1. That the finding of the Medical Practitioners Board of Victoria that the applicant had engaged in unprofessional conduct of a serious nature be set aside.

2. Determination of the Medical Practitioners Board of Victoria that the applicant be formally cautioned be set aside.

1 Before the Tribunal is an application to review a decision of the respondent Board ("the Board") made on 20th September 2004, by which decision the Board found that the applicant had engaged in unprofessional conduct of a serious nature. The Board made a determination to formally caution the applicant not to engage in conduct similar to that which gave rise to the proceedings before the Board.

2 The application for review was lodged on 15th October 2002. The applicant contends that the Board erred in law in finding that the applicant's conduct constituted unprofessional conduct as defined by the Medical Practice Act 1994.

3 The factual context is set out in an agreed statement of facts, the content of which I set out here:

1. Dr Paul Grinzi is 30 years old and was admitted to medical practice on 4 December 1998.

2. His training and employment history are as follows:

February 2004 - current: Registrar Liaison Officer:

February 2004 - current: GP Registrar (Advanced General Practice Term)

February 2004 - current: GP Advanced Academic Registrar

Department of General Practice, University of Melbourne, Carlton Victoria

August 2003 - February 2004: GP Registrar (Basic General Practice Term)

February 2003 - August 2003: GP Registrar in Addiction Medicine

Western Region Alcohol & Drug (WRAD) Centre, Warrnambool Victoria

August 2002 - November 2002: GP Registrar in Sexual Health Medicine

February 2002 - August 2002: Ophthalmology and ENT Emergency Registrar

Royal Victorian Eye & Ear Hospital, East Melbourne Victoria

November 2001 - February 2002: Paediatric General Surgical and Burns Unit Resident

August 2001 - November 2001: Paediatric Accident & Emergency Resident

February 2001 - August 2001: Orthopaedic Senior HMO

November 2000 - February 2001: Accident and Emergency Resident

September 2000 - November 2000: Intensive Care/Anaesthetics Resident

Austin & Repatriation Medical Centre, Heidelberg Victoria

Austin & Repatriation Medical Centre, Heidelberg Victoria

Austin & Repatriation Medical Centre, Heidelberg Victoria

November 1999 - January 2000: Accident and Emergency Intern

Austin & Repatriation Medical Centre, Heidelberg, Victoria

May - August 1999: General and Vascular Surgical Intern

March - May 1999: General Medical and Oncology Intern

January - March 1999: Accident & Emergency: General Medical and Surgical Intern

1993 - 1996: Medical Orderly in the Spinal Injuries Unit

Austin and Repatriation Medical Centre, Heidelberg Victoria

3. Dr Grinzi was engaged as a locum working in the casualty department of the West Gippsland Hospital in the Gippsland town of Warragul in 2002. On the weekend of his first attendance at the emergency department of the Hospital, in particular Saturday 6 July 2002, Dr Grinzi entered a Newsagency in Warragul.

4. After entering the shop, he went to a magazine counter. A young female attendant at a nearby counter saw him expose his erect penis in the shop. The shop attendant was unknown to him, and he to her. The attendant did not, at the time, know he was a medical practitioner. Dr Grinzi then left the newsagency.

5. A short time later, the attendant reported the matter at the Warragul police station.

6. On 5 May 2003, Dr Grinzi appeared before the Melbourne Magistrates' Court and pleaded guilty to a charge of Wilful and Obscene Exposure in Public. He was granted a good behaviour bond and no conviction was recorded.

(c) to continue to attend Dr Riddley, psychiatrist.

4 By notice given pursuant to the Act, it was alleged against the applicant:

1. That you engaged in unprofessional conduct within the meaning of paragraphs 3(I)(a) and/or (b) and/or (c) and/or (h)(ii) of the definition of "unprofessional conduct" in the Act in that you were found guilty without conviction by the Magistrates' Court of Victoria at Melbourne on 5 May 2003 of wilful and obscene exposure in public, a breach of section 7(I)(c) of the Vagrancy Act 1996 (Vic).

5 On the hearing before me on 21st February 2005, no oral evidence was called. A number of documents were tendered on behalf of the respondent, including the Statement of Agreed Facts referred to above. The extract of the entry of the register at the Melbourne Magistrates' Court on 5th May 2003 was also put into evidence. The court ordered that, without conviction, the charge be adjourned to the 5th May 2004 upon the defendant entering into a bond to be of good behaviour for that period. There was also a condition imposed that he attend for further psychiatric counselling.

6 Otherwise the hearing was limited to submissions by counsel for both parties. I should point out that the respondent did not endeavour to put into evidence any statement made by the shop assistant who observed the exposure. In the absence of any such statement, or evidence by that person, I can conclude that the exposure was offensive to her. I can draw no other inference adverse to the applicant concerning the effect of the exposure upon the victim.

7 Section 45A, insofar as it is relevant, is in the following terms:-

"45A. Finding and determinations of a formal hearing into conduct

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered medical practitioner the panel may find that -

(a) the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

(b) the practitioner has, whether by act or omissio, engaged in unprofessional conduct which is not of a serious nature; or

(c) the practitioner has not engaged in unprofessional conduct."

8 Section 3 of the Act is a definition section. In that section "unprofessional conduct" is expressed, as far as it is relevant to this proceeding, to mean:-

"(a) Professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or

(b) Professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or

(ii) an offence where the practitioner's ability to continue to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the practitioner to continue to practise because of the finding of guilt."

9 In its reasons given on the 20th September 2004, the Board found the applicant guilty of unprofessional conduct within the meaning of each of clauses (a) and (b) of the definition. In relation to clause (h)(ii) of the definition, it was raised for my consideration as a separate head of unprofessional conduct, but no specific argument was addressed to me in relation to it.

10 At the time of the commission of the offence the applicant had been registered medical practitioner for some three and a half years. Despite an ambiguity in paragraph 3 of the Statement of Agreed Facts, it appeared to me to be conceded that the weekend, of which Saturday 6th July was part, was the first weekend at which the applicant had been working at the West Gippsland Hospital. However that may be, it is obvious that his appointment to the West Gippsland Hospital was a short-term one. The Statement of Agreed Facts recites that the shop assistant saw the applicant expose his erect penis in the shop. It is not said that the exposure was directed at her, rather than caused by his arousal when looking at pornographic literature. In any event, it was agreed before me that the exposure was for a matter of seconds only. It was not in dispute that there was no prior conduct of this kind, nor, indeed, any criminal or antisocial conduct on the part of the applicant prior to this day.

11 It is to be noted that clauses (a) and (b) of the definition of "unprofessional conduct" have as their introductory words "professional conduct".

12 Section 45A(1) requires me to consider first whether the applicant has engaged in unprofessional conduct. If I find that he has, I am then called upon under clause (a) to determine whether it was of a serious nature (a finding made by the Board) or (b) whether it was conduct which is not of a serious nature. In the event that I find it is unprofessional conduct either of a serious nature or not of a serious nature I must then turn to the determinations identified by sub-section (2) of section 45A.

13 I should point out that the Act does not define "unprofessional conduct of a serious nature" or "unprofessional conduct which is not of a serious nature". In Parr v Nurses Board of Victoria 1998 16 VAR 118, at 122, Kellam J, President, made a like observation concerning the provisions of the Nurses Act. He then proceeded to consider the meaning of the word "serious" in terms, with which, with respect, I agree. Kellam J stated:-

""Serious" is defined in the Oxford Shorter Dictionary as being "dealing with or regarding a matter on its grave side, not jesting, trifling or playful; in earnest", and further "weighty, important, grave; (of quantity or degree) considerable", and "attended with danger giving cause for anxiety"."

14 At page 123 in the same judgment Kellam J continued:-

"In my view the question of whether or not a nurse has engaged in unprofessional conduct of a serious nature must depend upon the facts of each case. Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might reasonably be expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure."

15 Counsel for each of the parties in addressing me on the meaning to be given to the term "unprofessional conduct" equated it with "professional misconduct", a term which has received considerable attention in the various authorities to which counsel referred. Further, the authorities make it clear that personal misconduct may come within the definition of professional misconduct in certain circumstances.

16 In A Solicitor v The Council of the Law Society of New South Wales (unreported - High Court of Australia) [2004] HCA 1, at para 20 the court said:-

"The dividing line between personal misconduct and professional misconduct is often unclear. Professional misconduct does not simply mean misconduct by a professional person. At the same time, even though conduct is not engaged in directly in the course of professional practice, it may be so connected to such practice as to amount to professional misconduct. Furthermore, even where it does not involve professional misconduct, a person's behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise."

17 In that case the applicant had, in 1997, entered into a de facto relationship with a woman, who had four children, two of whom were daughters then aged 12 and 10. He committed four offences of indecent assault on these two daughters. The assaults included removing the children's clothing, rubbing them on the back, buttocks and stomach and on one occasion touching one of them on the outside of the vagina. Of that conduct, which the Court of Appeal (NSW) determined rendered the applicant guilty of professional misconduct the court said:-

"It is true that the conduct involved a form of breach of trust, being the trust reposed in the appellant by the mother of the children (who later forgave, and married him) and the children themselves. However the nature of the trust, and the circumstances of the breach, were so remote from anything to do with professional practice that the characterisation of the appellant's personal misconduct as professional misconduct was erroneous."

18 In delivering the principal judgment in the Court of Appeal (NSW) in New South Wales Bar Association v Cummins [2001] NSW CA 284, Spigelman CJ said, at 56:-

"There is authority in favour of extending the terminology "professional misconduct" to acts not occurring directly in the course of professional practice. That is not to say that any form of personal misconduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of "professional misconduct" overlaps with and, usually it is not necessary to distinguish it from, the terminology of "good fame and character" or "fit and proper person"."

19 In Roylance v General Medical Council [1999] UK PC 16, a decision of the Privy Council, the Judicial Committee said:-

"So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances."

"But certain behaviour may constitute professional misconduct even though it does not occur within the actual course of the carrying on of the person's professional practice, such as the abuse of a patient's confidence or the making of some dishonest financial gain."

"To take the point a stage further, serious professional misconduct may arise where the conduct is quite removed from the practice of medicine but is of a sufficiently immoral or outrageous or disgraceful character."

22 It is interesting to note that the Board in the matter of Dr Richard Byron Collins gave reasons for decision on 29th May 2003. The Board found that Dr Collins had engaged in unprofessional conduct of a serious nature.

23 The background to the finding lies in the fact that Dr Collins had been found guilty in the County Court at Melbourne on 11th December 2001 of five counts of obtaining property by deception and four counts of perjury. For those offences he received a suspended gaol term.

24 What is instructive in the Board's reasons is what is recited at paragraph 45 as follows:-

"When a professional is convicted of serious criminal offences in the courts, it is artificial and a nonsense for a disciplinary tribunal to draw a rigid line between the professional and the personal and to assert that only professional matters can impact upon professional status. Egregious acts of personal impropriety constitute a manifest exception to such a proposition and highlight the fact that certain kinds of conduct are incompatible with untrammelled registered status. When a person in his or her private life has raped, murdered, drug trafficked or stolen, for instance, it will frequently be appropriate for a body such as the Medical Practitioners Board of Victoria to conclude that such conduct should lead to a determination the practitioner should not remain a fully registered member of an honourable profession. The reason is that by their behaviour they have brought discredit, not just upon themselves, but upon the profession in which they hold registered status. Members of the public would be justifiably aghast if, save in extraordinary circumstances, when the criminal courts impose custodial sentences upon persons convicted of serious criminal offences, disciplinary tribunals nonetheless left such persons with unaffected registered status."

25 As the High Court said in Re A Solicitor, supra, personal misconduct may become professional misconduct where, although the conduct does not arise directly from the course of professional practice, it may be so connected to such practice as to amount to professional misconduct or, where it does not involve professional misconduct the behaviour may demonstrate qualities of a kind that require a conclusion that a person is not a fit and proper person to practise. In the present case, it seems to me clear, and abundantly so, that neither of those bases for a finding that personal misconduct is professional misconduct arises in the present case.

26 I draw that conclusion for a number of reasons which I attempt to explain below.

27 1. The misconduct which admittedly occurred had no connection with the applicant's practice of medicine.

28 2. It was an isolated act unlikely to be repeated. Its duration was for a few seconds only.

29 3. There was nothing to identify the applicant as a medical practitioner.

30 4. The offending was not against a patient, colleague, nurse or other person from the hospital who might have identified him.

31 5. The act was not geographically proximate to the hospital where he was working. A perusal of the town map shows that the hospital is to the south of the freeway, whilst the shopping centre is to the north thereof.

32 6. The act was at the lowest end of the scale for a sexual offence. This appears to have been recognised in the Magistrates' Court and by the Board. In saying that, I accept that it was offensive to the shop assistant who witnessed the exposure.

33 7. As an isolated act, I am of the view that it does not manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of medical practice.

34 As I have stated, my conclusion is that the act of the applicant which is impugned by the Board, does not constitute unprofessional conduct within the meaning of clauses (a) and (b) of the definition of "unprofessional conduct" in section 3 of the Act. It follows from what I have said that clause (h)(ii) of the definition of "unprofessional conduct" is not an appropriate vehicle for the finding of "unprofessional conduct" on the part of the applicant in the circumstances of this case.

35 Accordingly, I set aside the finding of the Board that the applicant has engaged in unprofessional conduct of a serious nature. It follows from that principal finding that I also set aside the determination that the applicant be formally cautioned.