(iv) The Board's application for costs is dismissed

Health Practitioner regulation - Registered medical practitioner - Boundary transgressions - Agreed facts - Characterisation of conduct and determinations - Board's application for costs.

Health Practitioner Regulation National Law (Tasmania) Act 2010; ss 5, 156, 193, 195, 196

Medical Board of Australia v Arulanandarajah [2012] VCAT 85;

Medical Board of Australia and Pharmacy Board of Australia v Lee [2019] VCAT 311;

Medical Board of Australia v Nguyen [2025] VCAT 287;

Psychology Board of Australia v Myers [2021] VCAT 949;

Medical Board of Australia v Ellis [2024] VCAT 113; Medical Board of Australia v Piesse [2022] VCAT 667.

Amended pursuant to Section 119 of the Tasmanian Civil and Administrative Tribunal Act 2020

Cover page: Respondent's name amended; hearing date amended.

Para 7.4-7.7: typographical errors at end of each paragraph.

1. The Medical Board of Australia (the Board) has referred to the Tribunal allegations about the conduct of the respondent, Dr Samuel Adams. The allegations were referred under s 193 of the Health Practitioner Regulation National Law (Tasmania) Act 2010 (the National Law).
2. The allegations were that the respondent had behaved in a way that constituted professional misconduct as defined under s 5 of the National Law in that, between about February 2022 and November 2022 the respondent engaged in an inappropriate personal and/or sexual relationship with NC, a patient and employee of a general practice clinic in Tasmania (the clinic).
3. The Board and the respondent reached agreement in relation to some matters prior to the hearing. A statement of agreed facts was filed, and the respondent, as part of the statement of agreed facts -
   • Admitted conduct alleged by the Board;
   • Admitted that his conduct was inconsistent with certain codes and guidelines, in accordance with which registered medical practitioners are required to act; and
   • Conceded that his admitted conduct constitutes professional misconduct within the meaning of s 5 of the National Law.
4. The parties made separate submissions to the Tribunal in respect of characterisation of the conduct, and the appropriate determinations that should be made by the Tribunal.
5. The issue of the appropriate determinations is the question before me.
6. The Board has also sought an order that the respondent pay the Board's costs of the referral. I also need to resolve the question of costs.

1. I set out under this heading the relevant matters from the statement of agreed facts. Having regard to the materials received in evidence in the hearing, I also make factual findings in relation to these matters.

1.1 held general and specialist registration as a general practitioner on the register of practitioners kept by the Medical Board of Australia (the Board) pursuant to the National Law;

1.2 was engaged in the provision of services as a general practitioner at the Victoria Street Clinic in Ulverstone, Tasmania (the Clinic);

1.3 was required to act in accordance with the Board's Good Medical Practice: a Code of Conduct for Doctors in Australia (1 October 2020 edition) (the Code);

1.4 was required to act in accordance with the Board's Guidelines: Sexual Boundaries in the Doctor-Patient Relationship (12 December 2018) (the Guidelines); and

1.5 was required to act in accordance with the Australian Medical Association's Code of Ethics 2004 (revised 2016) (applicable to all medical practitioners in Australia, in effect since March 2017) (Code of Ethics).

1. The Code and Guidelines were approved by the Applicant for the purposes of section 41 of the National Law. They are admissible as evidence of what constitutes appropriate professional conduct or practise of the profession, in proceedings against a registered health practitioner.
2. The professional standards are admissible as evidence of what constitutes appropriate professional conduct and practice pursuant to s 41 of the National Law.

1. On 3 November 2022 the Australian Health Practitioner Regulation Agency (Ahpra), on behalf of the Board, received a notification from another Principal at the Clinic advising the Respondent had engaged in a sexual relationship with a patient, who was also a receptionist at the Clinic.
2. On 21 November 2022, the Board decided, under section 160(1)(a) of the National Law, to commence an investigation into the notification.
3. On 31 July 2023, the Board proposed taking immediate action in relation to the Respondent's registration specifically proposing to suspend the Respondent's registration.
4. On 21 August 2023, following consideration of submissions by the Respondent, the Board decided not to take immediate action.
5. On 21 December 2023 the Board determined to refer the Respondent's alleged conduct the subject of this Application to the Tribunal under s 193(1)(a) of the National Law, having formed a reasonable belief that the Respondent has behaved in a way that constitutes professional misconduct.

1. The Respondent was working as a General Practitioner at the Clinic from 2015;
2. The Respondent was a Principal at the Clinic from approximately 2017;
3. [NC] was a patient at the Clinic and had been a patient since at least 2000;
4. The patient records indicate that NC has a history of depression/major depression from August 2014, she was diagnosed with idiopathic pulmonary arterial hypertension on 18 July 2018, a chronic and potentially life-threatening condition which resulted in the need for a lung transplant.
5. [NC] required frequent treatment and close management of her medication, including trial medication for her condition and management of its side effects that caused her chronic severe pain and nausea.
6. [NC] worked as a receptionist at the clinic from late 2021/early 2022;
7. In February 2022 the respondent commenced a close personal relationship with [NC]. The close personal relationship continued for about 10 months. Within this period a sexual relationship existed for a period of 3-4 months.
8. Although never the primary GP the Respondent consulted with NC on at least 7 occasions during the period October 2015 to March 2022 with the last consultation taking place in March 2022.
9. The Respondent prescribed medication to [NC] on 3 occasions during the period 23 December 2021 and 17 March 2022.
10. On 5 October 2022 the Respondent disclosed his conduct to his colleague and fellow partner via text messages. His colleague lodged a notification with Ahpra.
11. On 2 November 2022 the Respondent resigned from the Clinic and ceased medical practice with effect from COB on 2 December 2022.

20.1 was required to act in accordance with the Board's Good Medical Practice: a Code of Conduct for Doctors in Australia (1 October 2020 edition) (the Code);

20.2 was required to act in accordance with the Board's Guidelines: Sexual Boundaries in the Doctor-Patient Relationship (12 December 2018) (the Guidelines); and

20.3 was required to act in accordance with the Australian Medical Association's Code of Ethics 2004 (revised 2016) (applicable to all medical practitioners in Australia, in effect since March 2017) (the Code of Ethics).

1. The parties jointly filed a hearing book which included materials relied upon by both the Board and the respondent. The Board's evidence included correspondence between the respondent and AHPRA relating to the investigation, proposed immediate action (including documents provided to AHPRA in response to the proposed immediate action), other investigation material (including documents provided by the clinic to AHPRA) and copies of professional codes and guidelines, specifically Good Medical Practice: A Code of Conduct for Doctors in Australia dated 1 October 2020; Guidelines: Sexual Boundaries in the Doctor Patient Relationship dated 12 December 2018 and AMA Code of Ethics 2004 (revised 2016 and in effect from March 2017).
2. The material before the Tribunal also included material that was relied up by the respondent, including a notice of tax assessment for the 2021/2022 financial year, character references, a bank balance statement, an Airbnb statement from July 2020 to June 2023, account transaction history from March 2022 to October 2022 concerning particular transactions, and a statement of the respondent.
3. The majority of the material relied upon by the parties was taken into evidence without objection. Some additional documents although not objected to by the respondent were identified as being documents that both parties made specific submissions concerning the weight that ought to be attached to them. Those documents were:
   • A file note taken by AHPRA of a telephone discussion with the practice manager at the clinic on 17 April 2023.
   • Transcript of interview of NC taken 24 April 2023.
   • Witness statement of Ms BT, who also worked at the clinic and was a friend of NC.
   • A statement of BF, the mother of NC.
   • A bundle of screens shots of text messages between the respondent and NC for the periods approximately April 2022 to about mid May 2022 and about 24 July 2022 to 30 July 2022.
4. The statement of NC, which was taken from a transcript of interview conducted by AHPRA in April 2023. NC, in her statement, outlined that she first met the respondent through her work as a receptionist at the clinic. She said that the respondent knew about her condition (a rare lung disease which made her quite unwell) and he would check in with her to make sure she was all right. She said the respondent contacted her by texting her personal mobile. She said she was confused about how the respondent had obtained her mobile number, however she assumed he had obtained it from patient profile which made her feel uncomfortable. From that point onwards they engaged in lengthy conversations over text. About two weeks later they met outside of work for the first time, which then became a regular thing. She said the respondent told her that he was not with his partner any more but they lived together for the sake of their children. She said things became very serious very fast and about one month after they started seeing each other outside of work they commenced an intimate relationship. She said she obtained a number of prescriptions from the respondent to help control vomiting and she said the respondent would provide her with advice while she was working at the reception desk at the clinic. She said that on two occasions the respondent had conversations with her that she identified as a breach of patient confidentiality. She also said that the respondent, during the relationship, would become very jealous of her. She said their intimate relationship continued for approximately six months, until she told her sister, who advised her that the relationship was inappropriate and she needed to end it. She said she ended the relationship by not responding to the respondent's attempts to contact her, and at that point the respondent would be sending her up to 50 text messages a day. She said after she ended the relationship the respondent would not stop texting and calling her. The text messages and calls continued for weeks and she decided to block the respondent from contacting her on everything. She said after this the respondent became very angry towards her. He would do whatever he could to speak to her at work, including coming out to speak to her at the reception desk when she was working, or, if she was trying to avoid him at work, looking around the clinic for her and asking other staff about her whereabouts. She said the respondent would also try to contact her through the clinic's medical software, asking her to do tasks for him, and then would try to ask her personal questions. She said after the relationship ended she did not want to think about it and created distance between herself and the respondent at work as she did not want contact with him nor for other staff members to find out about the relationship.
5. The screen shots of text messages that were before the Tribunal are in relation to two periods where the respondent's text messages to NC could, on any reading, be described as becoming increasingly persistent and quite obsessive. I accept that there are occasions where there is a clear intermingling of personal and work related matters.
6. Having said that I do accept that there is a gap in the messaging, in between May and July, and again after July in 2022. I accept that to a certain extent the full picture of the relationship between NC and the respondent has not been made out, and that the respondent's bank statement covering the period from early March 2022 to the beginning of October 2022 suggests that there was a relationship of some kind ongoing, after July 2022, because a number of financial transactions occurred between them.
7. Although the Board submitted the respondent would have been able to put in his own copies of text message exchanges, the evidence of NC in the interview with AHPRA was that the respondent told her he was deleting his text messages.
8. The respondent provided a statement to the Board when immediate action pursuant to s 156 of the National Law was under consideration. He also provided a statement to the Tribunal for the purposes of the hearing.
9. In the statement of the Board, in August 2023, the respondent said:

I've come to recognise that I violated professional norms by engaging in a relationship with a patient to whom I provided care. I am now after a period of painful reflection and review of codes of conduct fully aware that this breach transgresses the essential boundaries set in place to safeguard the integrity of the doctor/patient relationship. After a period of intense reflection I now understand that despite the consensual nature of the relationship and the contextual nuances surrounding it, it unequivocally constitutes a breach of professional conduct for which I am deeply remorseful.

10. The respondent outlined what he identified as a number of contributing factors that led to his lack of awareness regarding the breach of professional conduct. He said he had no recollection of NC being a patient of the clinic prior to her employment (he also notes that NC, in her statement, appeared to be of the same view, as she indicated that she first met the respondent when she starting working at the clinic). He noted that he had firmly established a belief that NC was under the care of one of the other doctors at the clinic which she said reinforced his conviction at the time that NC was not his patient. He said he now fully recognises the imperative to establish clear boundaries with staff and exercise caution even in seemingly brief and straight forward medical interactions. The respondent denied breaching patient confidentiality in any discussions with NC. He also said he first obtained her mobile phone number from staff contact sheets, not NC's patient notes.
11. He acknowledged that there was an existence of an inherent power imbalance in the relationship, extending beyond a doctor/patient dynamic, but also including an employer-employee relationship. He noted that he considered there were a number of factors that masked the power differential that made it difficult for him to fully appreciate it at the time.
12. The statement to the Tribunal, authored in October 2024, was put by way of an updated account of the respondent's reflections and addressing further developments. He stated:

I accept that my relationship with [NC] was inappropriate from the point of initial text exchange. Initially I perceived her primarily as a staff member rather than a patient, and I did not recall our clinical interactions from prior to 2016. However, I now recognise that the instigation of a personal relationship and subsequent medical care provided, although casual and brief, was not appropriate, and a breach of professional boundaries. The situation was further complicated by [NC] being both an employee and a patient at the practice.

13. The respondent recognised, upon reviewing text messages that formed part of the evidence before the Tribunal, that his communications became increasingly one sided and intense. He said he was embarrassed and deeply regretful of any distress he may have caused NC. He went on:

In response to these breaches I have taken a professional hiatus, allowing for deep reflection on my actions and their impact. During this time I have extensively reviewed the codes of conduct for GPs to reinforce the importance of clear professional boundaries in all circumstances. > > I take full responsibility for my actions, from initiating an inappropriate personal relationship to providing medical care that breached professional standards.

1. The main guiding principles of the National Law are that protection of the public, and public confidence in the safety of services provided by registered health practitioners and students is paramount.

1. A National Board, pursuant to s 193(1)(a) is required to refer to a responsible tribunal the conduct of a registered health practitioner where the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct.
2. Professional misconduct is defined in s 5 of the National Law:

"professional misconduct" , of a registered health practitioner, 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.

3. Unprofessional conduct is also defined under s 5 to mean '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'.
4. The parties are agreed that the respondent's conduct as contained in the statement of agreed facts amounts to professional misconduct. The matters as agreed between the parties are matters to which the Tribunal ought to have significant regard, although any agreement between parties does not oust the Tribunal's obligations make factual findings, determine the degree of seriousness of the conduct in question, and ultimately consider what sanctions ought to be imposed. The Tribunals' determination as to factual findings and characterisation of conduct will be relevant to the Tribunal's determination about the imposition of sanction.
5. In particular, there is no dispute between the parties that the respondent's conduct, as agreed, amounted to professional misconduct within the meaning of paragraph (a) of the definition, that is conduct substantially below the standard of conduct for a registered health practitioner of an equivalent level of training or experience.
6. The standards of conduct for doctors are embodied in the Code, the Guidelines and the Code of Ethics. The Board submits that the respondent's conduct was inconsistent with:
   • sections 2.1, 3.1.4, 4.2.6, 4.15, 5.2.3, and 10.2 of the Code, which provide that:
     • doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be honest, ethical and trustworthy;
     • providing good patient care includes referring a patient to another practitioner when this is in the patient's best interests or as required by legislation;
     • a good doctor-patient partnership involves recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients in any way, including physically, emotionally, sexually or financially;
     • providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the patient and doctor;
     • good medical practice involves behaving professionally and courteously to colleagues and other practitioner;
     • good medical practice involves maintaining professional boundaries and never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care.
   • sections 1, 2, 3 and 4 of the Guidelines, which provide that:
     • patients need to trust that their doctor will act in their best interests, treat them professionally, not breach their privacy and never take advantage of them. Exploitation of the doctor-patient relationship undermines the trust that patients have in their doctors and the community has in the profession. It can cause profound psychological harm to patients and compromise their medical care;
     • the doctor-patient relationship is inherently unequal;
     • breaches of sexual boundaries include engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship;
     • doctors are responsible for establishing and maintaining sexual boundaries with their patients;
     • the start of a sexual relationship between a doctor and a patient may not always be immediately obvious to either the doctor or patient. Doctors need to be alert to warning signs that could indicate that boundaries are being, or are about to be crossed. Warning signs include but are not limited to: a doctor revealing to a patient intimate details of their life; and doctors and patients inviting each other out socially.
   • sections 2.1.16, 3.1.8 and 3.2.1 of the Code of Ethics, which provide that doctors should:
     • avoid providing care to anyone with whom they have a close personal relationship, where possible;
     • maintain appropriate professional boundaries with patients and their close family members, not entering into sexual, exploitative or other inappropriate relationships;
     • treat their colleagues with respect and dignity.
7. The Board also submits that the respondent's conduct was objectively serious and involved a misuse of a position of power and trust. The Board notes NC's medical history, and says that her vulnerability was heightened by the existence of a therapeutic relationship between herself and the respondent, and the existence of an employer/employee relationship.
8. I agree that the respondent's behaviour was conduct substantially below the conduct reasonably expected of doctors, as set out in the Code, the Guidelines and the Code of Ethics, and amounted to professional misconduct within the meaning of paragraph (a) of the definition of that term in s 5 of the National Law.
9. The Board also says that the respondent's conduct amounted to professional misconduct within the meaning of paragraph (c) of s 5 of the National Law - that is, conduct that is inconsistent with the health practitioner being a fit and proper person to hold registration. The respondent does not agree that his conduct is inconsistent with him being a fit and proper person to hold registration.
10. The matters to be considered by the Tribunal in relation to paragraph (c) of the definition of professional misconduct under the Act were discussed by the Victorian Civil and Administrative Tribunal (VCAT) in Medical Board of Australia v Arulanandarajah [2012] VCAT 85 (Arulanandarajah) at [32 - 36]:

All that is required [when considering making a finding of professional misconduct under (c) of the definition] is a determination of whether or not the conduct is inconsistent with the practitioner being a fit and proper person to hold registration. > > The language used in the definition falls short of requiring the conclusion to be drawn that the practitioner is not currently a fit and proper person to practise for (c) of the definition of professional misconduct to be satisfied. The provision relevantly refers to > > conduct of the practitioner...that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. > > The legislature could have, but did not, require that the conduct demonstrate, or prove, that the practitioner is not fit and proper at the time of the hearing, in order to satisfy (c) of the definition of professional misconduct. > > This has two relevant consequences. First, the words used allow for the possibility that while the conduct engaged in by the practitioner was inconsistent with being a fit and proper person to hold registration, the practitioner himself was not in fact unfit at that point. > > Second, and likely more relevantly, it allows for the possibility that while the conduct in and of itself may have indicated that the practitioner was unfit at the time when he acted in the way he did, that does not prevent him subsequently becoming a fit and proper person to hold registration during the period up until the Tribunal hearing.

11. The prohibition on intimate relationships with patients is a matter that goes to the heart of the confidence and trust that is placed upon medical practitioners. There is no doubt that NC was a patient of the respondent prior to, and during, the course of their intimate relationship. There is no doubt that the respondent ought to have been alive to that fact, and ought to have been responsible for not only recognising, but maintaining appropriate boundaries with NC.
12. After the relationship between NC and the respondent had reached a point in May 2022 where NC was not responding to the respondent's text messages, the respondent's behaviour in bombarding NC with text messages, constantly asking for her to respond was obsessive and highly inappropriate. I accept the Board's submissions that the respondent's behaviour must have made matters extremely difficult for NC at her place of employment. Where it is apparent that other staff (although possibly not the other principals of the Clinic) had some awareness of what was happening, it is likely that the working atmosphere at would have been adversely affected.
13. The respondent has raised some matters relating to the nature of his therapeutic interactions with NC prior to the commencement of there relationship, including that the majority of the consultations took place well before the time that NC came to work at the Clinic, and the informal and ad hoc nature of the clinical interactions that occurred closer in time to the relationship's commencement (both before and after). I accept that these things are being put forward by the respondent as an explanation for what he now accepts was a failure to maintain professional boundaries, but are not being put forward as an excuse. However, as I noted above, the responsibility to recognise and maintain boundaries lay entirely with the respondent and he should have been acutely aware of that responsibility.
14. Despite this, I accept that the relationship between NC and the respondent arose out of their working relationship, and not from a relationship as between doctor and patient. I also accept that the relationship was consensual, noting that its consensual nature must be viewed through the lens of the power imbalance that arose on the dual fronts of their therapeutic and employment relationships.
15. I also accept that the respondent, having had the opportunity to look back on his own behaviour, is deeply ashamed and embarrassed
16. The tone, frequency and intensity of the text messages from the respondent to NC that are before me are particularly concerning. Whilst I accept that the entirety of the text exchanges over the period of the relationship is not in evidence, and that what is before me might be the worst examples, they nonetheless speak for themselves.
17. It is my view that the conduct of the respondent, as evidenced by those text messages and his admitted conduct as the relationship began to break down, was conduct inconsistent with the respondent being a fit and proper person to hold registration as a medical practitioner. It would be fair to say that the vast majority of patients who attended a general practitioner would be rightly appalled by that behaviour, and more so in circumstances where a patient might be seeking treatment in circumstances where they had been subjected to cyber-bullying or coercive behaviour in a domestic setting.
18. I determine that the respondent engaged in professional misconduct within the meaning of paragraph (c) of the definition in s 5 of the National Law.

1. The principles to be applied by the Tribunal in considering an appropriate determination were summarised in Medical Board of Australia and Pharmacy Board of Australia v Lee [2019] VCAT 311 at [20]:
   • the purpose of the imposition of determinations is to protect the public;
   • determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;
   • determinations should in no way be punitive;
   • the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and by facilitation of rehabilitation on the part of the practitioner;
   • personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;
   • the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination;
   • the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;
   • insight can include an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions; and
   • any form of official censure is of consequence. It has been observed by the Courts that a reprimand is a serious matter for a professional person and should not be considered a 'slap over the wrist'.
2. The Board says that the respondent's conduct which is the subject of the referral to the Tribunal, and which is admitted by the respondent, calls for both general and specific deterrence, as well as the protection of public confidence in the regulatory system.
3. The Board says that the appropriate sanctions are for the Tribunal to:
   • Reprimand the respondent under s 196(2)(a) of the National Law.
   • Cancel the respondent's registration under s 196(2)(e) of the National Law.
   • Disqualify the respondent from applying for registration for a period of 3 years from the date of the Tribunal's orders under s 196(4)(a) of the National Law.
   • Impose a prohibition order prohibiting the respondent from providing a specified health service under s 196(4)(b)(i) of the National Law, and from using any title or a specified title under s 196(4)(b)(ii) of the National Law, until the respondent is registered again.
4. In relation to the question of specific deterrence in particular, the Board submits that there is little evidence before the Tribunal to indicate that the respondent has any insight into his conduct, and refers to the respondent's statement to the Board in August 2023, and in particular his discussions with a partner in the practice when matters originally came to head towards the end of 2022. Although the Board acknowledges that the respondent has admitted his conduct and says that he is deeply remorseful about that conduct, the Board submits that the other statements made by the respondent devalue the statement of remorse made by the respondent.
5. The Board also says that a number of character references provided by the respondent ought to be given little weight because none of the referees demonstrate sufficient awareness of the particulars of the allegation to enable them to provide an informed reference.
6. The Board also says that there is no evidence that the respondent has taken any education in relation to maintenance of professional boundaries or adhering to the relevant standards set out in the Code and Guidelines.
7. In relation to general deterrence the Board says that the conduct of the respondent poses a serious reputational risk for the profession and demonstrates a propensity to disregard his professional obligations. It says that an objective public observer would be concerned about the circumstances of the respondent's conduct, and that a sanction ought to serve as a reminder to registered health practitioners that the conduct is clearly unacceptable, act as a personal and general deterrent, and send a strong message to the public in relation to the strength of the regulatory system.
8. In relation to the imposition of a reprimand, the Board says the reprimand is appropriate because a finding of professional misconduct is a serious matter, and a reprimand is recognised as serious form of censure and condemnation.
9. Although acknowledged to be a serious form of censure, the Board submits that a reprimand alone would not achieve the purposes of protection of the public in this matter.
10. In relation to the cancellation of the respondent's registration, the Board notes that the respondent remains registered as a medical practitioner, and his registration is due to expire on 30 September 2025.
11. The Board says that although the respondent ceased medical practice in December 2022, this was a personal decision by the respondent, and lacked formal denunciation or public sanction. The Board says the respondent's time out of practice does not abate the continuing need for the protection of the public by preventing the respondent from practicing or providing health services, and the time out of practice ought not result in automatic backdating or offsetting of any sanctions.
12. The Board says that cancellation of the respondent's registration would appropriately:
    • Reflect the seriousness of the respondent's conduct;
    • Deter other practitioners for engaging in other similar conduct;
    • Protect the public from the risk of further breaches by the respondent;
    • Maintain public confidence in the medical profession and demonstrate the standards of the profession are appropriately maintained;
    • Reflect that the respondent's conduct has the capacity to undermine the regard in which the profession is held by members of the public such that there is a strong need for general deterrence; and
    • Send a clear message to the respondent, the public and the medical profession that such conduct will not be tolerated and that practitioners who engaged in such conduct will be subject to meaningful disciplinary action.
13. The Board says a suspension would not adequately serve the general deterrence purpose of sanctions. It also says a cancellation of registration is more appropriate than a suspension in order to fulfill the need for specific deterrence.
14. The Board submits that in determining an appropriate period of disqualification it is not necessarily the case that the practitioner will effectively be given 'credit' for time out of practice. It submits that a period of disqualification from applying for re-registration for a period of 3 years would be an appropriate order given the need for general deterrence in cases of this nature and the requirement to maintain public confidence in the medical profession.
15. The Board also says that a prohibition order would be appropriate to protect the public against the risk posed by the respondent because it would preclude the respondent from obtaining employment in a health service in another capacity or from using the title 'doctor'. The Board submits that a prohibition order would be appropriate until the respondent is registered again.
16. There is general agreement between the parties as to the principles relevant to the Tribunal's determination of consequential sanctions.
17. The respondent agrees that he made a conscious decision to engage in the relationship with NC but denies that at the time of that behaviour he was consciously engaging in professional boundary violations. He now appreciates that he was engaging in professional boundary violation, and also appreciates that he should have been aware at the time that he was doing so.
18. In relation to specific deterrence, the respondent says that risk of repetition of the conduct in question is so negligible as to not warrant any weight to be given to this as a factor.
19. The respondent refutes the Board's position whereby it says there is little to no evidence that the respondent has any insight into his conduct. The respondent notes that he admitted his conduct, and the admissions were made at an early time following appropriate reflection, and he has at all times fully co-operated with the investigation by AHPRA. The respondent also says that by agreeing to the conduct, and agreeing both that it constituted professional misconduct and is worthy of a suspension, the respondent takes responsibility for his actions and demonstrates insight into the seriousness with which the personal relationships between doctors and patients are properly regarded. The respondent also notes that he has acknowledged the impact his behaviour had on NC and committed to never transgressing such boundaries in the future. The respondent also says that his voluntary withdrawal from practice, which he says led to significant personal detriment, also demonstrates that he has insight into his wrongdoing.
20. The respondent also notes that he has no relevant regulatory history, and in relation to character references provided, notes that at least one reference from a practice principal confirmed awareness of the allegation. The respondent says in any event the observations made by the referees about the respondent's professional conduct outside of this incident, assists the Tribunal in assessing his character.
21. The consequences that have flowed from the respondent's admitted conduct, in his submission, provide a robust level of specific deterrence.
22. In relation to general deterrence the respondent acknowledges the need for general deterrence, and submits that it is the most prominent factor for the Tribunal's consideration. The respondent submits that a reprimand and suspension of registration together with the publicity and consequential embarrassment likely to flow from any finding of the Tribunal in relation to this matter is likely to act as a significant matter of general deterrence.
23. The respondent accepts that he should be reprimanded.
24. In relation to the question of whether cancellation or suspension of the respondent's registration is appropriate, the respondent submits that this is not a case where de-registration is the only option available, and says that the Tribunal should not be persuaded that the respondent is not a fit and proper person to hold registration as a medical practitioner taking into account all of the circumstances of the offending behaviour, which is isolated, and the level of insight and remorse demonstrated by the respondent.
25. The respondent also says that any question of general deterrence in the context of the maintenance of the reputation of the profession would be equally served by reprimand and suspension.
26. The respondent says that the period that he has spent out of practice voluntarily (since early December 2022) ought to be taken into account by the Tribunal in considering a formal period of suspension, although acknowledges that the time out of practice ought not to be essentially 'offset' against period of suspension imposed. The respondent says that an appropriate suspension period to be imposed by the Tribunal would be in the order of 2 to 3 months.
27. The respondent also said that the order sought by the Board that the respondent be disqualified from applying for re-registration for a period of 3 years is excessive and unnecessary because the Board would be required to assess the respondent's fitness to practice if he were to apply to be re-registered.
28. In relation to the 'prohibition order' sought by the Board under s 196(4)(b) of the National Law, the respondent says that if the Tribunal decides to cancel the respondent's registration, there is no need for an additional order of that nature. The respondent says that prohibition orders have been made in circumstances where there were concerns of ongoing risk to the public if such an order was not made, and submits that this is not such a case

1. The parties are agreed that a reprimand is appropriate.
2. I agree. A reprimand is a formal denunciation of a practitioner's conduct. A reprimand is 'a form of official censure' and the publication of the Tribunal's reasons 'will serve to reinforce the official nature of the censure, and act as a constant reminder to [the respondent] of the importance of adhering to the standards of his profession' in the future: Medical Board of Australia v Lee [2022] VCAT 667 (Lee) at [36 - 37].
3. The parties are at odds as to whether suspension or cancellation of the respondent's registration is an appropriate additional sanction.
4. The Tribunal observed in Lee at 38:

Both suspension and cancellation involve a practitioner serving a period of time out of practice, but their purpose and effect differ. > > As observed by the Tribunal in Honey v Medical Practitioner Board of Victoria: > > The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must still satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration ... > > It follows that cancellation is a more serious determination, as it 'sends a clear message of unsuitability to practice', while suspension 'may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served'.

5. I have determined that the respondent has engaged in conduct that was inconsistent with him being a fit and proper person to hold registration as a medical practitioner. Cancellation of registration is a sanction that will often flow from such a finding, but it is not necessarily so. A Tribunal may be satisfied that a practitioner has demonstrated that, notwithstanding such a finding, he or she has subsequently become a fit and proper person to hold registration: see Arulanandarajah above.
6. In the present case, I do not consider that the respondent has demonstrated this to be the case. The respondent has indicated that in his time away from practice he has engaged in self-reflection and particular study and reflection of the expectations of a medical practitioner as set out in the Code, Guidelines and Code of Ethics. In my view, the respondent ought to have done more.
7. In the light of the particular conduct of the respondent over a period of many months after his relationship with NC began to break down, I would have expected the respondent to engage with psychological assistance and/or further education to enable him to understand how his behaviour towards NC escalated to the degree that it did and continued, apparently unabated, for a considerable period. Relevant to insight, I adopt the observations of the Tribunal in Lee, that insight of a practitioner can include an appreciation of why the practitioner engaged in that conduct_,_ and willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions.
8. It is appropriate that the respondent's registration be cancelled.
9. The parties both referred to a number of cases that were potentially relevant to the period of suspension or cancellation, although both parties also acknowledged there is no closely analogous case, and that each case turns on its own facts. I have considered those cases.
10. I have reached the conclusion that the respondent should be prohibited from applying for re-registration for a period of twelve months from the date of this decision. In reaching that conclusion, I have given some weight to the respondent's voluntary period away from practice, but I have not 'offset' the entire period.
11. I do not think there is any necessity for a prohibition order to be made. I agree with the respondent's submissions that the cases where this has been considered to be appropriate are generally dissimilar to the present case. See, for example, Medical Board of Australia v Ellis [2024] VCAT 113, and Medical Board of Australia v Piesse [2022] VCAT 667 and Psychology Board of Australia v Myers [2021] VCAT 949.

1. The Board has sought an order for costs. The respondent says that the appropriate order would be for the parties to bear their own costs.
2. Section 195 of the National Law provides:

The responsible tribunal may make any order about costs it considers appropriate for the proceedings.

3. Section 40 of the Health Practitioner Tribunal Act 2010 (the HPT Act) relevantly provides:

Costs > > (1) Except as provided under this Act, the National Law or a referring Act, each party to proceedings under this Act must bear the party's own costs in the proceedings. > > (2) The Tribunal may order a party to proceedings to pay all the costs, or a part of the costs specified in the order, of another party to the proceedings if the Tribunal considers that it is in the interests of justice to do so. > > (3) In deciding whether to award costs in proceedings, the Tribunal is to take into account - > > (a) whether a party to the proceedings has behaved in a way that has unnecessarily disadvantaged another party to the proceedings; and > > (b) the nature and complexity of the proceedings; and > > (c) the relative strengths of the claims made by the parties in the proceedings; and > > (d) if the proceedings are for review of a decision - > > (i) whether the applicant was accorded procedural fairness by the person who made the decision; and > > (ii) whether the applicant genuinely attempted to enable, and assist, to make the decision, the person who made the decision; and > > (e) the financial circumstances of the parties to the proceedings; and(f) any other matter the Tribunal thinks relevant.

4. Different jurisdictions have taken different approaches to awards of costs under the National Law, largely, it appears, because of the differing enabling legislation in different jurisdictions.
5. Although the former Tasmanian Health Practitioners Tribunal in this jurisdiction has made costs orders in some cases, there does not appear to have even been a generally adopted position, or consideration of the potentially competing provisions of s 195 of the National Law and s 40 of the HPT Act.
6. In the present case, the Board says that s 195 of the National Law prevails. The respondent says that s 40 of the HPT Act should be the provision that applies to costs considerations, but also says that ultimately, whichever provision applies, it should make no difference in the present instance.
7. Leaving aside s 40(1) of the HPT Act, s 195 of the National Law and the balance of s 40 of the HPT Act both give to the Tribunal discretion to award costs. The Tribunal is directed to take into account certain matters by s 40(3), but is ultimately, by s 40(3)(f) authorised to take into account 'any other matter [it] thinks relevant'. The discretion under s 195 in relation to costs is essentially unfettered.
8. Section 4 of the HPT Act provides:

(1) In the event of any inconsistency between this Act (or the Tasmanian Civil and Administrative Tribunal Act 2020 ) and the National Law, the National Law prevails to the extent of the inconsistency.

9. There is an inconsistency between s 40(1) of the HPT Act, and s 195 of the National Law to the extent that s 40(1) contemplates a starting point that the parties bear their own costs, whereas s 195 of the National Law does not.
10. Where s 40(1) of the HPT Act is expressed to be subject to the exception of a provision of the National Law, s 195 of the National Law is the relevant provision under which the Board's costs application should be determined. The matters that the Tribunal is required to take into consideration under s 40(3) of the HPT Act when considering an award of costs are likely to be relevant to the discretion under s 195 of the National Law.
11. Although an unfettered discretion in relation to costs may generally be considered to lead to a starting position that 'costs follow the event'. This is not necessarily applicable to regulatory matters, as opposed to civil litigation.
12. The discretion under s 195 was discussed in Medical Radiation Practice Board of Australia v Lau [2025] VCAT 35 at [81 - 83]:

The Board relevantly identified the following principles from the decided cases:

• there is no presumption that each party will bear its own costs;
• the National law confers a broad discretion on the Tribunal to award costs against a party;
• although the Tribunal's broad discretion is unconstrained by the considerations set out in section 109(3) of the VCAT Act [1], some or all of those considerations may be relevant in any given case;
• the discretion is not 'at large' and must be 'exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation';
• the purpose of an order for costs is to indemnify or compensate the party in whose favour it is made and not to punish the party against whom it is made;

• The discretion conferred under s 195 of the National Law does not equate to an expectation that costs will follow the event.
• There may be cases where very serious allegations are found proven against a practitioner, but where an award of costs will still not be appropriately made, as all the circumstances of the case need to be considered.

We agree with the above statements of the applicable principles identified by the parties.

1. In the present case, the Board submits that there should be an order that the respondent pay its costs because if a costs order were not made, the Board's costs would be effectively borne by other registered members of the profession instead of the practitioner who engaged in the misconduct. The making of a costs order is appropriate and in the interests of justice.
2. The Board concedes that the respondent has not conducted himself in any way that disadvantaged the Board in conducting the proceedings, or prolonged the proceedings. The Board also says that the respondent's conduct in co-operating with the investigation, and agreeing facts, whilst it reduced the length and complexity of the hearing, does not absolve the respondent from all responsibility for costs.
3. The respondent says that the exercise of the discretion in relation to costs ought to be exercised to mean that no costs order is made against the respondent. The respondent says that the following matters are relevant:
   • He admitted that he engaged in professional misconduct
   • He co-operated with AHPRA and subsequently with the Board throughout the whole prosecution process, including signing the agreed statement of facts. His actions in relation to the proceedings led to a half-day hearing, limited only to submissions and contentions as to characterisation and sanctions
   • He has not caused any delay or impediment to the proceedings, nor has he made any misrepresentations about what occurred
4. The respondent also says that an adverse order for costs could lead other health practitioners in similar circumstances to take the view that there would be little or no benefit in adopting a similar approach to disciplinary proceedings, leading potentially to more complex hearings and a greater strain on regulatory resources. The Board says that this consideration should be given little weight, but if the Tribunal considers this to be a relevant factor, an adverse costs order may encourage other practitioners to make reasonable concessions and co-operate, so as to minimise potential costs liability.

1. I acknowledge the Board's submission that a decision not to award the Board its costs of the proceedings will mean that those costs will be borne by other members of the profession thought their registration fees, in circumstances where it is the respondent whose misconduct has led to these proceedings.
2. However, in the exercise of my discretion regarding costs of the proceedings, and having particular regard to the manner in which the respondent conducted himself in the investigation process and the proceedings before the Tribunal, I agree with the observation in Medical Board of Australia v Nguyen [2025] VCAT 287 at [197]:

It seemed to us that it would be counterintuitive and counterproductive for costs orders to act as a deterrent to practitioners engaging in negotiations which can ultimately save costs in terms of preparation and hearing time.. and, importantly, avoid the need for victims of the practitioner's professional misconduct to give evidence.

3. The Board's application for costs is dismissed.

(i) The respondent is reprimanded

(ii) The respondent's registration as a medical practitioner is cancelled from the date of these orders

(iii) The respondent is disqualified from applying for registration for a period of twelve months from the date of these orders

(iv) The Board's application for costs is dismissed

[1] The same applies to s 40(3) of the HPT Act.