(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.

1. VCAT is the responsible tribunal pursuant to s199(2) of the National Law and s6 of the Victorian Act.
2. Although s199 refers to an appeal we accept that any application made under s199 invokes the tribunal's review jurisdiction under s42 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). The powers of the tribunal set out in s202 of the National Law are substantively in similar terms to s51(2) and (3) of the VCAT Act which provide:

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

(3) Subject to sub-section (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decisionmaker -

(a) is deemed to be a decision of that decisionmaker; and

(b) subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.

1. The tribunal has previously held that its review jurisdiction can be invoked even where the relevant provision of an enabling enactment does not use the word 'review'.[1]
2. Although it was seemingly conceded by Mr Galbally on behalf of Mr Drury, at the commencement of the hearing, that this is an application for review, we note that in his final submissions Mr Galbally referred to the other grounds which are set out in Mr Drury's application.
3. The tribunal stands in the shoes of the decision-maker, in this case the MBA, in determining the correct or preferable decision having regard to the material before it. Whether or not the decision of the original decision-maker was correct is not a matter to be properly taken into account by the tribunal. The role of the tribunal in review proceedings was clearly set out by Judge Ross, as he then was, in Von Schrenk v Dental Practice Board of Victoria [2008] VCAT 2302 where at paragraph 7 he said:

The tribunal's functions in reviewing a determination of the Board are not appellate. On review the tribunal stands in the shoes of the original decision-maker and must determine the correct decision on the material before it. The review is conducted without any presumption as to the correctness or otherwise of the decision subject to review and the tribunal is not confined to the material upon which the original decision was made and may receive evidence or material which was not before the original decision-maker.[2]

1. Any application by Mr Drury that he was denied procedural fairness by the Board or that the Board failed to take into account relevant considerations are not matters about which this tribunal has jurisdiction. The tribunal does not have jurisdiction to consider any application for judicial review.
2. In considering an application for registration as a medical practitioner, a National Board, and the tribunal standing in its shoes, may, under s55(1)(h)(i) of the National Law, decide an individual is not a suitable person to hold general registration in a health profession if relevantly:

...in the Board's opinion, the individual is for any other reason -

(i) not a fit and proper person for general registration in the profession; ...

1. Unfortunately the term 'fit and proper' is not defined in the legislation. Under the previous statutory regime: The Health Professions Registration Act 2005 the responsible Board could refuse an application for registration under s6(2) if:
   • (a) The character of the applicant is such that it would not be in the public interest to allow the applicant to practise as a registered health practitioner.
2. It was submitted on behalf of Mr Drury that in considering whether he is a 'fit and proper person' to be registered as a medical practitioner we should have regard to the suitability criteria set out in the Legal Profession Practice Act 2004 (Vic) to be taken into account when considering an Application for Admission as an Australian Legal Practitioner. In particular, the first of these criteria: 'whether the person is currently of good fame and character'. However, we note that Parliament has not taken the opportunity to specifiy any criteria to be taken into account when considering whether someone is a fit and proper person to be registered as a medical practitioner. Even if we were persuaded that the criteria for suitability for admission as a legal practitioner were somehow relevant, and we are not, noting that a doctor/patient relationship is vastly different from that of a lawyer/client relationship, for the reasons which follow we are not persuaded that Mr Drury satisfies that criteria.
3. However, we are guided by a recent decision of the Supreme Court of South Australia in Wilks v The Medical Board of South Australia [2010] SASC 287 where Justice Gray considered the meaning of 'fit and proper person' in s33(1)(e) of the Medical Practice Act 2004 (SA) which, at the relevant time, provided a person was eligible for registration as a medical practitioner if the Medical Board of South Australia was satisfied that he or she 'is a fit and proper person to be registered'.
4. At paragraphs 30 and 31 of Wilks Justice Gray stated:
   1. The requirement that an applicant satisfy the Board that he or she is a fit and proper person to be registered embraced a wide range of matters. As Walters J said in Sobey v Commercial and Private Agents Board [(1979) 22 SASR 70 at 76] in a different context:

The issue whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails ...

1. The breadth of the statutory requirement is emphasised by observations made by Dixon CJ, McTiernan and Webb JJ in Hughes and Vale Pty Ltd v New South Wales (No 2) [(1955) [1955] HCA 28; 93 CLR 127 at 156-157]. Their Honours said:

The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to officers and vocations. But their very purpose is to give the wider scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be enquired to; each case must depend on its own merits.

1. In accordance with these observations, the requirement that Mr Wilks satisfy the South Australian Board that he was a fit and proper person to be registered was no formality.
2. We accept the submission made on behalf of the MBA that having regard to Wilks, moral integrity and honesty are two essential components of a person being regarded as a fit and proper person.

1. The hearing before the Board in 2001 proceeded over many days and a number of weeks. The Board found the allegations, in relation to inappropriate sexual relationships and conduct with five female patients, including inappropriate intimate clinical examinations, proven.
2. During the 2001 hearing, Mr Drury, who was legally represented at that hearing, lied on oath in denying all but one of the allegations of sexual intercourse and accused the five former patients of making false allegations in the hope of obtaining financial compensation. Mr Drury admitted during this hearing that he had made a calculated decision to lie in his defence of the allegations in 2001 (and again when he applied for registration in 2004) in the hope of maintaining and then regaining his registration. This was reprehensible behaviour.

1. On 29 November 2004, Mr Drury made application for general registration as a medical practitioner. On 2 February 2005 Mr Drury was advised by the Board that, relying on s7(2)(a) of the Medical Practice Act 1994 ('the MP Act'), it proposed to refuse his application because it was not satisfied that his character was such that it would be in the public interest to allow him to practise as a registered medical practitioner.
2. Mr Drury was given the opportunity to provide a written submission to the Board, which he did on 25 February 2005.
3. In its decision dated 21 April 2005 the Board discussed at length the law as to good character. Although the test has changed we are satisfied that many of the matters considered and discussed by the Board are relevant.
4. The Board noted at paragraph 26 of its 2005 decision that, although Mr Drury stated he had developed insight into professional boundaries through his work with his psychiatrist, he continued to deny that he had sexual relationships with his patients.
5. This is not a simple matter where Mr Drury lied during the initial hearing but he continued with those lies when he applied for registration in 2004, at which time he had already had the benefit of two years of psychological assistance, seemingly because he thought he would 'get away with it'.

1. Mr Drury made a further application to the Board for registration on 18 September 2006. On 13 November 2006 the Board advised Mr Drury that it proposed to refuse his application again relying on s7(2)(a) of the MP Act. Mr Drury was invited to make written submissions, and to attend the Board's meeting on 30 November to make an oral submission, which he did. Mr Drury attended the meeting on 30 November and made an oral submission. His partner, who is now his wife, also attended the hearing.
2. In support of the 2006 application Mr Drury provided a written statement to the Board dated 24 July 2006 in which, for the first time, he admitted that he had sexual relationships with four of the five former patients. However, he continued to deny that he had acted inappropriately within a clinical setting and claimed that fear was responsible for his refusal to previously admit, under oath, to the sexual relationships. We note that a similar explanation was provided by Mr Drury from the witness box in this hearing.
3. After hearing from Mr Drury and considering the written material he presented in support of his application, including reports from a psychiatrist, Professor Ball, and a psychologist, Professor Ogloff, the Board refused his application for registration as a medical practitioner.
4. Although the tribunal must make the correct and preferable decision on the material before it, it is clear that such material can include the findings and determinations of the Board in relation to each of Mr Drury's applications for registration as well as the initial decision to cancel his registration in 2001. In Ha v Pharmacy Board of Victoria [2002] VSC 322; (2002) 18 VAR 465, Gillard J said:

The weight that should be attached to any finding made by the Board on an inquiry or its decision on penalty will depend upon the particular circumstances. The issue before the Board may be such that experienced members of the profession are in the best position to make an assessment as to the gravity of the misconduct and what is an appropriate penalty, not only in the public interest but in order to protect the reputation of the profession. On the other hand, the particular issue may be a matter which the court is in just a good a position as members of the Board to make the assessment of the seriousness of the misconduct and the appropriate penalty.

1. Relevantly the Board made the following observations in its decision dated 21 December 2006:
   1. When Mr Drury appeared before the Board he was unable to explain the timing and circumstances of his decision to reveal the truth about the sexual nature of the relationships with a number of complainants.
   2. On 30 November 2006 the Board was also concerned that Mr Drury's understanding of the harm that he caused the various complainants was still limited. Notwithstanding that several years have elapsed since the panel hearing, he does not seem to have considered the impact on various complainants of his actions in the broad sense.
   3. Mr Drury is now prepared to admit the sexual nature of a number of the allegations and concedes that he "did them a great deal of damage by my misplaced and inappropriate intentions". It should be noted however that he describes the sexual aspects of the relationship as being "incidental rather than a central focus". Mr Drury goes on to state that he "believed at the time that I was being of assistance to them". This comment betrays a concerning inability to understand the damage that he has caused, notwithstanding that he had heard the various complainants give their evidence and have that evidence challenged at the panel hearing.
   4. The Board was concerned that in his recent written material Mr Drury was unable to deal with the predatory nature of his behaviour.
   5. Of additional significant concern is Mr Drury's ongoing failure to deal with the impact of the hearing on the various complainants. Not only were the complainants subjected to the trauma of a fully contested hearing but they had their credibility challenged on the basis that they were lying purely for their own financial gain. Mr Drury described his actions in defending the charges as "a misconception". It is the Board's view that Mr Drury's behaviour in defending the original charges (which he by and large now accepts is reflecting what actually transpired) is most concerning.
2. These comments are equally appropriate to the application currently before us. We are concerned that after each unsuccessful attempt to regain his registration that Mr Drury has seemingly responded to the comments and observations by the Board when making the subsequent application. In April 2005 the Board noted that Mr Drury continued to deny the allegations. Then, when he applied for registration in 2006, he referred and relied upon his statement of 24 July 2006 in which, for the first time, he admits those allegations.

1. In relation to his 2010 application, which is the subject of this current application, Mr Drury first wrote to the Board on 17 April 2009 when he requested it consider his application for registration as a medical practitioner. The Board acknowledged receipt of this letter on 6 May 2009 advising that any application for registration must be accompanied by a completed application form. This application form was finally completed and lodged with the Board on or about 28 April 2010. Following the commencement of the National Law on 1 July 2010 Mr Drury's application was considered by the MBA at its meeting on 12 August 2010. By letter dated 19 August 2010 AHPRA advised Mr Drury's solicitors that his application for registration had been refused.
2. Mr Drury's letter of 17 April 2009 is revealing. Although he professes to have developed insight into the effect of his conduct, both in having relationships with his patients, and his conduct at the hearings in 2001 and 2005, the inescapable conclusion is that the sentiments expressed in this letter were directly in response to the various concerns and observations expressed by the Board in its decision of April 2005.

1. On 21 May 2008 Mr Drury wrote letters to each of the five former patients who were the subject of the allegations in 2001. He forwarded these letters to the Board and asked that it forward those letters on to the complainants.
2. The Board returned the letters to Mr Drury advising it was inappropriate for it to forward the correspondence to his former patients. Again, in reading these letters, it is difficult to avoid the conclusion that they were written in response to the observations made by the Board in its 2006 decision.
3. Each of these letters is almost identical with additional paragraphs or sentences to personalise them and directly address the particular allegations concerning those patients. Each of the letters contain the following:

I should have written to you long ago to apologise for my actions towards you. You came to me as a patient with problems and in need of help. You placed your trust in me to offer that help in a professional and caring manner. I abused that trust for my own selfish ends. Any help that I may have or could have given you in a medical sense was over-shadowed by the damage I caused you emotionally...

I also must tell you how sorry I am for putting you through the ordeal of appearing before the Medical Board and having to suffer the public humiliation and stress of your truthfulness being questioned and challenged. I know this must have been a very painful and traumatic time for you. This is entirely my fault for not having the courage to make an honest confession to the Medical Board before the hearing. I was frightened by everything that was happening at the time and I made a stupid and cowardly decision to not tell the truth and to engage a lawyer to defend me. From that decision events snow-balled out of control going from bad to worse and I was caught up in the web of my own deceit. I will regret my dishonesty for the rest of my life, not merely because of the shame it has brought to my name, but more importantly because of the unnecessary pain and trauma it caused to you and the others involved. [this paragraph appears in three of the five letters]

It has been a long slow process for me to come to the understanding of my full responsibility for everything that happened and to stop making excuses for my actions. You were in no way responsible for anything that occurred. You were the victim of my irresponsible and predatory behaviour and in my position as a doctor there are no excuses to be made.

I know that forgiveness is too much to ask for, but I hope you can accept my sincerest apology. I hope you have been able to move on and find some happiness and fulfilment in your life. I have had to forward this letter through the Medical Board, as I do not know how else to get it to you. I hope they will be able to find you.

1. After Mr Drury's registration was cancelled he obtained employment as a sales person with a water filter company in November 2001. He worked with this company for a few months until early 2002 when he went to work as a sales person with a medical organisation where he stayed until August 2002.
2. In September 2002 Mr Drury commenced employment with Medical Transport Services as a full time casual doing non-emergency work. He worked with Medical Transport Services, which subcontracted to the Metropolitan Ambulance Service, until July 2003.
3. In July 2003 Mr Drury commenced work with Wilson Patient Transport which subsequently changed its name to National Patient Transport. This was as a full-time casual and he worked with them until April 2009.
4. In May 2009 Mr Drury went to work on the King Lake recovery project following the February bushfires. In response to an answer from the tribunal during the hearing, he said that he had expected this to be long-term work but he and a number of others were let go after three months.
5. In June 2009 Mr Drury started work as a truck driver delivering small goods where he worked until July 2010. Since then he has been employed on a casual basis through several labour hire companies as a driver. He has also been working as a disability support officer, on a casual basis, with a charity since November 2009. In his witness statement Mr Drury states that as an ambulance transport officer he earned an annual gross income of $50,000 to $65,000 per year but since April 2009 he has been grossing between $30,000 and $40,000 per year.

1. Mr Drury provided a number of written references in support of his application for registration:

(i) Two references from a pharmacist who had a professional association with Mr Drury in the early 1990's - which was renewed in the late 1990's - for a time, they were neighbours.

(ii) A doctor with whom Mr Drury worked in the non-emergency ambulance industry in 2005-2009.

(iii) Another former colleague with whom he worked in the non-emergency ambulance industry, who states he has known Mr Drury since April 2005.

(iv) An ambulance paramedic with whom Mr Drury worked for 2 years from 2005-2007.

(vi) A medical practitioner who states he worked in close proximity with Mr Drury in Bendigo for 3 years.

(vii) A friend who was a former patient when Mr Drury was in practice in Northern Victoria in the mid 1990's.

(viii) A registered nurse who worked with Mr Drury at the Men's Clinic in 2000.

(ix) A former colleague who states he worked with Mr Drury in patient transport for approximately 6 years.

(x) We also heard oral evidence from a semi-retired doctor working in aged care facilities who indicated he was prepared to act as a Mentor to Mr Drury if his application was successful.

1. Somewhat surprisingly, given Mr Drury's varied employment history there are no references from any current or former employers.

1. In support of his application, Mr Drury provided the Board, and the tribunal, with a number of reports he has received from psychiatrists and psychologists. However, he only called Professor James Ogloff to give evidence at this hearing.
2. Professor Ogloff provided a letter in support of Mr Drury's application for registration dated 26 May 2010. Professor Ogloff confirms that Mr Drury does not present with any clinical issues of significance. He indicates that Mr Drury has expressed a good degree of insight and understanding into his misconduct. Relevantly, he notes that Mr Drury is now in a stable relationship with his wife (they were married on 13 March 2010, having been together since 2003 and having lived together since 2005). On page 5 of his report Professor Ogloff states:

In my view this is a healthy relationship and one that would serve as a degree of protection for any relapse into inappropriate behaviour.

During the hearing Professor Ogloff confirmed that Mr Drury was not at risk of re-offending whilst he remained in this stable married relationship.

1. Dr Danny Sullivan, a psychiatrist who examined Mr Drury at the request of the MBA, also states that in his written report dated 21 December 2010 that Mr Drury is a very low risk of re-offending whilst he remains in a stable relationship. At paragraph 51 of his report he states:

I concur with Professor Ogloff that Mr Drury is at low risk of further misconduct. His insight is significantly improved and it is difficult to determine how to demonstrate that improvement in any situation other than clinical practice. There are certainly no other indications of instability which would raise a concern about further exploitation of patients if he was registered. His advancing age is a protective factor but it is predominantly the formation of a supportive relationship which is protective**.** I consider that any public risk would increase if his relationship ended. [emphasis added]

1. These qualified opinions are not sufficient to persuade us that Mr Drury is a fit and proper person to have his registration reinstated. Both opinions contemplate that Mr Drury will have the benefit of continuing support from a third party - his wife. With the greatest of respect to Mrs Drury, we note this is his fourth marriage. The evidence is that Mr Drury is not self-reliant which is extremely important in a professional context particularly in the context of Mr Drury's previous conduct.
2. We are particularly concerned that it took Mr Drury so long to make the admissions and we have serious reservations about how genuine he is in those admissions. There is a special relationship between a medical practitioner and a patient which is based on honesty, integrity and trust. Mr Drury's conduct in forming inappropriate relationships with each of his five former patients was a severe betrayal of that trust. Furthermore, Mr Drury's persistent and continuing denial of the sexual relationships with his patients, including his lying under oath, causes us serious doubts and reservations about his honesty.
3. Mr Drury gave evidence during this hearing that at the time he thought it was acceptable to have a relationship with a patient outside the clinical setting. We do not accept that Mr Drury did not know in 2001 and in 2004 that it was not acceptable conduct for a medical practitioner to have a sexual relationship with a patient either inside or outside the clinical setting. We note that the Board recorded in its 2001 decision[3] that Mr Drury agreed with his own counsel that it was unprofessional for a doctor to have a sexual relationship with his patient. The Board also recorded that when being cross-examined Mr Drury 'agreed that if he were lying to the Panel about having had sexual intercourse with his patients when in fact it had occurred that would be a matter that would go to the very heart of his appropriateness to practice as a doctor.'[4] (sic) In our view this indicates not only an understanding of the boundary issues, but also the importance of honesty and integrity.
4. Further, despite the findings by the Board in 2001, Mr Drury continues to deny inappropriate intimate clinical examinations and of the five former patients, continues to deny he had a sexual relationship with one of them. We note, in passing, that Mr Drury did not seek a review of the 2001, the 2005 or the 2006 decisions.
5. Much of the psychological and psychiatric opinion is focussed on Mr Drury's risk of re-offending (engaging in inappropriate relationships with patients). In our view, this is to miss the point. Not only must we have regard to his sexual indiscretions and the inappropriate relationships with his patients, it is also appropriate that we have regard to Mr Drury's persistent denial of the allegations, and his apparent preparedness to 'tell a story' to fit a particular situation.
6. The observations by Buchanan JA in Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215; (1999) 15 VAR 462 at [24] are apt:

...Medical practitioners occupy a position of considerable trust, and it is in the public interests that they should merit that trust. Accordingly, it is to be expected that medical practitioners will be scrupulously honest...

1. In circumstances where honesty and integrity are essential attributes in any doctor/patient relationship, we find that Mr Drury is not a fit and proper person to be registered as a medical practitioner. The decision of the MBA to refuse his application for registration as a medical practitioner is affirmed.
2. It was submitted on behalf of Mr Drury that his application should be granted with his registration being subject to conditions. As we are not otherwise satisfied that Mr Drury should be registered as a medical practitioner it is not necessary to consider the suggested conditions.

[1] Ballavale v Ballarat [2003] VCAT 1756.

[2] See s51 of the VCAT Act, McDonald v Guardianship Board [1993] VicRp 36; [1993] 1 VR 521 at 528; Davidson v Victorian Institute of Teaching [2006] VSCA 193 (6 September 2006).