1. Counsel for Mr Lal invited us to accept the evidence of Professors Kyrios and Ball, and reject Dr Neill's evidence. A number of points were advanced in support of this submission, the most pertinent being:

- Dr Neill's report contains a number of factual errors (eg. the age of Mr Lal's daughter), suggesting that she may have been rushed; and

- Professors Kyrios and Ball have a far more intimate understanding of Mr Lal's condition, having treated him over many years, whereas Dr Neill only had one 75 minute session with Mr Lal.

1. We are not persuaded that Dr Neill's evidence in respect of this issue should be rejected, indeed we accept her evidence and prefer it to the evidence of Professors Kyrios and Ball. We have adopted this course for these reasons:

- the 'errors' in Dr Neill's report were either inconsequential or were satisfactorily addressed during the course of her oral evidence;

- it seemed to us that during the course of his oral evidence, on at least one occasion, Professor Kyrios appeared to become an advocate for Mr Lal with a consequent loss of detachment, perhaps understandably so given his long involvement in Mr Lal's treatment;

- the relative OCD expertise of Dr Neill and Professors Ball and Kyrios is not decisive on this particular issue (ie. the extent of Mr Lal's empathy and remorse); and

- there is other evidence which supports Dr Neill's opinion, and to which we now turn.

1. Dr Neill's conclusion regarding Mr Lal's lack of remorse or empathy derives some support from Professor Singh's report of 19 August 2003 in which he noted that Mr Lal:

"... still has features of obsessional personality traits manifest in a rather pedantic method of presenting his material, and a somewhat mechanistic understanding of what has transpired" (emphasis added).[31]

1. Professor Singh's report suggests that Mr Lal's insight into his wrongdoing is somewhat mechanical and impersonal.
2. In this context we also note that it emerged during the oral evidence of Mr Lal and Professor Kyrios that Mr Lal either denied the factual basis of some of the offences in question or had no memory of them, in particular:
   • in respect of the digital rape he believed that he had the complainant's consent to carry out the pap smear but subsequently accepted that she may not have consented;
   • he has no memory of the indecent assault - he recalls going to the complainant's residence but has no memory of what happened once he entered the premises;
   • he has no memory of the assault involving the female pharmaceutical representative on 23 April 2001 (he can recall the details of the other assault on 16 March 2001).
3. We note that memory deficits such as those experienced by Mr Lal are a common phenomenon amongst people with OCD[32].
4. Despite either disputing the factual basis of some of the offences or having no memory of them Mr Lal expressed remorse in respect of all of the past offences.
5. Mr Lal's lack of empathy or remorse is illustrated by two particular matters.
6. The first is that during his interview with Dr Neill Mr Lal could not recall the name of his patient who had been the complainant in respect of the three most serious of the offences for which he was convicted in the County Court (the digital rape; the indecent assault and attempting to pervert the course of justice). He also sought to minimise his wrongdoing by referring to the digital rape as the 'pap smear incident'.
7. The second matter concerns the way in which Mr Lal characterised his assault on the two pharmaceutical representatives in March and April 2001. In his report of 19 August 2003 Professor Singh says:

"In answers to my very specific questions about the incidents with the pharmaceutical representatives, Dr Lal was open in admitting that these had occurred but when I specifically asked him why he had not raised them with his therapist he said that from his point of view they were relatively minor. He had had a sense that perhaps he had been inappropriate in his behaviour, but given these were not patients had not felt that these misdemeanours would have the same significance as his previous behaviour."

1. In his explanation for his failure to inform his therapists of these assaults in a timely way Mr Lal is seeking to minimise his wrongdoing. This suggests that he does not appreciate the seriousness of these matters.
2. Mr Lal's deficits in terms of empathy and remorse are troubling. But they must be viewed in the context of the evidence as a whole. There are a number of matters which speak well for Mr Lal's character, in particular:
   • through diligence and application he overcame difficult personal circumstances to establish a large and successful medical practice; and
   • he has a significant degree of community involvement and has made a pro bono contribution to the training of overseas doctors.
3. It must also be acknowledged that when Mr Lal had OCD it manifested as sexual obsessions; given that OCD is characterised by unwanted intrusive thoughts the manner in which the illness manifested itself in Mr Lal's case gives some insight into his character. The sexual obsessions Mr Lal experienced as a consequence of his illness were unwanted and personally repugnant; suggesting that absent the illness Mr Lal is a moral person.
4. Mr Lal's past practice as a medical practitioner is also relevant. As Professor Ball observed, Mr Lal established a large and successful practice and had many patients who remained loyal to him over time, which suggests that he had ability and no obvious character flaws.
5. Character references were submitted on behalf of Mr Lal as evidence of his good character and his competence and compassion as a medical practitioner.
6. Having regard to all of the circumstances we are not persuaded that Mr Lal's character is such that it would not be in the public interest to allow him to practise. We acknowledge Mr Lal's character flaws - in terms of his deficits in empathy and remorse - but in our view these can be addressed by the imposition of a range of conditions on his registration and do not warrant the denial of registration.

1. The ground in section 6(2)(c) is, relevantly, that the applicant is unfit to be registered because he has a mental impairment which impairs his ability to practise. The use of the expression 'has a ... mental impairment' suggests that the impairment in question must be one that the applicant currently suffers.
2. In these proceedings it is common ground that Mr Lal no longer has a mental illness. He no longer has OCD. As Professor Kyrios put it, OCD is characterised by the presence of intrusive thoughts of an unwanted nature with or without associated compulsions. Absent these symptoms Mr Lal does not have OCD.
3. The Board contends that Mr Lal currently has obsessive compulsive personality disorder (OCPD). It is submitted that the combination of Mr Lal's present condition and the risk of OCD relapse constitutes a 'mental impairment' within the meaning of s 6(2)(c) which impairs Mr Lal's ability to practise as a health practitioner.
4. There is a conflict in the expert opinion about whether Mr Lal currently has obsessive compulsive personality disorder (as suggested by Dr Neill) or obsessive personality traits (as suggested by Professors Kyrios and Singh). But it is unnecessary for us to resolve that conflict because even if we accept that Mr Lal has OCPD, there is simply no evidence to suggest that such a condition impairs his ability to practise as a medical practitioner. Indeed Professor Ball's evidence was that Mr Lal's personality disorder had not impaired his ability to practise as a general practitioner. We are not persuaded that Mr Lal's OCPD impairs his ability to practise as a health practitioner.
5. Nor are we persuaded that the risk that Mr Lal may have an OCD relapse can be said to impair his ability to practise.
6. The impairment ground in s 6(2)(c) is expressed in the present tense, ie the applicant 'has a ... mental impairment'.
7. We have already indicated that there is a low risk that at some future time Mr Lal may have a relapse of OCD. But the fact that Mr Lal might in the future, have a mental impairment which impairs his ability to practise as a medical practitioner is a long way from establishing that Mr Lal 'has a ... mental impairment'.
8. Nor does the combination of OCPD and the risk of OCD relapse add anything. By themselves each factor is insufficient to establish the impairment ground. Dealing with the factors in combination does not advance the position. We are not persuaded that there is necessarily a link between OCPD and the risk of a relapse of OCD. But even if there were such a link, OCPD would only be relevant in estimating the probability of relapse. We have already concluded that the risk of relapse is small, but significant. However, a risk of acquiring a mental impairment in the future is insufficient to establish that Mr Lal 'has a ... mental impairment' within the meaning of s 6(2)(c).
9. We are not persuaded that Mr Lal is unfit to be registered because he has a mental impairment which impairs his ability to practise as a health practitioner.

1. The ground in section 6(2)(d) has the following elements:
   • the applicant has been found guilty of an offence; and
   • the suitability of the applicant to practise is likely to be affected because of the finding of guilt; or
   • it is not in the public interest to allow the applicant to practise because of the finding of guilt.
2. The first element of this ground is not in dispute.
3. On 20 December 2002 Mr Lal pleaded guilty and was convicted of:
   • indecent assault;
   • digital rape;
   • attempting to pervert the course of justice; and
   • two counts of assault.
4. Mr Lal was sentenced to a total of two and a half years imprisonment, wholly suspended for three years, and fined $1000 in respect of each count of assault.
5. The next two elements of the ground are put in the alternative.
6. In considering whether the 'offence ground' is made out it is relevant to consider the nature of the offending behaviour; the applicant's moral culpability for the offending; and the applicant's rehabilitation and remorse for the offending behaviour.
7. The offences committed by Mr Lal are manifestly very serious. The complainant in respect of the first three offences was a patient of Mr Lal's. Members of the public have a right to expect that the trust they repose in medical practitioners is not breached in such an egregious way.
8. The two assaults did not involve patients, but did occur in the course of Mr Lal's professional duties.
9. It is also relevant to note that Mr Lal's offending conduct occurred in two discrete periods. The repetition of what may euphemistically be called 'boundary issues' with women is particularly serious.
10. Mr Lal's moral culpability for the offences to which he pleaded guilty is a relevant consideration.
11. Impaired mental functioning may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility[33].
12. In his sentencing remarks Judge Williams said:

"... the opinions of Professor Ball, Dr Kyrios, Dr Bruce Singh and Dr Savage, ... were all to the effect that you suffered from obsessive compulsive disorder through this offending period and that this significantly diminished your powers of judgment and decision making and importantly diminished your responsibility for your offending behaviour. Dr Kyrios put it as high as saying by 95 per cent. He added that it was quite normal for OCD sufferers to hide their problem and keep it secret even from loved ones. I must say that I found this topic very complex and indeed I think it is fair to say that the doctors themselves find it complex and do not fully understand it. At times I felt that this diagnosis was held out as a convenient excuse for every form of aberrant behaviour that was put to them about you and it may have been evident from my questioning of Dr Kyrios that to some extent I held a sceptical attitude about this factor in your case. however, suffice it to say in the end that I can hardly reject this powerful body of evidence of the diagnosis itself; in other words, that you did suffer from OCD at the relevant time and indeed they say you still do, albeit controlled by treatment. And I can hardly reject the powerful body of evidence that this condition does affect your judgment and decision making and does result in pressures to react in a compulsive way to certain obsessive thoughts, and to some extent perhaps not insignificant, (although I am certainly not going to be drawn into putting a percentage on it), but suffice to say that to some extent and perhaps not insignificant, it does diminish your responsibility for your actions. I should point out perhaps in some form of justification for that conclusion that the Medical Board clearly accepted the same conclusion. Its findings which I have read indicate that it found the evidence of Professor Ball and Dr Kyrios to be "compelling" and explanatory of your uncharacteristic conduct over the period. More importantly, I should say, so too does the Crown accept that this condition of obsessive compulsive disorder did exist and did have an effect on your culpability, and the Crown conceded that you were at the relevant time suffering from that psychiatric disorder."[34]

1. In his evidence Professor Ball said that the offences were the product of his illness which subverted his professional standards and behaviours.
2. Dr Neill is of the opinion that Mr Lal's OCD 'materially contributed to his past boundary violations'.[35]
3. Mr Lal suffered from a mental illness (OCD) at the time he committed these offences and the weight of expert opinion supports a finding that his offending was largely the product of his illness. As a consequence Mr Lal's moral culpability for the offending conduct is substantially reduced.
4. Mr Lal's rehabilitation in respect of the offences is less than complete. This is manifested by a deficit in empathy with respect to the victims of his offending and in a lack of insight into his wrongdoing. We have already made mention of these matters in the context of the character ground.
5. The serious nature of the offences and the limited extent of Mr Lal's rehabilitation would ordinarily warrant findings that:
   • ➢ the offences are likely to affect the applicant's suitability to practise; or
   • ➢ it is not in the public interest to allow the applicant to practise.
6. Absent our conclusion in relation to Mr Lal's moral culpability we would have made such findings in this case.
7. But these offences were largely the product of the mental illness from which Mr Lal suffered at the relevant time and accordingly Mr Lal's moral culpability for the offending conduct is substantially reduced.
8. Having regard to all the circumstances we are not persuaded that Mr Lal's suitability to practise is likely to be affected because of the offences of which he has been found guilty. Nor are we persuaded that it is not in the public interest to allow Mr Lal to practise because of these findings of guilt. Accordingly, we are not satisfied that the offence ground is made out.
9. Our conclusion in respect of Issue 1 is that there are no grounds under s 6(2) of the 2005 Act to refuse to grant general registration to Mr Lal.

Issue 2: If there are grounds to refuse registration how should the Tribunal exercise its discretion?

1. The precondition to the exercise of the discretion to refuse registration is the establishment of one or more of the grounds specified in s 6(2). We have concluded that there are no such grounds and accordingly the occasion for the exercise of the discretion does not arise.[36]

Issue 3: What conditions, if any, should attach to the grant of registration?

1. In the event that the Tribunal were to grant Mr Lal general registration the expert witnesses canvassed a range of possible conditions.
2. Professor Kyrios saw no need for the imposition of any condition on Mr Lal's general registration. In this report of 16 June 2008 Professor Kyrios indicates that there are 'no reasons relating to mental health or character that would disallow Dr Lal from returning to unrestricted full time medical practice at the earliest possible opportunity' [emphasis added][37].
3. Professor Kyrios felt that a requirement that Mr Lal have a chaperone when he consults female patients was 'good clinical practice' but unnecessary because Mr Lal does not suffer from a mental health problem.
4. Professor Ball felt that Mr Lal's return to work should be in some sort of group practice environment in which the senior practitioner was fully briefed about Mr Lal's past behaviours. If necessary a condition should be imposed that Mr Lal have nothing to do with women.
5. Dr Neill considered that the following conditions would be appropriate:
   • works in a group practice where there is an on-site supervisor who is fully informed of his past history and vulnerabilities;
   • does not consult to female patients/carers of any age;
   • is employed with a restriction of working 40 hours a week;
   • undertakes further counselling specific to:
     1. psycho-education
     2. social behavioural or interpersonal psychotherapy to address communication and empathy deficits;
   • during any monitoring phase of psychiatric/psychological consultations, Mr Lal maintains a diary for a sample period during the appointment interval, of the occurrence of obsessions, compulsions and neutralising responses;
   • the treating psychiatrist/psychologist and supervisor report to the Medical Practitioner's Board of Victoria[38].
6. In his latest report, of 12 June 2007, Professor Singh says:

"I believe that given his history of OCD he should have continued monitoring by his therapists. It would be good practice for him to have a chaperone for any physical examination of females. In addition I would recommend some degree of overview of his practice by a senior and experienced General Practitioner or specialist. I also think that were the Board to grant Dr Lal registration he should ease himself back into practice i.e. start practice part time so that his therapists can monitor how he copes with the psychosocial stress of practice as well as media publicity that may well result."[39]

1. During the course of his examination in chief Mr Lal said that the imposition of conditions was not necessary but he would accede to any restrictions imposed by the Tribunal.
2. In cross examination Mr Lal was asked about his attitude to a range of possible conditions on his right to practise. He indicated his acceptance of the following conditions, if deemed appropriate by the Tribunal:
   • working in a group practice;
   • limited to 40 hours per week;
   • ongoing counselling;
   • maintaining a diary for a specified period (agreed if necessary and recommended by his therapist); and
   • his therapist to submit regular reports to the Board.
3. In relation to a proposed restriction on his right to consult female patients Mr Lal indicated that he would 'possibly not' accept such a condition, though he would accept it during a trial period.
4. The Board submitted that the conditions canvassed in evidence may individually or in combination amount to conditions which are inconsistent with the true nature of medical practice. The gravamen of this submission was that any finding as to the need for conditions excluding the applicant from examining female patients or requiring a chaperone to be present, demonstrated that he was in fact unfit to practise. In support of this proposition the Board relied on the following extract from the Tribunal's decision in Pettiford v Medical Practitioners Board of Victoria:[40]

"[59] We have heard plea material from Mr Morrison suggesting that he be granted registration with conditions which would limit his practice to deal only with male patients. We have also read material which has been filed which deals with his past good character.

[60] We have also given consideration to a number of cases which were provided by Mr Morrison. Each case, of course, depends upon its own facts. We agree that his conduct could be such as to be of a kind that a disposition other than cancellation would be open.

[61] However, having considered all of the matters, our response is brief. We concur with the sentiments in the Litchfield decision where at p.639 paragraph (f) Gleeson CJ (as he then was) said as follows:

"The majority thus found that the appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity of imposing such a condition upon the appellant's registration demonstrates that he is unfit to practise medicine."

[62] The Tribunal finds that the applicant's behaviour and professional standards falls within that category. To impose the condition suggested by Mr Morrison that he only treat male patients in our view clearly demonstrates that he is unfit to practise as a medical practitioner."

1. The practitioner in Pettiford's case had been involved in a sexual relationship with a patient for a period of about 15 months and had engaged in 'boundary violations' with two other female patients. These behaviours went to the intrinsic character of the practitioner. In such circumstances a finding that he was unfit to practise was entirely appropriate.
2. But the circumstances in the present matter are quite different. There is no suggestion that Mr Lal is usually disposed to boundary violations with female patients. Rather there is a risk that he may have a relapse of a mental illness which may result in aggressive and inappropriate behaviour towards women. It is that risk to the public to which the conditions we propose are directed; not to any inherent weakness in Mr Lal's character.
3. In the event that we were minded to impose conditions on Mr Lal's registration the Board identified a range of health; employment; monitoring and counselling conditions which it submitted would be appropriate. Mr Lal was given the opportunity to comment on the conditions proposed by the Board but chose not to do so.
4. Having regard to the need to protect the public and risk that Mr Lal may have a relapse of OCD which may result in aggressive and inappropriate behaviours towards women we intend to impose a range of conditions on Mr Lal's registration.
5. Importantly the conditions limit the number of clinical contact hours per week; make provision for supervision and support; and provide that Mr Lal is not to consult with any female patients or children under 16 years of age. The reason for the latter restriction is that children are often accompanied by their mother when attending a medical practitioner. Indeed some of Mr Lal's past boundary violations have involved women who attended his practice with their young sick children.
6. Many of these conditions are similar to those previously imposed by the Board. They are intended to reduce the risk of a relapse (by limiting contact hours, and hence the associated stress, and providing for appropriate on going professional support) and protect the public in the event of a relapse (by active monitoring and supervision, and by restricting Mr Lal's clinical contact to male patients aged 16 years and over)[41].
7. The conditions we intend to impose are set out in the attached document, marked Annexure A. It is our intention that the conditions specified operate for a period of three years after which time they may be reviewed by the Health Committee of the Medical Practitioner's Board of Victoria.
8. Finally, Mr Lal should give consideration (in consultation with his treating health practitioners) to joining a Balint group and we would also encourage him to go ahead with his intention of sitting the FRACGP examination.

Conditions imposed on Mr Lal's Registration pursuant to s 6(3) of the Health Professions Registration Act 2005

1.1 to attend a treating psychiatrist (or other health practitioner(s) nominated by the Health Committee) in order to receive medically indicated services at a frequency to be determined by the treating health practitioner.

1.2 to authorise the treating psychiatrist (or other health practitioner(s)) referred to in 1.1 and the Health Committee of the Medical Practitioners Board of Victoria ("the Health Committee") to communicate about his condition and to ensure the Health Committee receives a report from his treating health practitioner every 2 months for the first 6 months and thereafter at a frequency to be determined by the Health Committee.

1.3 to attend a general practitioner in order to receive medically indicated services at a frequency to be determined by the treating general practitioner.

1.4 to authorise the treating general practitioner referred to in 1.3 to communicate with the Health Committee about his condition and treatment.

1.5 to inform the Health Committee as soon as possible in the event of his hospitalisation.

2.1 to work only in a group practice or public hospital approved by the Health Committee with one other medical practitioner always in attendance while Mr Lal is practising.

2.2 to work only with the following restrictions on his medical practice:

• not to work as a locum tenens
• not to exceed 25 hours of clinical contact per week
• not to work after hours without another medical practitioner in attendance

2.4 not to consult with any children under 16 years of age, as patients.

2.5 to obtain Health Committee approval prior to changing the nature or place of his medical practice.

2.6 to ensure that the senior partner of the practice and Practice Manager/Director of Medical Services is aware of the conditions on his registration by providing those persons with a copy of these conditions and a copy of the Tribunal decision in this matter and to provide the Health Committee with a statement from the appropriate persons that those conditions have been received by them.

2.7 to work with a supervisor nominated by the practice principal or Director of Medical Services and approved by the Health Committee, and to provide that supervisor with a copy of the conditions on his registration.

2.8 to ensure that the Health Committee receives a work report from the senior partner of the practice/Director of Medical Services/approved supervisor every 2 months for the first 6 months and thereafter 3 monthly, or more frequently if the Health Committee deems necessary.

2.9 to authorise the Senior Partner/Director Medical Services/work supervisor and the Health Committee to communicate about his work performance.

3.1 to attend for examination by a psychiatrist or other health practitioner appointed by the Health Committee as and when the Health Committee deems it necessary.

3.2 to authorise the Health Committee to forward copies of information relevant to his health to the Health Committee appointed practitioners and treating practitioners.

3.3 to provide a statutory declaration to the Health Committee, addressed to the Compliance Coordinator, by the fifth day of each calendar month declaring that he has complied with the conditions on his registration at all times throughout the preceding month.

4.1 to undergo counselling by a psychiatrist or other health practitioner approved by the Health Committee specific to:

(2) social behavioural or interpersonal psychotherapy to address communication and empathy deficits

In no less than six sessions over a period of 12 months, at his expense.

4.2 to ensure that the psychiatrist or other health practitioner approved by the Health Committee provides a report to the Health Committee at the conclusion of the counselling sessions, at his expense.

5.1 These conditions are to be reviewed by the Health Committee after they have been in operation for a period of three years. Save that the limitation on the number of clinical contact hours in paragraph 2.2 may be reviewed by the Health Committee after they have been in operation for a period of two years.

[1] Dr Sabi Lal [2003] MPBV 32 at [88]

[2] Herald and Weekly Times Pty Ltd v VCAT & Ors [2006] VSCA 7 (9 February 2006), at [27] per Maxwell P.

[4] See generally Casey v Galimberti & Ors [2006] VSCA 232 (1 November 2006) at [5]-[6] per Maxwell P.

[5] 'Statutory Interpretation in Australia', 5th Edition, D.C Pearce and R.S. Geddes at [11.33] on p 294

[6] [1988] VicRp 52; [1988] VR 444 at 447

[7] [1988] VicRp 82; [1988] VR 904 at 913

[10] [1930] VLR 75 at 30

[18] Tribunal Book, Tab 3 (Annexures (a), (b) and (c)) and Tab 4, at pp 12-21 and 155-156

[19] Tribunal Book, Tab 45 at pp 521-576

[24] V Starcevic and V Brakoulias 'Symptom sub type of obsessive - compulsive disorder - are they relevant for treatment?' in the Australian and New Zealand Journal of Psychiatry 2008, Vol 42 pp 651-652; Exhibit A4.

[25] D McKay et al 'A critical evaluation of obsessive - compulsive disorder subtypes: Symptoms versus mechanisms' in Clinical Psychology Review 24 (2004) 283-313.

[32] Exhibit A3, Transcript of proceedings before the Board on 20 March 2000 at p31.

[33] R v Verdins [2007] VSCA 102 (23 May 2007) at [32]

[36] Medical Practitioners Board of Victoria v McGoldrick [1999] VSCA 215 at [20].

[40] [2003] VCAT 940 at [59] - [63]

[41] Save that the limitation on clinical contact hours may be reviewed after two years.