Professional misconduct - Incompetence - Poor medical practice - Sexualised behaviour - Breach of professional boundaries - Cancellation - Disqualification from applying for registration

Health Practitioner Regulation National Law (WA) Act 2010, s 3, s 5, s 39, s 41, s 193(1)(a)(i), s 195, s 196(1)(b)

State Administrative Tribunal Act 2004 (WA), s 87, s 87(2)

Practitioner disqualified from applying for registration for two years

The Tribunal determined that Dr Gregory Duck's conduct amounted to professional misconduct involving serious breaches of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia' and the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors', which included incompetence, poor medical practice, not maintaining appropriate professional boundaries and sexualised behaviour.

The Tribunal ordered that Dr Duck's registration be cancelled and he be disqualified from applying for registration as a medical practitioner for a period of two years from the date of the Tribunal's order.

A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253

Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

HCCC v King [2011] NSWMT 5

Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408

Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194

Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124

Legal Profession Complaints Committee and Leask [2010] WASAT 133

Legal Profession Complaints Committee and Wells [2014] WASAT 112

Legal Profession Complaints Committee v Brickhill [2013] WASC 369

Legal Profession Complaints Committee v Detata [2012] WASCA 2014

Legal Profession Complaints Committee v Love [2014] WASC 389

Legal Profession Complaints Committee v Masten [2011] WASC 71

Legal Profession Complaints Committee v Segler [2014] WASC 159

Medical Board of Australia and Myers [2014] WASAT 137 (S)

Medical Board of Australia and Veettill [2015] WASAT 124 (S)

New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279

New South Wales Bar Association v Hamman [1999] NSWCA 404

NOM v Director of Public Prosecutions (2012) 38 VR 618

Quinn v Law Institute of Victoria [2007] VSCA 122

Re A Practitioner (1984) 36 SASR 590

Re Maraj (a Legal Practitioner) (1995) 15 WAR 12

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159

1 On 17 June 2015, the Medical Board of Australia (the Board) filed an application under the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law) (Schedule s 193(1)(a)(i)) against Dr Gregory Duck.

2 On 21 October 2016, the parties filed an agreed statement of facts (Exhibit D). The Board's bundle of documents dated 22 September 2015 was admitted as Exhibit A. Dr Duck's bundle of documents was admitted as Exhibit B.

3 The facts having been agreed, the Tribunal is required to determine whether, pursuant to s 196(1)(b) of the National Law, Dr Duck has behaved in a way that constitutes professional misconduct and/or unprofessional conduct and/or unsatisfactory professional performance as defined in s 5 of the National Law.

4 The Board bore the onus of proof. In Legal Profession Complaints Committee and Wells [2014] WASAT 112 at [8] and [9], the Tribunal stated:

The Committee bears the onus of proof. It is to the civil, not criminal standard but the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the practitioner is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].

(See also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 (Rejfek))

5 In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362, Dixon J, as he then was, observed '[i]n such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony or indirect inferences'.

6 The standard of proof required in a civil case where serious allegations are made was stated in Rejfek, where Barwick CJ, Kitto, Taylor, Menzies and Windyer JJ observed at 521 that:

The 'clarity' of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved ...

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused.

7 In NOM v Director of Public Prosecutions (2012) 38 VR 618 at [124], the Victorian Court of Appeal stated:

... mere mechanical comparison and probabilities independent of a reasonable satisfaction will not justify a finding of fact. The fact finder must feel an actual persuasion of the occurrence or existence of the fact in issue before it can be found. Where, as in the present case, the standard of proof is to be applied to circumstantial evidence, satisfaction as to a reasonable and definite inference is required.

8 The term 'professional misconduct' is defined in s 5 of National Law as conduct which includes:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]

9 The first and second limbs of the definition of 'professional misconduct' incorporate the term 'unprofessional conduct' which is in turn defined in s 3 of the National Law as:

[P]rofessional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers[.]

10 Section 3 of the National Law provides that unprofessional conduct of a registered health practitioner means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes:

(a) [a] contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention[.]

11 The term 'unsatisfactory professional performance' is defined in s 5 of the National Law as meaning:

[T]he knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]

12 The relevant authorities are set out in the reasons for decision of Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113:

1. Interpretation of the legislation is assisted by the body of common law in the area of professional disciplinary matters. The classic common law definition of professional misconduct derives from Allinson v General Counsel of Medical Education and Registration (1894) 1 QB 755, namely:

[Conduct] which could be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.

1. The essence of this definition was restated by Priestley JA in Qidwai v Brown (1984) 1 NSWLR 100 at 105:

... whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence[.]

1. Contemporary cases involving unsatisfactory professional conduct and professional misconduct primarily consider the wording of the relevant statute rather than the considerations of moral condemnation found in earlier decisions, expressing their views 'in terms of strong criticism'. (Lucire v Health Care Complaints Commission [2011] NSWGA 99 at 84; Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705).

1. Dr Duck is a registered health practitioner, specifically a medical practitioner, pursuant to the National Law.
2. Patient A consulted Dr Duck on 5 December 2012 at which time he obtained a history regarding her methadone use (the first consultation).
3. Dr Duck recorded in his notes for the first consultation that Patient A was on Alprazolam (Xanax) in Melbourne and had asked for more. Benzodiazepines and methadone were also discussed. Dr Duck prescribed Xanax 2 milligrams Tablets and Quetiapine (Seroquel) 100 milligrams Tablets.
4. Patient A consulted Dr Duck again on 10 December 2012, at which time he noted that Patient A had told him her wallet and prescriptions had been stolen. Dr Duck prescribed Xanax 2 milligrams Tablets and Seroquel 100 milligrams Tablets again.
5. Dr Duck consulted Patient A on the following dates:

1. 5, 10, 17, 19 and 20 December 2012; 2. 2, 11, 15, and 23 January 2013;

1. 2, 5, 9, 13, 16, 22, 27 March 2013; 2. 3, 9, 16, 18, 26 April 2013; 3. 1, 10, 13, 14, 18, 31 May 2013; 4. 11, 17, 26, 27 June 2013; 5. 1, 8, 10, 18, 22, 24, 29 July 2013; 6. 12, 20, 26 August 2013; 7. 3, 5, 9, 10, 12, 14, 24, 27 September 2013; 8. 4, 7, 11, 14, 17 October 2013;

1. 6 January 2014; 2. 19, 26 and 27 February 2014; and 3. 4 and 26 March 2014.

1. Whilst at the Practice, Dr Duck prescribed Patient A the following medications:

1. Whilst at the Practice, Dr Duck prescribed Patient A the following medications:

1. On various occasions during the course of the treating period, Dr Duck:

1. wrote prescriptions for Patient A in her absence; 2. paid for and collected the prescribed medications for Patient A;

1. stored the drugs in a locked drawer in his office; and

1. dispensed the drugs to Patient A.
2. In or about April 2013, Dr Duck attended a conference in Sydney. Patient A requested clothing from a particular shop.
3. Upon returning to Perth and giving the dress and T­shirt to Patient A, Dr Duck then took photographs of Patient A wearing the clothing items.
4. On other occasions Dr Duck purchased items of clothing, including lingerie, for Patient A and photographed her wearing the clothing and lingerie.
5. Dr Duck invited Patient A to dinner and paid for her meals at various restaurants during the treating period.
6. On numerous occasions during the treating period Dr Duck bought Patient A books to read to her children, credit for her telephone, a hula-hoop, vitamin D tablets, probiotics, herbal preparations, and paid for some of her prescription medication.
7. On one occasion during the treating period Dr Duck was staying at a hotel in Perth and Patient A attended at his hotel room. Whilst at the hotel room:

1. Patient A took heroin; 2. Dr Duck found Patient A collapsed in the bathroom and carried her to the bed; and

1. Dr Duck remained in the hotel room alone with Patient A.
2. On some occasions during the treating period Patient A consulted with Dr Duck at his residential address and not the medical practice.
3. On other occasions during the treating period Patient A attended Dr Duck's residential home and played music, danced and fed Dr Duck's geese.
4. In January 2014, Dr Duck agreed to assist Patient A with a detoxification program.
5. Patient A did not attend any planning meetings with Dr Duck to discuss the planned detoxification program.
6. Dr Duck attended the hotel room alone and brought with him medication.
7. Patient A failed to participate in the planned detoxification program.

14 The Tribunal notes that the agreed facts do not include a concession that Dr Duck knew that Patient A was selling her prescription drugs illegally.

15 Pursuant to s 39 of the National Law, a National Board may develop and approve codes and guidelines to provide guidance to the health practitioners it registers.

16 Pursuant to s 41 of the National Law, a code or guideline approved by a National Board is admissible in proceedings under the National Law as evidence of what constitutes appropriate professional conduct or practice for the health profession.

17 Section 2.2 of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (Code of Conduct) (Tab 11 Exhibit A), relevantly states:

Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves:

2.2.1 Recognising and working within the limits of your competence and scope of practice.

...

2.2.4 Considering the balance of benefit and harm in all clinical­management decisions.

...

2.2.12 Ensuring that your personal views do not adversely affect the care of your patient.

18 Section 8.1 of the Code of Conduct (Tab 11 Exhibit A), states:

In professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct[.]

Professional boundaries are integral to a good doctor­patient relationship. They promote good care for patients and protect both parties. Good medical practice involves:

8.2.1 Maintaining professional boundaries.

8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law.

8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress.

20 The Board's 'Sexual Boundaries: Guidelines for doctors' (Guidelines), (Tab 12 Exhibit A), relevantly states in section 3:

sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire

A breach of sexual boundaries is unethical and unprofessional because it exploits the doctor-patient relationship, undermines the trust that patients (and the community) have in their doctors and may cause profound psychological harm to patients and compromise their medical care.

Power imbalance

The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a patient.

Trust

Trust is the foundation of a good doctor-patient relationship. Patients need to trust that their doctors will act in their best interests. It is a breach of trust for a doctor to enter into a sexual relationship with a patient. This breach of trust may impact on that patient's (or other patients') ability to trust other doctors.

22 An expert report dated 24 June 2016 (Exhibit C), was provided by Dr Alan Quigley, a registered medical practitioner and specialist in addictive medicine. His is the Director of 'Next Step', the Mental Health Commission's specialist alcohol and drug service. He has held that position since 1999. Dr Quigley's report states:

Statement 1 - Dr Duck failed to practice in accordance with Sections 8.1 and 8.2 of the Good Medical Practice: A Code of Conduct for Doctors in Australia by:

(a) not maintaining professional boundaries with Patient A;

I believe the behaviour outlined (b) to (i) makes it quite clear that Dr Duck did not maintain professional boundaries and an inappropriate relationship developed with Patient A.

(b) taking Patient A to dinner on about 10 occasions over a 12 month period;

I believe that in general it is inappropriate for a doctor to see patients with drug and alcohol problems outside of a surgery/clinic environment. To take a patient to dinner on about 10 occasions over a 12 month period is not good medical practice.

(c) buying Patient A clothes, lingerie and other gifts;

I think a doctor needs to be very cautious about providing clothing and other gifts to patients who are experiencing hardship. There are other agencies in the community that can provide patients with this support and assistance. The purchase of lingerie was inappropriate and I believe reflects the development of an inappropriate relationship with blurring of professional boundaries.

(d) paying for and collecting Patient A's prescription medication and keeping it in his office;

I think it is important that doctors distance themselves from the dispensing and supervised administration of medication that they prescribe. This is a service that is provided to patients by pharmacists and not something that a doctor treating a patient with an addiction problem should involve themselves with.

(e) photographing Patient A in the clothing that he purchased for her;

At Next Step the clerical staff take passport like photographs of patients head and shoulders for the purpose of patient identification. Occasionally photographs of a skin lesion or physical sign might be taken for teaching purposes. While I have not seen the photographs I think photographing the patient in clothing purchased for them was inappropriate.

(f) offering to pay for Patient A's dentistry work and computer hardware;

Doctors can see large number of patients who are very socio­economically disadvantaged and this can cause them some distress. There is however a need to maintain professional boundaries and appropriate relationships. I believe paying for a patient's dentistry work and computer hardware is not good medical practice. The doctor more appropriately should make every effort to secure the support of the health and social services that are available.

(g) consulting (on more than one occasion) Patient A at his residential address and not the medical practice;

I don't think it is appropriate for a doctor to consult at their residential address with a drug and alcohol patient unless there is a recognised surgery attached to the doctor's house. If a patient presents after hours at a doctor's house they should be referred to an emergency department or to the doctor's surgery during normal hours.

(h) allowing Patient A to visit his residential home and engage in activities not related to medical consultations;

There can be occasions where patients quite reasonably visit a doctor's home and engage in activities not related to medical conditions for example attending a child's birthday party when the doctor and patient's children attend the same school. I believe that visits by a patient to a doctor's home that involve the patient bringing their own music, dancing and the doctor purchasing a hula hoop indicate a lack of clear professional boundaries and the likelihood that an inappropriate relationship had developed.

(i) allowing Patient A to visit his hotel room whilst staying at the ... Hotel;

Allowing Patient A to visit his hotel room while staying at the [Hotel] was inappropriate and I believe confirms that a breakdown of professional boundaries had occurred and could only result in the perception that an inappropriate personal relationship had developed.

Statement 2: Did Dr Duck act in breach of the Medical Board of Australia's Sexual Boundaries: Guidelines for Doctors by engaging in sexualised behaviour with Patient A by:

(a) taking photographs of her in lingerie and clothing that he had purchased for her;

I have not seen the photographs taken by Dr Duck of Patient A however I note that Dr Duck has said in his correspondence that 'the photography was always a bad idea'. I believe that such photography would be a clear breach of the Board's sexual boundaries guidelines.

...

Statement 3: Did Dr Duck fail to practice in accordance with Section 2.2 of the Good Medical Practice: A Code of Conduct for Doctors in Australia in his treatment of Patient A?

I believe there are number of areas identified in the code where Dr Duck has demonstrated poor medical practice.

2.2.1 Recognising and working within the limits of your competence and scope of practice.

The treatment of patients with alcohol and other drug problems and complex personality disorders is not an easy undertaking in general practice. These patients require very clear professional boundaries. Whenever professional boundary issues begin to emerge these patients should be referred to, or be managed in close collaboration with, a specialist drug and alcohol service. I believe undertaking a detoxification program in a hotel room is outside the scope of practice for a general practitioner.

2.2.2 Ensuring that you have adequate knowledge and skills to provide safe clinical care.

I believe that while Dr Duck has undertaken some alcohol and drug training, he is in need of further training, clinical supervision and peer review of his clinical practice.

...

2.2.4 Considering the balance of benefit and harm in all clinical­management decisions.

I believe the decision to monitor Patient A and not call an ambulance following an overdose of heroin at the [Hotel] in Perth reflects very poor judgement in balancing possible benefit against harm.

2.2.5 Communicating effectively with patients (see Section 3.3).

I do not believe that Dr Duck effectively communicated to Patient A appropriate boundaries and the limits to care that she could expect him to provide.

2.2.6 Providing treatment options based on the best available information.

By 2012 most doctors working in the field of addiction medicine were aware of the problems (misuse and overdose death) resulting from the prescribing of Xanax to patients with alcohol and other drug problems. These concerns resulted in Xanax being moved from schedule 4 to schedule 8 in February 2014. Next Step's practice in 2012 was to immediately transfer patients who were using Xanax to diazepam rather than continue outpatient prescribing of Xanax.

2.2.7 Taking steps to alleviate patient symptoms and distress, whether or not a cure is possible.

I notice in his correspondence that Dr Duck contends that his biggest fault was trying too hard. Doctors need to recognise the limits to which they can assist patients and alleviate their symptoms of distress. In this case I believe Dr Duck's failure to recognise these limits has resulted in doctor patient boundary problems developing, and the perception of possible sexual assault.

2.2.8 Supporting the patient's right to seek a second opinion.

I believe as boundary problems emerged Dr Duck should have made strenuous efforts to encourage the patient to attend a specialist drug and alcohol service.

2.2.9 Consulting and taking advice from colleagues when appropriate.

Dr Duck reports that he discussed Patient A with colleagues and Dr Stephen Proud confirms in his statement that Dr Duck had discussed Patient A at a Balint Group. It is it however unclear what advice was given by colleagues and whether or not this advice was acted on by Dr Duck.

2.2.10 Making responsible and effective use of the resources available to you (see Section 5.2).

While it can be extremely difficult to engage some drug and alcohol patients in shared care with other health and welfare providers, I believe medical practitioners need to be very cautious about developing plans of management that substitute for good clinical care on a basis that the patient will not access the other resources that are available. I believe this problem has arisen in Dr Duck's treatment of Patient A.

2.2.11 Encouraging patients to take interest in, and responsibility for the management of their health and supporting them in this.

I understand Dr Duck thought he was seeking to achieve these outcomes for his patient. However I believe his behaviour resulted in his patient becoming dependent on him for the services and support that a general practitioner would not normally provide.

2.2.12 Ensuring that your personal views do not adversely affect the care of your patient.

I believe that Dr Duck's approach to providing drug and alcohol treatment to Patient A is at odds with the approach that would be taken by the medical staff at Next Step. I believe that this difference reflects personal views and not a sound evidence base.

Statement 4: Was the amount of Xanax prescribed to Patient A appropriate in the circumstances given that:

(a) 300 x 2 mg tablets were provided between 5 December 2012 and 2 January 2013, averaging approximately 10 tablets per day;

I don't believe that in 2012 it was appropriate for Dr Duck to prescribe Xanax to Patient A. I believe the patient should have been transferred to a long acting benzodiazepine such as diazepam either as an outpatient or a hospital inpatient. Patients often inaccurately report to doctors the amount of a drug that they are taking in the hope that the quantities provided will enable misuse of the drug. I believe that if a general practitioner thought that a patient required ten 2 mg Xanax tablets a day then they should have referred the patient for an urgent review by a psychiatrist or specialist drug and alcohol service.

(b) He continues to prescribe a large volume of Xanax and Benzodiazepine tablets to Patient A throughout the treating period on circumstances where he knew or ought reasonably to have known that Patient A was abusing the medication and/or selling it; and

(c) On at least two occasions prescribed Patient A 100 x 2 mg tablets of Xanax with two repeats in circumstances where Dr Duck knew or ought reasonably to have known that Patient A was abusing the medication and/or selling it. In circumstances where a doctor ought reasonably to have known that the patient was abusing or selling the medication, the prescribing should be urgently reviewed by the doctor and consultation with an addiction medicine specialist should occur.

There are a number of safe guards that can be put in place when benzodiazepines are prescribed to a drug dependent patient and these include:

1. Daily dispensing of the medication by a community pharmacist.
2. Obtaining with the patients consent, information from the Health Insurance Commission about the patients attendance at other prescribers and the medication prescribed.
3. Urine drug testing to check for other drugs that may have been used by the patient and make benzodiazepine prescribing more hazardous.

If the doctor cannot put in place adequate controls to prevent the patient selling or abusing the medication then prescribing should be stopped.

Statement 5: Should Dr Duck have called an ambulance or provided any further medical assistance to Patient A when he suspected she had overdosed on Heroin in his hotel room at the [hotel]:

I believe Dr Duck should have called an ambulance immediately and provided basic life support until the ambulance attended.

Statement 6: Was it appropriate for Dr Duck to plan to undertake a detoxification program in a hotel room in circumstances where:

(a) he had no safety equipment available to him

While life threatening complications are uncommon in patients undergoing detoxification, withdrawal seizures do occur and having available equipment to provide basic life support to a patient experiencing a prolonged seizure would have been prudent.

(b) Patient A had not engaged with the process or attended a planning meeting about the detoxification

The three most common approaches to supporting a patient who is undertaking detoxification are: outpatient withdrawal, home withdrawal with visiting nursing support; and inpatient withdrawal. The detoxification program Dr Duck was planning to provide in a hotel room appears to be a hybrid of home and hospital withdrawal with him providing the medical and nursing care. I believe this approach to patient care was inappropriate and outside Dr Duck's scope of practice.

The failure of Patient A to attend planning meetings about the detoxification program would have resulted in a lack of clarity for the patient regarding what they could expect and the services that Dr Duck would provide. In these circumstances in proceeding with the detoxification would have been inappropriate and may have resulted in harm to the patient.

(c) without another health professional present to assist

It was unwise of Dr Duck to plan a detoxification program in a hotel room for Patient A without the involvement of another health professional. The involvement of another health professional would have helped to ensure good medical practice including quality care, safety and the maintenance of professional boundaries.

23 Dr Quigley is clearly a very experienced practitioner in this area and the Tribunal accepts his findings.

24 Two reports were provided by Dr Ian Taylor (Exhibit A Tabs 9 and 10). Dr Taylor is a general practitioner in Geraldton. He completed his training in addiction medicine in 1990. He was one of the first methadone prescribers outside the metropolitan area.

25 Dr Taylor's first report concluded that Dr Duck's care of Patient A was adequate. On being provided with further information he stated:

On the basis of my assessment of the overall complaint I feel I must, however, alter my previous assessment of Dr Duck's management of Patient A, now finding that his management of her was to a lesser standard than that which might reasonably be expected of the health practitioner's peers. There should have been tighter control of the supply of her medication and much earlier specialist intervention. The management of her overdose was not optimum, and the attempted home detoxification was poorly planned without the necessary specialist equipment and back up.

26 Dr Duck provided a report from Dr Stephen Proud, a psychiatrist who specialises in addiction and psychiatric illness. His report relevantly stated:

Looking back on this case, it appears that there are four main areas of concern:

Dr Duck is guilty of allowing very poor boundaries to develop.

In mitigation: the patient has no boundaries

this patient triggered counter­transference rescuing by Dr Duck because of his history of other women close to him dying (a patient similar to this, his mother, and others)

Guilty

Mitigation: Initial dose of ~8tabs per day was actually less than the patient had been taking.

Prescription of Xanax ensured attendance and some involvement in therapy

Daily dose was gradually reduced but it took a year.

Failure to reduce the dose over a shorter timeframe represents

1. the patient's addiction and ambivalence about cessation
2. Dr Duck's loss of control to the patient's agenda plus his fear of another woman dying.

Verdict: Unwise - should not have attempted.

Mitigation: Patient's refusal to access any other services

Dr Duck's fear of her dying in her ongoing chaotic lifestyle.

Verdict: Unwise - most would call an ambulance

Mitigation: Dr Duck supervised the patient closely and carefully. Dr Duck has seen many ODs - severe and mild (as he says this was) - and has never 'lost' a patient of all those he has managed.

With simple Airway management and careful observation the patient responded well with no deleterious sequelae.

27 Dr Quigley's report had clearly identified and articulated the deficiencies in Dr Duck's practice.

28 Dr Taylor's second report concluded that 'Dr Duck's management of Patient A ... was to a lesser standard than that which might reasonably be expected of the health practitioner's peers'.

29 Dr Proud's report substantially confirms what Dr Quigley concluded about Dr Duck's practices.

30 The Board submitted that, considered alone, Dr Duck's boundary transgressions might arguably result in a finding of unprofessional conduct. However, the significant deficiencies in Dr Duck's clinical management of Patient A occurred over a lengthy period of time and were substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience and therefore constituted professional misconduct. Viewed in totality, Dr Duck's admitted conduct in relation to Patient A ought be found to be professional misconduct.

31 Dr Duck filed an outline of his experience in Addictionology/Drug and Alcohol Management. Dr Duck appears to have overestimated his ability to deal with Patient A. Dr Duck also filed written submissions on penalty and made oral submissions.

...

There was never any guilty mind or bad intent on my part. At all times, even when I was aware that the treatment setting was unconventional and hazardous, I made the care of my patient my paramount concern and delivered the best possible outcome that I could contrive.

There was no injury to the patient, physical or psychiatric.

...

33 It is not necessary that the Tribunal find that a practitioner engaged in conduct as a result of a 'guilty mind or bad intent' and the practitioner's part in circumstances such as these.

34 The Code of Conduct and the Guidelines and the Board's activities are focused on preventing injury to the patient. The aim is to prevent conduct which is potentially harmful to the patient. It is not necessary that the patient should have suffered from an injury.

35 Dr Duck clearly found Patient A to be a difficult patient. In Dr Duck's written submission he stated:

...

I have never encountered the degree of lifestyle drama and disruption that Patient A displayed and suffered from. Rather than heeding warning, signs and negotiating an appropriate withdrawal, I became determined not to reject her as others had done and took on every setback as a challenge. A careful realisation that I had gone beyond my limits would have been wiser and more useful.

...

36 In Dr Duck's submissions at paragraph 2 he says that:

...

I was anecdotally aware of the couple's drug dealing and use and traumas relating to the children. So she was not an unknown stranger on the first visit. Knowing her, I believed her story of high, intermittent intake of Xanax from street sources. A plan was made to stablilise and regulate the dose of Xanax and aim at long-term reduction to zero. Hence the prescription on the putative first visit.

37 Further on in Dr Duck's submissions at paragraph 8 he said:

On three occasions I prescribed and collected medication for the patient. Once was for the medications I took to the home dexox, prescribed on 06 January, 2014. The other two times were when all other methods to ensure regular, low dose supply had failed because the patient was unable or unwilling to attend pharmacies on time to receive her restricted doses. This was potentially dangerous. By ensuring that low, regular doses were available, she was safe from withdrawal symptoms, but unable to dispose of high doses by sale or inappropriate distribution. With difficulty, she was able to give up Xanax in January, 2014, before it was made Schedule 8.

38 It is obvious from this submission that Dr Duck was aware of the risk of high prescriptions of Xanax to Patient A and of those prescriptions of Xanax being sold to third parties. That is not to say that the Tribunal finds that Patient A did in fact sell Xanax illegally, but it is a risk to which Dr Duck should have responded.

39 Dr Duck said at paragraphs 6 and 7 of his submissions:

To the patient's benefit, no harm was done. There was no dangerous consequence of precipitous withdrawal. To her detriment, no major benefit was achieved: she eventually got off Xanax, but still required high doses of benzodiazepines, was still dependent on heroin, was still using amphetamines and a variety of illicit drugs and still smoked cigarettes.

40 Although Dr Duck submitted that Patient A had not suffered any harm, it is clear that she received no benefits in an 18 month prescriptive regime. By continuing to treat Patient A in this way and not considering other options, Dr Duck closed off other options for harm reduction that might have been available.

1. Dr Duck's conduct involving Patient A amounted to professional misconduct in that he failed to practice in accordance with sections 8.1 and 8.2 of the Code of Conduct by:

1. not maintaining professional boundaries with Patient A which resulted in an inappropriate relationship developing between Dr Duck and Patient A; 2. taking Patient A to dinner on about 10 occasions over a 12 month period when it is inappropriate for doctors to see patients with drug and alcohol problems outside of a surgery/clinic environment;

1. buying Patient A clothes, lingerie and other gifts, which reflected the development of an inappropriate Doctor/Patient relationship and the blurring of professional boundaries;

1. paying for and collecting Patient A's prescription medication and keeping it in his office when such a service is provided by pharmacists and is not appropriate conduct for a doctor treating a patient with an addiction problem; 2. photographing Patient A in the clothing that he purchased for her when photographs of patients should only be taken for identification or teaching purposes; 3. offering to pay for Patient A's dentistry work and computer hardware which was not good medical practice and in circumstances where it was more appropriate to make efforts to secure available support from health and social services for socio­economically disadvantaged patients; 4. consulting (on more than one occasion) Patient A at Dr Duck's residential address and not at the medical practice in circumstances where patients should be referred to an emergency department or to the doctor's surgery during business hours; 5. allowing Patient A to visit his residential home and engage in activities not related to medical consultations which demonstrated a lack of clear professional boundaries and the likelihood that an inappropriate relationship had developed; and 6. allowing Patient A to visit his hotel room whilst staying at the Hotel which was inappropriate conduct and confirms the breakdown of professional boundaries and that an inappropriate personal relationship had developed.
2. Dr Duck failed to practice in accordance with section 2.2 of the Code of Conduct in a number of areas where Dr Duck demonstrated poor medical practice in circumstances where he:

1. failed to recognise and work within the limits of his competence and scope of practice by undertaking a detoxification program for Patient A in a hotel room which is outside the scope of practice for a general practitioner; 2. failed to ensure that he had adequate knowledge and skills to provide safe clinical care to Patient A;

1. failed to consider the balance of benefit and harm in all of his clinical­management decisions with Patient A by making a decision to monitor Patient A and not call an ambulance following an overdose of heroin at a hotel in Perth which reflected very poor judgment in balancing possible benefit against harm in regards to Patient A;

1. failed to communicate effectively with Patient A regarding appropriate boundaries and the limits to care that Patient A could expect him to provide; 2. failed to provide treatment options based on the best available information in the field of addiction medicine particularly relating to the prescription of Xanax to patients with alcohol and other drug problems; 3. failed to recognise the limits to which he could assist Patient A to alleviate her symptoms of distress which resulted in doctor/patient boundary problems and the perception of possible sexual assault; 4. failed to make strenuous efforts to encourage Patient A to attend a specialist drug and alcohol service, thereby not supporting her right to seek a second opinion; 5. failed to make responsible and effective use of the resources available to him on the basis that he believed Patient A would not access those resources; 6. failed to encourage Patient A to take interest in and responsibility for the management of her health and supporting her in this which resulted in Patient A becoming dependent on Dr Duck for the services and support that a general practitioner would not normally provide; and 7. failed to ensure that his personal views did not adversely affect the care of Patient A;
2. Dr Duck prescribed an amount of Xanax to Patient A that was not appropriate in circumstances where:

1. a patient requiring ten 2 milligrams of Xanax tables a day should have been referred for an urgent review by a psychiatrist or specialist drug and alcohol service; 2. a large volume of Xanax and Benzodiazepine tablets were prescribed to Patient A throughout the treating period when Dr Duck suspected or ought reasonably to have suspected that Patient A was abusing the medication and/or selling it; and

1. on at least two occasions, Dr Duck prescribed 100 x 2 milligram tablets of Xanax with two repeats when Dr Duck knew or ought reasonably to have known that Patient A was abusing the medication and/or selling it; and under such circumstances, failed to put safe guards in place when benzodiazepines are being prescribed to a drug dependent patient; or alternatively, to cease the prescription of such medication or alternatively to urgently review the prescription of medication and consult with an addiction medicine specialist.
2. Dr Duck inappropriately planned to undertake a detoxification program in a hotel room in circumstances where:

1. it would have been prudent for Dr Duck to have safety equipment available to him to provide basic life support to Patient A should she have experienced a prolonged withdrawal seizure; 2. Dr Duck did not ensure that Patient A attend planning meetings about the detoxification program to ensure clarity about what she could expect and the services Dr Duck would provide, thereby inappropriately proceeding with the detoxification which may have resulted in harm to the patient; and

1. Dr Duck failed to involve another health professional in the detoxification program which would have helped to ensure good medical practice, including quality care, safety and the maintenance of professional boundaries.
2. Dr Duck acted in breach of the Guidelines by engaging in sexualised behaviour with Patient A by taking photographs of her in lingerie and clothing that he had purchased for her.

42 Dr Duck's conduct was serious. It demonstrated a very serious lack of awareness of and acting in accordance with professional boundaries. Dr Duck's conduct shows that the professional boundaries between him and Patient A had almost completely collapsed. It is apparent that Dr Duck had allowed Patient A to manipulate him rather than to treat Patient A in accordance with his obligations as a doctor.

43 The Tribunal has concluded that Dr Duck's conduct amounts to professional misconduct. Had there been isolated incidences of the conduct, it might have amounted to unprofessional conduct. However, the fact that the conduct took place over a period of 18 months, leads the Tribunal to conclude that Dr Duck's conduct constitutes professional misconduct.

Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Medical Board of Australia and Veettill [2015] WASAT 124 (S) (Veettill) at [14] citing Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).

The Tribunal repeats what it stated in Medical Board of Australia and Myers [2014] WASAT 137 (S) (Myers). The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at [41]; Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25; Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 4400441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24]- [26]; New South Wales Bar Association v Hamman [1999] NSWCA 404 at [21] and [77]).

The dominant purpose of the disciplinary regulation of the medical profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Veettill at [15], citing Legal Profession Complaints Committee v Detata [2012] WASCA 2014 at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).

There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each finding as to conduct, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (Veettill at [16]). Alternatively, where the practitioner's conduct, if considered alone, would be subsumed in the more serious conduct, it is appropriate to impose a global penalty.

The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the conduct (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).

It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267-268 and 211-212, A Solicitor [2004] NSW).

As the Tribunal explained in A Legal Practitioner (S) at [24]:

... [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267-268 and 271-272[.]

The jurisdiction of the Tribunal to cancel a practitioner's registration is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the medical profession: Veettill at [18] citing Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].

Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a practitioner: Veettill at [19] citing A Solicitor [2004] NSW at [15].

A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19]­[20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26]­[28]); Love at [17]­[18]; Veettill at [19]).

The practical effect of an order cancelling registration is that if a practitioner wishes to resume practice he/she must persuade the relevant regulatory authority that he/she is truly reformed and that he/she is a fit and proper person to resume practice.

Suspension is a less serious result and differs from cancellation of a practitioner's registration because suspension is for a specified limited period (Myers at [20]).

The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that the practitioner lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]; Myers at [21]).

The practical effect of an order suspending registration is that at the end of the period of suspension, the practitioner is entitled to resume practice without having to prove that he/she is a fit and proper person.

The considerations which apply to penalty in disciplinary cases were stated by this Tribunal in Myers, and confirmed in Veettill. The Tribunal set out twelve matters which may require consideration in determining penalty. Those matters are interrelated and are not mutually exclusive or exhaustive. The 12 matters are:

1. Any need to protect the public against further misconduct by the practitioner.
2. The need to protect the public through general deterrence of other practitioners from similar conduct.

1. The need to protect the public and maintain public confidence in the profession by reinforcing a high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval.

1. In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
2. Whether the practitioner has breached any:
   1. Act;
   2. Regulations;
   3. Guidelines or Code of Conduct, issued by the relevant professional body; and
   4. whether the practitioner has done so knowingly.
3. Whether the practitioner's conduct demonstrated incompetence, and if so, to what level.
4. Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future.
5. The practitioner's disciplinary history.
6. Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community.
7. The desirability of making available to the public any special skills possessed by the practitioner.
8. The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice.

(l) The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness. In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive.

Is there a need to protect the public against further misconduct by Dr Duck?

The fact that the professional boundaries between Dr Duck and Patient A almost completely collapsed, demonstrated a clear need to protect the public.

44 In addition, Dr Duck's failure to appreciate his level of competence makes him a risk to other patients should he again fail to recognise his limitations.

45 Over prescription of drugs to a patient places the patient at risk of over medication and of engaging in illicit activities. This has the potential to put patients at risk.

Is there a need to protect the public through general deterrence of other practitioners?

46 There is a clear public interest in the imposition of a penalty which reflects the high standards of the profession of medicine and the need to practise medicine in accordance with the relevant Code of Conduct and Guidelines.

Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?

47 The treatment of addiction is obviously a difficult area of practice. It is important that other practitioners appreciate the consequences of failing to comply with the Code of Conduct and Guidelines and recognise their limits.

Breach of Act, Regulation, Code or Guideline, and whether Dr Duck has done so knowingly

Dr Duck breached the Board's Code of Conduct and Guidelines as set out above.

48 Dr Duck's conduct demonstrated poor medical practice. In addition, failing to recognise one's level of competence itself exhibits a level of incompetence.

49 The conduct involved only one patient but the overall conduct continued from December 2012 to March 2014. It cannot be seen as isolated.

50 Dr Duck's disciplinary history is set out below:

Improper or infamous conduct in relation to self-administration of pethidine

Guilty: undertaking to be of good behaviour for 2 years; conditions imposed.

Guilty: conditions imposed, undertaking to be of good behaviour for 3 years (18 December 1998)

Guilty: undertaking to be of good behaviour for 3 years and conditions on practice imposed (18 April 2000)

Guilty: undertaking to be of good behaviour for 3 years and Board imposed condition requiring to work under supervision in addition to conditions imposed 18 April 2000 (21 August 2001)

Guilty: suspended from practice until 19 November 2002

Guilty: registration suspended for 3 months (13 November 2003)

Guilty: removal of name from register of medical practitioners

Application for restoration to Register (December 2006)

Breach of conditions and failing to provide information to the Board

Guilty: undertaking to strictly comply with conditions; reprimand and costs (1 October 2010)

On 24 January 2014, AHRPA received a notification claiming that Dr Duck was overprescribing the Notifier with xanax and panadeinie forte. The Notifier also alleged that Dr Duck use the torch on his iPhone when conducting a pap smear.

On 10 March 2015, the Board decided to caution Dr Duck after determining that the alleged conduct occurred.

On 25 March 2015 AHPRA received a complaint from the Department of Health alleging that Dr Duck had been prescribing significant quantities of benzodiazepines while suspended.

On 13 September 2016, the Board proposed to caution Dr Duck about prescribing significant quantities of benzodiazepines. There was insufficient evidence to establish that the prescriptions were written while Dr Duck was suspended.

51 Dr Duck was suspended from practice as a result of immediate action by the Board on 5 May 2014. The Tribunal had not taken this into account in considering Dr Duck's conduct as the immediate action did not involve a final hearing.

52 Dr Duck has an extensive and serious disciplinary history.

53 In fixing a penalty, the Tribunal has taken into account that Dr Duck has been suspended since 5 May 2014.

Whether or not Dr Duck understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof)

The onus of proof in relation to insight is on Dr Duck: see, for example, HCCC v King [2011] NSWMT 5 at [61].

In agreeing to the facts, Dr Duck has shown remorse to a limited extent.

54 The Tribunal also notes that despite the agreed facts, Dr Duck, in his submissions, resiled in part from those agreed facts. This shows a lack of insight on the part of Dr Duck.

55 Although Dr Duck has been suspended since 5 May 2014, he has not undertaken any courses that would assist him in remedying the deficiencies in his understanding of professional boundaries and the guidelines for medical practitioners. On his evidence, Dr Duck's efforts to remedy the deficiencies in his practice have been consulting colleagues and experts. He has not engaged in any structured approach to improving his ethical or treatment knowledge.

There is no evidence that Dr Duck possesses any special skills which would influence any penalty to be imposed.

Any penalty which prevents Dr Duck from practising will plainly have a very adverse impact on Dr Duck. As Dr Proud noted, Dr Duck is 62 years old. Any penalty that prevents Dr Duck from further practice will impact on his financial security. However, the primary consideration must be the protection of the public.

Any other matters relevant to Dr Duck's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness

57 Dr Duck provided a large number of letters in support. In fact, there were 59 letters from 63 patients (Exhibit B pages 6­84). These references are of limited value. In only one instance was the author of the references aware of the precise conduct alleged against Dr Duck. In a number of instances, the author of the letter proceeds on the basis that the complaints made by the patient were without substance. References of support are of very limited value unless the person who writes the letter is aware of the allegations made against the medical practitioner, or at least in this case, the agreed facts. It is apparent that none of those who wrote letters in support were really aware of the circumstances.

58 The letters do reveal that Dr Duck was held in a high regard by many of his patients but of course, the question is, whether he would have been continued to have been held in high regard if they were aware of the circumstances of his conduct.

59 The Tribunal has also noted the apology from Patient A which appears at page 85 of Exhibit B. Given the agreed facts, the apology from Patient A carries little weight in the Tribunal's consideration of the appropriate penalty.

60 Of particular concern to the Tribunal in imposing any penalty on Dr Duck is whether a penalty that imposed conditions would be effective.

61 Dr Duck's history of compliance with conditions imposed as a result of his own drug use show that there were repeated failures on his part to comply with those conditions. Although the last breach was in 2010, the breaches occurred over a long period of time and the Tribunal does not have any confidence that Dr Duck would comply with conditions if they were imposed.

62 It would appear that during the period of his suspension, Dr Duck did little to improve his knowledge of his obligations, both under the National Law and the Codes made pursuant to the National Law. In oral evidence, he claimed to have done some on line courses but did not give any evidence what those courses were, so the Tribunal is unable to form a view as to the quality or efficacy of such courses.

63 It would have been open to Dr Duck to engage in activities such as counselling at Next Step or other drug treatment organisations during the time that he was suspended as a medical practitioner. Had he undertaken those activities and demonstrated that during the period of his suspension he has gained insight, then the Tribunal might have been prepared to find that he had demonstrated insight. However, in the circumstances where there is really no evidence that he has developed any insight, it is impossible for the Tribunal to reach such a conclusion.

64 Given Dr Duck's long disciplinary history, the Tribunal does not have any confidence that upon the completion of a period of suspension he will be fit to resume practice. Despite the previous cancellation of his registration, Dr Duck again finds himself before the Tribunal with a finding of professional misconduct. The only appropriate penalty is to cancel his registration.

65 Having regard to all the circumstances, Dr Duck should be disqualified for applying for registration for a period of two years. The Tribunal has taken into account the period for which he has been suspended to date in reaching the period that would otherwise have been imposed. Had he taken more active steps to improve his knowledge, the period of disqualification would have been less.

66 The Tribunal has imposed a global penalty because the finding of professional misconduct is based on the entirety of his conduct.

67 The Tribunal has concluded that Dr Duck's registration should be cancelled. He is disqualified from applying for registration for a period of two years from the date of this order.

The Tribunal may make any order about costs it considers appropriate for the proceedings, pursuant to s 195 of the National Law, and s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

The Tribunal's approach and practice in relation to costs in vocational disciplinary proceedings costs was summarised in Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) 194 (in de Braekt (S)) at [51] and [53] as follows:

Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30].

Despite what the Tribunal stated in in de Braekt (S), every case must be considered individually on its merits bearing in mind s 87 of the SAT Act. There is no presumption that a disciplinary body will be awarded costs if successful.

The Board submits that it should be entitled to an order that Dr Duck pay its costs of the proceedings.

In the particular circumstances of this case, and in particular having regard to the extent of Dr Duck's breaches and his extensive disciplinary history, it is appropriate that Dr Duck pay the Board's costs to be assessed on the Tribunal Scale.

1. Dr Gregory Duck's registration as a medical practitioner is cancelled.
2. Dr Gregory Duck is disqualified from applying for registration as a medical practitioner for a period of two years from the date of this order.
3. Dr Gregory Duck is to pay the Medical Board of Australia's costs of the proceedings to be assessed by the State Administrative Tribunal Scale.

I certify that this and the preceding [67] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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