Following a hearing on 17 and 18 November 2016, the Tribunal made Orders on 11 January 2017, which included a finding that Dr Hassan Alkazali has engaged in professional misconduct within the meaning of the definition of professional misconduct in s 5 of the Health Practitioner Regulation National Law Act 2009 in relation to each of the four Allegations made against Dr Hassan Alkazali.

The parties were invited to make submissions concerning appropriate determinations and a further hearing was held on 22 February 2017. Following are the final determinations of the Tribunal.

1. Pursuant to ss 196(2)(a) and (e); and 196(4)(a) of the Health Practitioner Regulation National Law Act 2009 the Tribunal orders that:

1. Dr Hassan Alkazali be reprimanded; 2. Dr Hassan Alkazali's registration as a heath practitioner be cancelled with effect from 1 May 2017; and

1. Dr Hassan Alkazali be disqualified from applying for registration as a registered health practitioner before 1 November 2018, being a period of 18 months from the effective date of cancellation.
2. The Tribunal recommends that, during the period of 12 months prior to any future application by Dr Hassan Alkazali for registration as a health practitioner, he undertakes and completes, at his own expense:
   1. Counselling from a senior registered health practitioner, approved by the Medical Board of Australia (Board) and at intervals determined by the Board, in relation to the maintenance of professional boundaries (particularly with vulnerable patients), which is to be reported on in writing to the Board by the counsellor at the conclusion of the counselling sessions; and
   2. A program of education approved by the Board in relation to the maintenance of professional boundaries and including a reflective practice report;
3. The Tribunal recommends that, in the event that Dr Hassan Alkazali is re-registered as a health practitioner, without limiting any other pre-requisites required or conditions imposed by the Board, such registration include the following conditions:

1. That Dr Alkazali must submit to an audit of his practice, by permitting an auditor approved by the Board to attend any and all places of practice for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit; 2. That the audit and the audit report are to focus on the completion of impartial investigations and assessments by Dr Alkazali prior to providing reports to other health care professionals or health care stakeholders;

1. That Dr Alkazali must not have any non-clinical communication with any patient by telephone or through text messages, messaging services, email, social media or written communication, unless such communications are required in connection with the patient's clinical care; 'patient' includes any person awaiting, requiring, receiving or having previously received the professional services of Dr Alkazali or any other registered health practitioner within the same place of practice as Dr Alkazali; and

1. That Dr Alkazali bears all costs incurred in complying with the above audit condition.

1. The Tribunal has previously found that the Respondent has behaved in a way that constitutes professional misconduct, pursuant to s 196 (1)(b)(iii) of the Health Practitioner Regulation National Law Act 2009 (National Law).
2. The four Allegations and Particulars of such professional misconduct and the reasons for the Tribunal's' findings have been previously set out in some detail and will not be repeated here at any length.[1]

1. The Tribunal has previously determined that the Respondent's conduct amounted to professional misconduct involving serious breaches of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia' and the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors', including a serious failure to maintain appropriate professional boundaries; sexualised behaviour; improper advice to a patient; and misleading and deceptive communications with the Medical Board of Australia (Board).
2. The Tribunal now orders that the Respondent's registration be cancelled and that he be disqualified from applying for registration as a health practitioner for a period of 18 months from the effective date of such cancellation. In reaching such determination the Tribunal has carefully considered the submissions of both parties, including mitigating factors. The Tribunal is not satisfied that the Respondent will be a fit and proper person to resume medical practice after a period of suspension. The Tribunal considers that the Respondent would need to go through the process of persuading the regulatory authority that he is truly reformed and that he is a fit and proper person to resume practice, after a period of deregistration.
3. The Tribunal has concluded that the specified period of cancellation is necessary to protect the public and maintain appropriate professional standards and the integrity of the medical profession, having particular regard to:
   • (a) the Respondent's demonstrable lack of insight and genuine remorse;
   • (b) the serious nature and gravity of his offending conduct, in totality;
   • (c) the Respondent's propensity to minimise and even trivialise his conduct; and
   • (d) the Respondent's history of notifications and previous findings by the Board.

1. Having made findings of professional misconduct, the Tribunal may decide to do one or more of the following things, in accordance with s 196 (2) of the National Law:

(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(b) impose a condition on the practitioner's registration, including, for example -

(c) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person from using a specified title or providing a specified health service.

1. The Tribunal draws upon the written and oral submissions of Counsel for the Board, as appropriate.
2. The principles which guide the Tribunal in formulating appropriate determinations are uncontroversial. However, their application to any particular case requires careful consideration not only of the nature and circumstances of the misconduct but also relevant prior misconduct and the subsequent behaviour of the practitioner. Each of these matters will be considered below.
3. The dominant purpose of the disciplinary regulation of the medical profession and the primary aim of determinations, following a finding of professional misconduct or unprofessional conduct, is the protection of the public, through the combined ends of maintenance of appropriate professional standards; and the protection of the profession,[2] in the sense of maintaining its stature and integrity in the eyes of the public.
4. Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public.[3] Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations.[4]
5. The Tribunal recognizes that the function of any determination is not to punish per se, and a determination must not be as harsh as in reality to be punitive or retributive.[5] If a determination is harsher than would be necessary to achieve the desired ends of protection of the public, through the means referred to above, it might be regarded as a form of punishment.[6]
6. In Craig v Medical Practitioners Board,[7] in dealing with a psychiatrist who had entered a personal relationship with his patient, Doyle CJ usefully summarized the approach to be taken in disciplinary cases as follows:

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

1. It is also appropriate to draw upon objectives applied in sentencing in the criminal jurisdiction. Accordingly, in addition to the primary objectives of protecting the public and maintaining proper professional standards, the following principles need to be taken into account and carefully balanced:
   • (a) Specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct;[8]
   • (b) General deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly;[9] and
   • (c) Facilitation of rehabilitation on the part of the practitioner.[10]
2. The importance of specific deterrence and prospects for rehabilitation are also a function of an assessment of the ongoing risk of repetition of the professional misconduct by the practitioner.[11] Relevant to this question is the degree to which the practitioner understands or accepts the impropriety of the impugned conduct. This notion of 'insight' has repeatedly been held to be relevant to the appropriate determination as it is relevant to the continuing risk posed by the practitioner.[12]
3. As observed by the Tribunal in Medical Practitioners Boa__rd of Victoria v Grolaux [No. 2]:[13]

In context, this "insight" might be reflected in a variety of ways, such as an understanding of the nature of the conduct, an acceptance that the conduct was seriously wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or the willingness to take measures to identify risk factors and to avoid similar behaviour.

1. Every case must be assessed according to its particular facts and circumstances, which will rarely be comparable in any two cases.[14] Accordingly, although the Tribunal was referred to and has had regard to a number of relevant authorities, the determinations in other cases ought not be slavishly followed and may merely serve to illustrate the way in which the particular Court or Tribunal applied the general principles to the case before them.
2. In the Tribunal's view, the circumstances appropriately warrant a global approach to sanction, rather than the imposition of a separate sanction for each finding as to misconduct. Neither party suggested otherwise. While the misconduct comprised in Allegations 1 and 2; Allegation 3; and Allegation 4 is quite distinct, the facts giving rise to such misconduct are inextricably woven. Furthermore, the gravity of the misconduct is compounded by the totality of events.
3. Finally, the appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the misconduct.

1. The Tribunal again draws upon the written and oral submissions of the Board, as appropriate.
2. The conduct engaged in by the Respondent, in Allegations 1, 2 and 3, amounted to significant breaches of the boundary that delineates the appropriate professional relationship that must be maintained between a doctor and his patient. This boundary is well known and clearly set out in written guides to doctors. Further, as to Allegation 4, whilst the Board is obliged to prove an allegation of misconduct against a doctor, it is clearly unacceptable for a doctor to attempt to deceive or mislead a regulatory investigator carrying out a legitimate inquiry into a complaint in relation to the doctor's professional conduct.
3. Under the Code of Conduct,[15] the Respondent's obligations included, relevantly:

(a) Maintaining professional boundaries, in line with Principle 8.2.1 of the Code of Conduct;

(b) Never using his professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under his care, in line with Principle 8.2.2 of the Code of Conduct;

(c) Cooperating with any legitimate inquiry into the treatment of a patient and with any complaints procedure that applies to his work, in line with Principle 8.10.1 of the Code of Conduct; and

(d) Disclosing, to anyone entitled to ask for it, information relevant to an investigation into his own or a colleague's conduct, performance or health, in line with Principle 8.10.2 of the Code of Conduct.

1. Further, the Respondent was required to comply with the Board's 'Sexual Boundaries: Guidelines for doctors' which relevantly state, in part:[16]

Sexual misconduct covers a range of inappropriate professional behaviours including sexualized behaviour, ...

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

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

1. While the conduct which was the subject of Allegations 1 and 2 occurred over a relatively short period and did not involve a physical sexual relationship, the Tribunal previously concluded that the Respondent's telephone conversation on 25 May 2013 and subsequent text messages with the complainant were of an overtly sexual character, directed at a particularly vulnerable patient, and as such, a finding of professional misconduct was warranted.
2. The Tribunal rejected the Respondent's explanation that the communications were in the nature of a joke. Rather, the Tribunal found that he intended his sexual propositioning to be taken seriously and indeed that is how it was interpreted by the complainant. The Tribunal also accepted that the complainant notified the Board as soon as reasonably possible. Her quick response further undermines the Respondent's claims that he was merely responding to her earlier provocative text messages.
3. In the Tribunal's view, the Respondent's oral and written sexual propositioning represented not only a serious breach of professional boundaries between doctor and patient, but also, in the particular circumstances his conduct constituted a grave breach of trust by reason that:
   • (a) The complainant was a vulnerable patient in many respects: always accompanied by her adult niece to consultations; separated from her husband [according to the evidence of the complainant and her niece]; unemployed; and seeking assistance to obtain a Disability Support Pension (DSP);
   • (b) The prospect of being accused of or implicated in a sexual liaison whilst still married, albeit separated, carried the potential for condemnation and disgrace within her family and community;
   • (c) The position of the Respondent, as a respected family doctor, heightened the power imbalance between the Respondent and the complainant, which in turn could only compound the shock, hurt, confusion and humiliation experienced by the complainant in response to the Respondent's misconduct; and
   • (d) The complainant gave evidence that she was criticised and ostracised within her family and her close and conservative ethnic community, by making the notification to the Board.
4. By engaging in the explicit sexual propositioning contemporaneously with communications concerning the DSP, the Respondent was creating the inescapable nexus in the mind of the complainant that acceding to his requests would facilitate his support and handling of the DSP claim. As previously noted, the Tribunal considers this to be an aggravating feature of his conduct.
5. The conduct alleged in Particular 2(b)(iii) of Allegation 2 and Allegation 3 involves the inappropriate advice given by the Respondent to the complainant as to how she could improve her prospects of obtaining a DSP and what she should say to her psychologist in order to obtain a favourable report.
6. The Tribunal previously concluded that:[17]

(a) Dr Alkazali had no reasonable basis to conclude that his patient was suffering from schizophrenia;

(b) Dr Alkazali was willing to overlook the absence of evidence because he was more interested in pursuing an inappropriate relationship with his patient; and

(c) In advising and/or offering to advise the complainant in what to say to her psychologist, Dr Alkazali not only disregarded his professional obligations to another healthcare professional, but also compromised the effective administration of a key part of the healthcare system, namely government-funded financial support for people with disabilities.

Individually and collectively these above circumstances undermine Dr Alkazali's integrity as a medical practitioner, in that they each disclose Dr Alkazali's willingness to encourage his patient to deceive another healthcare practitioner, and ultimately DHHS.

1. In relation to Allegation 4, the Tribunal previously concluded that the Respondent, with full knowledge that he had sent inappropriate text messages to his patient (and having been provided with documents proving the same), proceeded not only to deny that he sent the text messages but to allege that his patient had deleted and replaced text messages. He further sought to buttress this lie by asserting that his patient's complaint was the result of a psychotic episode.
2. By engaging in the behaviour comprised in Allegation 4, the Respondent effectively accused the complainant of making false complaints and manufacturing evidence as well as attributing her conduct to a frank psychotic episode, commensurate with a serious psychiatric disorder, for which the Respondent had no reasonable basis.
3. In the Tribunal's view, the conduct in which the Respondent engaged seriously undermines public confidence in the medical profession and warrants condemnation by the public and the profession alike.[18] Of itself the misconduct is extremely grave but all the more so because of the aggravating feature that the accusations made in respect of the complainant had further potential serious adverse consequences for her.

1. Regardless of any submissions by parties to the Tribunal, the imposition of determinations sufficient to protect the public remains the sole prerogative of the Tribunal.[19] Having regard to the principles, guidelines and objectives outlined above, the Tribunal will now address the following considerations as to penalty.[20]

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

1. By his conduct, the Respondent has demonstrated:
   • (a) serious deficiencies in his understanding of and compliance with appropriate professional boundaries;
   • (b) a significant disregard for his professional responsibilities towards his fellow health practitioners;
   • (c) a contempt for the impact upon his patient for false allegations made about her; and
   • (d) a contempt for his obligations toward the regulating authority.
2. The Respondent's text requests were made contemporaneously with communications concerning an application for a DSP. The Tribunal accepts that, having regard to the content of the text messages, such concurrence was calculated to leverage his prospects of the complainant acceding to his inappropriate requests.
3. Further, regardless of whether the patient did or did not in fact suffer from schizophrenia, the Respondent had no reasonable basis to conclude that she did. The Tribunal draws the only reasonable inference that his conduct in advising his patient as to how to best obtain a DSP and what to say to her psychologist, was influenced more by his desire to ingratiate himself with his patient than the proper practice of medicine.
4. The Respondent's conduct of the initial hearing was characterised by a persistent minimization of the misconduct, which he did admit and denials of other Particulars, detailed in the previous Reasons for decision. Such denials were accompanied by explanations and excuses for his conduct which have been rejected entirely by the Tribunal. Furthermore, the Respondent displayed no acceptance of or empathy for the hurt and humiliation caused to the complainant. Indeed, much of his evidence and his subsequent written submissions were devoted to discrediting the complainant and justifying his conduct. In this context the expressions of remorse and regret made by the Respondent ring very hollow.
5. The Tribunal acknowledges that during the course of his evidence the Respondent stated that he felt guilty 'the minute after he had sent the text messages'; that he knew that he had breached boundaries; and has regretted doing so ever since. In the context of the conduct of the initial hearing and his oral and written submissions generally, the Tribunal finds this 'last-minute' admission of professed guilt and remorse, going back to the moments after he sent the text messages, as disingenuous.

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

1. There is a clear public interest in the imposition of a penalty which reflects the high standards of the profession of medicine and the need to practise medicine in accordance with the relevant Code of Conduct and Guidelines. General deterrence serves to impress upon the profession that the Respondent's misconduct directly undermines:
   • (a) the appropriate professional standards by transgressing responsible boundaries;
   • (b) the ethical basis upon which assistance must be given to patients, for instance, in qualifying for a pension; and
   • (c) the professional duty to act with the utmost honesty and integrity, when dealing with the regulatory authority.

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

1. The treatment and management of vulnerable patients is fundamental to any general medical practice. The Respondent's response to the Allegations was instinctively to deny and then explain away by way of attacking the complainant and then claiming confusion and misunderstanding on his part. The Tribunal has been unable to discern any genuine insight into the nature or gravity of the Respondent's misconduct. Such remorse as has been expressed has focused almost entirely upon the consequences for the Respondent without any meaningful expression of understanding, empathy or acceptance of the serious adverse impact upon the complainant.
2. It is important that other practitioners appreciate the consequences of failing to comply with the Code of Conduct and Guidelines and recognise the damaging impact of such behaviour on vulnerable patients as well as the serious consequences for the profession and the practitioner concerned.

1. Allegations 3 and 4 both encompass dishonesty and unethical behaviour. The Tribunal is not satisfied that the Respondent expressed any genuine understanding or acceptance of his misconduct in relation to these allegations.

Breach of Act, Regulation, Code or Guideline, and whether the Respondent has done so knowingly

1. The Respondent breached the Board's Code of Conduct and Guidelines as set out above. As a registered medical practitioner, the Respondent is taken to know and understand both documents. He has demonstrated an ignorance or wilful disregard of his professional obligations.

1. Allegation 3 raises serious concerns as to the Respondent's competence in terms of proper investigation and diagnosis of the complainant's mental health. In addition, at no stage did the Respondent acknowledge any failing in this regard, raising excuses and explanations which were not credible or supported by objective evidence.

1. The conduct involved only one patient and while this was not a case of prolonged misconduct over a lengthy or protracted period of time, the overall conduct encompassed three serious areas of misconduct.

1. The Respondent gave evidence that he commenced practice as a general practitioner in Australia in 2005 [having previously obtained foreign registration], initially at the Mill Park Super Clinic, for approximately 2 ½ years. He then moved to Kinglake, where he initially practised in a small rented premises, which comprised limited facilities. He subsequently bought a house to establish a medical practice. Approximately 17 notifications were made to the Board. The Respondent claimed that these were fabricated and occurred as a result of his former aggrieved landlady 'door knocking' his patients and a nurse complaining about him to the local media. During the course of his evidence the Respondent made some limited admissions but otherwise insisted that most notifications were withdrawn or dismissed. He also claimed that these notifications, following his practice in Kinglake, where he operated a sole practice without assistance, traumatised him.
2. The records provided by the Board indicate that there have been the following notifications made to and findings made by the Board, which raised issues of medical competence.
3. In October 2007, 10 notifications were received by the Board regarding the clinical care that Dr Alkazali was providing to his patients. In November 2007, the Board determined that Dr Alkazali undergo an assessment of his professional performance, which was completed on 3 March 2008. The Board recommended the appointment of a mentor and a mentor was appointed in September 2008, with consultation and supervision taking place into 2009.
4. On 27 October 2007 a notification was received by the Board which resulted in a hearing before the Professional Standards Panel on 13 October 2008. The Panel made the following findings, namely that:
   • (a) Dr Alkazali failed to adequately manage [patient's] hypertension;
   • (b) Dr Alkazali inappropriately offered to provide [patient] with sample medication on a weekly basis;
   • (c) Dr Alkazali failed to record that he dispensed sample medication and failed to record the doses dispensed to [patient].
5. The Panel found that Dr Alkazali had engaged in unprofessional conduct and determined to:
   • (a) Caution him to ensure that he makes good records of consultations and not to let personal relationships with patients interfere with the quality of care he provides;
   • (b) Require him to undergo further education, namely to work alongside an approved experienced general practitioner for 6 half day sessions to be completed within 6 months, with both Dr Alkazali and the supervisor reporting, as required to the Board.
6. A notification received by the Board resulted in a hearing before the Professional Standards Panel in December 2007. The Panel found that Dr Alkazali failed to communicate results and appropriately advise a patient.
7. The Panel found that Dr Alkazali had engaged in unprofessional conduct and determined to caution him.
8. A notification received by the Board resulted in a hearing before the Professional Standards Panel on 4 September 2008. The Panel made the following findings, namely that Dr Alkazali failed to adequately assess and manage a patient suffering acute appendicitis, who subsequently required emergency surgery.
9. The Panel found, that Dr Alkazali had engaged in unprofessional conduct and determined to caution him to in future conduct a comprehensive clinical assessment in order to formulate a working diagnosis and to communicate this clearly to his patient and write clear contemporaneous medical records.
10. A notification received by the Board resulted in a hearing before the Professional Standards Panel on 23 September 2008. The Panel made the following findings, namely that:
    • (a) Dr Alkazali's examination and clinical management of [the patient] was inadequate;
    • (b) Dr Alkazali failed to appropriately follow-up abnormal test results;
    • (c) Dr Alkazali failed to prescribe adequate pain relief for [the patient].
11. The Panel found that Dr Alkazali had engaged in unprofessional conduct and determined that Dr Alkazali:
    • (a) be reprimanded, noting that he had previously been cautioned for his conduct with respect to inadequate examination of a patient;
    • (b) be cautioned concerning his inadequate management of the patient; and
    • (c) undertake counselling with an approved senior experienced general practitioner, within six months, to cover the areas of general practice consultation, time management, ordering of investigations and medical note keeping and that both Dr Alkazali and the supervisor report to the Board, as required.
12. A notification received by the Board resulted in a hearing before the Professional Standards Panel on 13 October 2008. The Panel made the following findings, namely that:
    • (a) Dr Alkazali failed to adequately assess [the patient].
    • (b) Dr Alkazali failed to adequately manage [the patient].
13. The Panel found that Dr Alkazali had engaged in unprofessional conduct and determined to caution him to take time to make adequate assessments of his patients and to ensure that his clinical notes reflect the accuracy of his clinical interactions to enable himself and others to review them later should it be clinically indicated.
14. By letter dated 1 May 2015, the Board cautioned the Respondent to comply with s 178 of the National Law and to ensure that in future he:

abide by section 8.2 of Good Medical Practice: A Code of Conduct for Doctors in Australia, in that you establish and maintain appropriate professional boundaries with patients; refrain from providing money to patients; and refrain from contacting notifiers without clinical reason.

abide by section 8.10.1 of Good Medical Practice: A Code of Conduct for Doctors in Australia in that you cooperate with the Boards legitimate enquiry into complaints about your work, specifically by not contacting notifiers or those who complain about you to encourage the complaint to be withdrawn.

1. The Board further states in its letter of 1 May 2015, that the Respondent had admitted contacting the notifier and acknowledged that it was inappropriate.
2. Counsel for the Board advised that there is currently a further notification concerning the Respondent, under investigation.

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

1. The onus of proof in relation to insight is on the Respondent. At the initial hearing the Respondent conceded certain Particulars of the Allegations and must therefore be taken as showing remorse to a limited extent. However, taken in the context of his oral evidence and written submissions, the Tribunal has great difficulty in ascertaining any genuine insight or remorse. In particular:
   • (a) He denied that he asked his patient for sex in the telephone call on 25 May 2013 and he maintained that the texts were sent in jest;
   • (b) He also denied the matters alleged in Allegation 2(a)(iii) and Allegation 3; and maintained that there was nothing inappropriate in his communications with his patient concerning the DSP. These denials have been rejected by the Tribunal;
   • (c) His oral and written submissions have consistently sought to minimize his offending or otherwise proffer alternative explanations which the Tribunal has rejected as not credible and/or contrary to evidence and circumstances generally; and
   • (d) In the initial hearing, he elected not to cross examine the complainant or her niece on a range of matters which were the subject of allegations made by him. He nevertheless sought to attack the credibility of both witnesses, both directly and subsequently through a referee, by grave assertions of impropriety or illegality.

Are there any special skills possessed by the Respondent?

1. The Respondent referred to being involved in a very busy general practice, comprising himself and his wife [who already completed her Fellowship] as the only medical practitioners, together with a range of other health professionals. The Respondent later said that the practice also engages doctors for service after hours. The Respondent has a special interest in treating babies with tongue tie and said he receives referrals from local hospitals. Again, the Respondent did not provide any objective evidence from any hospital or other medical practitioner as to the frequency or value of the service provided by him.
2. The Tribunal is not satisfied that there is any evidence that the Respondent possesses any special skills which would influence any penalty to be imposed.

1. Any penalty which prevents the Respondent from practising will clearly have an adverse impact upon him both professionally and financially. He is currently 50 years old so is still facing a normal working life of at least 15 years. The Respondent also referred to a 'medical condition' comprising a severe central canal stenosis of the lower central spine which leads to difficulty sitting and driving for long periods. He requires pain relief in the form of Tramadol 100mgm, Celebrax 200mg and Panadol. He claims that this condition will impact upon his ability to undertake any other employment. However, again no objective documentation or other medical evidence was provided to the Tribunal in this regard. The Respondent otherwise gave evidence that he has been working up to 6 days per week.
2. In any event, the primary consideration must be the protection of the public.

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

1. The Respondent did not call any witnesses on his behalf. He tendered two statements, both addressed 'To whom it may concern':
   • (a) Statement dated 30 January 2017 from Eva Rashou, former medical receptionist at the Respondent's practice; and
   • (b) Statement dated 21 February 2017 from Mr Abdul Razak Albahrani Iman.
2. As indicated during the hearing, the content of each reference is either irrelevant to the question of an appropriate determination or otherwise inadmissible as raising matters which seek to discredit the complainant.
3. The misconduct in this case occurred during 2013. The matter is being finalized before the Tribunal approximately three and a half years later. While there has been no criticism of either party raised for the delay, there has been delay which inevitably creates anxiety for any respondent, including difficulties continuing to practice whilst Allegations are still pending. The Respondent is entitled to some modest mitigation in these circumstances.
4. The Respondent also gave evidence of the following initiatives which he has undertaken since 2013:
   • (a) In 2013, he undertook a private course for general practitioners covering five modalities;
   • (b) In 2015, he commenced training for the Fellowship of the Royal Australian College of General Practitioners, to be taken by examination;
   • (c) In his medical practice, he no longer contacts patients directly. In addition, the practice now engages doctors after hours to attend the Clinic; and
   • (d) He is prepared to undertake any other training program which may be required of him.
5. No objective evidence, either documentary or otherwise, by way of medical referees, was provided to the Tribunal.
6. When asked by the Tribunal to explain his understanding of and the importance of maintaining professional boundaries, he responded by initially stating that he had been aware of the gravity of his behaviour in contacting the patient and propositioning her (even if it was in jest) immediately after he sent the text messages. However, when the Respondent was questioned about this further, he acknowledged that he had responded to the Board's request for an explanation, after the notifier's claim was lodged, by denying the messages had been sent in the first instance and he then sought to discredit her on the basis of her untruthfulness and mental instability; he stated this was wrong and he now had an understanding of how unacceptable this was. It is not clear to the Tribunal if the Respondent has drawn any connections between the implications of or the gravity of previous notifications that had been made to the Board and the matters currently before the Tribunal. If in fact there had been any insight attained consequent to previous allegations (one of which included the October 2007 notification that caused the Board to caution him not to let personal relationships with patients interfere with the quality of care he provides), the events of the current matter before the Tribunal would not have even arisen. The Tribunal is of the opinion that the Respondent appears to have only a superficial understanding of the impact of his actions and behaviour on his patient and even this has not been consistent during the last three and a half years. His statements about how remorseful he feels have been interspersed with his repeated attempts to impugn the character of the notifier; and his verbal acceptance of responsibility for his actions and behaviour has varied prior to and during the period of the hearing. Taking into consideration other notifications and cautions he was given and the Respondent's responses to the Tribunal's questions on this matter, the Tribunal is not satisfied that he has in fact acquired any insight into the gravity of his actions or subsequent consequences to the patient, the profession or indeed himself.

1. The Tribunal is often required to consider whether the purposes of the National Law, in a particular case, are best achieved through cancellation or suspension of a practitioner's registration.[21]
2. The major difference between a period of suspension and cancellation is that once the doctor's registration is cancelled, the doctor must reapply after the period specified. Re registration is not guaranteed. The applicant must satisfy the Board not only that pre-requisite qualifications are satisfied but that the applicant is a fit and proper person to be granted re-registration.
3. In a recent decision of the WA State Appeals Tribunal, the distinction between cancellation and suspension was usefully summarized as follows:[22]

The jurisdiction of the Tribunal to cancel a practitioner's registration is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the medical profession ...

Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a practitioner...

A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the conduct is so serious that the practitioner is permanently or indefinitely unfit to practise ...

Suspension is a less serious result and differs from cancellation of a practitioner's registration because suspension is for a specified limited period...

The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that the practitioner lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner... That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice.

1. In this case, for the reasons given above, the Tribunal has no confidence that the Respondent will be fit to resume practice at the expiration of a period of suspension.
2. Deregistration may be the only option likely to protect the public from a doctor's serious misconduct. For instance, where the practitioner does not accept the inappropriateness of his conduct, or has been shown to be a serial offender.[23]
3. In Craig v Medical Board of South Australia, where reprehensible conduct of a psychiatrist occurred many years earlier but had not been not repeated, the Tribunal accepted that there was negligible risk to the public and determined that a suspension of registration was more appropriate.
4. It is also relevant to carefully consider whether the conduct is likely to be repeated when considering interference with a doctor's right to practice. In Mullany v Psychologists Registration Board, [24] the Psychologists Registration Board was criticised by the Supreme Court for giving inadequate weight to this issue:-

Nowhere in the reasons is any mention made of the question of the likelihood of repetition whether he has learned from his experience of being the subject of a complaint and later an enquiry and whether there was any need at all to protect the public from the professional activities of the appellant.

1. Nevertheless, the risk of repetition of the impugned conduct is only one factor and deregistration may still be warranted, even where sufficient safeguards can be placed around the offending doctor to prevent him or her being given a similar opportunity to offend again. In this case, the conduct of the Respondent was conscious, deliberate and entirely self-serving. He sexually propositioned a vulnerable patient who was seeking a medical service from him. He encouraged or was complicit in encouraging a potential deception of the Commonwealth department responsible for the grant of a DSP. When faced with a complaint, he sought to deflect the serious nature of the complaint by making spurious and dishonest allegations. In aggregate, the Respondent's conduct raises serious concerns as to his fitness to practice and provide proper care to his patients.
2. The determination of the Tribunal in this case must convey a strong message to other medical practitioners that the conduct in question stands condemned and will not be tolerated. In addition, it must convey to other patients that they will be protected from such conduct. These objectives are paramount notwithstanding that the risk of repetition of the offending conduct may be low.
3. The Tribunal does not need to determine at this stage that the Respondent will never be fit to practice again. If his registration is cancelled for a certain period, his fitness to practice again will ultimately be a question for the Board at the relevant time. The question for the Tribunal at this stage is whether the conduct of the Respondent, an otherwise mature aged and experienced practitioner, is as grave in aggregate as to warrant the stronger sanction of cancellation of registration, having particular regard to considerations of insight, remorse and acceptance of responsibility, all of which bear upon his fitness to practice.
4. It is a significant factor that the Respondent comes before the Tribunal as a mature aged practitioner. This circumstance of itself raises significant concerns as to his capacity to comprehend and accept the grave nature of his misconduct and avoid engaging in similar misconduct in future.
5. The Tribunal is also troubled by the nature and extent of prior notifications. Although there is no suggestion of prior sexual misconduct, there is reference to a boundary violation as recently as 2015; and the findings in relation to the Kinglake complaints reflect adversely upon basic levels of patient care and management. It is a further disturbing feature of the Respondent's evidence in relation to these notifications that he was prepared to dismiss them as fabrications and blame a former landlady and nurse for effectively procuring the notifiers. Such a response, in face of the clear findings and determinations of the Professional Standards Panel, again reflects a failure to admit or accept responsibility for proven misconduct.
6. An appropriate penalty must usually have regard to parity with similar cases. However, a penalty cannot be ascertained merely by comparing decided cases. The Tribunal has had regard to the factual circumstances, findings and sanctions in a number of cases, including but not limited to: Honey v Medical Practitioners Board of Victoria;[25] Medical Practitioners Board of Victoria v Grolaux;[26] Psychology Board of Australia v Coleman;[27] Psychology Board of Australia v Cicconi;[28] Nursing and Midwifery Board of Australia v Dalton;[29] Medical Board of Australia v Martin;[30] Psychology Board of Australia v Wakelin;[31] Chiropractic Board of Australia v Brubaker;[32] Medical Board of Australia v Myers[33] and Medical Board of Australia v Duck.[34]
7. In each case it is the gravity of the offending which must be addressed in the context of the Tribunal's assessment of whether the practitioner has demonstrated genuine insight and remorse and a capacity to rehabilitate. As indicated, the Tribunal has serious concerns about each of these matters. The Tribunal is not satisfied that the Respondent would be fit to practice after a period of suspension.[35]
8. Accordingly, in all the circumstances, we have determined that it is appropriate to cancel the Respondent's registration and disqualify him from applying for or being granted registration for a period of 18 months.
9. In setting the period of disqualification, we have taken into account the fact that the Respondent has continued in practise since the date of the notifications to the Board; has taken the initiatives detailed above toward further education; and has experienced some delay before this matter has been finalised.

1. We have also considered whether or not a reprimand should be given, in addition to cancellation of registration.
2. A reprimand is not of itself a trivial sanction:

It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications.[36]

1. In our view, a reprimand will have the salutary effect of underscoring the seriousness of the doctor's misconduct and serve as a warning to other practitioners that conduct involving dishonesty and a significant failure to observe aspects of the Code of Conduct and proper boundaries with patients is conduct not consistent with a fit and proper medical practitioner.
2. The Board also recommended further conditions relating to counselling, further education, audit of practice and restrictions upon means of communicating with patients. All of these are appropriate, in the event that the Respondent is re registered in future and have been incorporated as recommendations in the final Orders.

[1] Refer Medical Board of Australia v Alkazali (Review and Regulation) [2017] VCAT 39.

[2] Ha v Pharmacy Board of Victoria [2002] VSC 322, [91][97]; followed in Medical Practitioners Board of Victoria v Grolaux (No. 2) (Occupational and Business Regulation) [2009] VCAT 978; Health Care Complaints Commission v Lichfield [ 1997] NSWSC 297 (1997) 41 NSWLR 630 637.

[3] Quinn v Law Institute of Victoria [2007] VSCA 122, [31].

[4] [2017] WASAT 28, 31.

[5] Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201; New South

Wales Bar Association v Evatt [1968] HCA 20; [1968] HCA 20; (1968) 117 CLR 177 at 183.

[6] Mullany v Psychologists Registration Board, 20.

[7] [2001] SASC 169 at [41] (Williams and Martin JJ agreeing). See also Dickens v Law Society Unreported, Supreme Court of Tasmania, per Cosgrave J; and Chiropractic Board of Australia v Hooper [2013] VCAT 1346, [22].

[8] Law Society of NSW v Foreman (1994) 34 NSWLR 408 471; Medical Board of Australia v Jansz [2011] VCAT 1026, [367]; Medical Board of Australia v Christian [2012] VCAT 1647, [89].

[9] Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 [14]-[16]; Wilks v Medical Practitioners Board of Victoria [2007] VCAT 2439, [128]; Medical Board of Australia v Jansz [2011] VCAT 1026, [367].

[10] Psychology Board of Australia v Mair [2010] VSC 628; Medical Board of Australia v Jansz [2011] VCAT 1026, [367].

[11] Mullany v Psychologists Registration Board, unreported, Supreme Court of Victoria, 22 December 1997 per Gillard J 19.; Ha v Pharmacy Board of Victoria [2002] VSC 322, [101].

[12] See eg Psychologists Registration Board of Victoria v Schirmer [2009] VCAT 2349, [45]; MedicalPractitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978, [8]; Williams v Medical Board of Victoria [2008] VCAT 1784, [99]; Morris v Psychologists Registration Board, unreported, Supreme Court, 19 December 1997 per Harper J.

[13] [2009] VCAT 978, [8].

[14] In Buzzo Holdings Pty Ltd and anor v Loison [2007] VSC 31, [26]-[29], Kaye J held that it was inappropriate and erroneous to determine a matter on the basis of what may be a comparable decision; Also Chiropractic Board of Australia v Hooper [2013] VCAT 1346, [31]. Principles of parity should not override the need to consider the unique facts and circumstances of the case at hand: Dental Practice Board of Victoria v Dr Hassed [2006] VSC 485 per Hargrave J.

[15] TB 286-287, Good Medical Practice: A Code of Conduct for Doctors in Australia.

[16] TB 263-264, Medical Board of Australia Guidelines, 28 October 2011, Sexual Boundaries: Guidelines for doctors.

[17] Medical Board of Australia v Alkazali (Review and Regulation) [2017] VCAT 39, [137]-[138].

[18] Refer to similar comments by Doyle CJ in Craig v Medical Practitioners Board [2001] SASC 169, [64].

[19] Medical Board of Australia v Myers (Reiview and regulation) [2013] VCAT 1806, [9]; CEG Psychology Board of Australia v Mair [2010] VSC 628; Chinese Medicine Registration Board v Wu (Occupational and Business Regulation) [2010] VCAT 753, [46]

[20] MBA v Duck [2017] WASAT 28, 34-40 where the Tribunal addresses 12 considerations which apply to penalty in disciplinary cases.

[21] See for example Medical Board of Australia v Jansz (Occupational and Business Regulation) [2011] VCAT 1026 (31 May 2011) [425]-[439] where the Tribunal summarizes number of considerations.

[22] MBA v Duck [2017] WASAT 28, 33-34, citations omitted.

[23] Refer in particular to the findings of the Tribunal in Traill v Medical Practitioners Board (2006) VCAT 1920; and Harper J in Morris v Psychologists Registration Board Supreme Court of Victoria (unreported) 19 December 1997.

[24] Supreme Court of Victoria (unreported) 22 December 1997 BC9707652 5734 of 1997 per Gillard J 20.

[25] (Occupational and Business Regulation) [2007] VCAT 526.

[26] (Occupational and Business Regulation) [2009] VCAT 978.

[27] (Occupational and Business Regulation) [2012] VCAT 1768; and (Occupational and Business Regulation) [2013] VCAT 738.

[28] (Review and Regulation) [2013] VCAT 516.

[29] [2013] VCAT 1807; [2013] VCAT 2147.

[30] [2013] QCAT 376.

[31] [2014] QCAT 516.

[32] [2015] QCAT 30.

[33] [2014] WASAT 137.

[34] [2017] WASAT 28.

[35] See Medical Practitioners Board of Victoria v Kaur [2010] VCAT 364 (17 March 2010); Sherman v Medical Practitioners Board of Victoria [2000] VCAT 456 (29 January 2000).

[36] Peeke v Medical Board of Victoria (unreported) 19 January 1994.