1. The publication of matters contained in the document that is at Exhibit RH-1, Tab 52 is prohibited.

1. Disclosure of the document and matters contained in the document that is at Exhibit RH-1, Tab 52 is restricted to the parties, their legal representatives and any other person with the leave of the tribunal.

1. The applicant applied for an interim order staying the respondent's decision to suspend his registration, subject to a condition that he not perform elective paediatric surgery. Ms Nomchong submitted that the proposed broad condition would address any concern about public safety[21].
2. Mr Archer opposed the application for any stay and submitted that if the Tribunal was nevertheless minded to make a stay, it be on condition of a 'blanket prohibition on paediatric surgery' and any procedure involving the penetration of the skin or the administering of anaesthetic to children.[22]
3. The tribunal's power to make an interim order staying a decision is contained in section 53 of the ACAT Act.
4. Before an order can be made, the tribunal has to be satisfied that the party who wants the order would be disadvantaged or suffer harm if an order was not made. If the 'threshold' requirement is met, section 53(2) gives the tribunal discretion to both make an order and to determine the terms of the order. In earlier cases, the tribunal has accepted that where the order to be made is in the nature of a stay, the exercise of the discretion should be guided by the common law jurisprudence relating to the power of courts to grant interim or temporary stays. In John Morgan and Construction Occupations Registrar [2011] ACAT 18 the Tribunal said:
   1. In a regulatory context, the jurisprudence can be summarised by reference to four factors, namely:

(i) whether the material before the tribunal indicates that there is a serious issue to be tried on the substantive application;

(ii) whether any prejudice would be suffered by any party if a stay was not granted;

(iii) whether public safety or the public interest would be imperilled if a stay is granted; and

(iv) whether the substantive application would be pointless or rendered nugatory if the stay is not granted.

1. The last three factors can be characterised as related to a broader consideration of the balance of convenience.[23]

1. Mr Archer appropriately conceded that the applicant would not be able to practice medicine if a stay order was not made and to that extent, would suffer harm. So much was self-evident. This allowed the Tribunal to consider making an order. It was also self evident that there was a serious issue to be tried on the substantive application.
2. On the basis of the evidence available at that time, which included untested affidavit evidence, oral evidence of the applicant about the work that he was scheduled to do, evidence of other restrictions already in place limiting the work that the applicant could do and some limited evidence about whether there was a potential public safety risk arising from the treatment the subject of the notification, the Tribunal was satisfied that an interim order should be made as sought by the applicant. The order provided:

Until further order, the decision of the respondent made on 26 April 2013 to suspend the registration of the applicant, is stayed on condition that during the period in which this stay is in force, the applicant not perform any elective paediatric surgery.

1. I clarified, at the request of Mr Archer, that in my view, procedures involving the administration of anaesthetic or the piercing of skin should be considered 'surgery' for the purpose of the order but there was no evidence available to me about whether the medical profession would have a similar view.
2. At the time that the order was made, section 53 of the ACAT Act allowed an interim order to be made for a limited period. The Tribunal's order, which was due to expire towards the end of July 2013, was overtaken by an order made on 19 July 2013 by the Supreme Court on the application of the applicant with the agreement of the respondent[24]. The order stayed the suspension of the applicant's registration subject to a condition that he not perform any elective paediatric surgery; that is, surgery on a person under 16 years of age, and a condition that he not undertake any platelet rich plasma treatment on any paediatric patient. This Supreme Court order remains in place until further order. The Tribunal of course, has no power to set it aside or vary it. That is a matter for the parties and the Court.

1. At the request of the applicant, a subpoena was issued to the Proper Officer of the Clinical Privileges Committee at the Canberra Hospital seeking the production of an un-redacted version of the Notification. The applicant wanted the document for the purpose of identifying the complainant[25]. The name of the author of the document was, along with other information, blacked out on the copy of the Notification sent by the Board to the applicant.
2. The subpoena required the document to be produced to the Tribunal on 15 May 2013. Mr Erskine SC appeared for the ACT Health Directorate on that day and applied to set aside the subpoena on the basis that production of the un-redacted version of the Notification was prohibited under the Health Act 1993. He was accompanied by Dr Robert Griffin, the administrator of the Clinical Privileges Committee.
3. Ms Nomchong SC appeared for the applicant and Mr Archer for the respondent. After considering Mr Erskine's submissions, Ms Nomchong withdrew the application to have the subpoena answered but asked that Dr Griffin be called to give evidence. Mr Archer opposed the application.
4. After hearing from all counsel, the Tribunal allowed Ms Nomchong's application. Dr Griffin was not compelled to give evidence, but agreed to do so. Mr Erskine remained so that he could object to any questions that might contravene provisions of the Health Act 1993.
5. Mr Erskine helpfully offered to call Dr Griffin as a witness so that Ms Nomchong could cross-examine him. Dr Griffin deposed that he had received the original of the Notification in his capacity as administrator of the Clinical Privileges Committee. He copied it, blacked out some of the content of the copy including the name of the patient and the author of the letter because of concerns about legislative provisions protecting the identity of a complainant, and sent the redacted copy to AHPRA. As a result, the Board only held a redacted copy of the Notification even though the Clinical Privileges Committee at the Canberra Hospital has the original with the name and position of the author of the letter He gave evidence that he had discussed the document with various people before sending it.
6. At the conclusion of Dr Griffin's evidence an order was made formally setting aside the subpoena. Fresh directions were made for the filing of material by the parties and setting hearing dates.

1. The hearing of the substantive application commenced on 5 June 2013 but did not continue as a result of the circumstances set out below. Ms Nomchong SC appeared for the applicant and Ms Eastman SC for the respondent.
2. Ms Nomchong opened with an application to have 'the proceedings struck out on a jurisdictional basis'[26] (the preliminary application), submitting that I should set aside the decision made by the Board because it was not validly made.
3. In summary, Ms Nomchong argued that the Notification was not valid or lawfully made as a notification and that the Board should have rejected it. The Board's decision, made on the basis of an unlawful notification and on short notice to the applicant, was consequently invalid. She submitted that the Tribunal should set the decision aside because there was no lawful decision that could or should be reviewed on its merits. This was not an argument about whether the decision was valid on its face. That was not in issue.
4. Her argument flowed from the evidence given by Dr Griffin on 15 May 2013 about his sending of the redacted letter addressed to the Clinical Privileges Committee to AHPRA.
5. The respondent had no notice of the preliminary application and the Tribunal adjourned after hearing Ms Nomchong's submissions to give the Board an opportunity to consider and respond to it.
6. When the hearing resumed on 6 June 2013, Ms Eastman advanced three reasons for the Tribunal to reject the preliminary application. The Tribunal adjourned and gave an oral decision later in the day. The Tribunal concluded that the preliminary application should be dismissed, adopting the first of Ms Eastman's reasons.
7. What the preliminary application sought was a review of the validity of the decision by means of a review of the validity or lawfulness of actions preliminary to the decision, rather than a review of the decision itself. There was no question of the decision being invalid on its face.
8. A line of authorities commencing with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[27] establishes that a tribunal empowered to review an administrative decision cannot undertake a collateral review of the decision.
9. Gyles J expressed the issue succinctly in Kim v Minister for Immigration & Citizenship[28]:

The sole function of the Tribunal is to provide a review on the merits of the relevant decision, not to decide collateral questions of the lawfulness or validity of the decision being reviewed...

1. The question was also considered by the Victorian Court of Appeal in Director of Housing v Sudi [29] where Chief Justice Warren emphasised that the extent of a tribunal's power to inquire into the validity of a decision is a question of construction of the relevant statutory provisions.
2. This tribunal is established by statute[30] and can determine only those applications that an authorising law provides can be made to it.[31] The National Law is the authorising law for this matter. The regime established under the National Law following the receipt of a notification by a board provides for two types of application to be made to a responsible tribunal. One, a referral for action relating to concerns about performance, conduct, or impairment, is not currently relevant. The second type of application is an appeal against the decisions identified in section 199(1) of the National Law. Decisions to accept or reject a notification, are not identified in section 199 as decisions that can be appealed.
3. The use of the word 'appeal' in the National Law rather than 'review' does not change the fundamental nature of the exercise to be undertaken by the responsible tribunal. The exercise is one of administrative review of the appellable decision - in this case a decision made by the Board to suspend the applicant's registration. It is, as established in Kozanoglu,[32]a specie of merits review and not an appeal in the strict sense, considering whether an error has been made.
4. There is nothing in the National Law, or in the ACAT Act, that evinces an intention to give the tribunal a power to scrutinise and decide on the validity of actions underpinning an appellable decision, or to scrutinise and decide on the validity of an appellable decision made on the basis of an invalid preliminary action. Different considerations might apply if the appellable decision was invalid on its face, but that is not the case here[33].
5. The preliminary application was dismissed because the Tribunal does not have the power to conduct the review sought by the applicant. After a brief adjournment Ms Nomchong advised that an application would be made to the Supreme Court in relation to the matters raised in the preliminary application and other matters. She asked that the application before the Tribunal be stood over pending the Supreme Court application. The Tribunal adjourned the matter and subsequently made orders for the hearing of the application to proceed in September.
6. The Supreme Court heard an application lodged by the applicant over six days in November 2013. Its decision was delivered in March 2014 and is reported as Hocking v Medical Board of Australia and Anor [2014] ACTSC 48. The application sought a number of remedies which, if granted, would have made the Tribunal's hearing and decision ineffective. The application was dismissed by the Supreme Court. After the Court's reasons for decision were published, the Tribunal wrote to the parties to inviting them to make submissions about the decision. They declined to do so.

What are the questions to be determined in this hearing?

1. Taking into account the legislative framework described above, the questions to be determined by the Tribunal are:
   • (i) What did the applicant do? What was the relevant conduct?
   • (ii) Having regard to the evidence before the Board when it made its decision and further evidence before the Tribunal that can be said to bear directly on the decision, does the Tribunal reasonably believe that because of the conduct:

(a) the applicant poses a serious risk to persons? and

(b) is it necessary to take immediate action to protect public health or safety?

(iii) If yes to (a) and (b), what is the risk?

(iv) If yes to (a) and (b) what immediate action is required to provide protection.

1. It is necessary to consider what evidence can be taken into account to answer these questions.

1. Eight witnesses gave oral evidence:
   • (a) the applicant;
   • (b) Patient A's mother;
   • (c) Shane Logan, the Director of Notifications of AHPRA;
   • (d) Dr Michael Gillespie, an orthopaedic surgeon who agreed to be a supervisor and trainee for the applicant in 2012 and who provided the Board with a report about the applicant's surgical practice in so far as it relates to adult hip surgery. The report was dated 24 January 2013.
   • (e) Dr David Young, an orthopaedic surgeon from Melbourne specialising in sports medicine and arthritis surgery of the lower limbs;
   • (f) Dr Jit Balakumar, an orthopaedic surgeon from Melbourne specialising in hip surgery;
   • (g) Professor Omer Mei-Dan, an orthopaedic surgeon from the USA who provided an expert opinion for these proceedings at the request of the applicant;
   • (h) Professor David Little, a paediatric orthopaedic surgeon from Sydney who provided an expert opinion for these proceedings at the request of the respondent.
2. A number of documents were marked as exhibits. The tribunal is not bound by the rules of evidence in these proceedings and the concept of accepting evidence as admissible and marking documents does not strictly apply. However, it is a convenient mechanism for identifying material before the Tribunal. The fact that documents have been marked and are referred to as exhibits in these reasons is not to be taken as an indication that their admissibility has been formally considered. There were some errors in the markings as is evident below.

A2 Affidavit of Richard Hocking affirmed 3 May 2013;

A3 Affidavit of Richard Hocking affirmed 11 September 2013;

A6 Reports of Dr Michael Gillespie dated 24 January 2013 and 13 May 2013 together with his CV;

A7 Email from Richard Hocking of 17 September 2012 and screenshot of booking diary;

A10 Pages 76 to 95 of the Transcript of Proceedings before ACAT on 15 May 2013;

A11 Printout from the Australian and New Zealand Clinical Trials Registry for trial titled Prevention of Inflammation in Perthes Disease using Steroid Injections dated 18 March 2013;

A12 Abstracts from 72nd Annual Scientific Meeting of the Australian Orthopaedic Association 2012;

A13 Affidavit of L, Patient A's mother, affirmed 24 May 2013;

R1 emails between Jitendra Balakumar and Richard Hocking dated 23 and 24 April 2013

R2 documents produced in response to a subpoena issued to Epworth Healthcare;

R3 Affidavit of Jitendra Balakumar affirmed 23 July 2013;

R4 Report of Professor David Little dated 12 May 2013;

R5 Canberra Hospital Progress Notes for Patient A dated 17 February 2012;

R6 Radiology report for Patient A dated 13 April 2012;

R6 Minutes of Meeting of the Board dated 16 April 2013;

R7 Request for Admission for Patient A dated 13 September 2011;

R8 Progress Notes for Patient A dated 11 November 2011;

R10 Progress Notes for Patient A dated 17 February 2012;

Ex 5 Affidavit of Shane Logan affirmed on 6 May 2013.

1. The material before the Tribunal was considerably more extensive than the material the Board had when it made its decision on 24 April 2013. Mostly, the evidence does directly bear on the Board's decision. It can be characterised as being about what was before the Board, or as expanding on or elucidating the material before the Board.
2. Some of the evidence went beyond that required for the questions to be determined by the Tribunal. This included evidence elicited on behalf of the applicant directed to his concern that the Board has treated him unfairly and demonstrated bias towards him and evidence elicited by the respondent more relevant to the Board's concern about the applicant's professional performance, and evidence that just emerged, as it is want to do as the story of a matter unfolds during a hearing, more relevant to those and other things.
3. While I accepted all the evidence that was put before me, evidence relating to the applicant's concerns about bias and unfair treatment is not relevant in the context of the exercise that the tribunal must undertake. It has not been taken into account. Evidence that is only relevant to the referral matter has also been disregarded.

What was the evidence before the original decision-maker?

1. It is clear that the Board had been considering and acting on notifications about the applicant's conduct for two years before it considered the Notification in this matter.[34] The Board met to review a number of conditions imposed and undertakings given in relation to some types of adult and paediatric surgery, supervision, mentoring and re-training just two days before it received the Notification. The Minutes of the meeting of 16 April 2013 were provided and marked as the second document 'R6'. The Minutes and the affidavit of Mr Logan (Ex 5) show that there had been detailed scrutiny by the Board of the applicant's professional performance in a range of areas over some time and that various conditions and undertakings had and continued to limit his practice. On 16 April 2013 the Board decided to vary some of the conditions but had not given effect to that decision when it received the Notification. It had earlier decided to revoke other conditions[35]. There were other notifications that had been received but not considered as at that date.[36]
2. The Notification was received on 17 or 18 April 2013. It commenced 'Dear Sir or Madam' but these words had been struck through and the name "Robert" written by hand in their place. The Notification read:

I wish to make a formal notification to the Canberra Hospital Clinical Review Committee and also the Clinical Privileges Committee regarding Dr Richard Hocking and his recent treatment of a child. I expect the Canberra Hospital Administration to notify this case to the relevant authorities ie the ACT Medical Board/AHPRA.

The patient in question is a 9 yr old [redacted]

This patient has left hip Perthes Disease, a condition where there is avascular necrosis of the bone of the proximal femoral epiphysis.

On 8-4-13, Dr Hocking performed injection of Platelet Rich Plasma under general anaesthesia at Canberra Hospital into the patients left hip joint.

This treatment is entirely without precedent. There is no report in the peer reviewed scientific literature regarding this treatment. There is no evidence to support this treatment in experimental models. There is no scientific validation at all for this treatment.

This case represents unwarranted therapeutic experimentation on a child, placing the child at the risk of a general anaesthetic, and at the risk of introduction of infection into the joint. All this without any evidence for efficacy or safety.

I believe that this case demonstrates disregard for patient safety, disregard for evidence based therapeutic measures and a standard of practice well outside that of a trained Orthopaedic Surgeon.

1. A committee to which the Board had presumably delegated some functions, met on 19 April to consider the Notification. Mr Logan's affidavit refers to this as a meeting of the Board itself[37] but the Minutes of the Meeting, provided as tab 26 to his affidavit is headed to show that the meeting was of the "ACT Immediate Action Committee of the Medical Board of Australia". The Minutes do not expressly note what evidence was 'placed before' the Committee, but refer to the Notification, "the practitioner notification history summary" and to the Chair of the Committee, Dr McKenzie, advising the Committee that "a basic literature review and research did not support the use of platelet rich plasma in the treatment of Perthes disease".
2. The content of the Notification itself has no probative value because the identity of the author and his or her qualifications or expertise is not revealed, at least to the Board and to this Tribunal. While the content suggests the author has expertise or specialist knowledge in the field of orthopaedics, in addition to knowledge about the condition of and treatment of patient A, that is simply unknown. The Committee could not have regarded the Notification as anything other than a series of assertions which taken by themselves, would not be sufficient to establish the requisite reasonable belief.
3. The practitioner notification history summary that is referred to in the Minutes is not amongst the documents before the Tribunal. It is not clear what the summary was and what information it contained.[38]The material before the Tribunal does not include any further detail about the literature looked at by Dr McKenzie or the research that had been undertaken. There is no statement or affidavit from Dr McKenzie and in any event, it is not clear that he was the person who undertook the review or research about which he advised the Committee.
4. The Minutes include reference to:
   • (a) the applicant practising subject to conditions which were subject to ongoing action when the procedure was carried out (although it was accepted that the procedure did not contravene the conditions);
   • (b) conditions imposed to that time not resulting in a reduction in concerns about his practice;
   • (c) whether the 'recent events complained of indicate an underlying pattern of behaviour that 'prima facie' might go to the question of the applicant's competence and judgment;
   • (d) the Board's expression on previous occasions that it could not be satisfied that the applicant had sound decision making capabilities or the capacity to assess risk.
5. A letter headed "Dr Richard Hocking - Notice of Proposed Action" was sent to the applicant's lawyer on 22 April 2013 to tell the Applicant about the Notification and the Committee's consideration of it.[39] A copy of the Notification was attached to the letter but not the Minutes of the 19 April meeting.
6. The letter refers to the Board as having met rather than to a committee of the Board. It said that the Board had considered the content of the Notification, the applicant's "notification summary" and that it had also been unable to identify any precedent for the procedure used in juveniles with Perthes Disease. While the Notification was attached to the letter, the notification summary referred to in the letter was not. The letter said that in particular the Board noted:
   • (a) The conduct of undertaking this procedure was assessed by the Board in the context of serious reports which have, in recent times, led to the suspension and, at other times, a restriction being placed on Dr Hocking's right to practice. The most recent proceeding regarding these restrictions is still unresolved;
   • (b) The undertaking of this unproven medical procedure was assessed by the Board in the context of the existence of restrictions on Dr Hocking's capacity to undertake paediatric surgery; and
   • (c) Given the above circumstances, the Board held a concern about Dr Hocking's decision-making, professional judgment and assessment of risk.
7. It is clear from a reading of both the Minutes of the meeting on 19 April and the letter of 22 April that the Committee considered the Notification in the context of the Board's dealings with the applicant in the previous two years and that that was an important consideration for it in deciding to take immediate action. The particular notifications, reports, actions, restrictions and proceedings that were in documents before the Committee members, or in their minds, were not identified. In his oral evidence Mr Logan agreed that the reference to a previous suspension "in recent times" in paragraph (a) of the letter sent to the applicant after the meeting was wrong[40]. There was no previous suspension. It is unclear whether this incorrect reference reflects inaccurate information before the Committee.
8. The Board met on 24 April 2013 to hear oral submissions about the proposed action from the applicant, his lawyer Mr Treffers and a Dr McNichol. The meeting is described in Mr Logan's Affidavit (Ex 5) at paragraph 66, and in the applicant's affidavit (A2), and in the affidavit of Mr Treffers (A8).
9. Mr Treffers deposes that at the meeting the Board had before it the Notification, the evidence of the applicant, himself and Dr McNichol and no other evidence. A number of documents were provided to the Board by Mr Treffers including two articles and correspondence, reports and notes about the treatment of Patient A.
10. In his affidavit Mr Logan says that at the meeting, the Board considered the submissions and the Notification before it.[41] He doesn't refer to the Board having considered any notification history or its own research. In oral evidence, he confirmed that the meeting was not recorded but that comprehensive minutes were available. The minutes were not produced. None of the reports of the meeting indicate who the Board members were and so I am unable to tell whether they were the same members who formed the Committee on 19 April (who had seen the notification summary) or whether additional or different members attended.
11. The decision of the Board was communicated by letter dated 26 April 2013 sent to the applicant's lawyers.[42] It is a detailed letter that summarises the submissions made on behalf of the applicant, identifies the documents provided by Mr Treffers on behalf of the applicant and sets out the Board's decision as follows:

On 24 April 2013 the Board considered the submissions put by Dr Hocking and on his behalf, as well as the notification before it and formed the view that:

1. Because of Dr Hocking's performance, he poses a serious risk to persons; and
2. It is necessary to take immediate action to protect public safety.

As a consequence, the Board decided to suspend Dr Hocking's registration.

1. The reasons for the decision are identified in paragraphs labelled (a) to (r). With some limited exceptions, the reasons specifically relate to the treatment of A. Paragraphs (j) and (k) refer to existing restrictions on the applicant's "right to practice" and the assessment of A's treatment in the context of "the existence of restrictions on Dr Hocking's capacity to undertake paediatric surgery". These paragraphs are similar to paragraphs (a) and (b) set out at paragraph 82 above. The inaccurate reference to an earlier suspension is not repeated.
2. Paragraph (l) is a different version of (c) above. It says:

(l) Dr Hocking's treatment of the young patient raised serious concerns about Dr Hocking's general decision-making, professional judgment and assessment of risk.

...that Dr Hocking was under conditions at the time of this procedure and was prevented from performing an osteotomy which is one of the conventional forms of treatment of this condition. It was not apparent to the Board at this stage whether this restriction on his practice was discussed with the parents of the child or whether the unproven nature of the procedure was drawn to their attention. That issue will be addressed as the matter is further investigated and was not a matter relied upon to reach the decision to suspend Dr Hocking from practice.

1. These are the only references to previous notifications and actions. The only matter identified with any particularity is the imposition of a condition preventing the applicant performing an osteotomy. Although not mentioned as having being considered by the Board at the 24th April meeting, information about the history of notifications, reports, actions, and conditions clearly was in the minds of the members who participated in the decision-making that day, if not in the documents before them.
2. Mr Logan was questioned by Ms Nomchong in an attempt to identify what information about what notifications and actions was available to the members on 19 April 2013. There was this exchange:

So, are you saying that the board took into account the imposition of conditions 7 to 12?---No, the board took into account the notification and the circumstances around the notification that had already led to outcomes or decisions.

Okay. Well, one of the outcomes of decisions was the imposition of conditions 7 to 12, isn't that correct?---That is correct.

Right. So the board took into account the notifications that led to the imposition of conditions 7 to 12, that's correct, isn't it?---That is correct.

Thank you. Now, you have told Madam President that items placed on an agenda are available to be uploaded. Can you tell us, as at 19 April 2013, were there any other notifications concerning Dr Hocking on the agenda board available for board members to look at?---On 19 April the board meet to consider the notification that is the subject of this hearing in regards to the PRP injections.

I understand that. The question I am asking...is...was there a pre-existing agenda that contained any notifications concerning Dr Hocking that were open and available for board members to look at?---No.

1. The material before the Tribunal includes documents and oral evidence relating to the earlier notifications but it is not clear what was 'before', or was considered by, the members present at the meetings on 19 and 24 April 2013. Given the history of the Board's dealings with the applicant, including as recently as 16 April 2013, it would be surprising if the members were not thinking about earlier matters, but what matters they were and in what context they were thought to be related to the current matter involves speculation.
2. The respondent submitted that the significance of those historical matters:

...lies in the fact that whilst some of them have not been resolved that in the context of immediate action they cannot be ignored. This Tribunal is not required to make decisions about prior notifications that have been made. Rather it should deal with the immediate action decision it is required to consider taking into account action that has been taken to place restrictions on Dr Hocking's practice and to improve his clinical decision-making capacities.

1. I accept the respondent's proposition that the fact that there were earlier notifications and actions cannot be ignored. It clearly provides some context to the appellable decision. I also accept that I am only dealing here with the appellable decision. I am not satisfied that I can find that earlier actions were taken to improve the applicant's clinical decision-making capacity without evidence about that; that may have been one of a number of reasons for restrictions.
2. In the absence of some evidence about the particular notifications or actions considered by the Board on 19 and 24 April, the most that I can consider is, in my view, that there were earlier actions and restrictions.
3. I am satisfied that the only evidence the Tribunal can consider as evidence that was before the Board is the bare fact that there were earlier notifications and actions, the Notification, (which has no probative value), and the applicant's submissions to the Board. The Tribunal must of course also consider evidence that bears directly on the Board's decision.

1. The applicant affirmed two affidavits (A2 and A3) and gave oral evidence.
2. To understand the evidence about what he did, it is necessary to know a little about Perthes disease and about the use of platelet rich plasma, or PRP. What follows summarises evidence given by the medical witnesses, and in particular by Professor Little, about these things and I make findings in accordance with this summary.
3. The applicant and other professional witnesses described Perthes disease as a disorder of the hip found in children. Professor Little described it as commonly seen in paediatric practice.[43] Other witness said it was less common. Its cause is unknown. It can progress through various stages. The femoral head may become deformed. Symptoms are stiffness, pain and inflammation. There is no cure. Treatment is focussed on minimising the risk of deformity of the femoral head and managing or reducing symptoms. Professor Little described the aim of treatment as being to achieve "the most spherical joint and best hip mechanics possible to preserve hip function if adult life." It is a complex disease and treatment decisions are complex. There is no universal agreement about treatment but a range of treatments have been used including observation, restricting activity and reducing movement including by using a wheelchair, splints or casts, use of oral medications to reduce pain (analgesics and anti-inflammatory agents), surgery and injections of cortico-steroids.
4. Platelet rich plasma (PRP) is produced using a patient's own blood. The blood is extracted and then separated using a centrifugal process which results in platelets concentrating in plasma. The concentrate of platelets is drawn off and then injected into the area of the patient that is under treatment.
5. The applicant first saw Patient A in May 2011 in relation to left hip pain. A was then seven years old. The applicant said that he had treated A's sister for Perthes disease since 2008. His treatment of A over the period from May 2011 to May 2013 is set out in detail in the affidavit marked A2. In summary, he recounts a regime involving assessment and treatment using X-rays, observation and review, recommendations about reducing high impact actions and use of analgesics, arthrograms and injections of steroid under general anaesthetic on two occasions, the use of a cast to be worn at night, discussion of A's condition and treatment with surgeons in Melbourne, discussions with A's mother including about the possibility of the use of PRP, development of a treatment plan, a third arthogram and steroid injection under general anaesthetic, further observation and monitoring, obtaining an MRI scan and then on 8 April 2013, the injection of PRP into the left hip joint under general anaesthetic.
6. The evidence that is challenged relates to the extent to which the applicant discussed A's condition and treatment with surgeons in Melbourne and the extent of his discussions with A's mother. This is referred to in greater detail below. Otherwise the applicant's description of A's treatment is accepted. It is verified and supported by x-ray and various other reports and letters to general practitioners and patient progress notes.
7. Fifteen letters written by the applicant to Patient A's general practitioner between May 2011 and April 2013 reporting on examinations, treatment and potential future treatment, are annexed to affidavit A2 at tab 4. Under cross-examination, the applicant said that his treatment plans for A were set out in these letters.[44] There was no separate specific written plan for treatment. There was also some questioning about whether the dates recorded for consultations in the affidavit were accurate or taken from the date of these letters, written usually some days after the consultation. If there were inaccuracies in dates, I am not satisfied that they were of material significance in the context of the exercise required for this hearing.
8. Of particular note is a letter to the General Practitioner dated 31 October 2012 in which the applicant refers to having shown A's X-rays to Dr Jit Balakumar in Melbourne who is described in the letter as a colleague. The letter says:

...he was concerned that with the migration of the femoral head that an osteotomy may not be the most appropriate thing right at the moment. We think that a better thing to do would be to get [A's] head more concentrically reduced by doing an intra articular injection of an anti-inflammatory and possibly also some platelet derived growth factors. We would then put him into some Petrie casts to see if we can improve his reduction. [A] would probably also require an adductor tenotomy ...

1. The use of PRP was contemplated by the applicant as a means to the end of obtaining a more concentric femoral head.
2. In oral evidence given on 16 September, the applicant said that he had reviewed A since making his affidavit in May. He said that A had an excellent response to the PRP injection and that his symptoms had diminished significantly.[45] Before the injection, A was said to have been using Nurofen and paracetamol daily. Following the injection A had used medications about five times in three months. Symptoms of pain and stiffness had diminished but had slowly started to return after three months. This contrasted favourably with outcomes following the use of steroids. The applicant said that A had continued to use oral medications after steroid injections. Stiffness improved after the injection but recurred after a shorter period - six to ten weeks. The applicant appeared to be ready to accept that these improvements were attributable to the use of PRP.
3. The respondent accepts and I find, that there was no adverse outcome from the treatment given to A on 8 April 2013 - it did him no harm. Having considered the evidence of the other medical witnesses, in particular Professor Little, I find that it is not possible to conclude that the improvement observed in A was solely, or perhaps even partly attributable to the use of the PRP injection.
4. The applicant was cross-examined in detail about his approach to the treatment of patients with Perthes disease generally, changes in his approach, particularly in respect of surgery since 2009 and his particular approach to the treatment of A. I find that this evidence, when assessed against the evidence of Professor Little, demonstrates that the applicant has an understanding of the treatment of Perthes Disease. Professor Little described the treatment as standard conservative treatment except for the use of PRP.
5. The applicant's evidence about the use of PRP to treat Perthes Disease was, in summary[46]:
   • PRP should be used as a substitute for steroid injections because it is a safer alternative
     • PRP can be used in joint inflammation for the treatment of pain and stiffness
     • Perthes Disease has an inflammatory component
     • PRP has not been identified as a treatment of Perthes Disease
     • PRP is a novel treatment for Perthes disease but is nevertheless an appropriate treatment because Perthes Disease has an inflammatory component
     • There is no literature supporting the use of PRP for Perthes disease or in a variety of other inflammatory conditions and yet it is used by multiple practitioners in a variety of contexts.
     • Absent any restrictions imposed on him, the applicant would continue to use PRP to treat A and other patients suffering from Perthes Disease if he thought that it was the most appropriate treatment at the time for the patient
     • He does not know of any other surgeon in Australia taking that approach
     • The use of PRP as a treatment of Perthes disease may be one of the things that he would in future discuss with senior colleagues
     • It would be advisable to consult with a senior practitioner about the continued use of PRP in relation to patient A
     • If he were to return to paediatric practice in future and was treating A, he would establish mentors and discuss A's treatment as to the continued administration of PRP with those mentors
6. The applicant's evidence, when assessed in the context of the evidence of other medical witnesses suggests a simplistic approach to decision making about the use of a novel treatment for a complex disease. This is considered further below
7. The respondent submitted that I should find that the applicant's record keeping was generally inadequate and did not disclose a clear management plan. There was no evidence before me about what is regarded as adequate record keeping and only limited evidence about the applicant's record keeping. The finding cannot be made by the Tribunal in those circumstances. The question of adequacy of record-keeping may be a matter to be considered in the context of a referral action.

1. L affirmed an affidavit on 24 May 2013 (A13) and gave oral evidence. She confirmed that the applicant had treated both her daughter and A, and that she had also consulted him about her own medical concerns. Her daughter had been treated for Perthes disease originally by Dr McNichol. The applicant had been treating her daughter since 2008. The daughter had had four surgical procedures in total with excellent outcomes.
2. She was clear that the applicant spoke to her about his plan to treat A with PRP. She was able to say what PRP was and describe in reasonable lay terms, how it was created. She said that the applicant always explained things to her really well and that he explained things to her like she was human, instead of using mumbo-jumbo. She said that the applicant told her that Dr Balakumar had been using PRP to treat Perthes Diesease.
3. She said that the applicant told her also that the use of PRP was experimental surgery. Dr Hocking had, she believed, used the word "experimental".
4. She said that she become aware that there were restrictions on the applicant's practice, which she identified as "so that he could only operate with supervision", through the newspaper. She said that she would have asked the applicant about it. This aspect of L's evidence was vague but ultimately I was satisfied that she had met with the applicant in an appointment and had discussed newspaper reports and the restrictions on his practice. I am satisfied that she was aware of the restrictions.
5. She was upset by reading about his case because while she did not know what had gone on with anybody else, he had been "absolutely wonderful towards" her family and had "been absolutely outstanding".
6. She confirmed that she had signed a consent form to have the "surgery" (by which she meant the PRP injection) done.
7. The respondent submitted that the Tribunal should find that inadequate advice was given to L as to the novel nature of the use of PRP treatment for Perthes Disease and that the need for clear advice was particularly evident given the unquestioning trust reposed in the applicant by an unsophisticated parent.
8. The evidence before this Tribunal does not support such findings. L was clear in her evidence that things had been explained to her really well and that she was told that this was an experimental treatment. The Tribunal has no evidence on which to base a conclusion that L is an unsophisticated parent as far as the subject matter of this case is concerned - to the contrary. She has, unfortunately considerable experience as a parent of two children, receiving treatment for Perthes disease over several years. She certainly appeared to trust the applicant, but the Tribunal could not conclude that that was unquestioning trust or that, if it was, there was no basis for it given her reports of the outcomes of the applicant's treatment for her children. There was no evidence about the standard for adequate advice or about whether the standard varies according to the degree of sophistication of a parent or of a patient. These questions may be considered in a referral action, but L's evidence to the Tribunal did not support the formation of a reasonable belief that the applicant posed a serious risk because of his conduct or performance in the context of his interactions with L as the person responsible for consenting to A's treatment.

1. Dr Mei-Dan gave evidence on behalf of the applicant.[47] He affirmed a written statement made on 25 May 2013 (A4). He is an orthopaedic surgeon practising in Colorado and referred to having worked in specialised centres internationally. He has published over 40 articles, eight book chapters and authored a medical textbook.
2. His written statement said that he and his team had treated approximately 10,000 patients with PRP injections, mostly to manage hip joint pathology. In his oral evidence he corrected that to indicate that 10,000 injections had been used for around 4,000 or 5,000 patients. He had used PRP for nine years to treat adult and adolescent patients with joint and articular cartilage lesions.
3. He agreed that there is no universally accepted treatment for Perthes Disease, that treatment is usually directed to symptoms and that some orthopaedic surgeons prefer non-surgical approaches while others prefer surgical approaches.
4. Under cross-examination he clarified that he has never treated a child with Perthes disease with PRP because he does not treat patients with Perthes disease on a regular basis. In fact, he does not treat patients 'younger than 11 years old in general' and his patients who do have Perthes disease are older patients for whom PRP has not been used because it has not been indicated.
5. Dr Mei-Dan was asked if he had looked for journals about peer reviewed trials in relation to the use of PRP in the context of Perthes disease. He said that he had but had not found anything. He went further and said that he didn't really need to do such a search because he is very familiar with the literature.
6. Having established that he had no personal experience of using PRP in connection with Perthes disease and that he does not treat Perthes disease regularly and that he does not treat younger children such as A, at all, Mr Archer asked him a theoretical question about using PRP to treat the condition. He said this:

So for instance let's say that I would see the exact same patient that Dr Hocking saw and I would say in my name and with my experience and understanding if PRP can help that patient, I would do that and - only because there is no cons, maybe there wouldn't be any sort of advantage but there's definitely not going to be a con in looking at the current standard of care, I think better everything else we have in our arsenal: it is the best tool currently medical field have.

1. I take this to mean that if Dr Mei-Dan had seen patient A, given his considerable experience and understanding of PRP, and if he thought that it was appropriate he would use it because there wouldn't be any harm done by doing so - there may not be any benefit, but there definitely wouldn't be any harm.
2. The applicant of course, does not have experience of the use of PRP in the way that this witness does and this witness has no experience of treatment of young children and does not have regular experience of treating Perthes disease. The evidence of Dr Mei-Dan was of no assistance, save perhaps to confirm that the use of PRP is not likely to harm a young person with Perthes disease but may not be of benefit.

1. Dr Gillespie is an orthopaedic surgeon who supervised and trained the applicant in the second half of 2012 and who sent a report about that to the Chairman of AHPRA dated 24 January 2013 and a further report dated 13 May 2013. His reports are marked A6. The reports are about his supervision of the applicant's adult hip surgery. They do not directly bear on the evidence before the Board in relation to the Notification. The first report and Dr Gillespie's work with the applicant is referred to in the minutes of the Board meeting of 16 April 2013. It is not clear whether the report was in the minds of the Board members considering this Notification and on that basis, should be disregarded.
2. In summary his oral evidence was that he is not a specialist paediatric orthopaedic surgeon and has never personally treated a case of Perthes disease.[48] He is very familiar with the use of corticosteroid injections but not in the treatment of Perthes disease. He agreed that corticosteroids have adverse effects including an increased risk of infection and chondrolysis and that they should be used as a maximum three of four times a year. He knows about how PRP is prepared and has seen others use it but has never used it himself.
3. He agreed that it is not uncommon for a doctor to adopt and apply procedures that work successfully in the context of one disease to another disease with the same symptoms. He sees nothing wrong, on first principles, with the applicant's use of PRP in the treatment of A and did not think that the treatment was a serious risk to public safety such as to warrant deregistration.
4. Dr Gillespie's evidence appeared to me to be thoughtful and considered but ultimately, given his lack of clinical experience of treatment of Perthes disease or of the use of PRP in any context, I found his evidence of little assistance and no relevant finding can arise from it.

1. Professor Little is a paediatric orthopaedic surgeon who has worked exclusively with children as a specialist since 1995. His practice and research is largely confined to lower limb problems including reconstruction and hip disorders. At the time of his evidence he was the Senior Staff Specialist at the Children's Hospital at Westmead. He had the most relevant experience of any witness and his evidence is to be preferred where it differs from others'.
2. He provided an opinion to the respondent about this matter and was asked a series of questions and provided with a number of documents including the Notification, an extract of the applicant's submissions to the Board and two reports of Dr Young. His opinion was marked R4. He gave oral evidence.[49]
3. Some of Professor Little's evidence is relevant to a referral action rather than this appeal and so, has not been considered in detail. A summary of his evidence about Perthes disease is set out at paragraph 100. In addition, he said that he is an expert in Perthes disease: he studies it and sees a lot of it. There is little agreement about the role and value of surgery for the treatment of Perthes disease. He could find no trial comparing PRP and corticosteroids for efficacy or safety and no paediatric orthopaedic surgeon he knows uses PRP in Perthes disease. Corticosteroid use itself in Perthes disease is not widely accepted and is currently the subject of clinical trials. He regards both the use of corticosteroids and of PRP as novel as distinct from experimental.
4. Professor Little reviewed the applicant's medical records in relation to A and "deduced that he initially followed very standard practice in the management of patient A" with the only real deviation seeming to be the use of the PRP injection. He noted that it would not be possible to deduce if a reduction of symptoms after the use of PRP was due to fluid aspiration from the joint in preparation for the injection, or the PRP itself, or post operative treatment involving splinting and analgesia[50].
5. Professor Little reviewed thirty articles submitted by the applicant in support of his decision to use PRP and considered others he had identified himself. None of the papers addressed Perthes disease, although there was one pre-clinical study of the use of PRP on piglets which showed no effect of PRP.
6. He did not think that it was a good idea to replace one novel treatment such as corticosteroid, with another, such as PRP. He recognised that there is a basis for surgeons adapting something that might work in one disease to treat another disease with similar symptoms, but would expect to see some plan about where the adapted treatment is headed. He said that novel procedures are commonly undertaken by doctors and usually in circumstances similar to those relating to A's treatment. Innovations are required for medicine to advance, but:

It is an early jump in my view to replace one unproven treatment (corticosteroids in Perthes disease) with another unproven treatment at this time. If reducing inflammation in Perthes disease is effective, a future trial could compare PRP and corticosertoids.[51]

1. In his oral evidence, Professor Little emphasised the complexity of treatment decisions for Perthes and the wide variety of disagreements about it. He also emphasised the complexity of PRP. He acknowledged that because it is an autologous product (that is, derived from the patient's own body), PRP is likely to be largely harmless and he would be surprised if there was any harm caused as a result of its use.[52] Nevertheless he does not use it himself because it is expensive, unproven and difficult to understand.[53] It would not be his choice of treatment because of its complexity but he would not rule it out for the future.[54] In his report he said:

If there is a problem here in my view it was the adoption of an unproven technology in a new clinical area by an individual in part-time solo practice.

1. Professor Little's report disagreed with some of the statements in a report submitted by Dr David Young. Significant differences of opinion appeared to emerge in their oral evidence. A closer analysis suggests that the differences arise because of Dr Young's enthusiasm for the use of PRP compared to Professor Little's caution about it and, secondly, because Professor Little's assessment is based on significant experience of the treatment of Perthes disease in paediatric patients while Dr Young's assessment arises as a result of reasoning based on the experience of treating a different cohort of patients with similar symptoms.

1. Dr Young has been an orthopaedic surgeon for 30 years and specialises in sports medicine and arthritis surgery of the lower limbs. He provided the applicant's representative with a report dated 2 May 2013 and answered questions by email dated 12 May 2013. These documents were marked as A5. He gave oral evidence.
2. Dr Young agreed to act as a supervisor and trainer for the applicant between August 2012 and January 2013. There was some debate about whether the Board had refused to approve him to supervise the applicant or whether the Board had been asked to approve him. The debate was of no relevance to the Tribunal.
3. He is a member of a practice of about 14 surgeons known as the Melbourne Orthopaedic Group. Dr Jit Balakumar is also a member of the practice. Dr Young said that he runs a hip preservation group with three other members of the practice, including Dr Balakumar.
4. Dr Young treats patients with Perthes disease, but not patients under the age of twelve - his work is directed to the treatment of adolescents.
5. In his report he said:

I totally disagree with the letter dated 17/4/2013 where the writer of the letter has been obliterated... in this letter it is claimed that "PRP injections under general anaesthetic into a hip joint are entirely without precedent".

1. The letter of 17/4/2013 referred to is the Notification. The sentence enclosed by quotation marks however, does not appear in the Notification. It is a misstatement which suggests a misunderstanding or misinterpretation of the Notification. The claim that is made in the Notification is that the injection of PRP into the hip joint of a 9 year old patient, under general anaesthetic, for the purpose of treating the symptoms of Perthes disease, is entirely without precedent and is not the subject of any peer reviewed scientific literature. Professor Little's report and oral evidence and Dr Mei-Dan's oral evidence, support a conclusion that the claim is correct.
2. Dr Young's report continues with a statement that PRP has been used in routine orthopaedic practice for at least nine years to reduce joint inflammation. He treats approximately 20 patients each week, and has treated perhaps as many as one thousand altogether, with intra-articular PRP. Not one patient has developed a major adverse reaction. There is extensive literature about its effectiveness for that use and many papers about randomised controlled trials showing that PRP reduces pain and inflammation in damaged joints.
3. The premise for the use of PRP in Perthes disease he said, is that it is one of many conditions that can lead to inflamed damaged joints. His reasoning is: 1. Perthes disease leads to inflamed and damaged joints. 2. PRP is used to reduce joint inflammation. 3. Therefore PRP can be used to treat the symptoms of Perthes disease. 4. Patient safety is significantly improved when PRP is used rather than corticosteroids because there is less risk of infection, much less risk of damage to the joints and a better therapeutic outcome. 5. Therefore PRP is a safer treatment for a patient with Perthes disease than corticosteroid.
4. In his oral evidence Dr Young said that he saw nothing wrong with the use of PRP to treat A and that he regarded the treatment choice as completely logical and a safe option. [55] His reasoning provides an example of the process that leads to innovation referred to by Professor Little and set out in paragraph 119 above.
5. Dr Young agreed that he is not a specialist in the treatment of Perthes disease[56] and agreed that the parameters of Perthes are "undefined", that it is a very difficult condition to treat and that there were disagreements about treatment.[57]

With regard to its safety and efficacy in paediatric surgery (below the adolescent age group) I have no personal experience but am certainly aware of its use in conditions such as osteochondritis desiccans, in chronically inflamed joint conditions that can lead to premature degeneration of articular surfaces. However there is paucity of the peer review literature for its use in the paediatric age group.[58]

Consultation with Dr Young and the referral to Dr Balakumar

1. In his submission to the Board on 24 April 2013 and in the evidence presented to the Tribunal, the applicant said that before deciding to use PRP to treat A, he consulted Dr Young and, at Dr Young's suggestion, Dr Balakumar.[59]
2. His evidence about this in summary is that he visited Dr Young's practice regularly after July 2012 for supervision and training. He used that opportunity to seek advice about difficult cases. In October 2012 he took A's X-rays to Melbourne with him to discuss treatment options. He showed the X-rays to Dr Young who suggested that he discuss the case with Dr Balakumar. Dr Balakumar is a specialist in paediatric orthopaedic surgery with a special interest in treating hip disease.
3. The applicant deposes that he showed A's X-rays to Dr Balakumar on 18 October 2012 during a surgical list and that they discussed treatment options for A. He describes what was in paragraph 31 of affidavit A2. About 13 days later, the applicant recorded the content of his discussion with Dr Balakumar in a letter to A's general practitioner. That letter is in the bundle of letters at tab 4 of A2 and is partly extracted above. I note that the letter does not specifically refer to the use of PRP but rather, refers to " an intra articular injection of an anti-inflammatory and possibly also some platelet derived growth factors".
4. The applicant says Dr Balakumar suggested the possibility of an injection of PRP with the aim of having A's femoral head more concentrically reduced before a surgical procedure. The applicant observed the use of PRP by Dr Young, and saw patients in follow up consultations who had had PRP injections with positive results. Dr Young directed him to literature on the use of PRP. Dr Young uses PRP extensively to reduce symptoms of pain and stiffness in hip joints. Dr Balakumar also uses it. The applicant said that he discussed the use of other intra-articular growth factors with Dr Balakumar. This is a summary of the evidence set out in paragraphs 29 to 42 of affidavit A2. The applicant's oral evidence was consistent with his affidavit.
5. Dr Balakumar denies that he ever discussed patient A with the applicant and says that he would never have recommended the use of PRP to treat A. He says he has never used PRP to treat Perthes disease in a paediatric patient. Dr Balakumar's evidence is considered in greater detail below.
6. The applicant's evidence that he talked with Dr Balakumar about A's condition and treatment is corroborated by the content of the letter written to A's General Practitioner on 31 October 2012 and by L's evidence referring to the applicant having told her about discussing A's case with his colleague in Melbourne. The letter was sent and the conversation occurred well before the treatment on 8 April and the ensuing controversy. If the evidence was an invention, it was not a recent invention and it is difficult to see any motivation for such an invention at a time when there was no controversy.
7. The respondent sought to establish a potential motive for the applicant to have, as early as the end of October 2012, invented a story about consultation with Dr Balakumar in order to support what was his own plan to treat A. The suggested motive related to restrictions imposed on the applicant's ability to operate on paediatric patients as a result of other matters. It was suggested that the applicant invented his discussions with Dr Balakumar and decided to use PRP with the thought that this might delay the need for surgical intervention until such time as restrictions were lifted.
8. The evidence before the Tribunal is not sufficient to support a finding about such a motive. The applicant of course denied it and there was evidence from him, and from Dr Balakumar, about arrangements that the applicant was making and known to be making, to transfer those of his patients who required surgical intervention to the care of other orthopaedic surgeons. There was no clear evidence before me, (although there was a query from Professor Little), that A's condition was such that surgical intervention was required or indicated either in October 2012 or Aril 2013.
9. The applicant's evidence is also supported by Dr Young. Dr Young recalled that the applicant had a "whole list of patients" on his computer and they were discussed[60]. Dr Young said that he discussed A's case with the applicant and told him that he thought it would be better if he "got Jit in" because of Dr Balkumar's specialisation with paediatric patients.[61] Dr Young agreed that he had also referred the applicant to literature.[62]
10. When asked about Dr Balakumar, Dr Young's evidence was that he has seen Dr Balakumar treat many paediatric patients with PRP, [63]and that "before this all blew up", Dr Balakumar told him that he had used PRP in Perthes disease and would have no hesitation in using it again. He said:

I have discussed this with Jit on many occasions and he sees no reason why not to use it in Perthes Disease. You can call it novel or experimental but it's safe.[64]

1. Dr Young was firm in his evidence that Dr Balakumar had told him that he used PRP for the treatment of Perthes disease.
2. While giving evidence, Dr Young answered questions about treatment of Perthes disease by referring more generally to the treatment of inflammatory conditions of the hip joint in paediatric patients. It became apparent, that he did not see a distinction between the two. The following exchanges with Mr Archer for the Board illustrate this:

MR ARCHER: And have you put it to Dr Balakumar that you want him to change his opinion?---No, I want him to tell the truth. To tell the truth that he used PRP in the paediatric age group...

That's not the question. The question is in relation to whether or not he used PRP for the treatment of Perthes?---Well, are they not the same?[65]

MR ARCHER: If it was your point of view that Dr Balakumar uses PRP in the context of the treatment of Perthes Disease, why in your report of 2 May did you not say so?---Due to an oversight. I assumed that chronically inflamed hip joints in the paediatric age group automatically included Perthes Disease.

1. Dr Balakumar affirmed an affidavit on 23 July 2013, marked R3. He works as an orthopaedic surgeon specialising in hip surgery across all age groups, including paediatric patients.
2. Dr Balakumar strongly disagreed with the evidence of the applicant and of his colleague Dr Young in two important respects.
3. First, he was adamant that the applicant did not show him any X-rays relating to A and did not discuss A's case with him at all. He recalled discussing a small number of cases with the applicant but none of them involved a nine year old with Perthes disease. He saw X-rays for, and discussed the case of, a 19 year old with Perthes disease, but not A[66]. He denied that conversations did, or could have occurred about the treatment of A as described by the applicant. He said that he had a full operating list on 18 October 2012 and that it was highly unlikely that he would have had the opportunity to sit down with the applicant, review X-rays and discuss appropriate treatment plans. Further, he would never recommend any form of treatment without physically examining a patient, particularly one with Perthes disease.
4. Records from Epworth Hospital about the surgical list on 18 October 2012 were subpoenaed and shown to Dr Balakumar. During examination by Mr Archer there was the following exchange:

MR ARCHER: Now, you have also been emailed a copy of the Epworthmedical records, is that correct?---That is correct, yes.

And does that jog your memory in relation to the events of 18 October 2012 at all? ---Look, my memory of that event is obviously becoming more and more clear as I keep re-living the day and yes, I don't think the Epworth log would add any more extra information...

Does your position remain that you did not discuss patient A on that day with---?Absolutely, yes. Look, I mean, initially as I've discussed with yourself, you know there is a possibility. I thought maybe it was shown to me and I was unaware, but the more and more the specifics of the case, I cannot remember every having given advice about such a case to Richard or to anyone else with regard to that case.

1. When cross-examined about the details of his surgery list for 18 October 2012, he agreed that there had been time for him to have discussions with the applicant on that day, contrary to the belief expressed in his affidavit that that was highly unlikely[67]. He repeated however that he had not had a discussion with the applicant about treatment of a 9 year old with Perthes disease.
2. On balance I find that the applicant did have a discussion with Dr Balakumar about the treatment of A in October 2012. There is insufficient evidence to establish the extent of the discussion about A and the depth of it. Accepting that it occurred during the course of a surgery list and that other patients were discussed as well, it could be accepted that it was not a detailed or in-depth discussion. There was no evidence about whether it is common practice for surgeons to consult on other cases during the course of a surgical list which I assume requires a high degree of concentration. From a lay person's perspective it sounds like a practice that carries a high risk of miscommunication.
3. In reaching this conclusion I have considered the matters set out in paragraphs 156 and 157 above. I have also considered Dr Balakumar's evidence indicating that he initially thought that there was a possibility of such a discussion having occurred and of his memory becoming clearer as "more and more of the specifics" of the matter became known to him. His recollection has moved from that of a possibility of a discussion, to a lack of recollection of a discussion, to a positive and firm assertion that there was no such discussion. His denial of a discussion based on an understanding of "more and more of the specifics" of A's case, does not preclude the possibility of a less specific discussion occurring during the course of a surgical list on a busy day.
4. This is not to be taken as a finding that Dr Balakumar lied in his evidence. I accept that he has convinced himself that there was no discussion with the applicant about A's case. His tone of voice and manner of giving evidence was unfortunately combative (as indeed was Dr Young), and defensive. He gave the impression that he was keen to dissociate himself from anything controversial. He had the disadvantage of having to give evidence by telephone on a bad line but, even taking that into account, his answers to questions were often unresponsive in the sense that he tended to provide answers that sought to explain what he perceived were inferences about his own practice rather than giving an answer to the question asked.
5. Dr Balakumar also strongly denied that he had ever used, or had ever told Dr Young that he had used, PRP to treat Perthes Disease in a paediatric patient. He rejected Dr Young's evidence to the contrary. He agreed that he used PRP to treat paediatric patients for a range of conditions and that he had used PRP extensively, but not for Perthes disease. He said:

I've treated lots of Perthes' patients, but I've never treated a Perthes patient with PRP and I have not said that to Dr Young.[68]

1. Dr Balakumar said that he was sure that he did have a conversation with the applicant in relation to Perthes Disease.[69] He said:

I have never validated the use of PRP in this setting, but you know I've discussed things about PRP in general with Dr Young and Dr Hocking, but with that specific question in mind, no, I have never said to him that he should use it.

1. He explained at length why he thought that the use of PRP in that setting was inappropriate by giving a detailed explanation of how it works. He provided a different perspective of the effect of PRP than all the other medical witnesses - referring to it as a treatment that was directed at healing processes and not at reducing inflammation. He said:

...certainly at this stage, my fear is by injection PRP into someone with Perthes, that I will actually ramp up the inflammation, analogous to throwing fuel on a fire, and make the Perthes dramatically worse, sublux the hip further and result in a very difficult situation to treat in the future...[70]

1. I prefer the evidence of Dr Balakumar to that of Dr Young in so far as it relates to the assertion that Dr Balakumar has used PRP to treat Perthes Disease given his detailed explanation as to why he would not use PRP for that purpose. I find that Dr Balakumar has not used PRP to treat Perthes disease.
2. This does not indicate a finding that Dr Young's evidence on this point was a lie. When he gave evidence, Dr Young consistently identified Perthes Disease as the same as chronically inflamed hip joints in the paediatric age group. I am satisfied that it is likely that Dr Young misinterpreted conversations with Dr Balakumar.
3. This does mean that I cannot find that Dr Balakumar specifically advised the applicant to use PRP for the treatment of A. The absence of a reference to PRP in the applicant's 31 October 2012 letter to the General Practitioner supports this.
4. Assessing the evidence of the applicant, Dr Young and Dr Balakumar, I find that the applicant spoke to Dr Young and to Dr Balakumar about, and observed Dr Young's use of, PRP. I find that the applicant talked to Dr Young and to Dr Balakumar about A and that as a result of those conversations and observations, he decided to treat A with PRP. I find that he believed that such a course of treatment was supported by Dr Young and by Dr Balakumar.

Is there a serious risk and if so, what is it and what immediate action is necessary?

1. Professor Little's evidence and that of Dr Mei-Dan, Dr Young and Dr Balakumar demonstrates the complexity of Perthes Disease, the complexity of treatment decisions about it, particularly in relation to a growing child and the lack of agreement at the highest levels about treatment.
2. The evidence before the Tribunal shows a general acceptance that the use of platelet rich plasma to treat a paediatric patient with Perthes Disease is unlikely to do harm to the patient although, in the absence of clinical experience, it is not clear that it will be of any benefit. Dr Balakumar has a concern that it might be harmful.
3. There was no documented evidence of clinical experience or anecdotal evidence of clinical experience of the use of and the effect of PRP for Perthes Disease and it should be regarded as a novel treatment for that purpose. In those circumstances, a clinical decision to use PRP as a treatment for a paediatric patient with Perthes Disease involved a significant clinical decision.
4. In this case, the patient was not harmed and may have benefited by a reduction of symptoms but that is not a conclusion that can be confidently drawn, nor does it reduce the importance of the clinical decision.
5. The applicant's treatment of A up until his use of PRP, demonstrated an understanding of the treatment of Perthes Disease generally. He spoke to more senior and relevantly experienced practitioners about A and as a result, made a clinical decision to use PRP as a treatment. He must have been aware that this was a significant clinical decision - L gave evidence that the applicant told her that it was a decision to give experimental treatment. The decision to speak to other practitioners about A was prudent, but the evidence does not support a conclusion that this was a detailed, careful and well considered consultation.
6. The applicant's practice was subject to restrictions and he was under a considerable degree of scrutiny during the relevant period. He must have been aware that the Medical Board held concerns about him. It was ill-considered to proceed with a novel treatment of a child in those circumstances.
7. The Tribunal reasonably believes that this was conduct that poses a serious risk to paediatric patients with Perthes Disease. I acknowledge that A was not harmed and that there is general agreement that PRP is, as an autologous product, unlikely to cause harm. The risk here is not related to the use of PRP per se, but to the decision-making process that lead to its use.
8. The Tribunal accepts Professor Little's conclusion that:

If there is a problem here...it was the adoption of an unproven technology in a new clinical area by an individual in part-time solo practice.

and adds to that; by an individual whose clinical practice was subject to restrictions and scrutiny at the relevant time.

1. On one view, a risk that arises from clinical decision-making is a broad risk that can only be adequately addressed by a broad response such as suspension. But, in the context of immediate action and given that the evidence before the Tribunal was about one incident and not a series of ill-considered decisions, the Tribunal could not be satisfied that such a broad response is necessary to protect public health and safety.
2. A condition that addresses the circumstances of this case is however, necessary. Because the expert witnesses did not discount the possibility of the use of PRP as a treatment for Perthes Disease in the future and because innovation is important for the development of new treatments, the Tribunal is satisfied that the imposition of a condition that prohibits the applicant from using PRP to treat paediatric patients with Perthes Disease unless supervised by a specialist approved by the Medical Board, is the necessary action to protect public health and safety. It is also consistent with Professor Little's conclusion.
3. A decision is made to impose a condition on the applicant's registration prohibiting him from treating paediatric patients who have Perthes Disease with platelet rich plasma, unless he does so under the supervision of a specialist orthopaedic surgeon approved by the respondent Board.

[1] The history of various notifications is set out in the decision of Chief Justice Murrell in Hocking v Medical Board of Australia & Anor [2014] ACTSC 48

[6] [2013] QCAT 392 at [18]

[7] [2012] VCAT 123 at [5]

[8] [2012] VSCA 295

[10] Health Practitioner Regulation National Law Act 2009 (Qld)

[11] Gomes v Tasmanian Board of the Medical Board of Australia [2014] TASHPT 3

[12] _Hocking v Medical Board of Au_stralia [2014] ACTSC 48 at [121]

[14] [2012] VCAT 1613 at [4]

[15] Respondent's submissions paragraph 8

[16] [2012] FCA 679

[17] [2012] FCA 679 at [65]

[18] Respondent's submissions paragraph 8

[19] Applicant's submissions paragraph 1.8

[20] For example, Health Records (Privacy and Access) Act 1997 (ACT); Privacy Act 1988 (Cth)

[23] See also V1 and Medical Board of Australia [2011] ACAT 42, Veness v Medical Board of Australia [2011] ACAT 55 and Commissioner for Fair Trading and Felton [2013] ACAT 47

[27] [1979] FCA 21; (1979) 24 ALR 307 See also Kennedy v Administrative Appeals Tribunal [2008] FCAFC 124; (2008) 168 FCR 566 at [22]

[28] [2008] FCAFC 73; (2008) 167 FCR 578 at [39], see also Tamberlin J at [21]

[29] [2011] VSCA 266 at [30]- [32], see also Maxwell P at [66]

[30] s88, ACAT Act

[32] [2012] VSCA 295 at 119

[33] See the consideration of this by Weinberg JA in Sudi at [231]-[264]

[34] The history of notifications and actions is summarised in Hocking v Medical Board of Australia [2014] ACTSC 48 at [7] and set out in detail in Ex 5, Affidavit of Shane Logan

[38] Mr Logan was questioned at length about the information about previous and current notifications and actions before the Board

[55] T 16/9 p 67 l. 43 and p. 68 l. 37-42

[66] T19/9 p. 173 l. 18-44 and R3 paras 15, 17-18