as recorded in the clinical notes. In referring to the appellant, Dr Diamond said that the notes demonstrated to him that the appellant: …received no specialist advice about appropriate alternate medications for the management of either treatment-resistant depressive illness or in the management of bipolar disorder in any form. His prescribing in terms of switching of drugs, dosages, adequate therapeutic trials of new medications, provision of protection from mood switches that may be precipitated by different antidepressants, or attempting to treat bipolar disorder with mood stabilisers, shows deficiency of expertise.
17. The Medical Council of New South Wales provided a letter to the Crown Solicitor in connection with the inquest into the death of Mrs Crickitt concerning its approach to a medical practitioner breaching its policy concerning self-treatment and treating relatives. The seriousness of such a breach would be affected by the circumstances. The letter said, in part: Relevant factors which are considered by the Council when a breach comes to its attention include the nature, severity and duration of the family member's illness, the nature, duration and potential side effects of the treatment provided, whether there have been appropriate referrals to other medical practitioners and whether the patient would lack easy access to other medical practitioners owing to factors such as lack of mobility, geographic isolation or language or cultural barriers. The letter noted that the policy had been published for some years on the website of the former NSW Medical Board and by way of newsletter dating back to at least December 2001. Furthermore, the letter referred to a Code of Conduct issued by the Medical Board of Australia which "recognised that such a conflict (of interest) can arise when the practitioner has both a personal and professional relationship with the patient."
18. The nature and extent of records which a medical practitioner is required to keep is the subject of statutory regulation. From the period 29 August 2008 to 30 June 2010, the records required to be kept were governed by the provisions of the Medical Practice Regulation 2008, now repealed. Regulation 4 was in the following terms; MEDICAL PRACTICE REGULATION 2008 - REG 4 4 Records relating to patients (1) A registered medical practitioner or medical corporation engaged in the provision of medical services must, in accordance with this Part and Schedule 1, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or corporation. (2) This clause does not affect section 127 (4) of the Act. (3) For avoidance of doubt, contravention of this clause is not an offence. (4) Subclause (1) does not apply to the following: (a) a public health organisation within the meaning of the Health Services Act 1997 , (b) a private health facility, (c) a nursing home within the meaning of the Public Health Act 1991 . (5) Subclause (4) does not affect the application of subclause (1) to a registered medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (4). (6) In this clause: "private health facility" means, until the commencement of Schedule 5.19 to the Private Health Facilities Act 2007 , a private hospital or a day procedure centre. Note: Although contravention of this clause is not an offence, section 36 of the Act provides that any contravention of the regulations by a registered medical practitioner is unsatisfactory professional conduct. In the case of a corporation that is engaged in the provision of medical services, section 127 of the Act requires the corporation to appoint a registered medical practitioner to be responsible for record keeping by the corporation. If the corporation contravenes the record keeping requirements imposed by the regulations, the person so appointed is taken to have contravened the regulations. Section 126 (2) of the Act requires a person who makes or keeps a record under the regulations to ensure that when the record is disposed of it is disposed of in such a manner as to preserve its confidentiality. Contravention of that provision is an offence.
19. Regulation 4 in turn makes reference to Schedule 1 which is in the following terms; SCHEDULE 1 - Records relating to patients 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following: (a) any information known to the registered medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to his or her diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the registered medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the registered medical practitioner who is treating the patient: (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic given to the patient (if any), (e) the tissues (if any) sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to any medical treatment (including any medical or surgical procedure) proposed by the registered medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 3 Form of records (1) Abbreviations and shorthand expressions may be used in a record only if they are generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 4 Alteration and correction of records A registered medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in such a manner as to obliterate, obscure or render illegible information that is already contained in the record. 5 Delegation If a person is provided with medical treatment or other medical services by a registered medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the registered medical practitioner, but only if: (a) the record is made and kept in accordance with the rules and protocols of the hospital, and (b) the registered medical practitioner ensures that the record is made and kept in accordance with this Schedule.

That the Appellant Had Lied to the Police

1. Commencing at 9:53am on 1 January 2010, the appellant made a recorded statement to the police. During the course of the statement, after describing his interaction and communications with his wife on the previous evening as they had developed, he said that he left the family home at about 2am, and went for a drive in his car. He described in some detail places where he had driven, and the fact that he had slept in his car for a while. Apart from making a phone call to a female friend, he did not talk to anyone. At first he said that he had made that telephone call from his car, but later said that he had made it from his home. He said that he had arrived back home at about 8.15am. This interview concluded at 11:08 am.
2. Later that morning the police interviewed the female friend of the appellant. She said that he had come to her home at about 2am on the morning of 1 January and had stayed there till about 8am. She referred to a conversation with the appellant that she had later that morning in which he had told her that he had not disclosed to the police that he had visited her because he did not want to get her involved. She said to the police that she had told him to tell them the truth.
3. The police re-interviewed the appellant at 9:48pm on 1 January 2010. He conceded that the statement that he had given to the police earlier that day about his movements was incorrect and that he had spent time with his female friend at her home. He said that he had slept with her in her bed, agreed that he was embarrassed in saying so and that in doing so he had been "stupid." He said that it was his embarrassment that had stopped him from telling the truth in the earlier interview.

The Nature of Section 150 Proceedings

1. This is a statutory Tribunal and its powers and jurisdiction are circumscribed by statute. The relevant legislation for the purpose of these proceedings is the National Law.
2. Relevantly, the objectives and guiding principles of the statute are contained within sections 3(1) and (2)(a) and 3A which are in the following terms: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners; and (b) the registration of students undertaking-- (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for 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 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
3. As is obvious, the overriding concern is for the protection of the health and safety of the public. Registration is to be confined to practitioners who are suitably trained and qualified to practice in a competent and ethical manner.
4. It seems to us, from the plain words of the legislation, that the ability to suspend under section 150 responds, inter alia, to any situation where suspension is appropriate to protect the health and safety of any person or persons, or the public generally. Where the conduct of a medical practitioner whether by act or omission adversely affects the health and safety of those protected by the legislation, then the ability to suspend under the legislation is enlivened. This requires an identification of the adverse impact on health and safety and the establishment of a causal relationship between that adverse impact and the conduct of the medical practitioner. It is not necessary, in our opinion, for there to be actual harm suffered by any person. Because the concept is one of protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. Of course, the public interest may accommodate other matters which impact on the honour and integrity of the profession generally. These would include conviction for a serious crime, or failing to lodge taxation returns for an inordinate period.
5. The power to suspend created by section 150 has been described, in terms of its predecessor legislation, as "draconian" (see Levine J in the Supreme Court of NSW in X v NSW Medical Board (1993) 32 ALD 330 who determined that in appropriate cases the respondent should be given an opportunity of being heard before suspension was imposed). Nevertheless, as the authorities to which we shall refer make plain, the provision exists for the protection of the public.
6. We have had the benefit of written submissions from the parties in addition to those delivered orally at the hearing, and there are a number of references to decided cases. However, despite the research undertaken by counsel for both parties, there does not appear to be any case decided on an underlying factual situation which is similar to that which pertains to these proceedings. Accordingly, the most constructive course is to endeavour to extract relevant principles from these authorities.
7. The predecessor to section 150, section 66 of the former Medical Practice Act, 1992 was described by Murrell DCJ as being "a temporary or emergency measure, designed to protect public health and safety pending full investigation of possible risks to health or safety." Her Honour described the procedure as being "in the nature of an ex parte interlocutory order," and taken "on the basis of limited information." (see Woolcock v Medical Board [2009] NSWMT 3.We respectfully agree with Her Honour's observations. We should add for completion that there are other authorities which discuss the nature of the powers created by the predecessor to section 150, and other legislation to similar effect. We instance decisions in the Supreme Court of New South Wales in Lindsay v NSW Medical Board [2008] NSWSC 40 per Hall J, and Berger v Council of the Law Society of NSW [2013] NSWCA 336 per Beech-Jones J. They are of significance when considering the extent to which we should properly have regard to the evidentiary material admitted in these proceedings and the circumstances in which the powers under section 150 may be exercised.
8. In Lindsay, Hall J said, relevantly for our purposes at [76]-[80]: 76. In relation to both matters, the Board (or its delegates) is required to assess matters of risk, including the nature and extent of risk, arising from facts or matters (in particular, conduct) concerning a registered medical practitioner. 77. In the exercise of the powers of the Board for the protection of the public under s.66(1), a number of general propositions may be noted:- (a) The decision process under s.66 may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints. (b) An examination of that kind may appropriately be undertaken in proceedings before the Medical Tribunal. A Tribunal may exercise any power or combination of powers conferred on it by Part 4 Division 4 of the Act if it finds "the subject-matter" of a complaint against a person "... to have been proved" or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Tribunal (or the Professional Standards Committee). As noted earlier, in accordance with s.161(4) and Schedule 2,Clause 1 to the Act, a Tribunal in proceedings before it is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit. (c) The material relied upon the purpose of determining whether action should be taken under s.66 may include material that would not conventionally be considered as strictly evidentiary in nature, eg, complaints and allegations. A similar aspect was considered in relation to comparable legislation in General Medical Council v Sheill [2006] EWHC 3025 (Admin) (Crane J). In that case, an order had been made under s.41A(1) of the Medical Act 1983 (UK). Section 41A(1) was (in part) in the following terms: "Where an Interim Orders Panel ... are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order:- (a) that his resignation shall be suspended (that is to say, shall not have effect) during such period not exceeding 18 months as may be specified in the order (an 'interim suspension order'); or (b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose ('an order for interim conditional registration')." 78. In his judgment, Crane J referred to the basis upon which an interim order could be made. In that respect, he observed that attention is to be given to the nature of the proceedings for such an order stating:- "35. In my judgment, his submissions overlook the nature of these proceedings. They relate to an interim order. Neither the IOP nor the Court is embarking on a fact-finding exercise. In my judgment, the strict rules of evidence do not apply in the Court hearing. Both IOP and, in turn, the Court must look at the allegations made against the doctor. The Panel and the Court will expect the allegation to have been made or confirmed in writing, whether or not it has yet between reduced to a formal witness statement. The Panel and the Court will need to consider the source and the potential seriousness of the complaint. A complaint that is trivial or clearly misconceived on its face will clearly not be given weight. The nature of the allegations will be highly relevant to the issue whether conditions are sufficient." 79. An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, "interlocutory". Such a process, in the present case, as earlier observed, did not involve the making of findings of fact or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s.66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act. 80. The last-mentioned observation, of course, does not detract from the significance of an order suspending a registered medical practitioner from practising medicine for a specified period. Although the process of the Board or its delegates in performing its/their functions under s.66(1) differs in nature from proceedings conducted by the Medical Tribunal under the Act, the fact remains that an order under s.66(1) may severely affect a registered medical practitioner's livelihood and career.
9. R and Medical Board of Australia [2013] WASAT 28, is a decision of the WA State Administrative Tribunal which dealt with a similar provision. The Tribunal noted that section 66 of the former Act which was considered by Hall J in Lindsay, although not precisely in the same terms as s156 of the National Law with which it was concerned, contained a similar 'immediate action' process. It required the relevant Board to determine whether it was 'satisfied' that action under the section is necessary for the protection of the health or safety of any person or persons. That action included an order suspending the practitioner or imposing conditions on registration. The Tribunal said at [24] - [25]: 24. That section was considered by the New South Wales Supreme Court in Lindsay v New South Wales Medical Board [2008] NSWSC 40 (Lindsay). At [77] Hall J noted that the process under s 66 'may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints'. He contrasted that to the process that might be undertaken in proceedings where a complaint against a person had to be proved. His Honour said that the material relied upon for the purpose of determining whether action should be undertaken under s 66 'may include material that would not conventionally be considered as strictly evidentiary in nature, eg, complaints and allegations'. 25. The South Australian Health Practitioners Tribunal in I v Medical Board of Australia [2011] SAHPT 18 (I v Medical Board of Australia) adopted that same approach in a case concerning s 156 of the National Law. The South Australian Tribunal considered that an immediate action order does not entail a detailed inquiry by the Board, or in turn by the Tribunal. Rather, it required action on an urgent basis because of the need to protect the public; I v Medical Board of Australia at [26].
10. In Liddell and Medical Board of Australia [2012] WASAT 120, the Tribunal endorsed the approach taken both by the New South Wales Supreme Court in Lindsay and by the South Australian Health Practitioners Tribunal in I v Medical Board of Australia [2011] SAHPT 18. The Tribunal in Liddell stated at [21]: The practicality of [the approach in Lindsay and in I v Medical Board of Australia] is readily apparent. Where, for example, two allegations of criminal conduct involving serious sexual misconduct by a medical practitioner are made … it would be impractical for s 156 to require that the Medical Board make urgent findings of fact as to the practitioner's guilt or innocence. Rather, the mere fact and seriousness of the charges, supported by the untested depositions of witnesses, might well be sufficient to create the reasonable belief as to the existence of a risk because of the alleged conduct of the health practitioner.
11. In Berger v Council of the Law Society of NSW [2013] NSWSC 1080 Beech-Jones J, in the Supreme Court of New South Wales was dealing with an appeal against the suspension of a practising certificate of a solicitor. The underlying legislation differed from that with which we are concerned in these proceedings because the test to be applied was whether suspension was "necessary" in the public interest. His Honour referred to the matters to be taken into account in considering the public interest, as they applied to a legal practitioner. At [10] and following his Honour said: 10. In Doherty No 2 at [3] James J referred to the "emergency nature" of the power conferred by s 548(2) but did not elaborate. Given that McColl JA was only dealing with an application for a stay in Doherty No 3, her Honour also did not undertake any detailed analysis of the power conferred by s 548(2). However her Honour did note that the "protection of the public means that the public interest is always entitled to significant weight" (at [33]). Her Honour cited a passage from the judgment of Spigelman CJ in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [108] to [109] which referred to an earlier judgment of his Honour in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [20]. In the latter passage Spigelman CJ identified "four interrelated interests" at stake in such cases. Those interests were the need for clients to have confidence in entrusting their affairs to a lawyer, the need for fellow practitioners to be able to accept the practitioner's words and conduct, the need for the judiciary to have confidence in those who appear before the courts, and the overall need for the public "to have confidence in the legal profession by reason of the central role the profession plays in the administration of justice". 11. The judgment in Stevens was an appeal from a decision of a judge at first instance granting a stay of a decision to cancel a practising certificate under the regime then in place for a practitioner who, inter alia, was convicted of a "tax offence" (former s 38FC(1)), and failed to notify matters concerning his non-compliant tax history (former s 38FD(1)(a)). Consistent with the above comments, Spigelman CJ found that the judge at first instance had erred in exercising the discretion to grant a stay by approaching the matter as though it involved weighing up the competing interests of parties to private litigation, and failed to "give consideration to the public interest dimension" (at [118] and [144]). 12. Unlike Stevens or Doherty No 3, this case does not involve the exercise of any discretion to grant a stay but a consideration of the exercise of the power conferred by s 548 itself. However the discussion of the four interrelated interests in Cummins that was approved in Stevens and Doherty No 3 is still apposite. Sub-section 548(1) makes it clear that the necessity to protect the "public interest" is at the core of the power conferred by s 548(2). The four interrelated interests identified by Spigelman CJ in Cummins are all encompassed by the phrase "public interest" as used in s 548(1). This is reinforced by the statement of the purposes of the Act in s 3(1)(a) which refers to the regulation of legal practice "in the interests of the administration of justice and for the protection of the clients of law practices and the public generally" (see O'Sullivan v Farrer [1989] HCA 61; 168 CLR 210 at 216). Otherwise, the purely protective nature of this type of proceeding has long been recognised (see Clyne v New South Wales Bar Association [1960] HCA 40; 104 CLR 186 at 201 to 202; Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637). 13. The legislative regime for cancellation of a practising certificate considered in Stevens is different to that in issue in this case. The regime considered in Stevens appears to have been replaced by that now found within Division 7 of Part 2.4 of the Act. Section 548 is found within Chapter 4 of the Act which is entitled "[c]omplaints and [d]iscipline". To that end the power conferred by s 548(1) cannot be engaged unless a complaint has been made against the solicitor. In this case the resolution of the Council of the Law Society recording the suspension decision is immediately preceded by a resolution making a complaint that the solicitor "misappropriated" funds. 14. It is clear that a decision to suspend is a temporary measure (or "emergency" measure as noted by James J in Doherty No 2). The section only confers a power to "suspend". In that respect it can be contrasted with powers such as those conferred by s 61 to "amend, suspend or cancel" a practising certificate. Thus a suspension made pursuant to s 548(2) ceases, inter alia, on the complaint being withdrawn or revoked (s 548(3)(a)) or the complaint being "finally dealt with" by the Administrative Decisions Tribunal (the "Tribunal") (s 548(3)(c)). This latter provision recognises that, in the ordinary course, complaints about the conduct of holders of a practising certificate will be dealt with in accordance with the regime provided for in Chapter 4 of the Act. 15. Leaving aside the powers of this Court to remove practitioners from the roll of solicitors which is preserved by s 590, the end point of the complaint regime in the Act is the making of a determination by the Tribunal as to whether or not a practitioner has engaged in unsatisfactory professional conduct or professional misconduct (s 551(1) and s 562(1)). If the appropriate findings are made then the Tribunal is empowered to make "orders as it thinks fit" (s 562(1)) which can include an order that the name of the practitioner be removed from the "local roll" (s 562(2)(a)) or that their practising certificate be suspended for a specified period or cancelled (s 562(2)(b)). 16. Thus a decision to suspend under s 548(2) has the capacity to pre-empt and perhaps undermine the structure for dealing with complaints created by Chapter 4 including the protections afforded to practitioners the subject of complaints. No doubt for this reason the power can only be invoked if the Law Society in the first instance, or this Court on appeal, considers it "necessary" in the public interest to suspend the practising certificate. In a different but equally serious context the High Court has observed that the word "necessary ... is a strong word" (Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In this context it connotes a relatively high degree of satisfaction that the suspension should be ordered pending the pursuit of a complaint. It can be contrasted with the power of the Tribunal to make "such orders as it thinks fit" (s 562(1)). 17. At times the submissions appeared to suggest that the Court should undertake some form of predictive exercise as to what sanction the Tribunal might ultimately impose in respect of the complaint laid against Mr Berger. Some support for that might be gained from the judgment of James J in Doherty No 2 but I doubt that the Court should go that far. As stated, the power conferred by s 548(1) is predicated on the existence of a "complaint". This suggests that it is the conduct disclosed by the complaint and the surrounding circumstances that is to be assessed against s 548(1). Further it is to be expected that the conduct complained of would, if proved, constitute unsatisfactory professional conduct or professional misconduct, otherwise the power conferred by s 548(2) would rise above its intended purpose. However to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application. 18. In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. 19. I have already discussed the protective nature of the power conferred by s 548(2). It suggests that the effects of a suspension on the personal interests of the solicitor are of little moment when considering the exercise of the power. However the interests of the solicitor are still relevant in a number of ways. First, the very significant effect that suspension may have upon their interests invokes the principles discussed in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 especially where, as in this case, the matters alleged are serious (Evidence Act 1995, s 140(2)). In this Court the Law Society bore the burden of proving the allegations it made and the burden of persuading the Court that the suspension of the practising certificate is necessary. 20. Second, the high level of persuasion that inures in the word "necessary" means that there is scope for the practitioner to either agree or have imposed upon them conditions falling short of suspension that provide protection to clients and the public. In such circumstances the Court may not be positively satisfied that it is "necessary" that the practising certificate be suspended. Instead the width of the power conferred on the Court by s 549(2) would enable the substitution of such a decision for the decision to suspend. In Doherty No 2 James J appeared to consider the imposition of conditions as an alternative to suspension at the point of considering the exercise of the discretion referred to in s 548(2). As a matter of practicalities I doubt that that there is much difference between that approach and considering whether it affects the "necessity" to suspend a practising certificate, although I prefer the latter view. The difficulty with the former is that, given the terms and obvious purpose of s 548, it is difficult to envisage circumstances in which the Court could conclude that it is necessary in the public interest to suspend a practising certificate but somehow determine as a matter of discretion that it should not do so.
12. We make the following observations concerning the underlying principles which we perceive to apply in the circumstances of these proceedings: (1) The exercise of the power to suspend will have grave consequences for a medical practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. The grave consequences are accommodated within the need to ensure that we are satisfied to the Briginshaw standard that we can safely make the conclusions necessary to make a determination that section 150 is enlivened including a consideration of the nature and status of the material upon which any such conclusions are made. (2) The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that those exercising it need not embark upon a detailed enquiry, and may base their reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (See the cases cited in R and Medical Board of Australia [2013] WASAT 28 at [24] and following). (3) Section 150(6) arguably requires that notice be given to the practitioner before any order of suspension, or any other order under that section has been made. The practitioner will always have an opportunity of addressing the decision-makers prior to any determination being made. (4) Nevertheless, the "draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R and Medical Board at [28]). (5) It will also require the formation of a "reasonable belief… That because of the health practitioner's conduct (or) performance…., the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety" (R v Medical Board at [28]), or to do so otherwise in the public interest. This quotation needs to be qualified to the extent that "necessary" is not the test contained in the Act. (6) Any conclusions which are made in the course of determining that section 150 is enlivened are made for the purpose only of that determination, by reason of the ability to rely on information and material which may not otherwise be strictly admissible in administrative or judicial proceedings. (7) It is also necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: (a) There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. (b) These requirements are expressed to be in the alternative. (c) The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. The respondent submitted that the provision operated so that "otherwise" would mean "in some other way". Therefore, the health and safety element is subsumed within the public interest. We do not understand the appellant to have made a contrary submission. As this approach to construction appears to us to reflect the overall intention of the section, we shall apply it for the purpose of these proceedings. (d) In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. (e) By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter. (f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. (g) Section 150 empowers the Council to either suspend or impose conditions on the registration of the medical practitioner if circumstances warrant either of these steps. These powers are also available in circumstances where complaints have been initiated against a medical practitioner under the Act. The exercise of those powers by the Medical Tribunal is conditional upon findings of unsatisfactory professional conduct or professional misconduct. The process which we are undertaking is removed from any consideration of whether the medical practitioner might, at some stage, be found guilty of either unsatisfactory professional conduct or professional misconduct on the basis of some complaint which to date has not been initiated. We agree with the observations of Beech-Jones J in Berger previously set out, and we adopt the following from his Honour's judgement at [17] - [18]: …. to attempt at this point to predict what the Tribunal might decide at some indefinite point in the future risks distracting the Court from ascertaining what presently is necessary in the public interest. No doubt there are cases where professional misconduct is demonstrated against a solicitor but the Tribunal determines not to remove them from the roll or completely prevent them from practising because aspects of their conduct since the complaint may demonstrate that that step is not warranted. There is very little scope to consider such possibilities in this type of application…. In my view the appropriate approach is one that requires that the Law Society at first instance, and this Court on appeal, to be satisfied that the available material concerning a complaint against a practitioner demonstrates that the continued holding of a practising certificate by them pending its determination presents such an unacceptable risk to clients, the public generally or the administration of justice that it is necessary that their certificate be suspended. (h) There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary.

The Facts Charge Sheet

1. On its face it is created by a police officer. It consists, as we have previously pointed out of bare assertions only. Nevertheless, in the areas concerning the practice of medicine by the appellant, the document does contain a measure of detail. We prefer to approach this matter on the basis of the assumption that the document has been prepared having regard to the obligations imposed upon the NSW Police force to assist a court in dealing with a bail application. There is an obligation to put before the court such information as is available which reflects the criminal allegations intended to be advanced against a defendant. Such allegations should not be formulated capriciously and without some reasonable basis upon which they are asserted. Obviously, one cannot approach an examination of the allegations on the basis that they will be proven against the appellant to the criminal standard. Indeed, we must emphasise that it is no part of our task to examine or consider in any way the culpability of the appellant in terms of the criminal charges brought against him. We are only concerned with an examination of his conduct in terms of whether suspension or any other order is justified under section 150 of the Act.
2. The respondent submitted that we could safely rely on the material contained in the facts charge sheet for our purposes. As against this approach, the appellant emphasised that there must be corroborative evidence available to support the allegations contained in the charge facts sheet, and there are many areas where none has been produced.
3. We are satisfied that many of the matters contained in the facts charge sheet are corroborated in the additional material which we have described above. In those areas where there is no corroboration, for example the deactivation and the reactivation of the script in the computer records of the computer terminal habitually used by the appellant, there is a great deal of detail which we will assume has some arguable credibility, albeit that the underlying evidentiary material may not find its way into evidence in the criminal proceedings, and that the assertions may not eventually be established to the requisite standard of proof. We are comfortably satisfied that to the extent that it is relevant for our determination, we can take into account the material contained within the facts charge sheet. We emphasise, in doing so, that our conclusion is strictly for the limited purposes of section 150 of the Act.
4. We now come to deal with the information and material available to us with respect to the three areas previously identified, including our conclusions about each of these matters as they impact upon the appellant as a medical practitioner.

The Circumstances Surrounding the Issue of the Scripts

1. The respondent submitted that we could be comfortably satisfied for the purpose of these proceedings that the appellant issued the second script on 31 December 2009, that either he or someone else arranged for it to be dispensed, that he deleted the reference from the computer system, and that he later reactivated the prescription in the computer system. It was said that for our purposes, we could be appropriately satisfied that only the appellant had access to his computer. We agree, and we are of the view that it would be unlikely for someone else to have had access to the appellant's computer terminal both on the 31 December 2009 and also on 24 November 2011 when the script was reactivated. It is hard to imagine that there was some random involvement of another person or persons in relation to the issue of this script for this patient at 5pm on 31 December 2009, its deactivation almost immediately thereafter and its reactivation almost 2 years later. The course of events is consistent with a scenario as contended for by the respondent.
2. It was further submitted that we could be comfortably satisfied for the purpose of these proceedings that the appellant had improperly used the medical records of a patient for the purpose of issuing a script which was not for her use, and that he was prepared to manipulate medical records accordingly. We also agree. It is unlikely that this patient would have again visited the appellant around 5pm on the same day, and there does not appear to be any record of her having done so. It seems unlikely that this second prescription was issued in connection with the treatment of the patient Ms Mitchell, and it seems likely that the script and the insulin which was dispensed were at all times under the control of the appellant.
3. We are of the opinion that having reached these conclusions, that they reflect conduct on the part of the appellant which was unethical, dishonourable and improper in the practice of medicine.
4. We make no conclusions about whether the insulin improperly obtained had any part to play in the death of the appellant's wife.

The Circumstances Surrounding the Treatment by the Appellant of His Wife Including the State of His Clinical Records Relating to This Treatment

1. We first observe that the appellant has treated his wife for a long time, commencing in 1988. So much was conceded by the appellant. The documentation before us leads us to conclude, for the purpose of these proceedings, that the appellant was her primary medical practitioner. The fact that the appellant regularly treated his wife over such a long period of time is of itself indicative of conduct which is inappropriate for a medical practitioner. It is certainly contrary to policies and Codes issued by regulatory authorities from time to time. The dangers associated with treating a close family member are adequately described by Dr Diamond in his reports, extracts of which we have earlier set out. We adopt them in assessing the conduct of the respondent for the purpose of these proceedings. We refer also to the policy adopted by the Medical Council of New South Wales which we have referred to above when considering whether a medical practitioner was acting inappropriately in treating relatives. The factors which the Council considers include: The nature, severity and duration of the family member's illness, the nature, duration and potential side effects of the treatment provided, whether there have been appropriate referrals to other medical practitioners and whether the patient would lack easy access to other medical practitioners…… As will be seen, each of these factors apply to the circumstances in which the appellant treated his wife as disclosed in the clinical records.
2. It was said on behalf of the appellant that he had endeavoured to persuade his wife to seek treatment elsewhere, but she had resisted this. We reject this submission. Once the appellant had commenced treating his wife in a professional relationship, the obligation fell upon him as her medical practitioner to set the boundaries of their professional relationship. In circumstances where the appellant should have known that he was conducting himself inappropriately in continuing to treat his wife, he should have taken steps to cease doing so, no matter how difficult this may have been on a personal level. Medical practitioners are expected to deal with difficult patients as part of their practice of medicine. Accordingly, not only was it inappropriate for the appellant to have treated his wife, but once he continued to do so, he was then bound to conduct himself appropriately as a medical practitioner. There can be no differential standard applying to the treatment of a close family member as opposed to the treatment of every patient.
3. We have previously set out a description of the clinical records kept by the appellant of his treatment of his wife for the period 30 January 2009 to 17 December 2009. These records are before us. The nature and extent of those records have been described by Dr Diamond. Having perused them, we agree with the criticism levelled by Dr Diamond. The records are woefully inadequate. They failed to document any relevant history, comprehensive physical examination, any discussion of any tests carried out or any other matter which would assist any other medical practitioner in treating this patient. They clearly fail to comply with the relevant Regulation in a number of material respects. So much was conceded by the appellant.
4. Dr Diamond was highly critical of the diagnosis and treatment of the appellant's wife's mental health. We have earlier set out a summary and extracts from his reports. The summary description which follows is intended to be a summary only, it should not be taken to diminish in any way the extent of the criticism and concerns expressed by Dr Diamond, whose opinion we accept for the purpose of these proceedings. Dr Diamond was critical of the appellant's expertise in the use of antidepressant medication and in his ability to diagnose bipolar disease and the cause of her depressive illness. He was critical of the medication that was prescribed and the dosage. Furthermore, the fact that the appellant's own relationship with his wife was conflicted rendered his attempt to treat her as even more inappropriate.
5. There is no suggestion in the clinical notes for the year 2009, or any other documentation which was available to Dr Diamond that the appellant had referred his wife for specialist treatment for her mental condition.
6. We conclude that based on our observations of the material and information available to us that the appellant in his treatment of his wife's mental condition displayed a lack of professional judgement, and a degree of incompetence in the treatment which he afforded to her.

That the Appellant Had Lied to the Police

1. It is clear that the appellant lied to the police in the course of giving his first statement concerning his whereabouts on the morning of 1 January 2010. It was submitted on his behalf that at the time that he had given his first statement he was under extreme pressure, and that he had not told the truth in order to protect his friend and avoid any embarrassment for her. It was said further that he readily conceded that he had lied when making his second statement, and both statements were made voluntarily.
2. Another explanation is that the appellant was forced to retract his first statement to the police because they had been told in the interim by the appellant's friend that he had spent the night with her. The respondent submitted that in the circumstances we should conclude that the appellant had no option other than to recant his first statement.
3. On its face, the fact that the appellant lied to the police is indicative of dishonourable and unethical conduct, unbefitting a medical practitioner. It was submitted on his behalf that at the time that he made his first statement the appellant had been under emotional pressure, and may have been motivated by his desire to save his friend any undue embarrassment. However, we also note that, in his first statement, the appellant gave considerable false detail to police about his movements and timing. This degree of detail would tend to contradict the proposal that the appellant had lied due to emotional pressure.

Conclusion

1. Having regard to our conclusions concerning the conduct of the appellant as a medical practitioner which we have set out above, it now becomes necessary to determine whether the provisions of section 150 of the Act apply and whether the appeal should be upheld or dismissed, and if so, whether another protective order should be made in substitution for suspension, namely the imposition of practice conditions.
2. One of the concerns we have in determining these proceedings is that although we have concluded that there has been significant misconduct by the appellant as a medical practitioner, it is in part associated with his treatment of his late wife. There is no information or material available to us that the appellant has misconducted himself as a medical practitioner in the treatment of any other patient. On one basis, it might be appropriate to quarantine the appellant's misconduct to that of his treatment of his wife, and on this basis determine that there are insufficient grounds to conclude that section 150 applies.
3. This is a matter analogous to that which concerned Beech-Jones J in Berger, previously referred to. At [136] and following his Honour said: 136 It follows from the observation at [27] that the findings that I have made in relation to the first and fourth payments advance the Law Society's case a long way towards the conclusion that it is necessary in the public interest for Mr Berger's practising certificate to be suspended. The circumstances reveal that a very high degree of trust was placed in Mr Berger. While she was alive Mrs Domabyl was extremely vulnerable in terms of looking after her own interests. As her solicitor, donee of her power of attorney and co-executor of her will Mr Berger exercised a high degree of control over her assets both before and after her death. There was little scope for outside scrutiny and, to the extent that there was any, Mr Berger was able to avoid it for a period of time. He undertook the very type of transactions that reflect the great trust placed in solicitors and the necessity that, above all else, their honesty and probity not be in doubt. 137 The submissions on behalf of Mr Berger referred to his actions in transferring the funds that were paid back into the trust account, his acknowledgement that their removal was not authorised, the undertakings he gave and his willingness to accept further conditions. Even though he has twice proffered undertakings to the Law Society to comply with his obligations, it was submitted that the experience of having had his practising certificate suspended and then appearing in this Court would have had a salutary effect. Ultimately it was submitted that when regard is had to his long period of service as a solicitor it is not "necessary" to suspend his practising certificate or that, as a matter or discretion, the Court should not do so but instead should place some other restrictions on his ability to practice. 138 These matters have caused me to hesitate notwithstanding the severity of the findings that I have made. I considered whether to impose a condition that Mr Berger not deduct amounts from a trust account on account of legal fees unless advance notice and supporting material is provided to the Law Society and the external accountant. However it is to be recalled that the first payment did not involve a transfer of moneys from the trust account but the diversion of the proceeds of sale of Mrs Domabyl's unit in the retirement village. I have also considered whether to impose conditions that he not act under a power of attorney or as executor or the like. However the imposition of such conditions would probably only exclude him from acting on behalf of one category of vulnerable person, namely the elderly and infirm. What about other categories of persons who are vulnerable? Properly analysed, all clients of a solicitor are vulnerable if the solicitor acts improperly. Mr Berger's acknowledgement of the unauthorised taking of the funds does not undo the concerns that the Court has that he would continue to act improperly, at least in the immediate future. No conditions that could be imposed on his practice can overcome that (see Litchfield at 639). He represents an unacceptable risk. I am satisfied that it is necessary in the public interest to immediately suspend Mr Berger's practising certificate.
4. We agree with the approach taken by His Honour in those proceedings. In the context of these proceedings, all patients of the appellant are vulnerable to the misconduct exhibited by the appellant in the treatment of his wife. He exhibited incompetency in diagnosis and in treatment of a complex mental health condition over a long period of time, and a failure to record and keep proper clinical notes. As such we have grave concerns for his safe and appropriate practice of medicine, and the impact on the safety of his patients or persons who may become his patients. Furthermore, this misconduct is exacerbated by the circumstances involving the manipulation of patient records and the circumstances in which a false script was issued and the computer records were compromised. To a less severe extent, we add the misconduct associated with the admitted lies given to the police. All of this misconduct is such that, in the aggregate, in the public interest his registration should be suspended.
5. We have considered whether we should, in lieu of suspension, impose practice conditions in the nature of close supervision and an audit of the appellant's records. We also considered whether it would be appropriate to preclude the appellant from treating any patient with a medical condition in the nature of a mental health condition and prescribing medication or otherwise affording treatment. Like Beech-Jones J in Berger, we cannot see that the creation of any such conditions would be both pragmatic and appropriate for the necessary protection for the public.
6. In all the circumstances, we conclude that the misconduct of the appellant justifies a continuation of the suspension of his registration as a medical practitioner under section 150 of the Act. The suspension shall continue for a period of 6 months or as earlier terminated by the Medical Council of NSW. This period will give the Council time in which to determine whether it wishes to pursue any formal complaints against the appellant.

Costs

1. The parties asked that we reserve costs, and we shall do so.

Orders

1. We make the following orders: 1. The appeal is dismissed, save that the suspension of the registration of the appellant shall continue for a period of 6 months or as earlier terminated by the Medical Council of NSW. 2. Costs are reserved with liberty to apply which must be exercised within one month of this date. 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 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 October 2015