Hermann v Medical Board of Australia [2026] QCAT 9

Craig v Medical Board of South Australia [2001] SASC 169

Hermann v Medical Board of Australia [2023] QCAT 162

Patrech v Psychology Board of Australia [2022] NSWCATOD 117

Pardo v Psychology Board of Australia (Ref No. 1/2013) [2013] TASHPT 1

[1] On 11 May 2022, the applicant made an application ('the first application') for provisional registration in Australia under the Health Practitioner Regulation National Law (Queensland) ('National Law').

[2] On 15 March 2022, the Medical Board of Australia ('the respondent') refused the application noting

1. The Board refused to grant you registration...pursuant to section 82(1)(c)(i)(C) of the National Law on the grounds that:

1. In the Board's opinion you are not a fit and proper person for provisional registration in the profession pursuant to section 55(1)(h)(i) of the national Law, and
2. As a result, and at this time, you are not a suitable person to hold provisional registration as a medical practitioner[1].

[3] The respondent informed the applicant that should he wish to reapply for registration in Australia:

...the Board would expect to see evidence of the applicant having taken active and remedial steps to address his unsuitability. The Board encouraged the applicant to seek behavioural and psychological treatment and education for what the board regarded (and continues to regard) as serious communication and behaviour deficits.[2]

[4] On 28 June 2023 a judicial member of QCAT[3] dismissed an application by the applicant for review of a decision of the respondent.

[5] The learned judicial member set out in detail the past conduct history of the applicant.[4] It is not necessary to restate that history. Suffice to say that the history caused the learned judicial member to conclude that the conduct went to his fitness of character and capacity to practice medicine.[5]

[6] The learned judicial member noted the relevant findings of Forensic Psychiatrist Dr Larder who opined that "[t]his evaluation reveals that Mr Hermann has a history of serious psychiatric difficulties".[6] The learned judicial member concluded that:

[56] Notwithstanding the existence of a number of factors favouring the applicant, the unchallenged concerns expressed by Dr Larder are grave, and, in the absence of independent medical evidence to the contrary, there is no reason to believe that those concerns are not still valid today. As has already been stated, the applicant's mental health is now described as "normal", and apparently stable. However, Dr Larder's concerns, given the extent of the applicant's previous history of mental health, are that the stresses associated with return to medical practice, absent appropriate mental health intervention, might trigger a relapse.

[60] On balance, I am left with the strong impression that the applicant remains in a state of denial in respect of his underlying state of his mental health and the risk of a relapse should he return to medical practice. The applicant is of the view that Dr Larder's assessment of the issues underlying his mental health are no longer valid and does not agree with the Doctor's "therapeutic recommendation".

[61] In this regard, it is to be noted that during the application process not only did the applicant fail to disclose Dr Larder's report but also advised the respondent that the reinstatement of his licence was because "there were no issues with my physc (sic) evaluation ...". As the applicant accepted during cross-examination, this was clearly a misleading statement. In this regard, the Tribunal is of the view that the statement was deliberately misleading.

[64] The difficulty for the applicant though is that, as things presently stand, in the absence of independent expert evidence that a relapse of his mental health is unlikely or that he is willing to genuinely participate in appropriate treatment, the risk of a relapse cannot be ignored. The risks of a relapse here, as evidence establishes, cannot be underestimated. A relapse might result in the applicant falling into an unstable and toxic relationship with his professional colleagues, other staff, and potentially, patients.

[8] The learned judicial member noted that the applicant was neither racist nor homophobic. He went on to find:

I am also satisfied that the conduct of the applicant was the result of a number of factors. His unfortunate childhood, his mental and physical wellbeing at the relevant times and, in some instances, having to practice in a toxic work environment. I am also satisfied that the applicant recognises just how reprehensible his past conduct was and is genuinely ashamed on that conduct. The applicant is clearly a highly intelligent person and references speak of him in very favourable terms.

[9] Whilst the learned judicial member noted that he felt a degree of sympathy for the applicant given the somewhat strident language in Craig v Medical Board of South Australia[7] concluded that "the paramountcy of the need to protect the public will usually override the consequences for the practitioner however harsh they might be."

[10] The learned judicial member was left unsatisfied that the applicant had demonstrated that the respondent's finding that he was not a fit and proper person to hold registration was wrong and ought be overturned.[8] The application was dismissed.

[11] On 30 October 2023 the applicant made another application for provisional registration ('the second application') and supplied a report from Dr Bertucen, clinical psychiatrist, together with evidence that the applicant had passed the Medical Council of Canada qualifying examination and had completed 13 hours of training in communication facilitated by the British Medical Journal.

[12] The Applicant stated that he has consistently worked as a teacher in China since relocating there in October 2019. He was given an award in 2023.[9] He also stated that he had reflected on his behaviour during the period between 2012 to 2019 and is confident the skills he has now acquired relating to balancing his commitments to work and in his personal life and in responding to stressors, including workplace related stressors, are such that he would handle it appropriately by de-escalating, empathising and actively listening in order to collaborate and create a win-win outcome: always putting the ongoing professional relationship first.[10] Otherwise, the second application was the same as the first application in respect of supporting material and intended place of employment.[11]

[13] The respondent refused the second application. The respondent noted that: "the applicant had not provided sufficient evidence of having taken active and remedial steps to address his unsuitability for registration" and it was not satisfied the applicant had demonstrated that his past behaviour had been sufficiently remediated to reconsider his suitability for registration as a medical practitioner.

[14] It is noted that between 15 and 17 March the applicant completed a series of online communication courses.[12] It is also noted that the applicant participated in nine online consultations with Dr Daniel Ephraim-Pepperman, a psychologist in the USA. This relationship ended in a fees dispute and complaint to three regulatory bodies in the USA.

[15] The applicant filed the second appeal (this appeal) in the Tribunal on 19 March 2024.

[16] The Tribunal is empowered to hear the appeal pursuant to s 199(1) of the National Law. The hearing is a hearing de novo. The Tribunal is tasked with making a decision afresh. The Tribunal must make the correct and preferable decision as at the date of the hearing.[13] The Tribunal may take into account fresh evidence: both evidence that was not before the respondent when it made its decision and evidence of events which have occurred since the respondent's decision.[14] Practice Direction 3 of 2013 applies.

[17] The powers of the Tribunal when hearing the appeal are set out in s 19 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') including s 19(c) which provides that the Tribunal "has all the functions of the decision-maker for the reviewable decision being reviewed."

[18] The Tribunal can make any of the decisions available to the respondent acting under the relevant provision of the National Law.

[19] The respondent is obliged by s 3(2)(a) of the National Law:

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...

[20] The guiding principles of the National Law are set out in s 3A as follows:

3A Guiding principles

The main guiding principle of the national registration and accreditation scheme is that the following are paramount-

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

(a) Confirm or amend the Board's decision;

(b) Set aside the Board's decision and substitute its own decision; and

(c) Set aside the decision and return the matter for reconsideration to the Board, with directions as considered appropriate.[15]

[22] At the hearing the applicant relied on the evidence of clinical psychiatrist Dr Bertucen. Dr Bertucen has provided a written report.

[23] In his written report Dr Bertucen concluded that:

I would therefore be inclined to advocate for Mr Hermann and suggest that he be considered for medical registration in the State of Queensland. This however should come with conditions. In my opinion, any registration granted to Mr Hermann in Australia should be accompanied by regular monitoring by a qualified person (psychiatrist or psychologist) every four weeks over the next 12 months. ... Beyond this, I am not of the view that Mr Hermann requires any psychiatric treatments at present, eg. Medications or the input of a psychiatrist.

[24] Dr Bertucen gave evidence to the Tribunal by phone. Initially during cross-examination Dr Bertucen confirmed this view. However after being referred to an email sent by the applicant to the dated 13 August 2024 the following exchange took place between counsel for the respondent and the Doctor in cross-examination:

MR MANUCHI: ‑ ‑ ‑ 2024, where the applicant identified or provided to MedicoLegal Assessments Group a request for a change to a particular paragraph in your report?

DR BERTUCEN: I do vaguely remember it, but I don't remember the content of, er, the request.

MR MANUCHI: Certainly. The - I'll give you the request_[16]_. So the request was that you change a paragraph - or that you include a paragraph or change, I'm not quite sure, in your report the - in the following terms: "The risk of depression recurrence and therefore recurrence of previous communication issues is low. Therefore, I advocate for Dr Hermann's registration with the condition of monthly monitoring for one year." So that's what he wanted included, and do you remember receiving that request?

DR BERTUCEN: Um, I do rec - remember receiving it, yes.

MR MANUCHI: Okay. Were you also aware that Dr - that the applicant, Dr Hermann, accused you of being "unprofessional, disrespectful and passive aggressive" as part of your conduct?

DR BERTUCEN: Really? No. That's a surprise.

MR MANUCHI: Okay. Does that cause you a concern that the applicant may have used that language to describe you?

DR BERTUCEN: Well, from my response, I think you can, er, judge my concern can't you?

[25] Dr Bertucen later answered a question of Counsel for the respondent as follows:

Er, that's my view with regards to Dr Hermann. That's - that language appears as, er, reg - regrettable and I think it's intemperate, um, but not, per se, necessarily - because I make not like it, um, not in my view, sufficient grounds to exclude him as a medical practitioner, and as I've said, um, he should be subject to stringent psychological and psychiatric monitoring over an adequate period of time. Um, these traits, er, if they are indicative of an underlying personality pathology, will inevitably reveal themselves over time.

[26] In re-examination by the applicant the following exchange took place:

APPLICANT: Certainly. Yeah. Well, first of all, good morning, Dr Bertucen, and I hope you're having a good holiday. I do apologise for that email. It was incredibly rude. My - I only have one question for you and that is why you didn't ‑ ‑ ‑

DR BERTUCEN: The language expressed is surprising, I must say. Er, it is - it is intemperate, and again ‑ ‑ ‑

APPLICANT: It ‑ ‑ ‑

DR BERTUCEN: ‑ ‑ ‑ it does make me, um, er - it does make me reflect on the opinions and the recommendations in the report as, perhaps, having endorsed those recommendations, but I - I do believe, er - that language was actually withheld from me, perhaps for good reason, um, but, er, I do regard it as quite, er, inappropriate.

APPLICANT: I agree. I only have one question for you today and that is why you didn't include a formal prognosis, which was the root of my frustration with the inappropriate email.

DR BERTUCEN: Mmm. I - I - I don't believe on the - on the basis of one interview it's possible to provide a plausible or a valid prognosis. Um, providing a prognosis is something that one can do on the basis of probability usually after, er, greater familiarisation with a person. Er, certainly with regards to treating a patient over time, it - it becomes much easier to provide a prognosis, but on the basis of a single assessment such as yours, it's not a prognosis. You're asking me to - to indulge in clairvoyance and that's not what I do.

APPLICANT: Okay. And one follow up to that is what's your opinion on how granting my registration would affect my prognosis?

DR BERTUCEN: Well, I daresay if your registration was granted, your prognosis would be likely to be improved, although, er, if it is a question of personality disorder, um, even the granting of the registration is not likely to improve your prognosis over time.

APPLICANT: All right. And have you diagnosed me with a personality disorder?

DR BERTUCEN: I don't know you well enough. As I said, I - I don't make diagnoses of personality disorders on the basis of a single interview unless, er, the signs of those disorders are unmistakably florid

[27] In respect of this evidence the respondent said:

With respect, my submissions that I made in respect of Dr Bertucen's report still stand, following the scope of that cross-examination and the nature of the answers given, particularly given the lack of information that he had available to him - or the lack of recollection in respect of the information available to him, and the significant differences in what he considered the tribunal to be finding and what the tribunal did, in fact, find. There was also another telling issue which occurred in relation to the applicant's exchange with Dr Bertucen in re-examination. In my cross-examination of the applicant in respect of that email, he was defiant. He said, "That email was perfectly fine. It was all okay. There was nothing unprofessional about it. I said it was all right." The moment Dr Bertucen challenged him about that, he flipped his view about that email and said, "No, it was a disgrace. It was improper. I apologise." That, in my submission, is precisely the problem with the applicant, and precisely the problem that the tribunal was concerned with before in the previous decision, namely the tick a box exercise, or the ability to flip and change and do whatever is necessary to achieve the outcome that the applicant wants, and fundamentally, that's precisely what Dr Bertucen identified as being a trait that the applicant exhibited and continued to exhibit, and your Honour and you, Doctor, will see the significant concern that arose from Dr Bertucen once he was advised of those allegations and the significant nature - or the significant effect that potentially had on him and his diagnosis, and in my respectful submission, that is another factor that weighs against the granting of the registration in this case...

[28] The applicant made the following submission:

It would be utterly pointless to search for anything: a counsellor, a therapist, a psychiatrist, a psychologist. There'd be no point without having my registration, upon which time I'd be happy to do so, and furthermore, the time between the granting of registration until I was actually practicing would be a span of potentially a year or more due to waiting for a visa, which would give me ample time to locate all the resources and support systems I need and my wife needs to relocate to Far North Queensland and integrate into the community and be provided with what we need, and if that includes finding someone to monitor my mental health once a month, so be it. Like Dr Bertucen said, I'm absolutely willing to do so. That's all I have to say.

[29] The applicant submitted that working as a teacher in China he had had no problems with his employer the Chinese Communist Party which he said was far more bureaucratic and authoritarian than western healthcare authorities. As a result he says he has learned to conduct himself professionally regardless of his personal feelings.

[30] He submitted that he does not and has not had a personality disorder. He submits that he has never been diagnosed with a personality disorder. He does not have any unresolved issues such as embitterment or anger towards anyone or anything in the past or present. He observes that many professions are replete with successful people who have personality disorders.[17]

[31] He relies on the report from Dr Bertucen who says his prognosis is favourable and likelihood of relapse low.[18]

[32] The respondent noted the decision of Pardo v Psychology Board of Australia[19] where the Tasmanian Health Practitioners tribunal said:

The National Law provides wide power and discretion to a health profession to set the standards and requirements for registration. The authority resides solely with the applicable National Board and the Tribunals role in a case such as this is to determine whether or not the applicant satisfies those requirements. The Tribunal must be mindful of maintaining the professional standing and level of competence required of a health profession in order to maintain public confidence and safety.

[33] The respondent also noted the decision of Patrech v Psychology Board of Australia[20] where it was said:

It is important that members of the public be able to approach and work with registered health practitioners confident that those practitioners are people who are not only skilful, knowledgeable and competent in practising their professions but whose standards of personal behaviour and professionalism are universally high. Public confidence in the health professions can only be maintained by an insistence by the professions themselves on their members upholding their standards of professionalism.[21]

[34] The respondent submitted that little weight can be placed on the opinion of Dr Bertucen because he was not briefed with all the documents relating to the applicant's history of conduct, which was available to Dr Larder, the respondent and the Tribunal. His report fails to address the applicant's history of physical and mental health conditions relevant to his behaviour. The report fails to address the doctor's prognosis for the applicant and the risk of relapse and the consequent risk posed to public health and safety.[22]

[35] The respondent submits that Dr Bertucen's opinion does not assist the Tribunal because of the absence of consideration of the risk of relapse.[23]

[36] The applicant noted that the learned judicial member was not satisfied that the applicant had demonstrated that the respondent's finding that he is not a fit and proper person to hold registration was wrong and ought to be overturned. The respondent submitted that this tribunal would be equally unsatisfied that the applicant has discharged the onus upon him to demonstrate his suitability.[24]

[37] The respondent submits that in order to remediate the defects in his character evidenced by the multiplicity of complaints made about him between 2012 and 2019 the applicant must:

(a) Develop insight into his conduct, communication and behaviour deficits;

(b) Confront the diagnosis, prognosis and recommendations of Dr Larder;

(c) Engage in genuine steps to reform his character; and

(d) Demonstrate that he is possessed of sufficient moral integrity to be considered suitable for provisional registration.[25]

[38] The respondent also submitted that the applicant had still not complied with the recommendation of Dr Larder that he see a consultant psychiatrist for assessment including:

(a) Consideration of a management plan and long-term relapse prevention of Major Depressive Disorder on the basis of concern that life issues and work-related stressors could result in a reoccurrence of the sort of depressive issues that have marked the applicant's life experience from 2012-2019.

(b) A biopsychosocial plan of mood monitoring which must consider relapse prevention over at least a five-year period, given that mental health issues of concern span a seven-year period.

(c) Management may require antidepressant and mood-stabilising medication management. The applicant should:

(i) Address metabolic issues and be mindful of the need to monitor hypertension;

(ii) Monitor alcohol use so that any pattern of alcohol use is in a low risk mode;

(iii) Never use illicit drugs.

[39] The respondent noted that the Medical Board of Australia will reconsider an application for registration upon receiving evidence from the applicant that he has taken steps to remediate himself and to address the risk of relapse.[26]

[40] The starting point for consideration of the applicant's appeal (the second appeal), is the comprehensive decision and findings of the learned judicial member in his decision (the first appeal). Is the applicant a fit and proper person, having regard to the definitions set out above, to be granted provisional registration as a medical practitioner in Australia?

[41] In that appeal the only medical evidence available was the report of Dr Larder.

[42] Based on the concerns expressed by Dr Larder, which he noted were grave, the learned member noted that in the absence of independent expert evidence that a relapse of his mental health is unlikely or that he is willing to genuinely participate in appropriate treatment, the risk of relapse cannot be ignored.

[43] The learned member noted that "As to the applicant's evidence that his teaching role is evidence that he is not only now mentally healthy but is also unlikely to relapse, I am unable to accept that evidence. To reach such a conclusion would require the opinion of an appropriate expert and no such opinion exists."

[44] Since then of course the applicant has obtained a report form Dr Bertucen. For the reasons submitted by the respondent (see para 34 above) Dr Bertucen's opinion is seriously diminished.

[45] Indeed, the Tribunal is of the view that Dr Bertucen's report and evidence cannot be relied on. When asked about the email from the applicant that the Doctor was "unprofessional, disrespectful and passive aggressive" and his subsequent evidence when asked by the applicant how granting registration would affect his prognosis, Dr Bertucen responded "I daresay if your registration was granted, your prognosis would be likely to be improved, although, er, if it is a question of personality disorder, um, even the granting of the registration is not likely to improve your prognosis over time." And in response to the applicant's asking if the Doctor had diagnosed him with a personality disorder, Dr Bertucen responded "I don't know you well enough. As I said, I - I don't make diagnoses of personality disorders on the basis of a single interview unless, er, the signs of those disorders are unmistakably florid".

[46] In his report and in evidence Dr Bertucen did report that the applicant's behaviours suggest a degree of "thin-skinned narcissistic injury" in the context of Cluster B personality traits as noted above.[27]

[47] The Tribunal found Dr Betucen's expert evidence to be unhelpful with respect to the matters the Tribunal is required to consider.

[48] The Tribunal relies on the expert evidence of Dr Larder and does not consider that his conclusions are in any way compromised by the expert evidence of Dr Bertucen.

[49] The applicant continues to lack insight. He had still not complied with Dr Larder's recommendations that the applicant obtain a referral consultant psychiatrist including the matters set out in paragraph 38 above.

[50] It has been almost three years since the first appeal. The applicant has failed to grasp the serious responsibility of the respondent and of this Tribunal to determine the applicant to be not only appropriately qualified but also a fit and proper person to acquire registration.

[51] Whilst it is accepted by the Tribunal that the applicant has led a trouble-free life in China as a teacher with his partner, there is no reliable medical evidence the Tribunal can rely on to support the applicant's contention that there is not likely to be a relapse of past behaviours and that he is a fit and proper person to hold registration. Indeed, the only reliable evidence is the report of Dr Larder. Of course, the intemperate email to Dr Bertucen has not in the Tribunal's view assisted the applicant's position.

[52] It is concerning to the Tribunal that although the applicant has made some serious attempt to address issues, he has failed to come to terms with what the Board requires him to do so as to demonstrate he is a fit and proper person. It is important for him to understand that saying he is fit and proper is simply not enough. He must demonstrate in the way set out by Dr Larder that he is. Until he comes to accept that, any future application will likely fail.

[53] The Tribunal in those circumstances is not satisfied that the applicant has demonstrated that the respondent's finding that he was not a fit and proper person to hold registration was wrong and ought be overturned.[28]

[54] Accordingly, the application to review a decision is dismissed.

[3] Hermann v Medical Board of Australia [2023] QCAT 162.

[7] [2001] SASC 169.

[9] Material filed by the applicant on 3 June 2024. See respondent's submission para 59(f).

[10] Statement of evidence of the applicant filed on 22 August 2024. See respondent's submissions para 59(g).

[11] See respondent written submission paragraph 27.

[12] Material filed by the applicant, 3 June 2024.

[16] See email 29 July 2024, s 21 bundle p 1818.

[19] Pardo v Psychology Board of Australia (Ref No 1/2013) [2013] TASHPT 1.

[20] [2022] NSWCATOD 117.

[27] Dr Bertucen's report p 6, s 21(2) bundle p 1732.