1. As to ground 1 - clinical performance in relation to AC, the first step is to assess whether it is 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. The assessment as to whether the proven conduct is of such a lesser standard permits regard to the evidence of expert witnesses (importantly, the consensus between Drs Teague and Roche that the practitioner's prescribing for anxiety and depression for AC was significantly below standard); the practitioner's own assessment of his management of AC's symptoms (which he admitted "should and could have been better"[12]); and the proven conduct being in breach of the 2010 and 2014 Codes of Conduct. In this regard, the applicant says the proven conduct in ground 1 satisfies step one of the tests. The applicant says that the conduct also meets the second step in that it is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The applicant submits that the respondent had been a GP for some 14 years at the start of the treatment period for AC, and 24 years by the end of the period. The departure from the standard was extensive given the lengthy period of professional care; the management of AC's symptoms being inconsistent with the RACGP Drugs of Dependence Guidelines; and the consequences of the departure being significant for AC, given her known vulnerabilities due to Substance Use Disorder and mental illness. The applicant therefore contends the conduct in ground 1 meets limb (a) of the definition of professional misconduct.

1. As to ground 2 - failure to maintain professional boundaries in treatment of AC, the applicant says it is obvious that the proven conduct (kissing a patient with an open mouth; making inappropriate disclosures to a patient about his personal and sexual life; inappropriately massaging AC's shoulders; and making overfamiliar and intrusive comments to AC) 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. The applicant says it is equally obvious that the proven conduct also meets the second limb, in that it is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The applicant contends the findings that the practitioner's conduct breached the 2010 and 2014 Codes of Conduct and was inconsistent with the standards provided in the 2011 and 2018 Sexual Boundaries Guidelines, support a characterisation of the conduct as falling substantially below the standard reasonably expected of a GP. The applicant says the Tribunal should also have regard to the power imbalance existing at the time between the respondent and AC, and the impact on AC's known vulnerabilities. Applying Fittock, the applicant further says the large or considerable departure from the standard required is evident not only from the adverse consequences for the client, but the clear deliberateness of the conduct by the respondent.[13] On this basis, the applicant contends the conduct in ground 2 meets limb (a) of the definition of professional misconduct.
2. Additionally, the applicant contends the conduct in ground 2 also meets limb (c) of the definition of professional misconduct. The applicant says the assessment in (c) is as to the nature of the conduct rather than the practitioner. The applicant says the assessment is directed as to whether the conduct itself is inconsistent with being a fit and proper person to hold registration in the profession. The applicant characterises the nature of the proven conduct as "speak[ing] against the practitioner having the necessary moral integrity and rectitude of character to permit them to be accredited to the public" to perform the work of a medical practitioner.[14] On this basis, the applicant contends the conduct in ground 2 also meets limb (c) of the definition of professional misconduct.

1. As to ground 3 - clinical performance in relation to LB, the applicant contends it is clear that the proven conduct meets the first step of the test, as it was below the standard reasonably expected by the public or the practitioner's professional peers. The applicant says the evidence of both expert witnesses was that the failure to provide a modest covering was a significant departure from proper medical practice. The applicant says the absence of a chaperone during the breast examination (either because it was not offered; or, if offered, because the offer was not documented) was a breach of the respondent's own management protocol. Similarly, the absence of evidence of express consent to the examination (either because it was not sought; or, if it was sought, because it was not documented) fell below the standard reasonable to be expected both on the experts' evidence and as against the respondent's own protocol. Further, the applicant contends the proven conduct also meets the second step of the test in that it fell substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. At the time, the respondent had been a GP for some 10 years. The departure from the standard for LB were significant given the contextual factors of her age; it being her first consultation for an oral contraceptive; and her lack of experience of what was reasonable in such procedures. The applicant says it was a significant departure from the respondent's own protocol and a significant failure to observe professional boundaries. On this basis, the applicant contends the conduct in ground 3 meets limb (a) of the definition of professional misconduct.

1. As to ground 4 - failure to maintain professional boundaries in treatment of LB, the applicant says, like ground 2, it is obvious that the proven conduct (remarking in the context of a breast examination "your boyfriend is very lucky"[15]) is both 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 is also substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The applicant says the evidence of both experts was that the remark would reasonably be expected to have been construed by the patient as a sexual remark and, as such, constitutes a significant failure to observe professional boundaries. The applicant says the departure was significant given that it was made in a context in which LB was highly vulnerable. The applicant contends the conduct "plainly" meets limb (a) of the definition of professional misconduct.[16]
2. Additionally, the applicant contends the conduct in ground 4 meets limb (c) of the definition of professional misconduct. The applicant says the conduct itself is inconsistent with being a fit and proper person to hold registration in the profession. The applicant says making the proven remark "speaks against the practitioner having the necessary moral integrity and rectitude of character to permit them to be accredited to the public" to perform the work of a medical practitioner.[17]
3. The applicant contends, given the overwhelming majority of the alleged conduct and particulars in each of Grounds 1-4 having been found proven, each of the four grounds separately should be characterised as professional misconduct in terms of the definition in section 5 of the National Law.[18]
4. Further, the applicant contends it is open to the Tribunal to also conclude the proven conduct would reasonably be regarded as disgraceful by members of the medical profession of good repute and competency, satisfying the requirement for professional misconduct at common law.[19]

1. The respondent submits the Tribunal ought to assess the characterisation for each of the proven grounds in the application separately, in isolation from any other ground.
2. The respondent says, contrary to what the applicant asserts, there is no single accepted definition of professional misconduct at common law. Rather, there is historical case law from which the common law has developed a series of standard descriptors of professional misconduct - "infamous in a professional respect",[20] "so grossly negligent as to attract ... strong reprobation",[21] "wrongful, improper, unlawful conduct"[22] and the like - all of which, the respondent contends, his conduct falls short of. The respondent says it is these descriptors which should direct how the Tribunal determines the "substantially below the standard" test of professional misconduct in section 5 of the National Law.
3. The respondent further contends whatever the true meaning of these "old phrases", section 196(1)(b) requires an "evaluative judgment" by the Tribunal of the reasonableness of the care exercised by the respondent, in the light of all relevant facts and circumstances.[23] The respondent cited, in this regard, the remarks of Basten JA in Chen v Health Care Complaints Commission (Chen), and similar remarks of the Victorian Court of Appeal in Naim v Medical Board of Australia, that the answer to the substantially below the standard test of professional misconduct bears "directly on the nature and quality of the applicant's conduct".[24]
4. The respondent further says it is necessary for the Tribunal to have regard to historical caselaw from which the common law has developed the fit and proper person to practice principles when determining the test of professional misconduct in limb (c) of the National Law definition. The respondent says the genesis of conduct that meets that test must be the product of "moral culpability", or arising from "sinister, nefarious or sexual intent".[25] Conduct which rather has its genesis in "poor judgment" alone cannot equate to conduct which is inconsistent with being a "fit and proper person" to hold registration in the profession.[26] The respondent says the proven conduct of the respondent lacks that nefarious genesis. The respondent says, for the Tribunal to conclude the proven conduct satisfies the limb (c) test, would be to equate his conduct to Basten JA's descriptor in Chen of revealing "a significant defect in character, incompatible with continued professional registration".[27] The respondent says the applicant has failed to prove a defect of such order in his character.
5. The respondent made submissions with respect to the proven conduct grouped into two section - the grounds in which boundary violations were proven (grounds 2 and 4), and the grounds where clinical performance deficits were proven (grounds 1 and 3).

1. Firstly, with respect to the proven boundary violations, the respondent says the Tribunal did not find he engaged in all of the conduct as particularised by the Board. As to the Ground 2 findings, the respondent contends the Tribunal did not find he kissed AC in the manner she alleges (open mouthed, for two or three seconds); did not find he made any particular inappropriate disclosures to AC; did not make any findings about the number, nature or context of the instances that it found he inappropriately massaged the shoulders of AC; did not make any findings about which particular inappropriate disclosures were made to AC; and did not make any findings about the number, nature or context of the disclosures it found proven. Given that it did not categorise any particular inappropriate disclosures as sexually motivated, it could not be satisfied that any of the proven conduct in Ground 2 constituted a failure to observe professional boundaries or a breach of the professional relationship of trust between the respondent and AC. As to the Ground 4 findings, the respondent contends the Tribunal did not make any findings about the motivation, context or timing of the remark it found proven; did not find the respondent behaved in a predatory or malicious manner during the consultation; did not find the conduct was sexually motivated; or that the remark was made for sexual purposes or for sexual gratification.
2. The respondent contends these 'non-findings' are significant when characterising the degree of failure by the respondent and the gravity of his conduct in Grounds 2 and 4. The respondent relies upon the distinction which he draws about the manner in which the common law informs the proper interpretation of "fit and proper person" to the test of professional misconduct in limb (c). The respondent says for conduct to properly be regarded as professional misconduct (in limbs (a) and (b)) the conduct must have been engaged in for sexual gratification, or some other improper or nefarious or sexual purpose.[28] Conduct, on the other hand, which has its genesis in poor judgment (conduct of "an admittedly misguided attempt...to effectively treat") should properly be regarded as unsatisfactory professional performance.[29] The respondent says the proven conduct of the respondent lacks the necessary nefarious genesis.

1. Secondly, the respondent made submissions with respect to the clinical performance deficiencies in grounds 1 and 3. The respondent says the Tribunal did not find he engaged in all of the conduct particularised by the Board. As to the Ground 1 findings, the respondent contends the Tribunal did not find his prescribing practices placed AC at risk of developing drug dependency; did not find his treatment of AC was deficient, but rather that his documenting of his treatment of AC was deficient; did not find he deliberately pressed his leg against AC while performing the breast examination; and did not find that his conduct breached the Codes of Conduct or the RACGP Guidelines, but rather found the conduct was "inconsistent" with both.[30] As to the Ground 3 findings, the respondent contends the Tribunal did not specially find he neglected to offer LB a chaperone, or offer her a modesty cover, or seek her consent before he performed the breast examination, but rather the Tribunal found that he failed to document these steps.
2. The respondent contends these 'non-findings' are significant when characterising the degree of failure by the respondent and the gravity of his conduct in Grounds 1 and 3. The respondent says, as regards Ground 1, the Tribunal found the failures were grounded in poor management, haphazard prescribing and absence of an evidence-based approach to treatment. The respondent contends, in assessing where the proven conduct falls in terms of gravity, these findings must be balanced by the evidence of good clinical acumen (e.g., safer re-prescription of her medication on AC's return to his care after an eight-year break) and reasonable and appropriate prescribing of painkillers (e.g., for AC's fibromyalgia) as identified by Dr Roche. The respondent contends the applicant has failed to establish that the proven conduct in Ground 1 amounts to professional misconduct.[31] The respondent says, as regards Ground 3, the Tribunal's findings are consistent with his having failed to document the disputed steps in his breast examination, rather than having failed to take those steps. As such, the proved conduct identifies "nothing more than a failure to exercise best practice" rather than a characterisation of his conduct as falling below, let alone substantially below, the expected standard.[32]
3. The respondent contends the proven conduct in each of Grounds 1-4 represents, as he himself recognised in his evidence, unsatisfactory professional performance. He says, citing Basten JA's characterisation in Chen, the conduct should be recognised as born of "incompetence ... [and] capable of rectification".[33]

The Tribunal's consideration of the issue of characterisation

1. Having found Grounds 1-4 in the Application proved, it is open to the Tribunal, inter alia, to make the following findings pursuant to section 196(1) of the National Law:

(a) that the respondent has behaved in a way that constitutes unsatisfactory professional performance;[34] or

(b) that he has behaved in a way that constitutes unprofessional conduct;[35] or

(c) that he has behaved in a way that constitutes professional misconduct.[36]

1. At the outset, we are satisfied that each of the four grounds proven against the respondent concern both conduct and performance. As such, we accept the applicant's submission that the category of "unsatisfactory professional performance" relates to performance only (knowledge, skill or judgment possessed, or care exercised) and is not an applicable characterisation of the respondent's conduct.[37]
2. Both the applicant and the respondent ask the Tribunal to make findings with respect to the characterisation of the proven conduct separately for each Ground. We consider this appropriate.

Principles to be followed in determining characterisation

1. The definition in section 5 is an inclusive rather than an exhaustive one and, as such, the common law meaning given to professional misconduct sits alongside the statutory provision. The respondent says regard must be given to the common law meaning developed as the test of a "fit and proper person" to practice when determining that test of professional misconduct in section 5. The respondent says the genesis of conduct that meets the definition of "unfitness for practice" in limb (c) must be the product of "moral culpability", or arising from "sinister, nefarious or sexual intent".[38] Conduct which rather has its genesis in "poor judgment" alone cannot equate to conduct which is inconsistent with being a "fit and proper person" to hold registration in the profession.[39] The respondent takes this further and says, while the common law meaning is directly referrable to paragraph (c), this same distinction is also determinative of what "substantially below" means in paragraphs (a) and (b).[40] The respondent says it is incumbent on the Tribunal to follow this common law conceptualisation of professional misconduct in its consideration of the section 5 definition. The respondent characterises the test as the Tribunal needing to interrogate the conduct and ask: is it the product of "moral culpability", or arising from "sinister, nefarious or sexual intent", such as would equate to professional misconduct at common law?[41] Or is it conduct which rather has its genesis in "poor judgment" and, as such, equates to conduct of a less serious characterisation?[42]
2. The respondent relies on Basten JA's comments in Chen in support of this approach. With respect to senior counsel, this is not what we draw from his remarks. In Chen, a medical practitioner argued that the tribunal's power to cancel her registration (as distinct from suspending it) was only engaged when it was satisfied that she was permanently unfit to practice. Basten JA rejected the argument, but usefully traced the historical focus of statutory provisions regulating the professional conduct of both the legal and medical professions (though warning the differing functions of each profession warrants caution on cross-referencing findings).[43] Up to 1987, (the year of the introduction of the concept of "professional misconduct") the focus of legislation had been the control of conduct involving "moral turpitude".[44] Basten JA says that language was thereafter abandoned, and the focus of regulation was expanded to include the control of other deviations from proper professional practice "unattended by any taint of moral obliquity".[45] Basten JA draws from his review that most of the early cases with respect to doctors were concerned with such moral obliquity. He traced the same foundation in cases concerning lawyers, with its largely parallel regulatory focus of lawyers needing to remain persons of "good fame and character", with conduct revealing a departure from that character seen as incompatible with continued registration. But with the advent of the concept of "professional misconduct", the focus of cases was expanded to include incidents of incompetent professional care that did not show a defect in character. The conduct in such cases could be characterised differently, and potentially sanctioned differently.[46] But Basten JA warned that any category of unsatisfactory professional conduct, including incompetency, is capable of giving rise to a professional misconduct categorisation.[47]
3. We agree with the respondent that determining the characterisation of professional conduct is a task of the Tribunal's evaluative judgment as to the nature and seriousness of the conduct proven. But we do not accept that, in determining whether the proven conduct is "substantially below" the standard, in terms of paragraphs (a) and (b), the proper test is whether it is the product of moral culpability, or arising from sinister, nefarious or sexual intent as a prerequisite of a professional misconduct finding. We do, however, find that distinction a useful additional way to assess the conduct in terms of limb (c), namely as to whether the conduct is inconsistent with the practitioner being a fit and proper person for practice.
4. We consider a proper statutory reading of the three-limb definition of professional misconduct in section 5 of the National Law requires us to follow the 2-step test the applicant urges. Applying the two-step test to the definition in paragraphs (a) and (b) means the Tribunal should first determine whether the proven conduct has met the less stringent standard of unprofessional conduct, as separably defined in section 5. If this step is satisfied, the conduct must then be assessed as to whether it equates to serious contraventions sufficient to satisfy the definition of professional misconduct.
5. The applicant cited a number of authorities with respect to how the Tribunal should interpret "substantially below" as the second step to determining whether the conduct meets the criteria in (a) and (b) of professional misconduct. The applicant cited the Full Court of the Supreme Court of South Australia in Fittock, where the court considered the meaning of 'substantial' in disciplinary proceedings against a lawyer. The Legal Practitioners Act 1981 (SA) in force at that time contained, as part of its definition of "unprofessional conduct" (essentially equivalent in meaning to "professional misconduct"), conduct "that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute".[48] The court said it was apparent that the definition required something "more than a mere departure"; and that "substantial" connoted a "large or considerable departure".[49] Significantly, that large or considerable departure could be the result of different aspects of the conduct, including its "deliberateness", or "the consequences [of the conduct] for the client". The case of Pharmacy Board of Australia v Registrant,[50] cited by the respondent, is consistent with that approach, holding that "substantially below" requires the practitioner's conduct "be shown to be, to a high degree, below the standard expected".[51]
6. The parties concurred that paragraphs (a)-(c) of the section 5 definition do not escalate such that the definition in (c), that professional misconduct is conduct "inconsistent with being a fit and proper person to hold registration in the profession", is not necessarily more serious. As the applicant says, the three limbs are directed at different ways to reach a decision that professional behaviour should be characterised as professional misconduct.
7. Two VCAT decisions provide some guidance as to how the term "fit and proper person" should be understood in the National Law, in the light of its wider judicial consideration.[52] In Griersmith (where the tribunal considered the characterisation of the conduct of a psychologist who had entered in an intimate personal relationship with a client soon after treating her), the tribunal's focus was more with the practitioner's person or character, namely whether he "possesses sufficient moral integrity and rectitude of character [so as to permit him] to be accredited to the public as a person to be entrusted with the sort of work" his registration allowed.[53] The tribunal saw the role of the decision maker in this regard as making a value judgment about the person in the light of its assessment of the seriousness of the proven conduct.[54] However, it seems to us this is more relevant to a determination of sanction. In Arulanandarajah (relating to criminal sexual assault findings by a medical practitioner outside practice), the VCAT accepted the Board's reading of the term "fit and proper person" in paragraph (c) as being focused on the character of the proven conduct rather than the character of the practitioner.[55] This is the approach we take in that it is the characterisation of conduct itself the Tribunal should evaluate. We turn now to each of the four grounds of proven conduct.

1. As to Ground 1, the Tribunal found the charge proven.[56] Specifically, the Tribunal found the particulars in paragraph 10 of the application, namely that the respondent's prescription of medication for AC was haphazard and not evidence-based;[57] his record keeping was deficient in numerous respects;[58] and his care demonstrated knowledge defects or inattention with respect to his medication approach,[59] were all made out. We further found the respondent's clinical performance in relation to AC during a breast examination was inappropriate, in that he did not offer a chaperone;[60] pressed his leg against her side while conducting it;[61] and his conduct was in breach of the 2010 and 2014 Codes and inconsistent with the RACGP Guidelines and the Sexual Boundaries Guidelines.[62]
2. We agree with the applicant's contention that the proven conduct in Ground 1 was below the standard reasonably expected of the practitioner by the public or professional peers, and so meets the first part of the two-step test. The second part of the test is whether his conduct, in failing to properly assess, diagnose and treat AC in the manner proven, falls significantly below the standard expected of a practitioner of equivalent training or experience (during the relevant treating period of 2009 to 2019, he was a GP of some 14 to 24 years' experience). The Tribunal has evaluated his conduct as a series of failures with respect to the one patient over many years which, individually, are below standard, and which, when considered together, satisfy that characterisation of professional misconduct under paragraph (b).

1. As to Ground 2, the Tribunal found the charge proven.[63] Specifically, the Tribunal found the particulars in paragraph 15 of the application, that the respondent kissed AC at the end of a consultation;[64] that he made inappropriate disclosure to AC about his personal and sexual life;[65] that he inappropriately massaged AC's shoulders during consultations;[66] and that he made numerous inappropriate statement to or about AC, had been proven.[67] We found that his conduct was inconsistent with the standards set in the Board's 2011 and 2018 Sexual Boundaries Guidelines.[68] For greater clarity, we confirm the conduct breached those guidelines and were of a sexual nature.
2. It is difficult to go beyond the applicant's contention that:

[It goes] without saying that [the nature of such conduct] falls significantly below both the standard reasonably expected of the practitioner by the public or professional peers and the standard expected of a practitioner of equivalent training or experience ...[69]

1. The respondent urges us to make our own "'evaluative judgment' ... of the reasonableness of the care exercised by [him] in the light of all relevant facts and circumstances."[70] We have done so, and can come to no conclusion other than that the level of care exercised by the respondent was substantially below the standard reasonably expected of a practitioner of equivalent training or experience, and equates to professional misconduct under paragraph (a). We did not consider whether the conduct in Ground 2 also met limb (c) of the definition of professional misconduct.

1. As to Ground 3, the Tribunal found the allegations that, in the course of conducting a breast examination of LB, the respondent either did not offer her a modesty cover or a chaperone, or failed to document the offer and LB's responses, were proven.[71] The Tribunal also found the respondent either failed to explicitly seek LB's consent to the examination or failed to document her consent.[72] The Tribunal found that this conduct constituted a failure to observe professional boundaries (including sexual boundaries).[73]
2. The respondent accepted, in his amended response, that there was no documented offer of either a modesty cover or a chaperone, nor was there a documented record of LB's consent.[74] But he contended the absence of such records does not establish he did not take these steps, which he said were part of his standard practice at the time. The Tribunal however accepted the applicant's evidence that she was not provided with any covering; that there was no chaperone present; and that she could not recall being asked to give express consent to the examination. The bar to meet the first step of unprofessional conduct is relatively low and we find this bar is easily cleared on either of the two alternatives (absence, or failure to record). Assessing the proven conduct on the second step requires an evaluation as to whether it equates to conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (in the respondent's case, he had 10 years' experience as a GP at the time).
3. Applying the Full Court of the Supreme Court of South Australia's conceptualisation of "substantially below" in Fittock, a relevant aspect of conduct is "the consequences for the client".[75] We consider this a relevant consideration here. The failure to provide a chaperone or modesty covering, or to obtain express consent for a routine breast examination, would normally be more akin to a departure from acceptable standard, rather than a departure that is substantially below. The consequence of the failure for LB however, which realistically she could not avoid, was finding herself alone in a consulting room with the respondent, in an atmosphere where (in his own words) he felt he could make a remark about her breasts in "an attempt at being light-hearted".[76] In our judgment, the consequence of that experience moves the failure to one that is substantial. We consider the conduct satisfies the definition of professional misconduct in terms of paragraph (a).

1. As to Ground 4, the Tribunal found the allegation that the respondent, in the course of conducting a breast examination of LB, said to her "your boyfriend is very lucky" was made out.[77] The Tribunal found that this conduct constituted a failure to observe professional boundaries (including sexual boundaries).[78] In its application for disciplinary action, the applicant did not provide any additional particulars with respect to Ground 4. However, the Tribunal accepted the applicant's evidence as to the circumstances of the allegation, as detailed in the statement annexed to her affidavit of 13 May 2022 and her oral evidence at the hearing.[79] That evidence was that it was made when she felt completely exposed without the benefit of a modesty cover; that it occurred as the respondent started to touch her breasts; it was made in reference to her breasts; and it made her feel self-conscious and uneasy.[80]
2. The bar for unprofessional conduct is relatively low. The respondent accepted in his amended response,[81] his affidavit of 16 Novembers 2022,[82] and in his oral evidence[83] that his conduct was inappropriate. This bar is easily cleared, and we find the first step is met. The conduct also equates to the more serious contravention in that it is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (ten years' experience as a GP at the time). We are also easily persuaded to this view given the relevant context of the remark. The effects LB describes in terms of immediate effects of being vulnerable and exposed, and long-term effects given the memory remained with her 16 years later when she saw the respondent's name in the paper, bring us to this view. We consider the conduct satisfies the definition of professional misconduct in terms of paragraph (a).
3. We also evaluated this conduct in terms of paragraph (c) of the definition, as to whether the conduct is inconsistent with the practitioner being a fit and proper person for practice. We found evaluating the gravity of conduct in terms of its genesis useful in this regard. As Basten AJ says in Chen, a significant function exercised by doctors is "to protect the physical integrity of patients" and not violate that integrity.[84] This places a different complexion on assessing the respondent's moral culpability, and requires a consideration as to whether he displays, as per the VCAT in Griersmith, "the rectitude of character to permit [him being] accredited to the public as a person to be entrusted with the sort of work the relevant registration or licence entails".[85] We find the conduct does not, it connotes a lack of moral rectitude and integrity. In our judgment, we find the respondent's remark during that consultation in 2004 had its genesis in moral culpability and was not simply evidence of poor judgment.
4. The Tribunal accepted LB's evidence as truthful and reliable; that the remark was made; and made in the course of the breast examination when she was at her most vulnerable, without the benefit of a modesty cover, or the presence of a chaperone. The respondent's professional behaviour in making that remark at that moment in time, some 19 years ago, was not consistent with him being a fit and proper person for practice. It was inconsistent on that test then, it would be equally inconsistent if made 10 years later, or indeed if made today. The nature of the conduct is simply inconsistent with being a fit and proper person to hold registration in the profession. We are satisfied the proven conduct in Ground 4 also meets the definition of professional misconduct in terms of paragraph (c).

1. The Tribunal characterises the proven conduct in each of Grounds 1-4 as professional misconduct.

1. Pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (ACT), in respect of each of the four grounds in the application for disciplinary proceedings, the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.

[1] Medical Board of Australia v Al-Naser [2024] ACAT 7 (Al-Naser)

[2] See Health Practitioner Regulation National Law (ACT) Act 2010 section 6, which applies the Health Practitioner Regulation National Law as scheduled to the Health Practitioner Regulation National Law Act 2009 (Qld), as modified by schedule 1 to the Health Practitioner Regulation National Law (ACT) Act 2010

[3] Health Practitioner Regulation National Law (NSW) section 139E

[4] National Law section 5, 'unprofessional conduct'

[5] National Law section 5, 'professional misconduct'

[6] National Law section 5, 'professional misconduct'

[8] See, for example, Psychology Board of Australia v Roychowdhury [2019] ACAT 50

[9] [2015] SASCFC 167 at [110]

[10] [2019] VCAT 52 at [67]

[11] [2021] VCAT 85 at [31]- [34]

[12] Respondent's amended response to referral dated 6 December 2022 at [9]

[14] Applicant's outline for oral submission on characterisation dated 15 September 2023 at [29]

[16] Applicant's outline for oral submissions on characterisation dated 15 September 2023 at [35]

[17] Applicant's outline for oral submission on characterisation dated 15 September 2023 at [36]

[18] Applicant's outline for oral submission on characterisation dated 15 September 2023 at [19]

[19] Applicant's outline for oral submission on characterisation dated 15 September 2023 at [37]

[20] Qidwai v Brown [1984] 1 NSWLR 100 (CA), 104 per Priestley JA

[21] Pillai v Messiter [No 2] (1989) 16 NSWLR 197 (CA), 208 per Samuels JA

[22] Pillai v Messiter [No 2] (1989) 16 NSWLR 197 (CA), 201 per Kirby P

[23] Respondent's outline of submissions on characterisation dated 15 September 2023 at [21]

[24] Naim v Medical Board of Australia [2013] VSCA 205 at [54]- [55]; see also Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]

[25] Transcript of proceedings dated 15 September 2023, page 23, lines 21-38

[26] Transcript of proceedings dated 15 September 2023, page 26, line 20-page 27, line 7

[28] Respondent's outline of submissions on characterisation dated 15 September 2023 at [45]

[29] Respondent's outline of submissions on characterisation dated 15 September 2023 at [46]

[30] Respondent's outline of submissions on characterisation dated 15 September 2023 at [26](d)

[31] Respondent's outline of submissions on characterisation dated 15 September 2023 at [41]

[32] Respondent's outline of submissions on characterisation dated 15 September 2023 at [50]

[33] Respondent's outline of submissions on characterisation dated 15 September 2023 at [66], citing Chen at [13] per Basten JA

[35] National Law section 196(1)(b)(ii)

[36] National Law section 196(1)(b)(iii)

[37] Applicant's outline for oral submissions on characterisation dated 15 September 2023 at [6]

[38] Transcript of proceedings dated 15 September 2023, page 23, lines 21-38

[39] Transcript of proceedings dated 15 September 2023, page 26, line 20-page 27, line 7

[40] Transcript of proceedings dated 15 September 2023, page 22, lines 1-47

[41] Transcript of proceedings dated 15 September 2023, page 23, lines 21-38

[42] Transcript of proceedings dated 15 September 2023, page 26, line 20-page 27, line 7

As a preliminary point, one should be cautious in relying upon cases concerned with legal practitioners when dealing with the regulation of the medical profession. First, the institutional structures within which the respective professions operate are, and have been historically, different in significant respects. Secondly, the functions exercised by each profession differ significantly. To take merely an obvious example, an important purpose of regulating lawyers is to ensure that they deal properly with clients' property and money. With respect to doctors, a significant purpose is to protect the physical integrity of patients.

[50] [2012] QCAT 515 at [49]

[51] Respondent's outline of submissions on characterisation dated 15 September 2023 at [24]

[52] As the respondent submits earlier, law as to the meaning of the term "infamous in a professional respect" also continues to guide these interpretations, as per Priestley JA in Qidwai v Brown [1984] 1 NSWLR 100 (CA) at [105]-[106] and as per Kirby P's comments in Pillar v Messiter [No 2] (1989) 16 NSWLR 197 (CA), 201C, mere negligence or incompetence is insufficient

[54] Griersmith at [67] (emphasis added)

[55] Arulanandarajah at [31] (emphasis added)

[69] Applicant's outline for oral submission on characterisation dated 15 September 2023 at [25]

[70] Respondent's outline of submissions on characterisation dated 15 September 2023 at [21]

[74] Respondent's amended response to referral dated 6 December 2022 at [24]-[25]

[76] Respondent's amended response to referral dated 6 December 2022 at [30](b)

[81] Respondent's amended response to referral dated 6 December 2022 at [31]

[82] Affidavit of the respondent sworn on 16 November 2022 at [9]-[10]

[83] Al-Naser as set out at [96-97]