[9] Dr Andrew graduated from medicine in New Zealand in 1982. He practised as a general practitioner in New Zealand from 1985 to 1988 when he moved to Australia and commenced practice. He moved to the clinic in Ipswich from which he practises in 1989.

[10] AB was born in 1959. In or about 1979 he sustained head injuries from which he developed post traumatic epilepsy. He was under the care of a specialist neurologist, Dr John Cameron, from 1988 to at least January 2003.

[11] It is apparent that the effect of this condition upon AB's capacity to drive a motor vehicle had been a source of concern to AB, and a matter considered by his treating doctors, for some time.

[12] AB was reviewed by Dr Cameron on a number of occasions in 2001. After each review Dr Cameron reported to referring doctors from the clinic in which Dr Andrew worked. The reports, however, were addressed to doctors in the practice other than Dr Andrew.[1]

[13] In a submission to the Australian Health Practitioner Regulation Agency (AHPRA) on 4 October 2011,[2] Dr Andrew referred[3] to a letter to him from Dr Cameron dated 30 October 2001 in which Dr Cameron had explained that given it had been over 3 years since AB's last disturbance, and as AB was compliant, and because AB only wanted to drive for very limited purposes, he thought AB could return to that very limited driving. It should however be noted that Dr Cameron went on to state that AB was fully aware that if he felt unwell in any way, or had any further epileptic disturbances, he was to stop driving immediately and contact Dr Cameron.

[14] Whilst Dr Andrew referred in his submission to that letter from Dr Cameron having been addressed to him, it was, in fact, addressed to another doctor in the clinic. There are handwritten notes which have been made on the copy of the letter kept on AB's file at the clinic. The notes are undated and their author unidentified. The notes are in 2 parts. The first refers to a discussion with Dr Cameron. It refers, in part, to some complex seizures.

[15] The second part of the handwritten notes refer to a discussion with the wife of AB who had telephoned the doctor. She had reported that AB was still having complex seizures and that what AB had told the doctor was not true. The notes include 'told him he cannot drive'. It is unclear if that was an instruction provided by the doctor, or by AB's wife which she simply related to the doctor in her phone call.

[16] It is apparent, though, that in terms of Dr Cameron's observation that it was reasonable for AB to recommence some limited driving, there was collateral information which cast doubt upon that. That collateral information also raised doubts as to whether AB was an accurate historian when relating the recent management of his condition to his treating doctors, particularly in the context of a discussion about his driving capacity.

[17] Dr Andrew made no mention of these handwritten notes in his submission to AHRPA.

[18] In a report dated 19 February 2002 Dr Cameron refers to AB having had two minor epileptic disturbances since he had been last seen. On 14 May 2002 Dr Cameron reported AB as having had one very minor simple partial seizure about one month prior.

[19] A report from Dr Cameron dated 24 May 2002 is the first addressed to Dr Andrew. It refers to a recent review of AB and to him not having any further minor or major seizures since he had last been seen. I note that the report of 14 May 2002, addressed to another doctor in the practice, had concluded with Dr Cameron saying that he would like to see AB again in about 3 months. It is unclear when or why he saw AB for the purposes of the 24 May 2002 report, being only 10 days subsequent to the earlier report.

[20] On 22 August 2002, after another review, Dr Cameron reported that AB had remained quite well since last seen, although he had experienced one recent minor epileptic disturbance. AB had queried whether he could return to driving but Dr Cameron reported having told AB that his control was then still not sufficient to hold a driver's licence. He stated that AB having had temporal lobe surgery and the indication was that he needed to be seizure free for at least 12 months.

[21] This report suggested that notwithstanding his observations in October 2001 that a return to limited driving would be reasonable, this had not occurred, and that it was, at this later time, not considered appropriate.

[22] In mid 2005 AB was involved in two motor vehicle accidents. When he had recommenced driving is not apparent from the material.

[23] On 17 May 2005 AB consulted Dr Andrew and informed him that he had been involved in an accident nine days earlier. He stated that his vehicle had sustained a blow out in the front tyre and had crashed into a power pole. At no time did AB indicate, nor did Dr Andrew believe, that AB had suffered a seizure before the accident.

[24] On 12 July 2005 AB again consulted Dr Andrew reporting that he had been in another accident. From Dr Andrew's notes it would appear that AB did not tell him precisely when that had occurred. It is apparent from the records of the Ipswich General Hospital that it in fact occurred on 16 June 2005. AB was admitted to the hospital on that day. He was discharged on 20 June.

[25] Dr Andrew's notes of the consultation on 12 July record that AB told him that he recalled a car veering toward him and his taking evasive action. In doing so, his vehicle ended up off the road and collided with a power pole. He reported that he did not recall everything around that time until he was taken to the hospital by ambulance. AB said that he thought that he had been knocked out. He felt that he had not had a seizure; but the hospital thought that he may have. He reported having no seizures in hospital. The notes record that on discharge he had been referred to a neurologist, Dr Edwards.

[26] When he presented on 12 July 2005 AB brought with him a letter which he had received from Queensland Transport advising that he was required to provide medical certification, before 22 July 2005, that he was fit to drive or his licence would be revoked.

[27] Dr Andrew's clinical notes for this consultation include:

Recommend that this is a difficult situation. There is no absolute evidence he had a seizure to cause this accident. Recommend defer judgment on this until he has seen neurologist which is later this month.

[28] Following this consultation Dr Andrew wrote to Queensland Transport on 12 July 2005. He advised that an appointment had been arranged for AB to see Dr Edwards at the Ipswich Hospital and that Dr Andrew considered that 'this should probably be the best arbiter of whether AB should be driving or not'. He referred to having provided a certificate 'contingent upon Dr Edwards report being favourable'.

[29] The certificate which Dr Andrew issued on 12 July 2005 certified that he had determined that AB did have a medical condition, but was medically fit to drive subject to the restriction of 'contingent upon authorisation by neurologists'.

[30] AB next consulted with Dr Andrew on 26 July 2005 for the recorded reason of 'driver licence problems'. The clinical notes record that AB's licence was due to be cancelled on 8 August. Queensland Transport had apparently extended the deadline (from 22 July) due to Dr Andrew's certificate. There had, however, been a rescheduling of the appointment with Dr Edwards from 2 to 23 August.

[31] In a report dated 24 August 2005 Dr Edwards noted the patient's history including that he underwent craniotomy in May 1999. He noted that prior to this AB was having turns which appeared to be complex partial seizures. AB had assured Dr Edwards that he had experienced no seizures since.

[32] After referring to the two motor vehicle accidents Dr Edwards noted that AB 'wets the bed a lot' and that, 'interestingly, in the accident emergency unit of the hospital following the accident on 16 June 2005 he had been observed to take a seizure associated with urinary incontinence'.

[33] Dr Edwards' report concluded:

I have told him that he was observed to have 2 fits recently and he must not drive and indeed it is illegal for him to do so until 2 years have elapsed since his last seizure.

[34] On the basis of that opinion, AB would have needed to have been seizure free until at least June 2007 before he would be able to drive.

[35] AB consulted Dr Andrew on 26 August 2005. His visit to Dr Edwards was discussed although Dr Andrew had not yet received the report. Dr Andrew's notes record:

Dr Edwards said 2 years from MVA until he can get a certificate. Recommend a second opinion as this is a major impediment to him especially as he just got a new car from the insurance.

[36] In his submission to AHPRA Dr Andrew says that AB felt inconvenienced by the advice of Dr Edwards and requested the second opinion. No doubt, the description of the two year requirement as a major impediment, particularly in the circumstances of having received a replacement car on insurance, reflects the patient's views, rather than those of Dr Andrew.

[37] On 26 August 2005 Dr Andrew referred AB to Dr John O'Sullivan, another neurologist. In the referral letter he referred to AB's longstanding epilepsy, the two recent accidents and the fact that the hospital, but not AB, believed them to have been seizure related.

[38] On 29 August 2005 AB phoned Dr Andrew, again regarding a certificate to facilitate a driver's licence. Dr Andrew advised that he would not provide certification stating that AB was able to drive in the face of a neurologist stating that he cannot. Dr Andrew told him that if another neurologist disagreed, then that neurologist could provide certification.

[39] At this point, AB's persistence in attempting to obtain favourable certification from Dr Andrew is apparent. It is also apparent that, at this point, Dr Andrew had formed the view that he would not certify AB as being medically fit to drive as such would be contrary to Dr Edwards' opinion.

[40] Dr Edwards' report was received and reviewed by Dr Andrew on 2 September 2005. Dr Andrew made the following note on that date about the report:

Observed to have a seizure in IGH associated with incontinence. Therefore he is indeed restricted from driving from 2 years from then.

[41] This note not only confirms the advice previously provided by Dr Edwards, it also demonstrates that Dr Andrew was then aware that there was a recorded history of recent seizures which was contrary to AB's self reporting of being seizure free.

[42] AB saw Dr O'Sullivan in September 2005. In a report dated 27 September 2005, after referring to the circumstances of the two motor vehicle accidents, Dr O'Sullivan referred to AB having been incontinent of urine shortly after the second and this being diagnosed as a seizure by hospital staff. He noted Dr Edwards supporting that diagnosis. Dr O'Sullivan then recorded that AB did not believe that he had a seizure associated with either accident or the subsequent incontinence. He recorded being told by AB that he had been deemed by Queensland Transport as being unfit to drive for a period of two years and that he considered that restriction to be unfair and that he would like it relaxed.

[43] Dr O'Sullivan expressed the following opinion:

The question of his eligibility for driving is difficult without further collateral on his original epilepsy syndrome and the type of surgery performed. Two single vehicle accidents over a short period of time, both in conjunction with loss of consciousness may be coincidental and explained by brief concussion although it is clearly difficult to completely exclude a seizure related accident in these circumstances. I will try to obtain information from Ipswich Hospital, the Police, the Ambulance Service and his previous neurologist and neurosurgeons to assist in making a definitive diagnosis, and will repeat EEG and review him in a number of weeks.

[44] Dr O'Sullivan reviewed AB on 17 November 2005. Dr O'Sullivan reported that he had by then obtained collateral information from the ambulance service in respect of the attendance of its officers at the scene of both motor vehicle accidents. He also had received the reports of Dr Edwards and Dr Cameron. The information from Dr Cameron included that whilst AB indicated he had experienced no seizures since the time of his surgery in 1999, Dr Cameron's notes indicated that AB continued to have seizures, albeit less frequently.

[45] Dr O'Sullivan expressed the following opinion:

I do not believe that AB is fit to drive a motor vehicle currently. I think there is a high likelihood that at least one of the recent motor vehicle accidents was associated with seizures while on stable medication and without any obvious triggering episodes AB's medical reports indicate a long history of driving against medical advice because of his epilepsy. His inconsistent history, combined with Dr Cameron's notes, indicating amnesia during seizures makes it very difficult to determine whether AB will ever be fit to drive a motor vehicle. This could only occur if there was clear evidence that he remain compliant and that he was having no further complex partial seizures. In the absence of a reliable witness who was with AB on a regular basis, I don't believe that is likely to ever be the case. Furthermore, his EEG remains abnormal. AB was, not surprisingly, unhappy with my recommendation and made no further arrangements for follow up.

[46] From this report Dr Andrew was aware that Dr O'Sullivan's opinion was that AB was then unfit to drive, and that there was doubt that he ever would be fit. That doubt was, in part, due to AB's inconsistent history and a history of amnesia associated with his seizures, hence the need for reliable collateral evidence. There was, of course, evidence of the inconsistency in AB's recollection of being seizure free in the observations of his wife recorded in handwritten annotations to Dr Cameron's report dated 30 October 2001.

[47] Dr Andrew's clinical notes reveal that Dr O'Sullivan's report was discussed with AB on 25 November 2005. His notes of that consultation are:

Came in to discuss the letter from Dr O'Sullivan. Basically Dr O'Sullivan feels he is not able to drive currently. Now over 6 months since the accident. I think he will need to look at 2 years minimum but note that there needs to be an independent witness who sees him regularly who can attest to his seizure free status.

[48] On 16 December 2005 AB asked Dr Andrew, in the course of a review of his condition, whether a review of his fitness to drive was possible 6 months after his last motor vehicle accident; that is, then. Dr Andrew indicated that AB could do this himself because his referral to Dr O'Sullivan was still current.

[49] AB again saw Dr O'Sullivan on 13 March 2006. From a report dated 17 March it appears that Dr O'Sullivan was quite surprised to see him as there had been no plan for follow up. AB had attended with his wife. Dr O'Sullivan says that AB 'was requesting a medical certificate to clear him to drive again, despite having discussed this at length on my 2 previous consultations, and me indicating very clearly to him that I would not be prepared to provide such a certificate'.

[50] Dr O'Sullivan concluded:

As I stated in my previous letter, the correspondence I obtained would strongly suggest that the cause of 1 or both AB's single vehicle motor vehicle accidents in mid last year were the result of seizures. Under the guidelines assessing fitness to drive, patients with epilepsy should not drive a motor vehicle for a period of at least 12 months after a seizure causing a motor vehicle crash. Even after this time, I would have concerns AB retaining a licence because of a previous history of driving against advice, and concerns about AB's ability to recognise when he has had a seizure, his memory, and his overall compliance with medical instructions. I explained this clearly to him and advised him that I would not be prepared to write a medical certificate for him now or in the future. As difficult as it seems to be for AB, I think it is important that he accepts that he will not be able drive a motor vehicle and arrange his life accordingly.

[51] Dr Andrew's clinical notes make no mention of the report of Dr Sullivan of 17 March 2006 having been reviewed and its contents noted. After this March visit to Dr O'Sullivan AB next consulted Dr Andrew on 9 May 2006. The notes of that consultation make no mention of any discussion of Dr O'Sullivan's March report.

[52] Dr O'Sullivan's report was discussed with AB in a consultation with Dr Andrew on 2 June 2006. Dr Andrew's notes of that consultation are:

See Dr O'Sullivan's letter. Advises that a 12 month exclusion is required. This will be up on 16/6/06. No documented seizures. He does not fit the criteria for driving licence therefore cert provided effective from 16/6/06.

[53] In his submissions to AHRPA Dr Andrew says of this consultation:

I have noted that Dr O'Sullivan stated the guidelines assessing fitness to drive requires that he not drive a motor vehicle for a period of at least 12 months after a seizure causing a motor vehicle accident. This 12 month period was due to expire on 16 June 2006 and I noted that AB had not had any documented seizures or reported any seizure activity in that 12 month period. I've also noted that he "did not fit the criteria for a driving licence, therefore certificate provided effective from 16/6/06". I believe this to be a typographic error which should have read "... did not currently fit the criteria..." as there was still 2 weeks to go until the 12 month restriction had passed, therefore the certificate was dated from that date (16 June 2006).

[54] Dr Andrew's reference to AB having been seizure free for a period of 12 months would appear to be on AB's self-reporting only. There is no suggestion of any collateral, independent evidence confirming this self-report of the kind identified as necessary, for the reasons stated, in Dr O'Sullivan's November report and restated in his report of March.

[55] In his submission to AHPRA Dr Andrew went on to state that he could not explain why he had certified AB to drive after having received Dr O'Sullivan's March report. He said that had he noted Dr O'Sullivan's concern about AB not being fit to drive at that time or in the future he would not have signed the certificate before obtaining clearance from a neurologist.

[56] On 11 July 2007, that is approximately one year after Dr Andrew had certified him as being fit to drive, Dr Andrew conducted a review of AB for Centrelink. His notes on the review identify:

Problems with medication effects on thought processing and concentration, potential for seizure which could compromise personal and other worker's health or produce danger to himself or others.

[57] The purpose of the Centrelink review is not apparent. However, this note would seem supportive of a continuation of benefits because of the potential risks to AB and co-workers in a workplace setting. Other material indicates that AB was on a disability support pension at the time. The identified danger due to the effects on his thought processing and concentration and his potential for seizure seem inconsistent with his having been certified as fit to drive a motor vehicle.

[58] In my view, this letter demonstrates that Dr Andrew issued the certificate contrary to risks which he knew to exist at the time. He was expressing those risks as existing still one year after he provided the certification. There is nothing which would suggest that the risks referred to in the letter to Centrelink arose only after the certificate was issued.

[59] On 14 December 2007 Dr Andrew in a letter to CRS Australia, a rehabilitation service, provided information on AB at its request. In that letter, he observed that following the motor vehicle accident in July 2005 and the observed seizure at the hospital which followed, AB had since been seizure free and had regained his driver's licence, noting a required abstention period of two years. This suggests that AB had satisfied a two year period without seizure in accordance with requirements. The statement is both wrong and misleading. Dr Andrew did not apply a two year abstention period before certifying AB as fit to drive; although it rather suggests that he believed he should have.

[60] On 2 November 2009 AB consulted Dr Andrew seeking a new medical certificate as AB's driver's licence needed reissuing. Dr Andrew provided the certificate noting in his clinical notes 'no seizures for many years on record'.

Did Dr Andrew's conduct amount to professional misconduct; unprofessional conduct or unsatisfactory professional performance?

[61] In his response to the referral Dr Andrew disputes that it was his duty not to issue either or both the medical certificates; but concedes that he ought not to have issued them having regard to AB's medical history and the correspondence which he had received from Dr O'Sullivan, together with the risk to public safety if the patient was provided with a certificate inappropriately.

[62] He denies that his conduct amounts to professional misconduct because, whilst it concerns a course of conduct over a period of time, in context it amounted to a particular instance of an error of judgment on his part and did not reflect on his overall suitability to practice medicine safely.

[63] Dr Andrew admits that he has engaged in unsatisfactory professional performance.

[64] "Professional misconduct" is defined in s 5 of the National Law as follows:

Professional conduct, 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;

(b) More than 1 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.

[65] Dr Andrew submits that paragraph (c) does not apply. I agree.

[66] He then contends that subparagraphs (a) and (b) are dependent upon a conclusion that he has engaged in unprofessional conduct which, he says, is a conclusion that cannot be reached.

[67] "Unprofessional conduct" is defined by s 5 of the National Law as follows:

Unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes -

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

(i) a condition to which the practitioner's registration was subject; or

(ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and

(d) providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and

(e) influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and

(f) accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and

(g) offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and

(h) referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.

[68] Dr Andrew contends that none of these subparagraphs appear to apply in this case.

[69] Dr Andrew's contention focuses upon the specific matters set out in subparagraphs (a) to (h), rather than upon the broader concept of unprofessional conduct in the primary definition. Such a focus is too narrow, in my view. Subparagraphs (a) to (h) do not exclusively define unprofessional conduct. They are particular, specific circumstances which, inclusively, are defined to satisfy the definition.

[70] If the conduct of the health practitioner can be characterised as being of a lesser standard than that which might reasonably be expected by the public or the practitioner's professional peers, it will satisfy the definition of unprofessional conduct, whether or not it can be fitted into any subparagraphs (a) to (h).

[71] In the submissions on behalf of Dr Andrew it is conceded that the level of care provided by him clearly fell below the standard of care to be expected. That concession was made in the context of a submission that subparagraph (a) of the definition of professional misconduct could not be satisfied because, even though the care provided fell below the standard, it did not fall substantially below.[4] In my view, that concession establishes that the primary definition of unprofessional conduct is satisfied without the need to resort to any of the matters set out in subparagraphs (a) to (h).

[72] Similarly, in contending that subparagraph (b) of the definition of professional misconduct was not satisfied because 'the circumstances are such as to make it appropriate to regard the sequential errors of judgment as being one and the same', it was nonetheless conceded that 'there were multiple occasions on which the Registrant's conduct fell below the standard of that expected of a general practitioner'.[5]

[73] Notwithstanding those concessions, it was submitted for Dr Andrew that 'in any event, the conduct not falling within the definition of "unprofessional conduct" neither subparagraph (a) or (b) of the definition of professional misconduct would be satisfied'.[6]

[74] That submission is based upon none of the circumstances in subparagraphs (a) to (h) of the definition of unprofessional conduct being satisfied. As has already been identified, that is an erroneous construction of that definition.

[75] In my view, the concessions otherwise made that Dr Andrew's conduct fell below the standard of that expected of a general practitioner are properly made.

[76] The publication "Assessing Fitness to Drive for Commercial and Private Vehicles; Medical Standards for Licensing and Clinical Management Guidelines" is approved by the Australian Transport Council and endorsed by all Australian driver licensing authorities.[7] It clearly demonstrates the importance of the role of medical practitioners in assessing and certifying patients' fitness to drive.

[77] Whilst the responsibility for issuing, renewing, suspending or cancelling a person's driver's licence lies with the licensing authority, those decisions are based on a full consideration of relevant factors relating to health and driving performance. In making licensing decisions an authority will seek input regarding a person's medical fitness to drive either directly from the person and/or a medical practitioner. Where an assessment is conducted at the request of an authority, the publication describes the medical certificate as the "key form"; being the mechanism for communication between the medical practitioner and the authority. In addressing general management guidelines for patients suffering from epilepsy, the guide makes clear that the authorities with rely heavily on the treating practitioner's and/or consultant's reports.

[78] These matters and the guidelines only serve to confirm that which would be readily understood by any medical practitioner: the certificate which he or she issues will be central to the licensing authorities decision as to whether a person will be issued a licence, or whether conditions will be imposed upon it.

[79] The guidelines provide that a patient suffering from epilepsy must have been free of seizures for the specified period set out in the medical standards. Those standards include, as general requirements for epilepsy, that the criteria for an unconditional licence are not met. They provide that a conditional licence may be granted after the prescribed seizure free periods but subject to at least annual review. It is to be noted that Dr Andrew in 2006 certified the patient for a 5 year period.

[80] For chronic epilepsy the standards provide that, generally, a seizure free period of two years will be required. They provide that a shorter period may apply only on recommendation of an experienced consultant where there is clear evidence of seizure control. In my view, that is the kind of independent collateral evidence to which Dr O'Sullivan had referred.

[81] The guidelines also address the role of specialists. They provide that where doubt exists about a patient's fitness to drive, or where a patient's particular condition or circumstances are not covered precisely by the standards, review by a specialist experienced in the management of the particular condition is warranted and the general practitioner should make the referrals appropriate. This is the course which was followed when Dr Andrew wrote his qualified medical certificate on 12 July 2005 wherein he stated that the patient's fitness was contingent upon authorisation by a neurologist, and his referrals of the patient to Dr Edwards and then to Dr O'Sullivan.

[82] That he should not issue a medical certificate in light of the opinions of Dr Edwards and Dr O'Sullivan was reflected in Dr Andrew's clinical notes of 26 August 2005, 30 August 2005, 2 September 2005 and 25 November 2005. His conduct on those occasions was in accordance with the standard which might reasonably be expected of him by his professional peers and the public.

[83] His conduct on 2 June 2006 in issuing a certificate certifying the patient as medically fit to drive from 16 June 2006 was a departure from that standard. In light of the opinion of Dr O'Sullivan as to his concerns about the patient's fitness to drive at all in the future, the issuing of a further certificate in November 2009 in the absence of any further specialist opinion was also a departure from that standard. Those departures constituted, at least, unprofessional conduct.

[84] Dr Andrew's explanations as to why he did not document Dr O'Sullivan's statement that he was not prepared to provide a certificate of fitness either at that time or in the future, when Dr Andrew received the letter in March 2006, and that he failed to re-read that part of Dr O'Sullivan's letter when he reviewed in June 2006, are unsatisfactory. To read Dr O'Sullivan's letter as being supportive of the patient being considered fit to drive one year after the last motor vehicle accident, is to comprehensively misconstrue his opinion. This is particularly so in light of the opinion which he had expressed in November 2005.

[85] Nor do I consider that the patient being a difficult person to deal with, and one who was demanding and persistent in his request that Dr Andrew certify his fitness to drive despite previous refusals, provides any sufficient explanation for Dr Andrew's conduct. Because of the centrality of the role of medical practitioners in providing the information to licensing authorities upon which licensing decisions will be made, it is essential that those practitioner's do not bend to the pressure which difficult patient's may exert.

[86] As to whether Dr Andrew's conduct also constitutes professional misconduct, the Board submits that 'an exercise in delineating between the definitions "professional misconduct" and "unsatisfactory professional conduct" is an exercise in sophistry and ultimately does not detract from the gravamen of the conduct as alleged and admitted'. The submission must be rejected.

[87] In support of it the Board cites Clough v Queensland Law Society Inc: AG v Clough[8] as containing 'a highly grounded analysis of various expressions concerning professional conduct'. That description of Muir J's analysis in Clough is entirely apt. However, the submission fails to appreciate the difference in statutory language in various jurisdictions considered by Muir J (as his honour then was) in Clough and that used in the National Law.

[88] It is unnecessary to reproduce here his Honour's analysis of cases which considered concepts of unprofessional conduct, professional misconduct and other expressions of professional misbehaviour and the extent to which those concepts are interrelated. Suffice to say that whilst his Honour observed that although a distinction had not been drawn between certain expressions in some jurisdictions, he went on to observe that because s 6A(a)[9] of the Queensland Law Society Act 1952 referred to charges of malpractice, professional misconduct or unprofessional conduct or practice brought against a practitioner, this 'in contrast with the position in Great Britain and some Australian jurisdictions, may require the categorisation of wrongful conduct'.[10] His Honour concluded that for the purposes of that appeal it was not necessary to decide the meaning to be attributed to each of those terms, or the precise relationship between the concepts invoked by them. That was because the Tribunal's powers were enlivened to make any of the orders contemplated upon a finding of guilt of any of the categories of conduct.[11] This Tribunal is similarly empowered under s 196 of the National Law.

[89] Moreover, however, the Board's submission ignores the clear text of the National Law. Each of the terms "professional misconduct", "unprofessional conduct" and "unsatisfactory professional performance" are separately defined.[12] Professional misconduct is defined by reference to unprofessional conduct. In order to satisfy the definition of professional misconduct, the conduct must both be of a lesser standard than that which might reasonably be expected by the public and the practitioner's peers, and in respect of subparagraphs (a) and (b) of the definition, either as a single instance or as multiple instances taken together, be substantially below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

[90] The Board submits that Dr O'Sullivan's reports 'make no bones about the fact that he refused to issue a medical certificate' and that this was 'indicative of the standard required of himself as reasonably expected in the circumstances as a medical practitioner', and that 'it would have been substantially below the standard reasonably expected of him if he had conducted himself otherwise'. That is so; but Dr O'Sullivan's level of training or experience as a specialist neurologist is not to be attributed to Dr Andrew as a general practitioner when assessing whether Dr Andrew is guilty of professional misconduct.

[91] In a report provided to AHPRA in August 2012 a Dr Chris Brown expresses the opinion that the decision by Dr Andrew to issue an unqualified medical certificate of fitness to drive in 2006 and to renew that certificate in 2009 was 'not a responsible action'. There is no indication in the report of what Dr Brown's levels of qualifications or experience are. Dr Brown did not express his opinion by reference to the statutory tests for professional misconduct and unprofessional conduct.

[92] I am, however, satisfied that Dr Andrew's conduct fell substantially below the standard reasonably expected of a registered health practitioner of his level of experience.

[93] At the time of issuing the certificate in 2006 he had been a general medical practitioner for almost 20 years. The patient had been consulting him for several years. He was fully aware of the patient's epilepsy. He appreciated the need to obtain specialist opinion about the patient's fitness to drive before certifying him as fit. He appreciated that he should not issue a certificate contrary to such specialist opinion.

[94] A general practitioner of his level of experience would be expected not to issue a medical certificate to this patient if it was contraindicated by a specialist's opinion. Having, correctly and appropriately, identified that a specialist opinion should be obtained, it would be reasonably expected that a general practitioner of 20 years' experience would carefully consider, fully understand, and act in accordance with, that opinion.

[95] By failing to carefully consider the opinion of Dr O'Sullivan as expressed in his reports of November 2005 and March 2006, or by failing to understand them, or by acting quite contrary to them, Dr Andrew's conduct fell substantially below that which is to be reasonably expected of a general practitioner of his experience.

[96] His conduct amounts to professional misconduct.

[97] The Board alleges that a circumstance of aggravation, which it says should be reflected in the sanction imposed, was that the accident in which a pedestrian was tragically killed was caused by AB suffering an epileptic seizure at the time.

[98] It is submitted for Dr Andrew that there is no expert opinion before the Tribunal that would prove that contention. Dr Andrew also submits that there is no evidence to prove that AB would not have been driving in any event, even if unlicensed.

[99] In my view, there is evidence upon which it can be found that the accident was caused by AB having suffered an epileptic seizure.

[100] In its submissions, the Board refers to the evidence contained in the police statement from Dr Kenny Tay who attended to the patient at the Ipswich Hospital following the fatal accident.[13] Dr Kay expressed the opinion that the patient's demeanour was not in keeping with someone who had knowingly struck a pedestrian. He expressed the opinion that the patient had suffered a non tonic colonic seizure prior to the accident.

[101] There is also a report from Dr John Cameron dated 2 November 2011[14] which was prepared for the coronial investigation into the pedestrian's death. Dr Cameron says:

It is my opinion that the event of 26 November 2009 was a consequence of a sudden medical incapacitation affecting AB's ability to safely drive his motor vehicle. In view of his past history it is highly probable that this event was due to an underlying epileptic disturbance, manifesting as a complex partial seizure.

The incident involving the fatality on 26 November was most likely a result of AB having suffered a seizure disturbance while in charge of a motor vehicle.

[103] Indeed, Dr Andrew himself has expressed that opinion. On 17 May 2010[15] he wrote to the Ipswich Medical Centre which had taken over AB's care and which had requested his medical records. In that letter Dr Andrew said, after having referred to AB having regained his licence in 2006:

However, in November 2009 AB ran over and killed a pedestrian. It is likely he had a seizure while driving again.

[104] I am also of the view that there is evidence from which it might be inferred that had the patient been unlicensed he would not have been driving in November 2009. Whilst there is evidence that the patient was somewhat determined to do as he wished, as submitted for Dr Andrew, there is no evidence that he drove when unlicensed. Rather, his determination to drive manifested in his persistence in approaching his medical practitioners to obtain their certification to get a licence.

[105] It is, in my view, an aggravating feature of this case that the risk to public safety of an epileptic person having a seizure when driving, against which the requirement to obtain medical certification as to fitness is intended to safeguard, has been realised.

[106] In any event, it is candidly acknowledged by Dr Andrew that whether the circumstance of aggravation is made out is of no great moment: the potential for harm to be caused being real.

[107] Having found that Dr Andrew's conduct amounts to both unprofessional conduct and professional misconduct, the Tribunal's powers to make orders under s 196 of the National Law are enlivened.

[108] There is some consistency between the sanctions proposed by both the Board and Dr Andrew. Each proposes that Dr Andrew be reprimanded. However, the Board's position is that the reprimand should be in addition to other sanctions, including conditions being imposed upon Dr Andrew's registration, and a suspension of that registration.

[109] For his part, Dr Andrew also proposes that conditions be imposed upon his registration, but submits that the allegations, although serious, do not necessarily require that a suspension be imposed. It is in that context that he contends for a reprimand. I shall return to consider whether Dr Andrew should be reprimanded after considering other issues of sanction.

[110] It should be observed that although the Tribunal is able to take any of the actions under s 196 if any of professional misconduct, unprofessional conduct or unsatisfactory professional performance are established, Dr Andrew's submissions as to sanctions are made in the context of his having not admitted that his conduct was neither professional misconduct nor unprofessional conduct. Those matters have been resolved against him.

[111] Dealing first with the issue of the imposition of conditions on Dr Andrew's registration, both parties propose that he be prohibited from issuing certificates of fitness to drive motor vehicles. That condition is appropriate and will be imposed.

[112] Both parties also seek an order that, within 6 months or such further period as the Board may approve, Dr Andrew is to undertake a course of education for managing interactions by doctors with difficult patients. That condition also is appropriate and will be imposed.

[113] The parties also propose a condition requiring Dr Andrew to undertake monthly counselling sessions with another medical practitioner approved by the Board for a period of 6 months. Such counselling is to address Dr Andrew's management of difficult patients. It is proposed that the counsellor provide a report to the Board following each session.

[114] Even though it is jointly proposed by the parties, I am of the view that this condition is unnecessary. Difficulty which Dr Andrew may have with difficult patients will, in my view, be addressed by Dr Andrew undertaking the course. It is not apparent what further protection the counselling sessions would achieve, particularly given the period which has passed since these events occurred. Such a condition imposes a burden not only on Dr Andrew, but also the counsellor. To the extent that Dr Andrew wishes to discuss such matters with colleagues he is free to do so. I do not consider it necessary to burden his registration with a condition requiring it in this case.

[115] As already noted, the main point of distinction between the parties on the sanctions which they each propose is in respect of whether Dr Andrew should be suspended. The Board contends for a period of suspension in the order of 9 months. The Board accepts that the other sanctions jointly proposed by the parties render it unlikely or improbable that Dr Andrew will ever commit such an act again. That is evidently so given the condition prohibiting him from issuing certificates of fitness.

[116] However, the Board contends that the serious consequences of issuing a medical certificate to a person such as the patient in this case call for general deterrence. I agree a sanction should be imposed in this case which would act to deter other medical practitioners who may feel prevailed upon by patients to certify them as being fit to drive even when the practitioner considers them not to be, from doing so. One can readily imagine that these situations arise quite often, particularly with aging patients or those otherwise experiencing deteriorating health and faculties.

[117] A sanction ought be imposed which impresses upon medical practitioners that their duty and obligation is to steadfastly adhere to, and act upon, their professional judgment in such circumstances. Through such general deterrence the protection of the public will be furthered by restricting the use of the roads to those genuinely considered medically fit to drive. Medical practitioners should be aware that acting contrary to their professional judgment in such circumstances will in all likelihood result in a significant sanction.

[118] It is submitted for Dr Andrew that a reprimand is a significant sanction. The decision of the Victorian Civil and Administrative Tribunal in Medical Board of Australia v Jansz[16] is cited in support. Similar observations have been made by this Tribunal.[17]

[119] However, in this matter, I do not consider that a reprimand would act as a real deterrent to other practitioners, and thus provide protection to the public.

[120] In opposing a suspension of his registration Dr Andrew submits that the community would stand to be disadvantaged if he were to be suspended. There is evidence in support of that submission. Dr Andrew deposes to working a nine day fortnight. He describes the clinic in which he practises is very busy. Although there are six other doctors in the practice, they each have their own substantial patient base. He says that if he were unable to practice his absence from the practice would place a significant burden on his colleagues. It would also place his patients, and those of his colleagues, at substantial inconvenience as they would have to wait longer to obtain appointments. Letters from his colleagues are to like affect.

[121] In contending for a suspension of registration the Board did not contend that this was a matter which required all, or even some part, of the period of suspension actually to be served. It contended that part, or all, of the suspension might itself be suspended. Those submissions were made before decisions of the Tribunal which found that the Tribunal lacked power to suspend the operation of suspensions imposed under s 196 of the National Law.[18] The Tribunal adheres to those conclusions. However, relevantly for the present matter is that the Board does not contend that a period of actual suspension is called for. Nor does the Tribunal consider suspension necessary. The Tribunal acknowledges the inconvenience which would be caused to others, particularly patients of the practice, if Dr Andrew's registration were to be suspended.

[122] I consider that the protective purpose which disciplinary proceedings are intended to achieve will be met, particularly through general deterrence, through the imposition of a sanction other than suspension of Dr Andrew's registration.

[123] If the Tribunal finds, as it has here, that a practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct, or professional misconduct, it is able to take any one or more of the actions set out in s 196(2) of the National Law. Those actions include requiring the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner.

[124] In my view, imposing a fine is an appropriate sanction in this case. It will serve as a general deterrent. I consider it to be a more appropriate sanction than a suspension of registration - and would consider it so even if all or part of that suspension could be suspended.

[125] In Medical Board of Australia v Roberts[19] the State Administrative Tribunal of Western Australia imposed a fine of $15,000 upon a paediatrician who had given the mother of a patient a consultation note which recommended that she and her husband use corporal punishment to bring about behavioural modification in their children.

[126] In Medical Board of Australia v Henning[20] the Health Practitioner's Tribunal of South Australia imposed a fine of $25,000 on a doctor found to have behaved in a way that constituted professional misconduct and satisfactory professional performance. The doctor had, at the time of treatment, a pre-existing personal and professional association with a patient. The Tribunal found that he had a conflict of interest and that his personal associations with the patient impaired his ability to provide impartial care, advice and treatment. The treatment related to two admissions of the patient in a private hospital. The patient had complex physical and psychiatric illnesses and there was evidence that the patient had attempted suicide just before one of the admissions.

[127] The professional misconduct was constituted by the doctor having failed: to inform the hospital staff of a possible suicide attempt; to record that possible attempt in the clinical notes and that such was a differential diagnosis; to transfer the patient to an appropriate tertiary hospital where she could receive complete medical and psychiatric care and assessment; and to detain the patient under the Mental Health Act.

[128] The Tribunal observed 'what Dr Henning failed to do was to override the patient's wishes, her longstanding decision to die and not to be transferred to the Flinders Medical Centre'.

[129] The findings of Dr Andrew in this case are of a similar nature. In my view, a fine of $10,000 is appropriate in this case. The Tribunal will order that it be paid to the Medical Board of Australia within 3 months of the date of the order.

[130] The parties are in agreement that Dr Andrew should be ordered to pay the Board's costs of and incidental to the proceedings as assessed on a standard basis. In my view, they should be assessed on the scale applicable to matters in the District Court. The Tribunal will so order.

[131] The formal orders are:

1. Dr Andrew is found to have behaved in a way that constitutes professional misconduct.
2. That the following conditions be imposed upon Dr Andrew's registration:
   1. The practitioner is prohibited from issuing certificates of fitness to drive motor vehicles.
   2. That within 6 months or such further period as the board may approve the Practitioner is to undertake a course of education for managing interactions by doctors with difficult patients
3. Dr Andrew is fined $10,000, to be paid to the Medical Board of Australia within 3 months of the date of the order.
4. Dr Andrew is to pay the Medical Board of Australia's costs of and incidental to the proceedings as assessed on a standard basis.

[1] In his response to the referral Dr Andrew refers to having treated AB as his regular GP from in or about 2002 and being familiar with his history. He refers to also having seen AB on 3 occasions in July 1991 and January and December 2001.

[3] The submission is document 7 in the agreed bundle.

[4] Written submissions on behalf of Dr Andrew at [14].

[7] Agreed Bundle of Documents, document 15 at 129.

[8] [2002] 1 QdR 116 per Muir J at [75] - [91].

[9] Incorrectly identified in paragraph [88] of the report as s 6(1)(a); the provision had previously been contained in an earlier version of the Act in s 6(1) (see reprints 2C and 3).

[12] The Board's submissions seem to conflate unprofessional conduct and unsatisfactory professional performance as "unsatisfactory professional conduct."

[13] Bundle of Agreed Documents, document 35 at 200.

[14] Bundle of Agreed Documents, document 10 at 118.

[15] Supplementary Bundle of Documents at 86.

[16] [2011] VCAT 1026 at [373].

[17] Medical Board v Grant [2012] QCAT 285 at [49]; Pharmacy Board of Australia v Hung [2014] QCAT 148 at [40].

[18] Pharmacy Board of Australia v Tavakol [2014] QCAT 112; Pharmacy Board of Australia v Hung [2014] QCAT 148; Psychology Board of Australia v Cook [2014] QCAT 162.

[19] [2014] WASAT 76(S).

[20] [2014] SAHPT 15.