Health Care Complaints Commission v Bolton

Mr Bolton's Background

1. In written submissions dated 26 April 2021 the Commission provided an accurate summary of Mr Bolton's professional qualifications and work history together with the events that underscore the Complaint. We have drawn on that summary in setting out the following background.
2. In 1999 Mr Bolton graduated with First Class Honours in Optometry from the University of NSW, and on 22 December 1999 was first registered as an Optometrist.
3. Mr Bolton commenced work in 2000 at OPSM optometry practices in Cessnock and Newcastle. In 2001 he leased an optometry practice at Singleton and worked as a solo practitioner there for around 10 months, and then practised in a group optometry practice for around 18 months at Port Macquarie. Between around 2003 and 2011 Mr Bolton worked for eight years as a sole practitioner Optometrist in Maitland.
4. Around 2010 Mr Bolton was taken to hospital by ambulance after being found by his brother drinking alcohol and suicidal. He was diagnosed with a primary diagnosis of alcohol abuse and a secondary diagnosis of depression.
5. In 2012 Mr Bolton completed a post-graduate qualification in Therapeutic Medicine Prescribing at the University of NSW.
6. Around February 2012 Mr Bolton had an involuntary admission to Manning Base Hospital and was treated with ECT for major depression.
7. Between 2012 and 2016 Mr Bolton was charged and convicted of a number of criminal offences including high range PCA, resist arrest, damage to property and common assault. Alcohol use was a feature of these offences.
8. Around 2013 Mr Bolton worked primarily in locum optometry positions, and in permanent part-time optometry positions in Tuncurry, Forster, Warrnambool Victoria and Hamilton.
9. On around 4 August 2014 a complaint was made to AHPRA that Mr Bolton attended his workplace whilst intoxicated. Mr Bolton made a signed undertaking to AHPRA to attend his GP regularly and send reports 3 monthly for at least 12 months.
10. Mr Bolton returned to NSW in 2015 and the Council commenced the monitoring of his compliance with the undertakings he had given AHPRA.
11. Around June 2017 Mr Bolton was admitted to hospital for three days after concerns about his mental health and behaviour.
12. On 30 June 2017 Mr Bolton's General Practitioner reported to the Council that Mr Bolton was in custody with allegations of assault occasioning actual bodily harm. On 24 July 2017 the Council was advised by Mr Bolton's lawyer that he remained in custody and was not practising.
13. On 14 August 2017 the Council determined there was no need to take immediate action as Mr Bolton was in custody.
14. On 6 November 2017 Mr Bolton was sentenced to 16 months' imprisonment with 5 months non-parole period for assault charges, and a 2 year good behaviour bond for property damage charges. Mr Bolton was released on parole on 20 November 2017.
15. On 2 February 2018 the Council received advice by letter from Mr Bolton's GP that he was in custody charged with assault. On 6 February Mr Bolton's solicitor forwarded to the Council the Police fact sheet and Court Attendance Notice.
16. The Council decided to convene proceedings to determine whether any action should be taken against Mr Bolton under section 150 of the National Law by either suspending or imposing conditions on his registration.
17. Section 150 proceedings occur in the context of the Council's obligation under the National Law to take action at any time if it is satisfied it is appropriate to do so for the protection of the health and safety of the public or for reasons otherwise in the public interest.
18. A hearing under s 150 was conducted by the Council with Mr Bolton on 16 February 2018. As a consequence of that hearing, the Council imposed registration conditions that Mr Bolton not practise optometry and that he attend a Council appointed practitioner for a health assessment. The matter was also referred to an Impaired Registrants Panel (IRP).
19. On 12 April 2018 Mr Bolton was sentenced to 16 months' imprisonment with a non-parole period of 6 months for offences of stalking/intimidation and resisting arrest and a good behaviour bond for a damage to property offence. His parole was also revoked for his prior offences.
20. On 13 June 2018 proceedings were held by the Council under s150C which ordered the overriding of the previous interim conditions, that Mr Bolton be suspended from practice as an optometrist, and the matter be reviewed following his release from custody and performance of a health assessment.
21. Mr Bolton was released from custody on parole on 7 November 2018.
22. Proceedings were held by the Council on 13 February 2019 under s150A following an application for review by Mr Bolton. The Council ordered lifting of his suspension and imposing a condition not to practise optometry. The Council determined that it was not safe to allow Mr Bolton to return to practice until a health assessment had been undertaken and considered by the Council.
23. On 27 March 2019 Mr Bolton attended a Council Appointed Psychiatrist, Dr Anthony Samuels, who opined that Mr Bolton suffers from an impairment, specifically a mood disorder, Obsessive Compulsive Disorder (OCD) and a significant alcohol use disorder. Dr Samuels made recommendations regarding Mr Bolton's clinical management prior to any return to practice.
24. Mr Bolton attended an IRP on 14 June 2019. The panel agreed with the opinion of Dr Samuels that Mr Bolton was impaired. He was found not to be fit enough to return to practice pending the recommended actions by Dr Samuels.
25. On 12 February 2020 Mr Bolton attended Dr Samuels for further assessment. Dr Samuels completed a written health assessment that same day. In recommendations contained in the assessment Dr Samuels set out a number of potential conditions that could be placed on Mr Bolton's registration if the panel found it appropriate for him to return to practice.
26. On 21 April 2020 Mr Bolton attended an IRP hearing who noted his progress and the report from Dr Samuels. The Panel made recommendations that Mr Bolton return to practice under supervision and proposed limits on the number of days he could work and the number of patients he could see in any one day. A number of other conditions were also recommended including that Mr Bolton attend treatment by both a drug and alcohol specialist and a counsellor, attend a Council appointed Psychiatrist for review every 6 months or as directed by the Council and to submit to regular alcohol screening tests.
27. On 13 May 2020 the Council removed the previous condition that Mr Bolton was not to practise optometry and replaced this with conditions that reflected the panel's recommendations. These conditions remain in place.
28. Mr Bolton advised that in practical terms he has had some difficulty in obtaining work given the current conditions.
29. In accordance with these conditions Mr Bolton attended a further assessment with Dr Samuels who made a further report dated 12 November 2020. The reports of Dr Samuels were in evidence.

Complaint One - Convicted of criminal offences

1. Complaint One is made under s 144(a) of the National Law. Under s 144(a) a ground for complaint about a registered health practitioner is that the practitioner …has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
2. In this case Mr Bolton has been convicted of multiple criminal offences in NSW. The particulars for this complaint are as follows: 1. On 13 May 2004, in the Local Court of New South Wales at Kurri Kurri, Mr Bolton was convicted of the offence of drive with high range PCA, contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The practitioner was fined and had his licence disqualified for 12 months. 2. On 9 April 2013, in the Local Court of New South Wales at Kurri Kurri, Mr Bolton was convicted of the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. Mr Bolton was sentenced to a good behaviour bond for 3 years under section 9 of the Crimes (Sentencing Procedure) Act 1999 and had his licence disqualified for 18 months. 3. On 9 April 2014, in the Local Court of New South Wales at Foster, Mr Bolton was convicted of the following offences: 1. Behave in offensive manner in/near public place/school contrary to section 4(1) of the Summary Offences Act 1988. Mr Bolton was fined. 2. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. Mr Bolton was fined. 3. Destroy or damage property of a value not exceeding $2000.00 contrary to section 195(1)(a) of the Crimes Act 1900. Mr Bolton was sentenced to a good behaviour bond for 12 months under section 9 of the Crimes (Sentencing Procedure) Act 1999. 4. Excluded person fail to leave premises when required contrary to section 77(4) of the Liquor Act 2007. Mr Bolton was fined. 5. Use offensive language in/near public place/school contrary to section 4A(1) of the Summary Offences Act 1988. Mr Bolton was fined. 6. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. Mr Bolton was fined. 7. Common assault contrary to section 61 of the Crimes Act 1900. Mr Bolton was sentenced to a good behaviour bond for 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999. 1. On 17 March 2015, in the Local Court of New South Wales at Deniliquin, Mr Bolton was convicted of the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. Mr Bolton was sentenced to 200 hours community service and had his licence disqualified for 2 years. 2. On 3 February 2016, in the Local Court of New South Wales at Foster, Mr Bolton was convicted of the following offences: 1. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. Mr Bolton was fined. 2. Enter enclosed land without lawful excuse contrary to section 4(1)(b) of the Inclosed Lands Protection Act 1901. Mr Bolton was fined. 3. Excluded person remain in vicinity of licenced premises contrary to section 77(8)(a) of the Liquor Act 2007. Mr Bolton was fined. 1. On 6 November 2017, in the Local Court of New South Wales at Taree, Mr Bolton was convicted of the following offences: 1. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. Mr Bolton was sentenced to 16 months imprisonment with a non-parole period of 5 months. 2. Destroy or damage property (DV) contrary to section 195(1)(a) of the Crimes Act 1900. Mr Bolton was sentenced to a good behaviour bond for 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999. The bond was called up following further offending and dealt with on 10 April 2018 in Newcastle Local Court. Mr Bolton then lodged a severity appeal to Newcastle District Court and was re-sentenced to 3 months imprisonment, but was backdated. 3. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. Mr Bolton was sentenced to a good behaviour bond for 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999. Mr Bolton breached his good behaviour bond and the bond was called up following further offending and dealt with on 10 April 2018 in Newcastle Local Court. Mr Bolton then lodged a severity appeal to Newcastle District Court, and the sentence of 2 months imprisonment remained the same, but was backdated. 1. On 10 April 2018, in the Local Court of New South Wales at Newcastle, Mr Bolton was convicted of the following offences: 1. Stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. Mr Bolton was sentenced to 16 months imprisonment with a 6 month non-parole period. Mr Bolton lodged a severity appeal to the District Court where his sentence remained the same but was backdated. 2. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. Mr Bolton was sentenced to 4 months imprisonment. Mr Bolton lodged a severity appeal and was re-sentenced on 3 July 2018 by the Newcastle District Court to imprisonment for 3 months. 3. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. Mr Bolton was sentenced to a good behaviour bond for 3 years under section 9 of the Crimes (Sentencing Procedure) Act 1999.
3. There is no dispute that Mr Bolton was convicted of the criminal offences as particularised. Evidence of the criminal offences including Fact Sheets, pre-sentence reports, Certificates of Conviction, Court records and transcripts were available to us.
4. The subject matter of Complaint One is proven.

Failure to comply with statutory reporting requirements

1. Under s 144(b) of the National Law a ground for complaint about a registered health practitioner is that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
2. Unsatisfactory professional conduct under s 139B(1)(b) of the National Law is relevantly defined to include: A contravention by the practitioner (whether by act or omission) of a provision of this Law or the regulations under this Law…
3. There are two components to Complaint Two.
4. The first component relates to notifications that were not made by Mr Bolton to AHPRA (particulars 1 and 2).
5. The basis for this component is that Mr Bolton contravened a provision of the National Law specifically s 130(1). This provision requires that a practitioner must notify the National Board in writing within seven days of becoming aware that a relevant event has occurred
6. Particulars 1 and 2 of Complaint Two allege two types of relevant events of which Mr Bolton did not notify AHPRA.
7. First, that he had been charged with offences punishable by 12 months imprisonment or more; and second, he was convicted of offences punishable by imprisonment: s 130(3)(a)(i) and(ii) of the National Law.
8. The second component to Complaint Two relates to information provided by Mr Bolton on applications he made to AHPRA to renew his registration (particulars 3 and 4).

Failure to notify of Criminal Charges - Complaint Two, particular 1

1. Particular 1 is that Mr Bolton contravened s 130(1) of the National Law because he failed to notify the National Board that he had been charged with offences punishable by 12 months imprisonment of more within 7 days. The offences were as follows: 1. On 25 December 2012, Mr Bolton was charged with the offence of drive with high range PCA (first offence) contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. 2. On 11 December 2013, Mr Bolton was charged with resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 3. On 12 December 2013, Mr Bolton was charged with: 1. Destroy or damage property of a value not exceeding $2000.00 contrary to section 195(1)(a) of the Crimes Act 1900. 2. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 3. Common assault contrary to section 61 of the Crimes Act 1900. 1. On 27 September 2014, Mr Bolton was charged with drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. 2. On 25 April 2015, Mr Bolton was charged with the following offences: 1. Common assault (DV) contrary to section 61 Crimes Act 1900. 2. Destroy or damage property contrary to section 195(1)(a) Crimes Act 1900. 1. On 3 October 2015, Mr Bolton was charged with resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 2. On 21 June 2017, Mr Bolton was charged with: 1. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. 2. Destroy or damage property (DV) contrary to section 195(1)(a) of the Crimes Act 1900. 3. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. 1. On 19 January 2018, Mr Bolton was charged with: 1. Stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 2. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 3. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900.

Failure to notify of criminal convictions - Complaint Two, particular 2

1. Particular 2 is that Mr Bolton contravened s 130(1) of the National Law because he failed to notify the National Board that he had been convicted of offences punishable by imprisonment within seven days.
2. Particular 2(a) relating to a conviction on 13 May 2004 for the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 was withdrawn at the hearing. This was because there was no evidence before the Tribunal to establish what the notification requirements were in 2004.
3. The convictions that were relied upon were as follows: 1. On 9 April 2013 Mr Bolton was convicted of the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. 2. On 9 April 2014, Mr Bolton was convicted of the following offences: 1. Behave in offensive manner in/near public place/school contrary to section 4(1) of the Summary Offences Act 1988. 2. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 3. Destroy or damage property of a value not exceeding $2000.00 contrary to section 195(1)(a) of the Crimes Act 1900. 4. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 5. Common assault contrary to section 61 of the Crimes Act 1900. 1. On 17 March 2015, Mr Bolton was convicted of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. 2. On 6 November 2016 Mr Bolton was convicted of the following offences: 1. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. 2. Destroy or damage property (DV) contrary to section 95(1)(a) of the Crimes Act 1900. 3. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. 1. On 3 February 2017 Mr Bolton was convicted of resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 2. On 10 April 2018, Mr Bolton was convicted of the following offences: 1. Stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. 2. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 3. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900.
4. Mr Bolton gave evidence that he was ignorant of the 7 day requirement for the reporting of these matters. He said he held the mistaken belief that it was sufficient for him to report changes in criminal history at the time of "reapplication for registration". He understands now that this is not the case. He submitted that not reporting these matters between 2013 and 2018 was in no way a deliberate attempt to withhold relevant history from AHPRA. Rather it was an oversight.
5. Mr Bolton accepts that he failed to notify AHPRA of the criminal charges laid against him and the convictions recorded against him within the required 7 days. The contravention by Mr Bolton of a provision of the National Law has been established as a matter of fact. The subject matter of particulars 1 and 2 of Complaint Two are proven. Section 139B(1)(b) of the National Law designates that a contravention of the National Law, in this case a breach of s 130(1), as unsatisfactory professional conduct. We have no discretion even if we were to accept Mr Bolton's submission that he was unaware of the obligation to notify and it was an oversight. The effect of that finding is that Mr Bolton is guilty of unsatisfactory professional conduct.

Failure to make disclosures in annual statements for renewal changes in criminal history - Complaint Two, particulars 3 and 4

1. The second component of Complaint Two is that Mr Bolton contravened s 109(1) of the National Law in that he failed he failed to make sufficient or adequate disclosures in his AHPRA registration renewal applications. Particulars 3 and 4 allege two streams.
2. First that Mr Bolton failed to notify details of changes in his criminal history which had occurred during the preceding period of registration (s109(1)(b)); and, second that he failed to make an accurate declaration about impairment (s 109(1)(a)(i)).

Failure to make disclosures in annual statements for renewal - changes in criminal history - Complaint Two, particular 3

1. Particular 3 is about Mr Bolton's disclosure of his criminal history as it relates to both charges and convictions in AHPRA registration renewal applications. The particulars relied upon for this part of the Complaint are the same as those which form another and differing ground of the Complaint and are detailed in Complaint Three, particulars 2a to 2d. However for ease of reference these particulars are reproduced as follows: 1. Mr Bolton failed to make adequate disclosures in his AHPRA registration renewal applications on the following dates: 1. On 28 November 2014 Mr Bolton failed to disclose in his renewal application that he had been: 1. charged with the offence of behave in offensive manner in/near public place/school under s4(1) of the Summary Offences Act 1988 and the offence of resist officer in execution of duty contrary to section 58 of the Crimes Act 1900 on 11 December 2013. 2. charged with the following offences on 12 December 2013: 1. Destroy or damage property of a value not exceeding $2000 contrary to section 195(1)(a) of the Crimes Act 1900. 2. Excluded person fail to leave premises when required contrary to section 77(4) of the Liquor Act 2007. 3. Use offensive language in/near public place/school contrary to section 4A(1) of the Summary Offences Act 1988. 4. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 5. Common assault contrary to section 61 of the Crimes Act 1900. 1. convicted of the following offences above at (ii) on 9 April 2014; 1. On 7 November 2015 Mr Bolton failed to disclose in his renewal application that he had been: 1. convicted of an offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 17 March 2015. 2. charged with offences of common assault (DV) contrary to section 61 of the Crimes Act 1900 and destroy or damage property contrary to section 195(1)(a) Crimes Act 1900 on 25 April 2015. 3. charged on 3 October 2015 with the following offences: 1. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. 2. Enter inclosed land without lawful excuse contrary to section 4(1)(b) Inclosed Lands Protection Act 1901. 3. Excluded person remain in vicinity of licenced premises contrary to section 77(8)(a) Liquor Act 2007. 1. On 30 November 2016 Mr Bolton failed to disclose in his renewal application that he had been convicted, on 3 February 2016, of the offences at (b)(iii) above. 2. On 22 November 2017 Mr Bolton failed to disclose in his renewal application that he had been: 1. Charged with the following offences on 21 June 2017: 1. Common assault contrary to section 61 of the Crimes Act 1900. 2. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. 3. Destroy or damage property (DV) contrary to section 195(1)(a) of the Crimes Act 1900. 1. charged with the offence destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900 on 22 June 2017. 2. convicted of the offences above at (i) and (ii) on 6 November 2017.
2. Mr Bolton again submitted that not declaring these matters was in no way a deliberate attempt to withhold relevant criminal history from or mislead AHPRA. Rather it was an oversight and an ongoing lack of attention to detail in the reapplication process on his part.
3. It is not necessary, in order for particular 3 of Complaint Two to be proven, for Mr Bolton to have given the false information on the renewal of registration applications knowingly, in the sense that he held a deliberate intention to deceive at the time of completing the applications. It is enough that, Mr Bolton at the time of filling in the forms, was aware of his criminal offences and convictions, and failed to answer the relevant questions accurately.
4. The contravention by Mr Bolton of this provision of the National Law has been established as a matter of fact. The subject matter of particular 3 of Complaint Two is proven. Section 139B(1)(b) designates the contravention as unsatisfactory professional conduct. The effect of that finding is that Mr Bolton is guilty of unsatisfactory professional conduct.

Failure to make disclosures in annual statements for renewal - impairment - Complaint 2, particular 4

1. The particular relied upon for this part of the Complaint is the same as that which forms another part of the Complaint and is detailed in Complaint Three, particular 2e. Again for ease of reference it is reproduced as follows: 1. On 29 November 2019, Mr Bolton failed to disclose in his renewal application that he had an impairment despite being aware that: 1. Dr Anthony Samuels, a psychiatrist appointed by the Optometry Council of NSW to conduct a health assessment of Mr Bolton, had reported on 27 March 2019 that Mr Bolton was impaired. 2. An Impaired Registrants Panel set up by the Optometry Council of NSW agreed with the view of Dr Anthony Samuels that Mr Bolton was impaired in its report of 24 June 2019.
2. It is not in dispute that Mr Bolton answered "No" to the question on the renewal form "Do you have an impairment that detrimentally affects, or is likely to detrimentally affect your capacity to practise the profession?"
3. However as we understood Mr Bolton's submissions he did not agree with Dr Samuels' assessment of him as suffering from an impairment.
4. In support of this Mr Bolton referenced aspects of two reports from his treating Psychiatrist Dr Chaudhary. The first report is dated 9 February 2018 and the second is dated 3 October 2019.
5. Dr Chaudhary's report dated 9 February 2018 was provided by Mr Bolton after the hearing along with his written submissions. It had not been included by Mr Bolton in documents provided by him to the Tribunal and the Commission in response to the Complaint. Accordingly it was not the subject of any specific discussion at the hearing and we do not know the purpose for which this report was commissioned. However in context it appears it may have been done for the purposes of submissions on sentencing in the light of the criminal charges laid against Mr Bolton on 19 January 2018 (Stalk/intimidate, Resist, Destroy or damage property) for which he was subsequently convicted on 10 April 2018.
6. Dr Chaudhary's report dated 9 February 2018 records that Mr Bolton presents with long term problems related to anxiety and low mood, poor anger management and "involvement in self-harm and aggressive incidents in context of alcohol intoxication". Mr Bolton is reported as having a historical diagnosis of Depressive Episode and OCD "neither of which are causing current functional impairment or distress". Dr Chaudhary stated that the "most appropriate additional diagnosis of Alcohol Use Disorder at this stage would be one of adjustment disorder in context of relational and legal difficulties".
7. Dr Chaudhary's report dated 3 October 2019 was included in the Commission's documents in support of the Complaint. This report references two review appointments conducted by Dr Chaudhary with Mr Bolton in 2019. It recorded that Mr Bolton presented with stable mental health without any evidence of clinical depression. Reference is made to Mr Bolton's medication regime which he tolerates well and has maintained a stable mood. Dr Chaudhary noted Mr Bolton has reduced his alcohol use significantly which may have been a factor that continued to impact on his mood in the past. Dr Chaudhary stated that from a mental health perspective she considered him "fit" and did not have "any reservations about his ability to undertake his work duties".
8. It was based on what Mr Bolton called these "contrasting opinions" of Dr Chaudhary of no functional impairment and no reservations in regards to ability to practise Optometry that he disputed Dr Samuels' opinion of impairment and the need to subsequently report this in his 2019 application. He submitted that both Doctors are equally qualified to determine whether an impairment existed and Dr Chaudhary suggested to the contrary.
9. Mr Bolton also referenced the question posed in the applications which is "Do you have an impairment that detrimentally affects, or is likely to affect your capacity to practice the profession". He argued that there was no consensus diagnosis made by the Clinical Psychiatrists involved in his care as to a functional impairment. The only difference being that Dr Samuels clarified his opinion of impairment as "within the meaning of the Law".
10. Whether Mr Bolton's assessment of what Dr Chaudhary actually meant by the words used in her reports is an accurate reflection of her views about whether he suffers from impairment is unclear, given that Mr Bolton did not call her to give evidence so that the issue could be explored with her at the hearing.
11. In any event we reject Mr Bolton's submissions. It is not appropriate for Mr Bolton to decide which Psychiatric view of impairment he believes is more favourable to him and use that as a basis to complete his renewal application. Mr Bolton was obliged to answer the question with candour. Mr Bolton knew that an Impaired Registrants Panel set up by the Optometry Council of NSW agreed with the view of Dr Samuels that he was impaired because it stated so in its report of 24 June 2019. In that report the Panel specifically stated that at that time Mr Bolton was not fit to return to practice.
12. The contravention by Mr Bolton of this provision of the National Law has been established as a matter of fact. The subject matter of particular 4 of Complaint Two is proven. The effect of that finding is that Mr Bolton is guilty of unsatisfactory professional conduct.

Complaint Three - Improper or unethical conduct relating to the practice or purported practice of optometry

1. Complaint Three alleges that Mr Bolton is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he has engaged in improper or unethical conduct relating to the practice or purported practice of Optometry. This Complaint relates to failures by Mr Bolton to make accurate disclosures in both his AHPRA registration applications and renewal applications.
2. Particular 1 deals with the registration applications. Particular 2 deals with the renewal applications.

Registration applications - Complaint Three, particular 1

1. Particular 1 is as follows: 1. Mr Bolton failed to make adequate disclosures in his AHPRA registration applications on the following dates: 1. On 21 January 2013 failed to disclose in his application that he had been: 1. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 17 January 2004. 2. convicted of the offence above at (i) on 13 May 2004. 3. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 25 December 2012. 1. On 24 April 2014, failed to disclose in his application for registration that he had been: 1. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 17 January 2004. 2. convicted of the offence above at (i) on 13 May 2004. 3. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 25 December 2012. 4. convicted of the offence above at (iii) on 9 April 2013; 5. charged and convicted with the following offences on 11 December 2013: 1. Behave in offensive manner in/near public place/school contrary to section 4(1) of the Summary Offences Act 1988. 2. Destroy or damage property of a value not exceeding $2000 contrary to section 195(1)(a) of the Crimes Act 1900. 3. Excluded person fail to leave premises when required contrary to section 77(4) of the Liquor Act 2007. 1. On 6 May 2019 (we note that Complaint Three particular 1c erroneously refers to 15 May 2019), did disclose in his application for registration that he had been: 1. charged with the offence of assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900 and convicted of the offence on 6 November 2017; and 2. charged with the offences of stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, resist officer in execution of duty contrary to section 58 of the Crimes Act 1900 and destroy or damage property under section 195(1)(a) of the Crimes Act 1900 on 19 January 2018 and convicted of those same offences on 10 April 2018 but failed to disclose the balance of the: 1. charges outlined in Complaint Two Particular 1. 2. convictions outlined in Complaint Two Particular 2.
2. Mr Bolton does not dispute that he failed to make adequate disclosures in registration applications made on 21 January 2013, 24 April 2014 and 6 May 2019 of criminal charges and convictions as particularised. We find that Complaint Three particular 1 is established.

Renewal applications - Complaint Three, particular 2

1. Particular 2 alleges Mr Bolton failed to make disclosures in his AHPRA registration renewal applications of changes in his criminal history which had occurred during the preceding period of registration and failing to make an accurate declaration about impairment.
2. The renewal applications which are the subject of this particular are 28 November 2014, 7 November 2015, 30 November 2016, 22 November 2017 and 29 November 2019. The details of charges and convictions, and impairment that were not disclosed have already been set out earlier in this decision at paragraphs [62] and [66].
3. In submissions Mr Bolton referenced that charges arising from an incident on 25 April 2015 were ultimately dismissed and as such he did not believe they were subject to disclosure to AHPRA on his November 2015 renewal application. The fact that a charge may have been dismissed does not of itself change the obligation to declare it. We find that Complaint Three particular 2 is established.
4. The gravamen of Complaint Three is that Mr Bolton's conduct in failing to make the disclosures of criminal offences and convictions in his AHPRA registration applications; and of changes in his criminal history which had occurred during the preceding period of registration in renewal applications and failing to make an accurate declaration about impairment, was improper or unethical.
5. The words "unethical" or "improper" are not defined in the National Law. The Macquarie Dictionary defines "improper" relevantly as "not in accordance with propriety of behaviour, manners etc." or "abnormal or irregular" and "unethical" as 1. "contrary to moral precept; immoral"; and 2. "in contravention of some code of professional conduct."
6. Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R v Byrnes & Hopwood [1995] HCA 1. If conduct is not in conformity with standards of professional conduct and practice it can be seen as improper.
7. In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 the Tribunal considered the scope of "improper conduct" in s 139B(1)(l) stating at [47]-[49]: The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-5, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54] and [55] and the cases there cited.
8. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at [81].
9. There is a common factual basis between Complaint Two particulars 3 and 4, and Complaint Three particular 2. However quite apart from the legislative obligation which arises under s 109(1)(a) and (b), as it relates to the applications for renewal of registration, it was Mr Bolton's professional duty to be candid and honest with AHPRA. This is an integral part of the proper functioning of the regulatory system. It was improper and unethical of him to provide misleading information to AHPRA. By his actions he demonstrated a disregard for AHPRA and its role. This conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical.
10. We find that Complaint Three is proved. The effect of that finding is that Mr Bolton is guilty of unsatisfactory professional conduct.

Complaint Four - Professional Misconduct

1. Complaint Four alleges that Mr Bolton is guilty of professional misconduct under section 139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration.
2. In support of this Complaint the particulars of Complaints Two and Three are relied upon.
3. There is no comprehensive exploration in the case law as to when unsatisfactory professional conduct will amount to professional misconduct. The concept as contained in s 139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognise that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct: see Health Care Complaints Commission v Saedlounia [2013] NSWMT 13 at [43]-[50] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
4. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 the term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation: see [19]. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal: [20].
5. At [20] his Honour continued: …Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct….
6. It is the seriousness of the nature of the conduct which is found to have been established which is relevant to professional misconduct.
7. In our view Mr Bolton's unsatisfactory professional conduct is of a sufficiently serious nature to fall within the definition of "professional misconduct" pursuant to s 139E of the National Law.
8. In 18 instances Mr Bolton breached a provision of the National Law by failing in his obligation to notify or disclose criminal charges and convictions to AHPRA. He failed to disclose information about impairment. Further on 8 occasions he falsely indicated "No" on application and renewal documents to AHPRA as it related to changes in criminal history and impairment.
9. Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place.
10. The failures by Mr Bolton to notify or disclose the full extent of his criminal history meant that important information was withheld from AHPRA with respect to whatever assessment they may wish to undertake about his suitability or fitness to be registered as a Health Practitioner.
11. When taken together as a whole, the nature and number of instances of unsatisfactory professional conduct are sufficiently seriousness to support a finding of professional misconduct under s139E(b) and to justify cancellation of Mr Bolton's registration under s149C(1)(b). In our view both the seriousness of the proved conduct and its repetition constitutes professional misconduct.
12. Complaint Four of professional misconduct is proved.

Complaint Five and Six - Impairment and Competence

1. The Commission alleges that Mr Bolton has an impairment and as result is not competent to practise optometry. Because these two complaints are interrelated we have dealt with them together.
2. Complaint Five alleges that under section 144(d) of the National Law, Mr Bolton has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect his capacity to practice optometry.
3. The particulars of this complaint are as follows: 1. Mr Bolton has a Mood Disorder, Obsessive Compulsive Disorder ("OCD") and a significant Alcohol Use Disorder. 2. Mr Bolton has a very significant history of alcohol abuse and continued to drink harmfully and above recommended guidelines after being placed on the Council's impaired registrant program in June 2019.
4. Complaint Six alleges that Mr Bolton is not competent within the meaning of section 139(a) of the National Law in that he lacks the mental or physical capacity to practise as an optometrist.
5. There are two particulars in support of this complaint. They are that: 1. Mr Bolton suffers from an impairment as particularised in particulars 1 and 2 of Complaint Five. 2. Mr Bolton's impairment is of sufficient nature and degree to impair his mental capacity to practise the profession of optometry.
6. In support of the complaint of impairment the Commission relies upon evidence from Dr Anthony Samuels which he gave at the hearing and in reports dated 27 March 2019, 12 February 2020 and 12 November 2020.
7. Dr Samuels is an experienced psychiatrist and his professional background spans some 30 years. He is a Consultant Forensic Psychiatrist and holds a number of current positions as a visiting Psychiatrist and Foundation Member RANZCP, Faculty of Forensic Psychiatry. He has published extensively. Dr Samuels has significant expertise and experience in the assessment of impairment with a focus on the assessment of health practitioners.
8. In these reports Dr Samuels found Mr Bolton to have an impairment based upon a mood disorder, Obsessive Compulsive Disorder, alcohol use disorder, and personality vulnerabilities all of which have the potential to impact upon his professional functioning. Dr Samuels noted that although Mr Bolton had reduced his drinking he continued to drink in excess of safe drinking guidelines.
9. In his oral evidence, Dr Samuels stated that Mr Bolton's alcohol use disorder was likely related to his long history of criminal conduct and expressed concern that Mr Bolton continuing to use alcohol placed him at much greater risk of further criminal behaviour. Dr Samuels strongly recommended abstinence from alcohol.
10. Dr Samuels also outlined the significant other physical and mental effects of alcohol on Mr Bolton and their potential relevance to any future clinical practice which included: 1. Risks of attending work under the influence of alcohol, including very low levels of alcohol, which can impair cognition and impact behaviour. 2. Risks of further behavioural issues stemming from alcohol use. 3. Risk of longer-term physical damage to multiple organ systems. 4. Risk of brain damage and cognitive decline that would require regular assessment. 5. Risks of harm to patients and other colleagues.
11. Dr Samuels expressed concerns regarding Mr Bolton's refusal to consider abstinence from alcohol, in particular based upon the significant detrimental impact it has had on his professional career and personal life.
12. In terms of underlying personality issues, Dr Samuels stated these may explain Mr Bolton's tendency to resist abstinence such as through 'rigidity' in thinking. However, the personality issues were not in themselves a barrier to practice, other than their relevance to Mr Bolton's refusal to consider abstinence and his decision to continue to drink at excessive levels.
13. Dr Samuels examined results for carbohydrate deficient transferrin (CDT) tests for Mr Bolton which were within normal limits. Dr Samuels stated that CDT pathology reports only showed very high levels of excess alcohol use and are not a reliable indicator of controlled alcohol intake.
14. In respect of alcohol consumption Mr Bolton gave evidence that since 2017 he has had periods where he has not consumed alcohol. He referenced his periods of incarceration in 2017 and 2018 as examples. Currently he drank a six pack of beer two or three days per week. He stated that he did not intend to stop drinking as he enjoyed it. He did not agree with Dr Samuels' view that continuing to drink increased his risk of criminal conduct.
15. As we understood Mr Bolton's evidence he believed his drinking now was at a controlled and stable level and he did not intend to return to a higher level of drinking. He said given his past criminal history any infractions by him of violence or the like in the future would lead to serious consequences such as further imprisonment. The spectre of further imprisonment had changed his perspective on violence. Again as we understood his evidence Mr Bolton saw these as reasons as to why he would not commit further offences.
16. Mr Bolton provided a number of reports from his current and former treating health professionals. Dr Ambler (Psychologist), Dr Sadler (his current Drug and Alcohol specialist) and Dr Chaudhary (Psychiatrist).
17. In written submissions made after the hearing Mr Bolton sought to rely on several of these reports although they had not been provided by him before or at the hearing. As we have previously noted the report from Dr Chaudhary dated 9 February 2018 was not available to us at the time of the hearing. In addition Mr Bolton placed significance on a report from Dr Ambler, Clinical Psychologist dated 10 February 2019 which was also provided after the hearing.
18. Mr Bolton referenced Dr Ambler's report in which she suggested that his Alcohol Use Disorder was of "mild severity". Mr Bolton also referenced a report from Dr Sadler dated 7 April 2021, and referred to Dr Sadler's observation that his alcohol use appeared to be stable over the last 18 months. He also placed particular emphasis on Dr Sadler's description of his alcohol use disorder as "mild".
19. The report from Dr Sadler dated 7 April 2021 recorded that Mr Bolton's ongoing level of alcohol intake was above recommended levels. Mr Bolton's reported ongoing alcohol consumption was noted as between 50 - 60 gram (sometimes up to 80 grams) 2-3 times per week.
20. Dr Sadler stated as follows: 'We discussed again that with the past history of significant alcohol use disorder and associated problems, the risk of relapse to increased alcohol use and associated sequelae is high. In this respect, the treatment advice is ideally a goal of abstinence. As previously indicated, at this time Mr Bolton wants to continue his alcohol use at the current reported level'.
21. With respect to Mr Bolton's future work as an optometrist Dr Sadler made the following comments: 1. If abstinent from alcohol use, then Mr Bolton was fit for work. 2. If the current alcohol use continues without escalation, then Mr Bolton would be fit for work assuming the framework for supervision, monitoring and return to work requirements of the Optometry Council are met. This would need to be reviewed regularly due to the risk of alcohol use increasing, as previously mentioned.
22. As we understood Mr Bolton's position he does not accept that he suffers from an impairment.
23. In submissions made after the hearing Mr Bolton stated he accepted the diagnoses of mood disorder, Obsessive Compulsive Disorder, and alcohol use disorder. However he points to Dr Chaudhary's report of 9 February 2018 which records that neither his historical diagnosis of major depressive episode and obsessive compulsive disorder are causing "current functional impairment or distress". He also relies on Dr Chaudhary's report dated 3 October 2019 in which she stated that from a mental health perspective she considered him "fit" and did not have "any reservations about his ability to undertake his work duties".
24. Mr Bolton referred to Dr Chaudhary's most recent report dated 11 January 2021 in which she stated that from a mental health point of view he continues to be quite stable and as a result she had not made any changes to his medication.
25. Mr Bolton submitted in the light of these other reports he disputed Dr Samuels' diagnosis of impairment because: 1. Dr Chaudhary's clinical findings since February 2018 about Mood Disorder and OCD are to the effect that they do not actually detrimentally affect or are likely to detrimentally affect his capacity to practice. 2. There is no basis to a suggestion of a Personality Disorder made by Dr Samuels because it is not corroborated by any of his other treating health professionals such as his Psychiatrist, Dr Chaudhary. Accordingly he disputed whether any Personality Vulnerabilites actually exist, let alone form the basis for a diagnosis of an impairment. 3. He disagreed with the suggestion made by Dr Samuels that his Alcohol Use Disorder is significant or severe in light of his history of alcohol use since June 2017 and because it is contradicted by Dr Ambler, Dr Chaudhary and most importantly Dr Sadler whom have described it as "mild".
26. Mr Bolton submitted that based on the reports by both Dr Chaudhary and Dr Samuels, of current stability of mood with treatment and an OCD that is in remission along with the fact that he is reviewed by Dr Chaudhary every 3 months and Dr Samuels at the request of the Council IRP, that neither of these diagnoses detrimentally affects or is likely to affect his capacity to practise Optometry.
27. To properly deal with this submission it is relevant to set out in more detail what Dr Sadler, Dr Chaudhary and Dr Ambler wrote in their reports about Mr Bolton's alcohol use disorder.
28. In Dr Sadler's report dated 7 April 2021 he recorded that Mr Bolton has: "a current diagnosis of Alcohol Use Disorder - mild, with a background/past diagnosis of alcohol disorder - severe. The current level of drinking is outside health drinking guidelines, although does not appear to have contributed to any psychosocial problems in the last 18 months. As previously mentioned there is a risk of escalation to heavier use and concomitant problems, based on his history of severe alcohol use disorder/dependence. The long term treatment recommendation to avoid future alcohol associated problems is abstinence".
29. Dr Chaudhary's report of 9 February 2018 did not describe Mr Bolton's alcohol use disorder as mild. In fact she did not provide a descriptor of the level of Mr Bolton's alcohol use disorder. Rather she merely stated the "most appropriate additional diagnosis of Alcohol Use Disorder at this stage would be one of adjustment disorder in context of relational and legal difficulties. The main issues to consider in further management are to address his alcohol use and to identify its impact on any underlying anxiety or mood disorder and treat them optimally."
30. As previously observed we do not know the purpose for which this report was commissioned, but in context it appears to have been done in the light of sentencing proceedings for offences for which Mr Bolton had been charged on 19 January 2018. There is nothing to suggest that Dr Chaudhary's report was done for the purposes of the assessment of impairment.
31. Dr Ambler's report dated 10 February 2019 indicates it was prepared to assist Mr Bolton in his application to the IRP in relation to his fitness to resume practice as an optometrist. It characterised Mr Bolton's Alcohol Use Disorder as "mild severity". Dr Ambler concluded her report by making a recommendation that Mr Bolton's right to practice be restored subject to engaging in regular psychological and medical management of his conditions. Dr Ambler's report was focused towards the assessment of Mr Bolton's return to practice it was not focused on impairment in the sense used in the National Law.
32. In reaching a view about impairment we prefer the evidence of Dr Samuels. This is because none of the reports relied upon by Mr Bolton specifically address impairment in the context that it is used in the National Law. None of the authors of these reports gave oral evidence so that their views about Mr Bolton's alcohol abuse disorder and impairment could be examined.
33. In contrast Dr Samuels has particular expertise in the assessment of impairment and all his reports were focused on that issue.
34. In addition to Dr Samuels' assessments, the evidence before us includes the reports of the Council's IRP hearings. The most recent report of the IRP dated 23 April 2020 accepted the conclusions of Dr Samuels that Mr Bolton suffers from impairment within the National Law; namely a Mood Disorder, an Obsessive Compulsive Disorder and an Alcohol Use Disorder that is not in complete remission. These impairments were said to have the potential to impact upon his professional functioning.
35. For these reasons we find that Mr Bolton is impaired within the meaning of the National Law as particularised in the Complaint. Accordingly Complaint Five is proved.
36. However not all impairments result in a finding that a person is not competent.
37. Complaint Six alleges that Mr Bolton is not competent within the meaning of section 139(a) of the National Law in that he lacks the mental or physical capacity to practise as an optometrist.
38. We note that the Commission does not suggest that Mr Bolton lacks sufficient knowledge or clinical skill to practise as an optometrist. Rather, there are two particulars in support of this complaint. They are that: 1. Mr Bolton suffers from an impairment as particularised in particulars 1 and 2 of Complaint Five. 2. Mr Bolton's impairment is of sufficient nature and degree to impair his mental capacity to practise the profession of optometry.
39. A finding of impairment may support a finding that a practitioner is not competent to practise: Lindsay v Health Care Complaints Commission [2010] NSWCA 194 per Sackville AJA at [168]-[169] (Young, Giles JJA agreeing). However, as Sackville AJA observed it would be incorrect to assume the existence of an impairment necessarily means that the practitioner lacks the mental capacity to practise their profession. Relevantly at [170] his Honour stated: [E]ven a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances.
40. Mr Bolton is under the care of a drug and alcohol specialist. He is compliant with the medication regime recommended by Dr Chaudhary. The most recent report of the IRP dated 23 April 2020 accepted Mr Bolton was impaired but identified conditions on his registration that would protect the public and support him in recovery and rehabilitation. The IRP did not find that Mr Bolton's impairment meant that his competency was compromised because of his mental or physical capacity.
41. We acknowledge the reports which indicate that Mr Bolton continues to drink above recommended levels, and that there is a high risk of relapse into increased alcohol use. However the evidence falls short of establishing the extent to which it could be said that Mr Bolton's impairment interferes with his judgment, communication skills and clinical ability. In our view, notwithstanding our finding that Mr Bolton has an impairment within the meaning of the National Law, the evidence is not of sufficient quality and weight to support a finding that he is not competent to practise.
42. Accordingly we are not satisfied that Complaint Six is proved.

What the parties seek

1. The Commission seeks protective orders in the form of cancellation of Mr Bolton's registration as an optometrist, and the setting of a non-review period of three to four years. It also seeks an order for costs.
2. Mr Bolton submitted that it was not appropriate to cancel his registration for any period. He did not believe that cancellation was appropriate based on the nature of his criminal history or his unsatisfactory professional conduct. He pointed to the current conditions on his registration as inhibiting his ability to find work. He indicated that he was comfortable with most of the current conditions on his registration but wanted restrictions lifted on the number of patients he could see, the number of days of work per week he was allowed to work, his capacity for locum work and category B supervision.

Consideration

1. Given the findings we have made about Complaints One to Four, we will consider whether the circumstances of the offences for which Mr Bolton has been convicted render him unfit in the public interest to practise his profession; and whether the professional misconduct which has been established, each independently justifies suspending or cancelling his registration.

Circumstances of the Convictions

1. In considering whether the circumstances of the criminal offences of which Mr Bolton has been convicted render him unfit in the public interest to practice optometry, it is necessary to set out further details about the offences.
2. Mr Bolton has been charged with 22 offences since 2004 and convicted of 19 of those offences. The 19 convictions relate to 7 incidents between 2004 and 2018.
3. The circumstances of the offences are as follows: 1. 3 convictions for driving with a high range prescribed concentration of alcohol (PCA) on 17 January 2004, 25 December 2012, and 27 September 2014) 2. 7 offences committed in relation to events at a Hotel around 11 December 2013 including destroy property, resist arrest and common assault 3. 3 offences committed in relation to events at a Hotel around 3 October 2015 including resist arrest and excluded person remaining in vicinity of licensed premises 4. 3 offences in relation to a violent assault on his father in the early hours of 21 June 2017. For this offence Mr Bolton was sentenced to 16 months' imprisonment with the setting of a 5 months non parole period for Assault occasioning Actual Bodily Harm. This incident included the following circumstances: 1. Assault on his 67 year old father, in his father's home. 2. Punching his father in the head a number of times sufficient to cause bleeding. 3. Kicking and punching his father on the ground. 4. Forcing his father to do multiple push-ups. 5. Forcing his father to stand naked in front of a mirror. 6. Hitting his father with a plastic cricket bat. 7. The events occurred in front of a 14-year-old boy living in the house under the care of Mr Bolton's father. 1. Whilst on parole 3 offences in relation to a domestic violence incident on 19 January 2018. Arising from these offences Mr Bolton was sentenced to 16 months' imprisonment for Stalk/Intimidate Intend Fear and Physical Harm and Resist Officer in Execution of Duty. This incident included the following circumstances: 1. Mr Bolton attending the home of his employer, calling on him to exit the house. 2. Kicking and head-butting doors of the house and yelling into the house. 3. Resisting arrest when the Police arrived, asking Police to shoot him, and being subdued with capsicum spray. 4. In the house at the time was a woman with whom Mr Bolton was having a relationship, Mr Bolton's mother and his employer, as well as 4 children who were locked in their rooms for safety.

Unfit in the public interest

1. At the hearing and in written submissions Mr Bolton submitted that none of the convictions occurred in his professional role as an optometrist. He pointed to the fact that the PCA convictions, and the other offences committed whilst at hotels did not result in a custodial sentence, were dealt with by way of fines and therefore could be considered relatively minor offences.
2. In relation to the assault on his father and work colleague Mr Bolton argued that both of these incidents were domestic in nature and were borne of personal relationship conflict over extended periods of time. They were based on emotion rather than any pre-planned criminal intent. He submitted that many of the case precedents to which the Commission had referred in its submission represented planned criminal behaviour with significant criminal forethought and were representative of more serious criminal conduct than his own.
3. Generally in oral evidence and in his written submissions Mr Bolton showed limited remorse for his criminal conduct or contrition for the impact upon the victims of his crimes. His expressions of regret were focused towards his experience of incarceration and the fallout in his personal, professional and familial relations
4. Most of the health professionals who have seen Mr Bolton agree that he has had periods of major depression and that alcohol has been a very central issue. He has had numerous alcohol related driving offences. The serious assaults on his father and a work colleague occurred whilst he was intoxicated. He has had two periods of imprisonment. Mr Bolton acknowledges that his legal difficulties have stemmed from alcohol abuse.
5. We accept that alcohol has been a feature of Mr Bolton's offending. It may be that in certain circumstances alcohol is a portal to Mr Bolton's offences. The question for us is whether the circumstances of the offences render him unfit in the public interest to practise optometry.
6. The term "public interest" is not defined in the National Law, and in the context of s 150 proceedings was the subject of consideration in Pharmacy Council v Ibrahim [2020] NSWSC 708, in which the Court held that the "public interest" is a broader concept than protection of the health or safety of the public, encompassing wider community interests such as the standards to which human conduct is to be held.
7. The following observations by Harrison AsJ in Pharmacy Council of NSW v Ibrahim at [32] and [35] are instructive: As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna v Medical Board of NSW [2017] NSWCATOD 27 at [18] ….The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held…
8. In Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 the Tribunal considered an application under cl 12 of Schedule 5D of the National Law and s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 for an order that the proceedings against a health practitioner be dismissed. Deputy President ADCJ Boland noted at [143] that the words "public interest" are found in various provisions of the National Law including relevantly s 3, in association with a practitioner found guilty of criminal offences (s 149C), in determining whether to take action under s 150, in making an interlocutory order suspending a practitioner's registration (s 165L), in determining what information should be included in the public register (s 226), in requiring Committee members to put the public interest before the interests of a health professional in their determinations (Schedule 2), and obligations on members of National Boards (Schedule 4) and in cl 12 of Schedule 5D.
9. Her Honour considered the authorities on the "public interest", and concluded at [151] that the authorities emphasised a number of matters relevant to the scope and purpose of the legislation, those factors including "the high moral and ethical obligations on practitioners, the need to comply with regulations, and the confidence of the public in those who treat them". Her Honour referred in particular to the comments of Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.
10. In Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 at [14] the Tribunal stated: The National Law does not contain a definition of unfitness to practise in the public interest or unsuitability for registration. These terms, like all others in the Act, are interpreted in light of the objects of the Act in s 3 and the specific objective and guiding principle in the NSW version of the National Law contained in s 3A.
11. In Health Care Complaints Commission v Karunaratne (No 2) [2018] NSWCATOD 201 at [51] the Tribunal stated: Whether a practitioner is unfit in the public interest to practice will require the Tribunal to take into account not only the offences but also the circumstances in which they were committed, including the relevant factual background and the impact of the conviction on the respondent in terms of any insight, contrition and remorse.
12. The case of Health Care Complaints Commission v Wood [2020] NSWCATOD 60 was a matter concerning a Registered Nurse who had a drug addiction and was convicted of the supply of prohibited drugs and possession of equipment to administer a prohibited drug. In that case the Tribunal considered the circumstances where the offences were not associated directly with the nurse's practice. The Tribunal stated at [17]: It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public.
13. Further in Wood, the Tribunal stated at [21]: In addition, the public interest of trust in the nursing profession is engaged by the nature and circumstances of these offences. The practitioner was convicted of supply as well as the use of methamphetamine, as well as other drugs, and of firearms offences. The serious nature of the offences, and the length of time over which they occurred, would cause most reasonable members of the public to fear placing themselves, or their loved ones, in the care of a professional with such criminal convictions, unless there was very compelling evidence that he had since rehabilitated and reformed…
14. In Limboro similar themes were discussed regarding considerations broader than the direct impact upon the practitioner's patients, see at [22]: From the above legislative extracts and interpretive statements it is clear that criminal conduct is a distinct factor when determining suitability to practise which must be assessed in light of a holistic inquiry into suitability. This assessment takes into account the wider context of the practitioner's improper conduct, including their motivation, insight into the harm caused, and attempts at remediation since the events and since any investigation or sanction. All of these considerations, past and present, must inform an assessment of current suitability to practise, within a legislative framework of public protection in which the health and safety of the public are the paramount consideration. Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards, and through this, public confidence in the health professions.
15. The AHPRA document Registration Standard: Criminal History dated 1 July 2015, and the equivalent document Criminal History Registration Standard: Optometry Board of Australia formed part of the Commission's documents in support of the Complaint.
16. These two documents provide a number of factors that are used by these two regulatory entities to determine whether a health practitioner's criminal history is relevant to their practice of their profession. Factors include the nature and gravity of the offence and its relevance to health practice, the period of time since the health practitioner committed the offence, the sentence imposed for the offence, the ages of the health practitioner and of any victim at the time and the health practitioner's behaviour since the commission of the offence.
17. With respect to the conduct of Mr Bolton, we agree with a number of submissions made by the Commission that considerations that weigh heavily towards a finding that he is unfit to practise in the public interest are as follows: 1. The serious and escalating nature of the offences, many of which involved damage to property, resisting arrest and violence including assault. 2. The offences of 21 June 2017 included a serious assault against a close and elderly family member, and were committed in the presence of a 14-year-old boy. 3. The offences of 19 January 2018 included a domestic violence offence and involved threatening conduct towards another optometrist at his home who was Mr Bolton's employer at the time. The employer's four children were in the house at the same time locked in their rooms. 4. The offence of the 19 January 2018 has a nexus with Mr Bolton's occupation as it was committed against his employer who was an optometrist and another employee at the practice (the wife of the optometrist), albeit the offence was committed at the employer's home and not in the workplace. 5. Domestic violence offences are a significant issue of concern in the Australian community. 6. The limited contrition Mr Bolton showed for the impact upon the victims of his crimes. 7. The number of offences, the long period over which they occurred, and the severity of the most recent offences are capable of causing disquiet if members of the public were aware of the details of his offences. The setting and maintenance of professional standards would be compromised in the event Mr Bolton was allowed to continue practising.
18. The registration standard documents set out what factors the Optometry Board of Australia and AHPRA consider in deciding whether a practitioner's criminal history is relevant to the practice of their profession. In context these documents aim to set standards directed towards the maintenance of public confidence in the high standard of practitioners. The considerations we have set out immediately above at [167] reflect those factors.
19. Mr Bolton submitted that the assaults he committed were domestic in nature and were borne of personal relationship conflict over extended periods of time. He contended that none of his convictions occurred in the context of his professional role as an optometrist.
20. The nature and extent of the offences for which Mr Bolton has been convicted demonstrate that there has been a steady escalation to his criminal conduct culminating in two serious assaults for which he was imprisoned. In our view his conduct in assaulting his father and a work colleague is incompatible with respect for the health, welfare and safety of the public. Both assaults were serious and took place in the presence of children. The domestic nature of the assaults as asserted by Mr Bolton does not lessen their gravity nor does it detract from the violent nature of the offences. Mr Bolton's conduct was not consistent with a health practitioner's fundamental role to hold to mind the protection of the public and to care for the health and wellbeing of the community.
21. Given the matters referred to above we are satisfied that the circumstances of the offences of which Mr Bolton has been convicted render him unfit in the public interest to practise optometry.

The principles relevant to the making of protective orders

1. Having determined that Mr Bolton is guilty of professional misconduct and that the circumstances of the offences for which he has been convicted render him unfit in the public interest to practise, the powers to suspend or cancel his registration are enlivened: see s. 149C(1)(b) and (c) of the National Law.
2. In determining the appropriate orders, the Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. Relevantly of those principles, s 3(2)(a), provides 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. The paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
3. This determination may only be made by reference to the facts of the particular case before the Tribunal and by considering what measures are needed to ensure future behaviour of the Practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v Health Care Complaints Commission [2012] NSWCA 80 at 34.
4. In Lee v Health Care Complaints Commission Barrett JA at [20] and [21] considered the exercise of powers by Tribunals to make protective orders and concluded: Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist [20]. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards [21].
5. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153: The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted [91].
6. In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA (Basten JA and Emmett agreeing) referred to the importance of denunciation of misconduct, in the context of s 3 and s 3A of the National Law as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise [35].
7. As such, the purpose of the disciplinary powers of the Tribunal is not to punish a practitioner but rather to protect the public and maintain proper professional standards.
8. In response to the issue of cancellation of his registration reference was made by Mr Bolton to the fact that he had already been out of the profession for some 3 years. There had been no further criminal involvement by him. He saw no further benefit to the imposition of a period of cancellation or suspension in the interests of public safety or the reputation of the profession as he had been declared medically fit to practise optometry and the IRP had permitted his continued practice with conditions. Recency of practice would become a real issue with any period of cancellation or suspension.
9. We reject these submissions because it does not reflect the purpose of the disciplinary powers of the Tribunal. As set out above that purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards.
10. In Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [72]-[74] the Court of Appeal rejected the ground of appeal that the Tribunal erred in determining the period of four years during which the practitioner would not be entitled to reapply for registration because it was required to take into account the fact that the practitioner had already been suspended from practice for a period of three and a half years. The Court of Appeal relevantly held: The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. ... In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. ... [74]
11. Further the mere fact that a complaint may be old or some years have passed does not diminish its seriousness: see Prakash v Health Care Complaints Commission at [52] per Santow JA.
12. In Lee v Health Care Complaints Commission Barrett JA referred, at [72], to Walsh JA's observation in Ex parte Tziniolis; Re Medical Practitioners Act (1956) 67 SR (NSW) 448 at 461 that: ... One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.
13. Barrett JA concluded that "a finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct" at [73].

Protective Orders

1. Applying these principles the purpose of the disciplinary powers available to us, is not to punish a practitioner but rather to protect the public and maintain proper professional standards.
2. In the course of Mr Bolton's offending he did not exhibit traits or conduct that were consistent with a health practitioner's fundamental role to hold to mind the health and safety of the public. In his oral evidence he showed little regard for the impact his violence had on children who were present. In our view the standing of the profession and maintenance of public confidence in the optometry profession would be seriously undermined where a practitioner does not exhibit traits and conduct consistent with the health and wellbeing of members of the community. These matters, together with the maintenance of confidence in the standards of the profession require that Mr Bolton's registration be cancelled.
3. Turning to Mr Bolton's professional misconduct the object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners. The objectives of the national registration and accreditation scheme are 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: ss 3(1) and (2)(a) National Law.
4. The National Law contains specific provisions dealing with obligations of practitioners which amongst other matters require practitioners to notify AHPRA of criminal charges and convictions. It contains specific provisions on renewal of registration for practitioners to make declarations in annual statements about impairment and criminal history. Therefore there is coherence to the protective objects of the National Law and the individual provisions within it.
5. Mr Bolton failed to comply with provisions in the National Law requiring notification to AHPRA of criminal charges and convictions within seven days. These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practise of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
6. Mr Bolton then compounded this misconduct. Over several years when applying for registration or a renewal of registration he failed to disclose criminal charges and convictions. Mr Bolton submitted that these were oversights and a failure to pay sufficient attention to detail. In our view Mr Bolton had professional and ethical obligations to complete these documents accurately. He failed to fulfil these obligations.
7. It was Mr Bolton's duty to be candid and honest with AHPRA. This is an integral part of the proper functioning of the regulatory system, and as the Tribunal stated in Health Care Complaints Commission v Amaklakumar [2019] NSWCATOD 173 at [34]: …It is important for the maintenance of the integrity of the system for the disciplining of health practitioners set up by the National Law that practitioners comply with the reporting obligations which form part of the system. In cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners.
8. Mr Bolton has demonstrated an inclination to act unethically and improperly when dealing with regulatory authorities. His explanation that he did not pay sufficient attention to the detail on renewal forms indicates a disregard for AHPRA and its role. He failed to appreciate the moral dimension to this conduct and showed a lack of insight as to its seriousness. The prospect of him again engaging in such misconduct in the future cannot be ruled out. Further Mr Bolton's misconduct is so serious it must be denounced.
9. We conclude that an appropriate protective order is one that involves the cancellation of Mr Bolton's registration. Such an order will not only perform its protective function but it also serves as a deterrent to Mr Bolton and to other health professionals in the event that they might be tempted not to be candid and honest with regulatory authorities.
10. Such an order will also assist in upholding the integrity of the profession in the eyes of the public. In our view the public's confidence in the optometry profession to protect their safety would be seriously undermined if a practitioner not adhering on multiple occasions to duties of disclosure under the National Law was permitted to continue to practise.
11. These matters, together with the maintenance of confidence in the standards of the profession require that Mr Bolton's registration be cancelled.

Conclusion

1. We have found Mr Bolton guilty of professional misconduct; and, unfit in the public interest to practise his profession. We are satisfied that each case independently justifies cancelling Mr Bolton's registration.
2. The factual matrix which underpins Mr Bolton's professional misconduct and his unfitness in the public interest are related. They stem from the circumstances of his criminal offences and convictions, and his failure to make proper disclosures of those offences and convictions. In view of this we do not think it is appropriate to accumulate time in the setting of a non-review period.
3. If Mr Bolton did wish to apply for registration as an optometrist in the future, the protection of public requires that he should only be able to do so when he is able to demonstrate that he is fit to make that application. We note that Mr Bolton has not completed any professional course in ethics. We make this observation not to direct or confine any future review but to enable Mr Bolton to consider possible areas that he could address.
4. In our view a period of 18 months during which Mr Bolton cannot apply for re-registration is appropriate and will provide the necessary period of time for him to address the deficiencies in his conduct which we have identified.

Costs

1. The Tribunal has the power to award costs as specified in the National Law: Clause 13 of Schedule 5D.
2. The principles relevant to the exercise of discretion in awarding costs are the subject of recent discussion in the High Court of Australia in Northern Territory v Sangare [2019] HCA 25. The High Court stressed that the awarding of costs is a discretionary matter, but the discretion must be exercised judicially by reference to relevant considerations. Their Honours further explained the general rule that costs follow the event reflects the position that a successful party should be compensated for the expenses it has incurred and is not intended to be punitive. These long established principles are also relevant to professional disciplinary proceedings: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342.
3. Mr Bolton referred to his reduced financial circumstances but indicated that that the award of costs in his case was less of a personal mental burden than the actual decision and any orders that might be imposed by the Tribunal.
4. Although the Commission was not successful on one complaint (competence) overall it was successful. It was successful in proving all the particulars in the five complaints in which it was successful. It was wholly successful in proving both unsatisfactory professional conduct and professional misconduct, and Mr Bolton's unfitness in the public interest to practise optometry. It was successful in obtaining the order for cancellation of Mr Bolton's registration that it sought.
5. There is no evidence of any disentitling conduct by the Commission. Accordingly a costs order will be made in its favour.

Orders 1. Under s 149C(1)(b) and (c) Mr Bolton's registration as an Optometrist on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order. 2. Under s 149C(7) Mr Bolton may not make an application under Division 8 to return to the register until at least 18 months from the date of this order. 3. Mr Bolton is to pay the costs of the Health Care Complaints Commission as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW)

ANNEXURE A IN THE CIVIL AND ADMINISTRATIVE TRIBUNAL OF NSW OCCUPATIONAL DIVISION HEALTH PRACTITIONER DIVISION LIST NO. Of In the matter of Mr Benjamin Phillip Bolton, a person registered under the Health Practitioner Regulation National Law (NSW) AMENDED COMPLAINT The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Optometry Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Mr Benjamin Phillip Bolton ("the practitioner") of Unit 22/39 Short Street Forster, New South Wales 2428, being an optometrist registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner graduated with First Class Honours in Optometry from the University of NSW in 1999 and was first registered that year. The practitioner completed a postgraduate qualification in Therapeutic Medicine Prescribing at the University of NSW in 2012. The practitioner worked at OPSM for a year in 2000 in Cessnock and Newcastle. In 2001 he took over the lease at a Singleton practice, where he worked as a solo optometrist for ten months. The practitioner then worked in a group practice for 18 months in Port Macquarie and then as a sole practitioner in Maitland for eight years from 2003 to 2011. From 2013 onwards the practitioner worked primarily in locum roles, which lead to offers of permanent, part time employment in Tuncurry, Forster, Warrnambool (Victoria), and Hamilton. COMPLAINT ONE Pursuant to section 144(a) of the National Law, the practitioner has been convicted of criminal offences in NSW. PARTICULARS OF COMPLAINT ONE

1. On 13 May 2004, in the Local Court of New South Wales at Kurri Kurri, the practitioner was convicted of the offence of drive with high range PCA, contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The practitioner was fined and had his licence disqualified for 12 months.
2. On 9 April 2013, in the Local Court of New South Wales at Kurri Kurri, the practitioner was convicted of the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The practitioner was sentenced to a good behaviour bond for 3 years under section 9 of the Crimes (Sentencing Procedure) Act 1999 and had his licence disqualified for 18 months.
3. On 9 April 2014, in the Local Court of New South Wales at Foster, the practitioner was convicted of the following offences: a. Behave in offensive manner in/near public place/school contrary to section 4(1) of the Summary Offences Act 1988. The practitioner was fined. b. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. The practitioner was fined. c. Destroy or damage property of a value not exceeding $2000.00 contrary to section 195(1)(a) of the Crimes Act 1900. The practitioner was sentenced to a good behaviour bond for 12 months under section 9 of the Crimes (Sentencing Procedure) Act 1999. d. Excluded person fail to leave premises when required contrary to section 77(4) of the Liquor Act 2007. The practitioner was fined. e. Use offensive language in/near public place/school contrary to section 4A(1) of the Summary Offences Act 1988. The practitioner was fined. f. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. The practitioner was fined. g. Common assault contrary to section 61 of the Crimes Act 1900. The practitioner was sentenced to a good behaviour bond for 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999.
4. On 17 March 2015, in the Local Court of New South Wales at Deniliquin, the practitioner was convicted of the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The practitioner was sentenced to 200 hours community service and had his licence disqualified for 2 years.
5. On 3 February 2016, in the Local Court of New South Wales at Foster, the practitioner was convicted of the following offences: a. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. The practitioner was fined. b. Enter enclosed land without lawful excuse contrary to section 4(1)(b) of the Enclosed [sic] Lands Protection Act 1901. The practitioner was fined. c. Excluded person remain in vicinity of licenced premises contrary to section 77(8)(a) of the Liquor Act 2007. The practitioner was fined.
6. On 6 November 2017, in the Local Court of New South Wales at Taree the practitioner was convicted of the following offences: a. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. The practitioner was sentenced to 16 months imprisonment with a non-parole period of 5 months. b. Destroy or damage property (DV) contrary to section 195(1)(a) of the Crimes Act 1900. The practitioner was sentenced to a good behaviour bond for 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999. The bond was called up following further offending and dealt with on 10 April 2018 in Newcastle Local Court sitting at Port Macquarie. The practitioner then lodged a severity appeal to Newcastle District Court and was re-sentenced to 3 months imprisonment, but was back-dated. c. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. The practitioner was sentenced to a good behaviour bond for 2 years under section 9 of the Crimes (Sentencing Procedure) Act 1999. The practitioner breached his good behaviour bond and the bond was called up following further offending and dealt with on 10 April 2018 in Newcastle Local Court sitting at Taree. The practitioner then lodged a severity appeal to Newcastle District Court, and the sentence of 2 months imprisonment remained the same, but was backdated.
7. On 10 April 2018, in the Local Court of New South Wales at Newcastle, the practitioner was convicted of the following offences: a. Stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. The practitioner was sentenced to 16 months imprisonment with a 6 month non-parole period. The practitioner lodged a severity appeal to the District Court where his sentence remained the same but was backdated. b. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. The practitioner was sentenced to 4 months imprisonment. The practitioner lodged a severity appeal and was re-sentenced on 3 July 2018 date by the Newcastle District Court to imprisonment for 3 months. c. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. The practitioner was sentenced to a good behaviour bond for 3 years under section 9 of the Crimes (Sentencing Procedure) Act 1999. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that he has contravened provisions section 130(1) of the National Law. PARTICULARS OF COMPLAINT TWO
8. The practitioner contravened section 130(1) of the National Law in that he failed to notify the National Board that he had been charged with offences punishable by 12 months imprisonment or more, within seven days of becoming aware of the fact of each of the following charged offences: a) On 25 December 2012, the practitioner was charged with the offence of drive with high range PCA (first offence) contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. b) On 11 December 2013, the practitioner was charged with resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. c) On 12 December 2013, the practitioner was charged with: i. Destroy or damage property of a value not exceeding $2000.00 contrary to section 195(1)(a) of the Crimes Act 1900. ii. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. iii. Common assault contrary to section 61 of the Crimes Act 1900. d) On 27 September 2014, the practitioner was charged with drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. e) On 25 4 April 2015, the practitioner was charged with the following offences: i. Common assault (DV) contrary to section 61 Crimes Act 1900. ii. Destroy or damage property contrary to section 195(1)(a) Crimes Act 1900. f) On 3 October 2015, the practitioner was charged with resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. g) On 21 June 2017, the practitioner was charged with: i. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. ii. Destroy or damage property (DV) contrary to section 195(1)(a) of the Crimes Act 1900. iii. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. h) On 19 January 2018, the practitioner was charged with: i. Stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. ii. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. iii. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900.
9. The practitioner contravened section 130(1) of the National Law in that he failed to notify the National Board that he had been convicted of offences punishable by imprisonment, within seven days of becoming aware of the fact of each of the following convictions: a. On 13 May 2004 the practitioner was convicted of the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. [1] b. On 9 April 2013 the practitioner was convicted of the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. c. On 9 April 2014, the practitioner was convicted of the following offences: i. Behave in offensive manner in/near public place/school contrary to section 4(1) of the Summary Offences Act 1988. ii. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. iii. Destroy or damage property of a value not exceeding $2000.00 contrary to section 195(1)(a) of the Crimes Act 1900. iv. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. v. Common assault contrary to section 61 of the Crimes Act 1900. d. On 17 March 2015, the practitioner was convicted of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999. e. On 3 February 2017 6, the practitioner was convicted of resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. f. On 6 November 2016 the practitioner was convicted of the following offences: i. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. ii. Destroy or damage property (DV) contrary to section 95(1)(a) of the Crimes Act 1900. iii. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900. g. On 10 April 2018, the practitioner was convicted of the following offences: i. Stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007. ii. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. iii. Destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900.
10. The practitioner contravened section 109(1)(b) of the National Law in that he failed to make sufficient or adequate disclosures in his AHPRA registration renewal applications regarding details of any changes in his criminal history that occurred during the preceding period of registration. a. Particulars 2a to 2d inclusive of Complaint Three below are relied upon.
11. The practitioner contravened section 109(1)(a)(i) of the National Law in that he failed to make sufficient or adequate disclosures in his AHPRA registration renewal application regarding having an impairment. b. Particular 2e of Complaint Three below is relied upon. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) (l) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of optometry; PARTICULARS OF COMPLAINT THREE
12. The practitioner failed to make adequate disclosures in his AHPRA registration applications on the following dates: a. On 21 January 2013, the practitioner failed to disclose in his application that he had been: i. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 17 January 2004. ii. convicted of the offence above at (i) on 13 May 2004. iii. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 25 December 2012. b. On 24 April 2014, the practitioner failed to disclose in his application for registration that he had been: i. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 17 January 2004. ii. convicted of the offence above at (i) on 13 May 2004. iii. charged with the offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 25 December 2012. iv. convicted of the offence above at (iii) 2 on 9 April 2013; v. charged and convicted with the following offences on 11 December 2013: i. Behave in offensive manner in/near public place/school contrary to section 4(1) of the Summary Offences Act 1988. ii. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. iii. Destroy or damage property of a value not exceeding $2000 contrary to section 195(1)(a) of the Crimes Act 1900. iv. Excluded person fail to leave premises when required contrary to section 77(4) of the Liquor Act 2007. v. Use offensive language in/near public place/school contrary to section 4A(1) of the 1 Summary Offences Act 1988. vi. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. vii. Common assault contrary to section 61 of the Crimes Act 1900. vi. convicted of the offences at (v) above on 9 April 2014. c. On 15 May 2019, the practitioner did disclose in his application for registration that he had been: • charged with the offence of assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900 and convicted of the offence on 6 November 2017; and • charged with the offences of stalk/intimidate intend fear physical etc harm (domestic) contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, resist officer in execution of duty contrary to section 58 of the Crimes Act 1900 and destroy or damage property under section 195(1)(a) of the Crimes Act 1900 on 19 January 2018 and convicted of those same offences on 10 April 2018 but failed to disclose the balance of the: i. charges outlined in Complaint Two Particular 1. ii. convictions outlined in Complaint Two Particular 2.
13. The practitioner failed to make adequate disclosures in his AHPRA registration renewal applications on the following dates: a. On 28 November 2014 the practitioner failed to disclose in his renewal application that he had been: i. charged with the offence of behave in offensive manner in/near public place/school under s4(1) of the Summary Offences Act 1988 and the offence of resist officer in execution of duty contrary to section 58 of the Crimes Act 1900 on 11 December 2013. ii. charged with the following offences on 12 December 2013: i. Destroy or damage property of a value not exceeding $2000 contrary to section 195(1)(a) of the Crimes Act 1900. ii. Excluded person fail to leave premises when required contrary to section 77(4) of the Liquor Act 2007. iii. Use offensive language in/near public place/school contrary to section 4A(1) of the Summary Offences Act 1988. iv. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. v. Common assault contrary to section 61 of the Crimes Act 1900. iii. convicted of the following offences above at (ii) on 9 April 2014; b. On 7 November 2015 the practitioner failed to disclose in his renewal application that he had been: i. convicted of an offence of drive with high range PCA contrary to section 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 on 17 March May 2015. ii. charged with offences of common assault (DV) contrary to section 61 of the Crimes Act 1900 and destroy or damage property contrary to section 195(1)(a) Crimes Act 1900 on 25 April 2015. iii. charged on 3 October 2015 with the following offences: i. Resist officer in execution of duty contrary to section 58 of the Crimes Act 1900. ii. Enter inclosed land without lawful excuse contrary to section 4(1)(b) Inclosed Lands Protection Act 1901. iii. Excluded person remain in vicinity of licenced premises contrary to section 77(8)(a) Liquor Act 2007. c. On 30 November 2016 the practitioner failed to disclose in his renewal application that he had been convicted, on 3 February 2016, of the offences at (23)(b)(iii) above. d. On 22 November 2017 the practitioner failed to disclose in his renewal application that he had been: i. Charged with the following offences on 21 June 2017: i. Common assault contrary to section 61 of the Crimes Act 1900. ii. Assault occasioning actual bodily harm (DV) contrary to section 59(1) of the Crimes Act 1900. iii. Destroy or damage property (DV) contrary to section 195(1)(a) of the Crimes Act 1900. ii. charged with the offence destroy or damage property contrary to section 195(1)(a) of the Crimes Act 1900 on 22 June 2017. iii. convicted of the offences above at (i) and (ii) on 6 November 2017. e. On 29 November 2019, the practitioner failed to disclose in his renewal application that he had an impairment despite being aware that: i. Dr Anthony Samuels, a psychiatrist appointed by the Optometry Council of NSW to conduct a health assessment of the practitioner, had reported on 27 March 2019 that the practitioner was impaired. ii. An Impaired Registrants Panel set up by the Optometry Council of NSW agreed with the view of Dr Anthony Samuels that the practitioner was impaired in its report of 24 June 2019. COMPLAINT FOUR The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FOUR
14. The particulars of Complaints 2 - 3 are repeated and relied upon. COMPLAINT FIVE Pursuant to section 144(d) of the National Law, the practitioner has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of optometry. PARTICULARS OF COMPLAINT FIVE
15. The practitioner has a Mood Disorder, Obsessive Compulsive Disorder ("OCD") and a significant Alcohol Use Disorder.
16. The practitioner has a very significant history of alcohol abuse and continued to drink harmfully and above recommended guidelines after being placed on the Council's impaired registrant program in June 2019. COMPLAINT SIX The practitioner is not competent within the meaning of section 139(a) of the National Law in that he lacks the mental or physical capacity to practise as an optometrist. PARTICULARS OF COMPLAINT FIVE SIX
17. The practitioner suffers from an impairment as particularised in Particulars 1 - 2 4 of Complaint Five above.
18. The practitioner's impairment is of sufficient nature and degree to impair the practitioner's mental capacity to practise the profession of optometry.

Endnote

1. Particular 2(a) of Complaint Two was withdrawn at the hearing. 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: 12 October 2021