The parties disagreed as to the appropriate sanctions. The Board contended for the respondent's reprimand, cancellation of registration, and a period of disqualification for two years. The respondent submitted that a period of suspension for six months and re-entry with conditions was appropriate in light of the time that had already elapsed since the respondent had last practised.

Held, finding professional misconduct and imposing sanctions:

• The Tribunal is satisfied that the respondent's conduct constitutes professional misconduct pursuant to s 196(1) of the National Law. With regard to the professional boundaries breaches, the respondent cultivated the patient's dependence on him and exploited her vulnerability, using the privileges of his status as a medical practitioner within the personal relationship;
• The respondent is reprimanded;
• The respondent's registration is cancelled;
• The respondent is disqualified from applying for registration for a period of two years from the date of the order; and
• The respondent is, during the period of disqualification, prohibited from providing other health services.

Health practitioners - Complaint by the Medical Board of Australia - Professional misconduct - Sexual misconduct in connection with the practice of medicine - Inappropriate patient management and care - Boundary violation - Inadequate record-keeping - Disclosure of patient information - Reprimand - Registration cancelled - Disqualified from applying for registration for two years

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 5, 9, 41, 196

Appanna v Medical Board of Australia [2021] VCAT 277

Appanna v Medical Board of Australia [2021] VSC 679

Appanna v Medical Council of New Zealand [2020] NZDC 4844

Appanna v Medical Council of New Zealand [2024] NZDC 6834

Barristers' Board v Darveniza [2000] QCA 253

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

Chan v Medical Board of South Australia (1986) 41 SASR 434

Chiropractic Board of Australia v Ebtash [2020] WASAT 86

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

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630

Marin v Chiropractic Board of Australia [2020] SASCFC 74

Maroulis v Psychology Board of Australia [2021] SASC 16

Medical Board of Australia v Arulanandarajah (Review and Regulation) [2021] VCAT 85

Medical Practitioners Board of Victoria v Grolaux [No.2] [2009] VCAT 978

Nursing and Midwifery Board of Australia v Easdon [2024] VCAT 321

Panegyres v Medical Board of Australia [2020] WASCA 58

Rajagopalan v Medical Board of South Australia [1998] SASCFC S6667

Richter v Walton (New South Wales Court of Appeal, Kirby P, Priestley JA, O'Keefe AJA, 15 September 1993).

Sudath v Health Care Complaints Commission [2012] NSWCA 171; (2012) 84 NSWLR 474

Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner [2016] SASCFC 107

Zhao v Medical Board of Australia [2021] VSC 763

Mr S Hurburgh with Ms E Holmes appeared for the complainant

Mr P Ewens with Ms B Ackland appeared for the applicant

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010 s 196(1)

1. This decision concerns the conduct of the respondent, an obstetrician and gynaecologist, who is a 65-year-old resident of New Zealand. The Tribunal's task is to assess certain conduct by the respondent and determine whether the conduct amounts to professional misconduct for the purposes of the Health Practitioner Regulation National Law (South Australia) Act 2010 ('the Act'), and if so, what action should be taken by the Tribunal in response to the conduct.
2. The respondent was born in 1959. He qualified in medicine in 1984 in South Africa, and subsequently obtained qualifications in obstetrics and gynaecology. He became a member of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists ('RANZCOG') in 1993, and a fellow in 1996. Between 1996 and 2022, he practised as a specialist obstetrician and gynaecologist, mainly in New Zealand, and operated several clinics in Hamilton and other places. His wife worked in one of the clinics in an administrative capacity. He was first registered with both general and specialist registration in Australia in June 2018. He obtained registration so as to be able to work from time to time as a locum in Australia.
3. The respondent's conduct that is the subject of these proceedings occurred primarily in New Zealand. One incident of conduct occurred in regional South Australia where the respondent was working as a locum. All of the relevant conduct occurred in 2019.

Interim suspension by the Medical Council of New Zealand and appeal to the New Zealand District Court

1. In September 2019, New Zealand police notified the Medical Council of New Zealand ('the Medical Council') of a report made by a woman concerning the respondent. The woman's complaint concerned the respondent's failure to delete videos of consensual sexual activity between her and the respondent, despite her requests that he do so. The police did not lay any charges against the respondent arising out of the conduct but referred the complaint to the Medical Council.
2. Upon receiving the notification, and on the basis of the woman's allegations concerning the respondent, the Medical Council suspended the respondent's registration as a medical practitioner in New Zealand on an interim basis pending its investigation of the allegations, in September 2019.[1] The respondent lodged an appeal in the District Court of New Zealand in relation to the Medical Council's decision to suspend him on an interim basis.[2] Pending determination of that appeal, the respondent successfully sought a stay of the suspension, upon his entering into an undertaking which modified the circumstances in which he could practise obstetrics and gynaecology.[3] In March 2020, following a hearing at which the respondent was legally represented, a judge of the District Court of New Zealand determined that interim suspension was an inappropriate response to the allegations, and overturned the suspension.[4] Meanwhile, the Medical Council was preparing its disciplinary proceedings in relation to the conduct.[5] The practical effect of the stay being granted and the interim suspension being overturned, was that the respondent continued to practise in New Zealand under the conditions of his undertaking until disciplinary proceedings in New Zealand were completed.

Findings of the Health Practitioner Disciplinary Tribunal of New Zealand and suspension

1. The disciplinary proceedings concluded in November 2022.[6] Those proceedings, before the Health Practitioner Disciplinary Tribunal of New Zealand, considered six alleged breaches of professional or ethical obligations particularised as follows:[7]
   • Inappropriately blurring the boundaries between his personal life and professional life by using his position and expertise as a medical practitioner, specialising in gynaecology, in connection with his personal sexual practices;
   • Inappropriately blurring boundaries by offering and providing health services to someone ("A") with whom he was sexually intimate;
   • Inappropriately blurring boundaries by engaging in sexual activity with A at his medical practice;
   • Breaching the privacy of an unknown female patient by sending a photo of her in an operating theatre to his sexual partner A;
   • Declining, in a text to A, to delete footage of their sexual activity and referring in that text to having A's medical notes for a medical referral to a specialist and asking A whether she still wanted him to make a referral to a specialist in relation to a medical condition;
   • Disclosing personal or health information about A to a journalist without A's consent when a complaint regarding his conduct was under consideration by the Medical Council.
2. In November 2022, the Health Practitioner Disciplinary Tribunal of New Zealand found that the first, second and sixth allegations each amounted to professional misconduct, and allegations one to five inclusive were found to cumulatively amount to professional misconduct. The Tribunal censured the respondent and the respondent's registration was suspended for three months.[8] The Tribunal stated that the suspension would have been 12 months but for the delays in the proceedings coming on for hearing and the fact that the respondent had been practising, in the interim, with a chaperone.[9]
3. The respondent then did not practise as a medical practitioner for three months. His return to practise was further delayed by some weeks by an operation from which he was required to recuperate.
4. In April 2023, the respondent was required to renew his registration in New Zealand. The Medical Council declined to re-register the respondent.[10] In so doing, it relied upon the same conduct, and separate, subsequent allegations against him (not the subject of proceedings before this Tribunal) to find that he was not suitable to be registered. The respondent unsuccessfully appealed the Medical Council's refusal to the District Court of Wellington.[11] He was unrepresented at that time. As at the time of the hearing before this Tribunal, the respondent is unregistered and remains unable to practise obstetrics and gynaecology, or otherwise as a health practitioner, in New Zealand.

Simultaneous Australian proceedings - AHPRA investigation and immediate action suspensions

1. Whilst the events described above were unfolding, a parallel set of interactions was taking place in Australia between the respondent and the Medical Board of Australia. The respondent is a registered medical practitioner for the purposes of Schedule 2 of the Act (Schedule 2 is hereafter referred to as 'the National Law'). He was first registered as such on 12 June 2018.[12] As a consequence of registration, the respondent obtained the right to practice as an obstetrician and gynaecologist in Australia and his practice in that regard was regulated by the Medical Board of Australia, which is supported administratively by the Australian Health Practitioner Regulatory Agency ('AHPRA').
2. On 17 September 2019, the Medical Council notified AHPRA of the police report in relation to the respondent, the Medical Council's action of suspending him, and the respondent's undertaking.[13] AHPRA commenced its own investigation for the purpose of determining whether the Medical Board of Australia should take action in respect of the respondent's registration as a medical practitioner under the National Law. On 30 September 2019, the Medical Board of Australia took "immediate action" under s 156(1)(d) of the National Law and from 1 October 2019, suspended the respondent's registration under the National Law.[14] The basis of this immediate action was that it held a reasonable belief that the respondent's New Zealand registration had been suspended. In fact, by that time, the respondent had obtained a stay of the suspension.
3. In June 2020, several months after the decision of the New Zealand District Court's overturning of the suspension of the respondent's New Zealand registration, the Medical Board of Australia revoked its own suspension of the respondent's registration.[15] However, its underlying investigation as to whether the respondent's conduct warranted the laying of a disciplinary charge in Australia, continued. This led to the Medical Board of Australia again taking 'immediate action' and re-suspending the respondent's registration on 23 June 2020 under s 156(1)(a) of the National Law, on the grounds that he posed a serious risk to persons, and that it was necessary in the public interest.[16]
4. On 18 June 2020, a couple days prior to the suspension decision made on 23 June, the respondent, who was at that time unrepresented, provided a lengthy written account of the events underlying the allegation to AHPRA.[17] The document remains one of the few sources of information available to this Tribunal to understand the respondent's attitude to the allegations and how his position has changed over time. It will be necessary to return to this later in this decision.

VCAT review and Victorian Supreme Court appeal - upheld suspension

1. In July 2020, the respondent filed an application for review of the Medical Board of Australia's immediate action decision in the Victorian Civil and Administrative Tribunal ('VCAT').[18] On 26 March 2021, VCAT upheld the Board's decision.[19] VCAT's task was to decide whether the Board's immediate action was correct or preferable, by reference to the risk posed to the public by the respondent, and whether it would be in the public interest to maintain the immediate action.
2. In its decision, VCAT said: [20]

... Having considered the material before us, we agree with the Board's submission that there are sufficient grounds for a reasonable belief that Dr Appanna poses a serious risk to persons, not only because of the undisputed conduct that he engaged in and the lack of judgment evident, but also because of what we agree is a disturbing lack of insight into the nature of what he did and the problems with it. > > ... > > ... the risk is primarily to women Dr Appanna might meet out of hours, in pursuit of the sexual arrangements he referred to in the materials, necessitated, he said, because his wife was no longer able to have sex with him. It is a risk of misusing his position and privileges as a medical practitioner and causing harm.

3. Although VCAT noted that the New Zealand District Court had permitted the respondent to maintain his registration and work pursuant to an undertaking, the Tribunal took a different view and gave reasons for that difference of approach and determined that suspension of the respondent's registration in Australia was warranted.[21]
4. The respondent appealed VCAT's decision to the Supreme Court of Victoria.[22] He was at that time unrepresented. An appeal lay in respect of errors of law. Nevertheless, the respondent placed evidentiary material before the Court. In October 2021, a Judge of the Supreme Court of Victoria rejected each of the respondent's grounds of appeal, finding that there had been no error of law established by the respondent or evident on the materials, and upheld the Tribunal's orders.[23] After hearing submissions and reading the materials, and in particular that filed by the respondent, O'Meara J said:[24]

Aspects of the applicant's material are, in my view, of considerable concern; especially coming from a senior medical practitioner of long experience whose specialty is obstetrics and gynaecology. Indeed, some of it is downright alarming. > > ... > > It is apparent that the Tribunal was concerned about the applicant's lack of any true insight into or understanding of the significance of his actions and the risks posed by his attitudes and beliefs. It should be evident from what I have said that a consideration of the material before the Tribunal together with the material that the applicant has placed before this Court serves to confirm the soundness of that concern.

The proceedings in the South Australian Civil and Administrative Tribunal

1. The Medical Board of Australia subsequently filed an Initiating Application in this Tribunal,[25] and an Amended Initiating Application on 13 August 2024, seeking a finding that the respondent is liable to disciplinary action under the National Law, and orders from this Tribunal in respect of the conduct.[26] Those proceedings have culminated in this decision.
2. The Amended Initiating Application asserts that the respondent's specified conduct amounts to professional misconduct and invites the Tribunal to make orders in response.
3. The Tribunal is constituted of a Presidential Member, an experienced registered obstetrician and gynaecologist, and a representative of health consumers.[27] We received comprehensive documentary materials in the form of Tribunal Book (TB) Volumes 1 to 6, and written submissions. The Board was represented by Mr Hurburgh at the hearing. The respondent's counsel, Ms Ewens, made submissions on behalf of the respondent. The respondent participated by video-link from New Zealand but did not file an affidavit in these proceedings or give evidence.
4. The parties filed a detailed Statement of Agreed Facts, Proposed Findings and Issues for Determination dated 15 October 2024 ('Agreed Facts Document').[28] In that document, the parties set out the factual findings that the parties invited the Tribunal to find. Further, the Agreed Facts Document conveys the parties' joint position that the agreed facts constitute professional misconduct. In other words, the characterisation of the conduct is agreed. The parties did not agree as to the appropriate orders to be made by the Tribunal in response to the conduct.

1. The respondent is unregistered in New Zealand. The respondent cannot work as an obstetrician and gynaecologist in that country. He last worked there in December 2022.
2. The respondent's registration under the National Law is suspended pending the outcome of the current proceedings before this Tribunal.[29] The respondent is unable to work as a medical practitioner in Australia because he lacks registration by the relevant national board (in this case, the Medical Board of Australia).
3. In addition, the respondent is no longer a fellow of RANZCOG, his fellowship having been revoked by the College on account of his suspension.[30] Of itself, this is not a barrier to being vocationally re-registered in either New Zealand or Australia.[31]

1. While it is useful to understand how the New Zealand Tribunal and District Court, and the Victorian Tribunal and Supreme Court have dealt with the respondent's conduct, this Tribunal's task is different from that which has been undertaken by those bodies. The majority of what has occurred to date has been consideration of the immediate action taken by the relevant regulator in each country. This Tribunal's task is to consider the appropriate substantive orders to be made in respect of the conduct. Further, when the District Court of New Zealand imposed disciplinary sanctions in respect of the respondent, it was on a different factual basis than that which this Tribunal must consider sanctions. The findings and opinions of those other bodies are therefore only of limited utility in respect of the task before us.
2. Most importantly, the basis on which the parties have asked the Tribunal to approach its task is different, in material respects, from that which has been put to those other bodies. The Agreed Facts Document contains concessions by the respondent that have not previously been made, both as to the occurrence of particular events, and as to the characterisation of the conduct by reference to the standards referred to in the National Law.
3. Despite the Agreed Facts Document, the Tribunal must independently consider whether the respondent's conduct as found is properly characterised as professional misconduct by reference to the meaning of that concept in the National Law, and if so, the appropriate orders to be made.

1. The agreed facts advanced by the parties are as follows:[32]

1. In or around May 2019, the respondent contacted Patient A[33] via an online dating website named 'Seeking Arrangement';

2. On 15 May 2019, the respondent: > > 2.1. agreed to meet with Patient A; > > 2.2 that evening, drove Patient A to a restaurant; > > 3. While at the restaurant: > > 3.1 drank alcoholic drinks with Patient A; > > 3.2 said Patient A words to the effect that he requires everyone he has sexual contact with to have an STI test; > > 3.3 offered to complete an STI test on Patient A;

2. Subsequently, drove Patient A from the restaurant to his clinic in Hamilton, which was then empty of people;
3. After arriving at his clinic with Patient A, directed her to a consultation suite, where he:

5.1 asked Patient A to undress from the waist down; > > 5.2 inserted a speculum into Patient A's vagina; > > 5.3 conducted a swab for an STI test; > > 6. During the test referred to in paragraph 5.3 above, the respondent: > > 6.1 told Patient A that he could see something on her cervix; > > 6.2 asked Patient A whether she noticed any bleeding after intercourse or experienced pain during sex; and > > 6.3 said words to the effect that 'the lump was probably fine but that [he] could remove it'; > > 7. After conducting the swab referred to in paragraph 5.3 above, the respondent: > > 7.1 commenced inserting his fingers into Patient A's vagina; > > 7.2 asked Patient A if she had been tied up before; > > 7.3 tied Patient A to a chair; > > 7.4 inserted a vibrator into Patient A's vagina; and > > 7.5 performed oral sex on Patient A;

4. Told Patient A that he would message her after receiving the results of the test referred to in paragraph 5.3 above;

5. On 21 May 2019, the respondent sent Patient A a message to the effect that the results of the test referred to in paragraph 5.3 above had 'come back clear';
6. On 23 May 2019, after the respondent and Patient A had already met twice in person, they engaged in the following exchange by text message:

Respondent: Oh good. So condoms? Anal? > > Patient A: I've never done anal and I would prefer condoms for safety > > Respondent: Is this negotiable? > > Patient A: Condoms aren't > > Respondent: So we could do anal for $300 > > Patient A: I'm not sure if I could jump into anal as I've never done it before but I'd be willing to give it a go > > Respondent: Okay well let's chat a bit, I'm fixed; > > 12. Between 15 May 2019 and 12 July 2019, the respondent: > > 12.1 engaged in intimate, including sexual, activity with Patient A, including at his clinic; > > 12.2 filmed the intimate, including sexual, activity referred to in paragraph 12.1 above; > > 12.3 told Patient A that he: > > 12.3.1 could help her with medical matters; > > 12.3.2 could prescribe her anything she wanted; > > 12.3.3 could provide medical advice to her; and > > 12.3.4 would refer her to a specialist pain clinic; > > 12.4 took steps to obtain a copy of Patient A's clinical records; and > > 12.5 gave Patient A midazolam without a prescription;

7. Between 17 June 2019 and 5 July 2019, the respondent was employed as a locum medical practitioner at the Port Augusta Hospital and Regional Health Service;
8. On 21 June 2019, the respondent sent Patient A a photograph of a female patient in an operating theatre;
9. On 12 July 2019, Patient A contacted the respondent and requested that he delete his videos of the sexual activity referred to in paragraph 12.1 above;
10. The respondent responded to the request referred to in paragraph 15 above by sending a text message to the effect, 'But I'm not deleting videos hon, have your notes for referral if you still want me to?';
11. Between 2 September 2019 and 8 August 2020, the respondent disclosed Patient A's personal health and contact information to Matthew Shand, a journalist at stuff.com;
12. On 8 August 2020, an article was published by stuff.com entitled 'Bondage Doc's Career in Tatters', publishing the personal health information of Patient A as provided by the respondent;
13. The conduct referred to in each of paragraphs 5.2 [inserting speculum], 5.3 [conducting a swab], 12.3.4 [referral to a specialist] and 12.5 [giving Midazolam] above constituted a medical service;

20. The medical services referred to in paragraphs 5.2 and 5.3 above were: > > 20.1 invasive medical procedures; > > 20.2 provided in circumstances where Patient A was not experiencing any medical emergency; > > 20.3 not recorded by the respondent; > > 20.4 not clinically justified; and > > 20.5 performed for the purpose of the respondent commencing a sexual relationship with Patient A; > > 21. The medical service referred to in paragraph 12.5 [giving Midazolam] above was: > > 21.1 provided in circumstances where: > > 21.1.1 Patient A was not experiencing any medical emergency; and > > 21.1.2 the respondent did not subsequently monitor her clinical condition; and, > > 21.2 not recorded by the respondent; and > > 21.3 not clinically justified;

14. During the period that the respondent engaged in the conduct referred to in paragraphs 1 to 9 inclusive [the first respondent's first physical meeting with Patient A], Patient A:

22.1 was between 25 and 26 years of age, having been born on 20 June 1993; > > 22.2 had a history of: > > 22.2.1 chronic pain, particularly abdominal pain; > > 22.2.2 mental illness, including bipolar affective disorder and attempted suicide; > > 22.2.3 was a single parent of a young child; and

15. The respondent knew the matters referred to in paragraph 22.1, 22.2.1 and 22.2.3 above.

1. On a referral to the Tribunal, the Board is required to establish the facts upon which it relies on the balance of probabilities which, in light of the consequences of the potential orders on the respondent's career, must be accepted with an appropriate level of confidence by the fact-finders of their likely truth.[34]
2. It is not necessary or appropriate for the Tribunal to go behind the Agreed Facts Document in this case, and the Tribunal sees no reason to do so. The issue was considered by Chief Justice Kourakis in Viscariello v Legal Practitioners Disciplinary Tribunal; Viscariello v Legal Profession Conduct Commissioner,[35] where the appellant alongside an appeal against a decision to disallow an extension of time to bring an application for judicial review, also brought forth an action to reconsider a previous appeal against a finding of the Legal Practitioners Disciplinary Tribunal which found him guilty of unprofessional conduct. Three charges had been dealt with by the Legal Practitioners Disciplinary Tribunal concerning various separate incidents between 2004 and 2006.[36] Relevantly, the third charge considered in the Tribunal hearing was that the appellant in his capacity as solicitor pursued a claim for contribution under the Fences Act 1975 on behalf of a company which was not reasonably arguable and that in doing so, the practitioner engaged in unsatisfactory conduct. That charge proceeded by way of a statement of agreed facts. The practitioner subsequently argued on appeal that the Tribunal was not entitled to accept the agreed facts without discharging its duty to enquire and satisfy itself of the facts alleged.
3. The Chief Justice held at [82]-[85]:

The appellant admitted before the Tribunal the facts alleged on the Fences Act charge. He also admitted that those facts amounted to unsatisfactory conduct. Specifically, the appellant admitted that he considered that the relevant application was (barely) arguable, but failed to turn his mind to whether it was reasonably arguable under the Fences Act. On the basis of the agreed facts, the Tribunal found the appellant guilty of unsatisfactory conduct in relation to the Fences Act charge. The semantic subtlety in the agreed facts should not distract from the underlying unsatisfactory conduct which was that the appellant, using his skills as a legal practitioner, recklessly brought a plainly unmeritorious claim to advance his personal interest and in doing so caused the other party unnecessary and irrecoverable expense. > > The appellant did not exercise his right of appeal pursuant to s 86 of the LPA in relation to the Tribunal's finding. > > The appellant now contends that the Tribunal made a jurisdictional error on the face of the record in relying exclusively upon the statement of agreed facts provided to it by the parties and failed to discharge its duty to inquire into the conduct the subject of the Fences Act. > > The Tribunal does not have a duty to investigate the conduct underlying charges which are admitted and supported by a statement of agreed facts to the extent that the appellant contends. The Tribunal, of course, is not bound to accept a mutually agreed position put by a complainant and a practitioner. Much will depend on the circumstances. In this matter the Tribunal was entitled to, and indeed acted completely reasonably, in concluding its inquiry on the basis of the material put before it. Indeed, to have embarked on a further enquiry would have been both impractical and unreasonable. The appellant's contention that the Tribunal erred in law must be rejected.

4. In consideration of the material in the Tribunal Books and the Agreed Facts Document, the Tribunal is satisfied on the balance of probabilities that the Agreed Facts Document contains an accurate and sufficient statement of the events described therein. The respondent has had the benefit of legal advice and representation for the purposes of these proceedings.
5. The Tribunal finds the facts asserted in section 3 of the Agreed Facts Document, set out in these reasons at paragraph [28], to have been established on the balance of probabilities.

1. The parties agreed that the respondent's conduct meets the definition of "professional misconduct" as defined in s 5 of the National Law, and that the conduct has the effect that he is not a fit and proper person to be registered under the National Law.
2. Section 5 of the National Law provides:

professional misconduct, of a registered health practitioner, includes-

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

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

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

1. Section 41 of the National Law provides that the Code of Conduct is admissible as evidence of what constitutes appropriate professional practice. Acting inconsistently with the Code of Conduct is not sufficient to establish professional misconduct but conduct that is inconsistent with the Code of Conduct is certainly relevant to the standards to which it is expected that health practitioners will hold themselves.
2. The form of the agreement reached and set out in the Agreed Facts Document corresponds with the applicant's Amended Initiating Application which describes and particularises two allegations.[37]
3. The first allegation is that the respondent engaged in professional misconduct within the meaning of paragraphs (a) and (c) of the definition of "professional misconduct" in s 5 of the National Law and/or unprofessional conduct as defined in s 5 of the National Law in that, between 15 May 2019 and 12 July 2019, the respondent failed to maintain appropriate professional boundaries with a female patient (Patient A) and engaged in an intimate relationship with Patient A.[38]
4. The first allegation may for convenience be referred to as the "professional boundaries breaches".
5. The second allegation is that the respondent engaged in professional misconduct under paragraphs (a) and/or (b) and/or (c) of the definition of "professional misconduct" in s 5 of the National Law and/or unprofessional conduct as defined in s 5 of the National Law, in that on 21 June 2019 the respondent breached the trust and privacy of a patient under his care (being an unidentified patient whose photograph he sent to Patient A), and between 2 September 2019 and 8 August 2020, the respondent disclosed sensitive health information about Patient A without consent to a journalist at stuff.com, after becoming aware that a complaint about his professional conduct had been made to the Medical Council of New Zealand.[39]
6. The second allegation may for convenience be referred to as the "privacy breaches".

Characterisation of the professional boundaries breaches

1. The parties agreed that the professional boundaries breaches were conduct that was inconsistent with the clauses [1.4], [2.2.3], [3.2.6], [3.14], [8.2], [8.12.1] and [8.12.3] of the Code of Conduct for Doctors in Australia (March 2014) that was in force at the relevant time.[40]

1.4 Professional values and qualities of doctors > > While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice. Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. > > Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. > > Patients also rely on their doctors to protect their confidentiality. > > Doctors have a responsibility to protect and promote the health of individuals and the community. > > Good medical practice is patient-centred. It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, recognising that these cultural differences may impact on the doctor-patient relationship and on the delivery of health services. > > Good communication underpins every aspect of good medical practice. > > Professionalism embodies all the qualities described here, and includes self-awareness and self-reflection. > > Doctors are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients and colleagues, and on their own health and wellbeing. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession. > > 2.2 Good patient care > > Maintaining a high level of medical competence and professional conduct is essential for good patient care. > > Good medical practice involves: > > ... > > 2.2.3 Maintaining adequate records (see Section 8.4). > > ... > > 3.2 Doctor-patient partnership > > A good doctor-patient partnership requires high standards of professional conduct. This involves: > > ... > > 3.2.6 Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically, emotionally, sexually or financially. > > 3.14 Personal relationships > > Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues. > > 8.2 Professional boundaries > > Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: > > 8.2.1 Maintaining professional boundaries. > > 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law.12 > > 8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress. > > [Footnote 12. Section 39 of the National Law and Sexual boundaries: guidelines for doctors issued by the Medical Board of Australia (available at: www.medicalboard.gov.au).\] > > 8.12 Financial and commercial dealings > > Doctors must be honest and transparent in financial arrangements with patients. Good medical practice involves: > > 8.12.1 Not exploiting patients' vulnerability or lack of medical knowledge when providing or recommending treatment or services. > > 8.12.3 Avoiding financial involvement, such as loans and investment schemes, with patients.

2. The parties agreed that the professional boundaries breaches were also a breach of clause 3 of the "Guidelines: Sexual Boundaries in the Doctor-Patient Relationship".[41] That provision states:

3. Breaches of sexual boundaries (spectrum of behaviours) > > There is a wide range of behaviours that breach sexual boundaries, from making unnecessary comments about a patient's body or clothing, to criminal behaviour such as sexual assault. Unwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault. AHPRA will advise and support notifiers to report criminal behaviour to the police. > > 3.1 Spectrum of behaviours > > Breaches of sexual boundaries include:

• engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship
• conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse
• behaviours of a sexual nature including:
  • - making sexual remarks including sexual humour or innuendo
  • - flirtatious behaviour
  • - touching patients in a sexual way
  • - engaging in sexual behaviour in front of a patient

• - using words or acting in a way that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire

• asking a patient about their sexual history or preferences, when these are not relevant to their healthcare and without explaining why it is necessary to discuss these matters
• sexual exploitation or abuse

• sexual harassment > > • sexual assault. > > 3.2 Other behaviours that may breach sexual boundaries > > Other behaviours that may breach sexual boundaries include:

• asking a patient to undress more than is necessary or providing inadequate privacy screening or cover for a physical examination
• engaging in a sexual relationship with an individual who is close to a patient under the doctor's care, such as a patient's carer, guardian, spouse, family member or the parent of a child patient
• engaging in a sexual relationship with a former patient.

1. In addition to agreeing that the conduct comprising the professional boundaries allegations was inconsistent with the guidelines set out above, the parties agreed that the conduct amounted to professional misconduct for the purposes of ss 5(a) and (c) of the National Law.[42]

1. The parties agreed that the privacy breaches were inconsistent with clauses [1.4], [3.4], [3.14] and [8.2] of the Code of Conduct that was in force at the relevant time.[43]

1.4 Professional values and qualities of doctors (as set out above) > > 3.4 Confidentiality and privacy > > Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. Good medical practice involves: > > 3.4.1 Treating information about patients as confidential. > > 3.4.2 Appropriately sharing information about patients for their health care, consistent with privacy law and professional guidelines about confidentiality. > > 3.4.3 Using consent processes, including forms if required, for the release and exchange of health information. > > 3.4.4 Being aware that there are complex issues related to genetic information and seeking appropriate advice about disclosure of such information. > > 3.4.5 Ensuring that your use of social media is consistent with your ethical and legal obligations to protect patient confidentiality and privacy. > > 3.14 Personal relationships (as set out above) > > 8.2 Professional boundaries (as set out above).

2. Similarly to the professional boundaries breaches, the parties agreed that the privacy breaches were also a breach of clause 3 of the Guidelines as set out above,[44] and that it amounted to professional misconduct for the purposes of ss 5(a) and 5(c) of the National Law.[45]

Characterisation of the conduct by the Tribunal

1. Despite the parties' agreement as to characterisation of the conduct, s 196(1) of the National Law reposes in the Tribunal the task of deciding whether a practitioner has behaved in a way that constitutes professional misconduct.
2. Professional misconduct is the most serious of the classes of misconduct described by the National Law, the others being unprofessional conduct and unsatisfactory professional performance.
3. Of the three sub-species of professional misconduct described in s 5 of the National Law, paragraphs (a) and (b) are single and multiple instances, respectively, of conduct that occurs in the course of practise, that falls substantially below the standard expected of a practitioner with the same experience as the person in relation to whom the allegations are made.
4. Paragraph (c) is conduct that may occur within practise or be unrelated to practise, and is conduct that demonstrates that the practitioner is not fit and proper to be registered.
5. Paragraph (c) could concern illicit drug use, or violent behaviour, or acts of dishonesty, and the categories are not limited. Indeed, as to the meaning of 'professional misconduct' in section 5 of the National Law, Vaughan JA of the Western Australian Court of Appeal said in Panegyres v Medical Board of Australia at [150]-[151]:[46]

Under pars (a) and (b) of the definition of 'professional misconduct', there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct. > > It follows from the non-exhaustive nature of its definition that the concept of professional misconduct is wider than that which is provided for in pars (a) to (c). 'Professional misconduct' under the National Law can include conduct which does not fall within any of pars (a), (b) or (c) in the definition; for example, conduct which was infamous conduct in any professional respect in the sense of being conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency would be professional misconduct ...

6. Vaughan JA went on to describe the approach to be taking in making a finding of professional misconduct. His Honour said at [153]-[157]:[47]

A finding of professional misconduct under pars (a) or (b) of the s 5 definition involves, in substance, two elements:

7. First, the practitioner's conduct as established must constitute one (in the case of par (a)) or more (in the case of par (b)) instance or instances of unprofessional conduct. (As to this element it is necessary to draw on the s 5 definition of 'unprofessional conduct'.)
8. Second, the conduct must individually (in the case of par (a)) or taken together (in the case of par (b)) amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.

The second element involves answering three questions: > > 1. What level of training or experience is possessed by the practitioner?

9. What standard of conduct would be reasonably expected of a registered health practitioner of that level or experience?
10. Was the conduct of the practitioner substantially below the standard identified in answer to question 2?

The enquiry as to the second element is thus potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience (as applicable under pars (a) and (b) of the definition of professional misconduct). But the standard may not always be the same. More significantly, for professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be 'substantially below' the standard. > > Some indication of what is required before conduct constituting unprofessional conduct will be classified as professional misconduct because it is conduct that is 'substantially below' the requisite standard is provided by par (c) of the definition of professional misconduct. Paragraph (c) is relevant as it provides part of the context in which pars (a) and (b) are to be construed. Paragraph (c) of the inclusive definition expounds the concept of professional misconduct in terms of conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession. > > Accordingly, for conduct to be 'substantially below' the requisite standard it ought to reflect a corresponding degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience. That is not to suggest that conduct is only substantially below the relevant standard where the conduct is inconsistent with the practitioner being a fit and proper person to hold registration. That approach would leave pars (a) and (b) without an independent scope of operation. The relevance of referring to par (c) is to acknowledge the gravity of a finding of professional misconduct - something that is properly taken into account in exercising the evaluative judgement required by pars (a)'s and (b)'s criterion of unprofessional conduct 'substantially below' the appropriate standard. > > (citations omitted)

11. Given that the making of a finding of professional misconduct depends on firstly identifying the acts that constitute unprofessional conduct, it is necessary to turn to the definition of that term. "Unprofessional conduct" is defined in s 5 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; and

(b) a contravention by the practitioner of -

(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.

1. We note that the definition of unprofessional conduct is not exhaustive.

Characterisation of the professional boundaries breaches under s 5(a)

1. The proposition that the respondent's conduct was unprofessional and fell substantially below the standards expected of a practitioner of the respondent's experience is supported by the expert report obtained by AHPRA from Associate Professor Peter Grant.[48] He is a Fellow of the RANZCOG with extensive experience in practise, research and teaching in obstetrics and gynaecology. Associate Professor Grant considered the materials gathered by AHPRA and the relevant codes of conduct and guidelines for professional practise and concluded that the respondent's conduct breached various respects of the code and guidelines such as to fall substantially below the conduct of a comparably experienced practitioner, in respect of both the professional boundaries breaches and the privacy breaches.
2. We accept the content of the report and we consider that the respondent's conduct was unprofessional conduct insofar as:
   1. The respondent's carrying out of an STI test on Patient A was undertaken in circumstances, and in a manner, that did not conform with ordinary standards of medical practice:

ii. It was not accompanied by any consultation or note-taking;

1. It became a sexual act without any separation of the treatment and the sexual act.

1. The offer to Patient A to remove a lump that the respondent identified during the STI test was made in the absence of any history being taken, advice being given or notes being made;
2. The offer to Patient A of a referral to a specialist for management of her chronic pain was made outside of a consultation including without any documentation of the patient's history; and
3. The offer to Patient A of a referral to a specialist was made in circumstances in which Patient A had the impression that the referral was conditional upon her continuing a sexual relationship with the respondent.

57. We are also satisfied that the conduct was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience, such that it amounted to professional misconduct. The respondent is highly trained and experienced. It could reasonably be expected that he would be aware of, and abide by, the obligation not to blend his private life and his professional work. It could also reasonably be expected he would be aware of, and abide by, his obligations to provide adequate and documented advice and treatment. Such advice and treatment was required to be understood by the patient as having been given independently of any personal interest that the respondent had in giving it. The conduct was, in the Tribunal's view, substantially below the standard that could reasonably be expected of a registered health practitioner of the respondent's experience and training.

1. The New South Wales Court of Appeal's remarks in Health Care Complaints Commission v Litchfield,[49] decided before the introduction of the National Law, continue to provide useful guidance as to how a disciplinary tribunal is to assess a practitioner's departure from proper standards. The circumstances in that case bear some similarity to those before this Tribunal. The practitioner in that matter had conducted unnecessary breast examinations on patients attending him for other health services, and the Tribunal found that the examinations were performed for the practitioner's sexual gratification. There were several events, separated by several years. The Court of Appeal said:[50]

The Tribunal next found that the first two complaints were "relatively minor matters". We cannot so view these complaints on the Tribunal's findings and it was not appropriate for the Tribunal to compare them "with many cases that are dealt with in this Tribunal". The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. The approach of the Tribunal in this case stood the proper principle on its head. > > Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (Court of Appeal, 15 September 1993, unreported) at 8-9: > > "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest".

2. In relation to the power imbalance between medical practitioners and their patients, including in respect of the patient's need or desire for access to medical services, we consider that the observations of Doyle CJ in Craig v The Medical Board of South Australia are apt:[51]

... The use of a professional relationship to cultivate a friendship for Dr Craig's own gratification, albeit also with the desire to help her with her psychiatric difficulties, was to exploit her dependence and vulnerability ...

3. Whilst Dr Craig and the patient were in an established doctor-patient relationship before the intimacy began, whereas the respondent and Patient A were not, it is nevertheless apt to characterise the respondent's behaviour as "cultivating" Patient A's dependence on him and exploiting her vulnerability for his own gratification.
4. For the reasons above, we consider that the respondent's conduct fell substantially below the standards reasonably expected of a practitioner, for the purposes of s 5(a) of the National Law.

Characterisation of the professional boundaries breaches under s 5(c)

1. The Tribunal is also satisfied that the respondent's conduct comes within s 5(c) of the definition of professional misconduct.
2. O'Meara J of the Supreme Court of Victoria observed in Zhao v Medical Board of Australia,[52] endorsing an earlier statement to the same effect in Medical Board of Australia v Arulanandarajah,[53] that "paragraph (c) is a specific form and is directed to the conduct concerned rather than, explicitly, any wider or subjective consideration of the fitness and propriety of the [practitioner]."[54]
3. Professional misconduct for the purposes of s 5(c) encompasses conduct that is outside of the practitioner's practice that is so antithetical to the behavioural or attitudinal characteristics expected by the public of members of the profession that the person is unfit to be a member of that profession. It also addresses conduct that, whilst undertaken within the practitioner's practice, speaks to the practitioner's fitness to be registered.
4. In relation to s 5(c), assistance can be derived from the authorities that address s 5(c)'s predecessor, which was directed at whether a professional person is "of good character". The New South Wales Court of Appeal said in Sudath v Health Care Complaints Commission:[55]

An allegation as to a medical practitioner not being "of good character" is concerned with matters reflecting the moral standards, attitudes and qualities of the medical practitioner and not merely his general reputation. Those matters include personal misconduct not connected with the practice of medicine, to the extent that such conduct reveals defects of character which are incompatible with the standards and behaviour required of a member of the medical profession. Allegations of personal misconduct may be met with a denial of the conduct or explanations for it together with evidence as to earlier and subsequent conduct to enable an assessment of whether the alleged misconduct is a true indicator of underlying qualities of character: Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 at 451-452, 460, 475; McBride v Walton [1994] NSWCA 199; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [47]- [51]

5. Another way of putting it is as was asked in Craig:[56] Is it the sort of conduct that "could shake the confidence of the public in the profession"?[57]
6. The Tribunal finds that the professional boundaries breaches constitute professional misconduct which meets the definition within s 5(c). The professional boundaries breaches, when considered with the respondent's response to them and lack of insight into their consequences for patients and other women, are also such as to make the respondent unfit at this point in time to be a member of the profession for the purposes of s 5(c).
7. Any mitigation associated with the respondent's misapprehension about the fact that he had created the doctor-patient relationship with Patient A, is off-set by his failure to recognise that, even on his own account, the respondent was using the privileges of his status as a medical practitioner within the personal relationship. If the respondent were correct in his characterisation of the relationship as being separate from his work as a medical practitioner, it was a significant departure from his ethical requirements to perform on her procedures that only medical practitioners can perform outside of an emergency situation, to use his workplace as a place for sexual activity, and to offer to arrange services to Patient A that only medical practitioners can arrange. Unlike the assistance rendered to a family member in an emergency, the treatment given by the respondent to Patient A was not, in our view, given altruistically within a close personal relationship.

Characterisation of the privacy breaches under s 5

1. In relation to the privacy breaches, the Tribunal considers that some of these constitute professional misconduct for the purposes of s 5(a) and (c) of the National Law.
2. The provision of Patient A's contact information and personal information about her medical history to a journalist was a significant departure from the standards reasonably expected of a practitioner of the respondent's experience in respect of patient information. The provision of medical information regarding Patient A to the journalist was a deliberate act aimed at discrediting Patient A and/or casting the respondent's account of their relationship in the most favourable light. In so doing, the respondent subordinated Patient A's right to confidentiality in her medical information, to his wish to minimise the damage to his professional reputation. It is irrelevant that the respondent may have thought that his actions were undertaken in his personal and not professional life. He was aware that he was providing to a journalist personal, confidential health information that he had been given by Patient A in the course of discussions between them about her medical history and current medical conditions.
3. We find that this meets the definition of professional misconduct for the purposes of ss 5(a) and 5(c).
4. The provision of the photograph of the unidentified patient was also a serious departure from ethical standards. There was no proper purpose for the respondent to give the photograph to Patient A and the respondent knew or ought to have known that he had no control over the photograph once he had provided it to her. The respondent's submission that he had the patient's consent is disingenuous. The Tribunal does not accept that the respondent believed that the patient understood the nature of the relationship between the respondent and the recipient of the photograph, or that the patient gave informed consent for the photograph to be sent for no proper purpose.
5. We find that this constitutes professional misconduct for the purposes of s 5(a). We consider that provision of the photograph to Patient A would not, in and of itself, demonstrate unfitness to practice for the purpose of s 5(c) because the Tribunal accepts that it was an unplanned act that, of itself, was insufficient to demonstrate unfitness to practice.

1. Having characterised the conduct, the Tribunal turns to the matters relevant to determining the appropriate orders to be made.

The legislative scheme regarding the orders that can be made

1. The orders available to the Tribunal are set out in s 196(2) of the National Law. They are:

(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 -

(a) caution or reprimand the practitioner;

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

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(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;

(e) cancel the practitioner's registration.

(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 do one or more of the following -

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

(b) prohibit the person, either permanently or for a stated period, from doing either or both of the following -

(i) providing any health service or a specified health service;

(ii) using any title or a specified title;

(c) impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the person.

1. The purpose of the Tribunal's orders is not to punish the respondent but to protect the community from the conduct. In Rajagopalan,[58] Mullighan J said of the purpose of the disciplinary process:[59]

That purpose remains, from first to last, the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour, including those who deal with this practitioner.

2. This was expanded upon in Craig,[60] also prior to the introduction of the National Law, in which Doyle CJ explained the purpose of disciplinary proceedings at [41]:

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.

3. The protective purpose of disciplinary proceedings under the National Law was more recently described by the New South Wales Court of Appeal in Health Care Complaints Commission v Do as follows:[61]

The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

4. The statements in Craig and Do have been recently endorsed by the Supreme Court of South Australia in consideration of an appeal against sanction under the National Law as it operates in South Australia by Bleby J in Maroulis v Psychology Board of Australia.[62]
5. The authorities establish that the protective purpose of disciplinary sanctions extends to the protection of current and potential patients from the particular conduct, either from the respondent or those practitioners who may be minded to replicate it, and to the protection of the public more widely from the loss of trust and confidence in practitioners who practise in obstetrics and gynaecology, as described in the passage from HCCC v Litchfield set out earlier at paragraph [58] of thi[63]decision.63

The parties' contentions regarding the appropriate orders

1. The parties did not agree as to the appropriate orders to be made by the Tribunal.
2. The Board's position is that the respondent should be reprimanded, his registration should be cancelled, and that a period of disqualification of at least two years would be appropriate. The Board proposes that the respondent should also, during the period of disqualification, be prohibited from providing other health services. There is some reference in the materials provided that the respondent has at various times in his professional career, participated in the provision of health and/or cosmetic services that are not within the practice of obstetrics and gynaecology.[64]
3. The respondent's position is that the Tribunal should take account of the period of time that has already elapsed since the respondent has practised in Australia, and practised at all. Counsel for the respondent submitted that the Tribunal's function would be fulfilled in the imposition of a reprimand, suspension from practice for 6 months from the date of the order, and re-entry training in a manner agreed with by the Board.[65] Upon completion of the period of suspension and the re-training, the respondent should then be permitted to resume practice with various conditions imposed upon his registration for 18 months, being:[66]

1. The Practitioner will only practice at a publicly owned hospital that has been approved as a practice location by the Medical Board or its nominee. 2. The Medical Board must approve a supervisor (being a senior person such as the Director of Medical Services, Senior Practice Manager, Senior Manager, Senior Partners, Proprietor, Owner, or equivalent) at each practice location who has agreed to take responsibility for ensuring that the practitioner practices only in accordance with these conditions at the specified practice location(s) and such approval should not be unduly withheld.

1. The Practitioner will not attend at in any approved practice location at any time except when he is required to do so in order to fulfill his practice obligations.

1. The Practitioner will not practice in a self-employed capacity under any circumstances. 2. The practitioner will have no in-person contact with a female patient whilst conducting a clinical procedure or physical examination in his practice, without a chaperone being present at all times. 3. The Practitioner will only provide prescribed medication on certified hospital scripts. 4. The Australian Health Practitioner Regulation Agency (AHPRA) is entitled to access all records, reports and information pertaining to the Practitioner's practice to allow it to monitor compliance with these conditions. 5. In order for approval to be given pursuant to condition A and B, the Practitioner must provide to AHPRA on the approved form (HPC), the contact details of a person proposed to be the Practitioner's supervisor (for the purposes of condition B) at the proposed practice location (for the purposes of condition A). 6. The Practitioner agrees to abide by the conditions on his registration and all professional and ethical guidelines and obligations. 7. ...

1. We consider that the aggravating features of the professional boundaries breaches are:
   1. The nature of the respondent's particular field of specialisation;[67]
   2. The initiation of the conduct by the respondent and his ability at all times to have made different decisions;
   3. The respondent's lengthy experience in his field of specialisation which creates an expectation of a mature and detailed understanding of the particular boundaries issues that arise in the practice of obstetrics and gynaecology;
   4. The lack of any separation in time or place between medical examination of Patient A at the clinic on the occasion of their first meeting, and engaging in sexual activity;
   5. The offering of medical services to Patient A on an occasion on which sexual activity was being negotiated and undertaken, which converted the medical services to a currency in the relationship; and
   6. Patient A's financial vulnerability, and her wish to have medical services for abdominal conditions that she had previously had no success in having treated.
2. It is to some extent mitigating that:
   1. the respondent considered that he was assisting Patient A;
   2. the conduct was limited to one person and a relatively short period of time;
   3. there was no attempt to profit financially from the conduct; and
   4. there was no physical harm caused to Patient A from the treatment provided.

Weight to be given to the District Court of New Zealand's sanction

1. The parties provided opposing views as to the weight that should be given to the sanction that was imposed by the District Court of New Zealand, which was a three-month suspension that took account of the period for which the respondent had already been suspended. We are evidently not bound by those orders, and in the circumstances of this case, they are of limited significance. We are tasked with determining appropriate orders in connection with the respondent's registration in Australia, based on the information that has come before us in these proceedings. Whilst being mindful that no order should be made to that end that would be nugatory because of another order already in place, we have considered the requirements afresh.

1. The respondent relied upon various character references that were gathered for the New Zealand disciplinary process.[68] The character references were provided by current or former patients of the respondent. They are unanimous in their support for the respondent, their appreciation for the treatment they received from him, his manner, and his expertise. Most were aware of the allegations at least in a general sense. These are of some, but limited value to the Tribunal. That the respondent is a capable obstetrician and gynaecologist is not in question.
2. The respondent also relied upon a set of statements that appear to have been provided to a New Zealand court in respect of a civil proceeding between the respondent and a hospital.[69] These pre-date the allegations and are of minimal relevance to the current proceeding before this Tribunal. Such relevance that they have is to the respondent's fitness and propriety to hold registration as a doctor in Australia. The set of references paint a picture of a competent, well-liked surgeon who demonstrated care, skill and kindness to staff, junior colleagues, peers, and patients, and who provided services to disadvantaged patients at low or no cost.

1. Brief reports from each of a psychologist and psychiatrist prepared in mid-2020 express the opinion, without any reference to the history taken, that the respondent is "fit and able" to practice and "poses no risk or danger to the patients under his care".[70]
2. The respondent's general practitioner provided a report in September 2021 that stated that the respondent "does not currently have any mental health issues".[71]
3. Again, as there was no allegation as to the respondent's competence or capacity in a health sense, these reports do not add much to the Tribunal's task.

1. The respondent engaged in a program of education conducted by a Queensland-based consultancy Morrison Consulting and Advisory, in 2019. The firm produced a report ('the Morrison report') which described that the respondent had come to understand how his behaviour was in breach of professional boundaries.[72] The program entailed about 10 hours of pre-reading, a workshop conducted with two facilitators, and an evaluative report.
2. The report stated that the respondent provided brief answers to workbook questions but engaged well with the oral component of the workshop. It stated that he completed the scenarios well,[73] and that the workshop provided him with an "improved understanding of the behaviours which indicate boundary crossings and violations".[74] Of concern to the Tribunal is that a practitioner as experienced as the respondent professed not to have recognised the risks associated with treating friends and family, which he said that he had done in the past but would not continue to do.[75]
3. Even the rather guarded statements in the report by the consultants must be understood against the narrative of the much more limited account of his conduct that the respondent was then advancing. He had not admitted, at that stage, that immediately after performing the STI procedure, he commenced sexual activity with Patient A, or that he offered medical services to Patient A on occasions that they met for sexual activity, or that he provided Patient A's personal details to a journalist. In January 2020, the respondent's affidavit filed for the purposes of the New Zealand disciplinary proceedings disclosed that the respondent's position at that time was that there was no doctor-patient relationship between he and Patient A, such that boundaries could not have been breached.[76]
4. Initiating and undertaking the education program with Morrison Consulting has been a positive step for the respondent but it did not, in the Tribunal's view, fundamentally alter the respondent's limited understanding of the issues that his conduct raised.
5. The respondent has undertaken other short courses. Not only have these been limited in duration and substance, but their relevance to the conduct have been tenuous.[77] The one-hour course in patient privacy,[78] whist appropriate, is unlikely to have been sufficient to address the "fundamental misunderstanding" that his counsel submitted that he had in relation to professional boundaries.

1. Contrition, remorse and insight are important indicators of future behaviour, which in turn is central to the protection of the public. Of these, we consider that insight into the wrongness of the behaviour, its causes and what is required to prevent its repetition, is a prerequisite to sincerity in the expression of contrition and remorse, and vital to the reduction in risk to the public. The Tribunal in Medical Practitioners Board of Victoria v Grolaux [No.2] observed that:[79]

... "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.

2. The respondent's initial insight was lacking, and it is only over time that he has come to admit the allegations, and engage in any way with their consequences. His engagement was initially characterised by denial, frustration and arrogance. The respondent wrote a lengthy submission to AHPRA dated 18 June 2020.[80] At that point in time, the respondent was aggrieved by AHPRA's actions and said:[81]

I am disheartened by the conclusion that have been drawn by the board knowing full well that I have not responded to any of the allegations against me. This continues the trend of systemic racism that has currently become the subject of intense scrutiny worldwide and emphasises the widely accepted trend that AHPRA and the Medical Board of Australia judge Black Foreign graduates adversely.

3. The respondent ascribed to AHPRA and the Board a motivation of assuaging their offended moral sensibilities about what the respondent does "in the bedroom". His attitude towards Patient A was derisory. He said:[82]

AHPRA's conclusions have been based on the uncontested and unsubstantiated testimony of [Patient A] a young white female (prostitute) who continues to ply her trade on the website for financial gain.

4. He denied that Patient A was vulnerable,[83] in circumstances in which, as he later admitted, he knew that she had a history of chronic abdominal pain, and was a woman of about 25 years old who was a single parent.[84] The contentions advanced by the respondent were set out in greater detail at paragraph [61] of O'Meara J's judgment in the Victorian Supreme Court in 2021,[85] but following those proceedings there was no immediate change of approach on the respondent's part in his acknowledgement of his wrong-doing.
5. At that time, the respondent appeared to consider that he was being pursued by regulators for a minor, technical breach of boundaries:[86]

I usually arranged for these women to have STD checks at their local doctor or family planning at my expense... > > ... should anything similar occur, I would not jeopardise my career for $35 that I would need to pay for a family planning clinic to do the test.

6. The respondent's response to the allegations, initially and for some time,[87] revealed a worryingly narrow and rigid view of his interactions with Patient A. The view was dominated by his belief that Patient A was not a patient, and that he was being hounded by people offended by his private conduct which posed no risk of harm to his patients.
7. In more recent times, the respondent has expressed contrition and remorse for his conduct. In a letter to an AHPRA investigator dated 3 April 2023, the respondent set out further background that he wished to be taken into account.[88] In that letter, the respondent stated that he deeply regrets the mistakes he has made while treating Patient A and takes full responsibility for his actions.[89] He conceded in that letter that his earlier responses to the Board "were not appropriate and were made during a difficult time".[90] He accepted that his conduct was "not in line with professional standards" and that "counselling has also addressed any underlying issues".[91] He described the sending of the patient photo to Patient A as "clear violations of patient privacy".[92]
8. This indicated a shift in the respondent's approach to the allegations. From that point in time, he began to acknowledge his wrong-doing. The letter, regrettably, contains little to demonstrate an understanding of why the conduct was wrong, or the impact on Patient A and on the public, including future potential patients. In the Agreed Facts Document,[93] the respondent made, through his counsel, some significant admissions that have previously been the subject of denials. Further, the respondent admitted that his conduct was unprofessional conduct.[94]
9. The extent to which the respondent has developed insight into his conduct is a matter about which the Tribunal remains doubtful. The respondent did not avail the Tribunal of the opportunity to test his insight by questioning him, but conveyed his position through his counsel. Counsel for the respondent described in submissions the respondent's conduct as having arisen from a "byproduct of his fundamental misunderstanding at the relevant time, as to the nature of appropriate professional boundaries and patient privacy, and of the industry, public and regulators' expectations and standards as to these matters."[95] The fact that the respondent could have such a fundamental misunderstanding as to the public's expectations and standards casts doubt on the respondent's ability to alter his approach to his work.
10. The public has a right to expect to be protected from being made the subject of the practitioner's sexual interest. Whilst this principle operates across many professions, the need for that protection arises particularly in the practise of obstetrics and gynaecology. The respondent has not acknowledged that the public might be concerned that the respondent is unable to separate his professional activities and his private ones.
11. The respondent has not acknowledged a duty to uphold standards of behaviour in both his private and professional life, that are consistent with the public having trust and confidence in the respondent as a doctor. The Tribunal considers that there has been an enduring failure on the part of the respondent to accept that his boundaries breaches and privacy breaches are matters that past, current and future patients may consider relevant to their confidence in him as an obstetrician and gynaecologist, and are relevant to the public's confidence in the profession as a whole. In this regard, the conduct gives rise to a need for both personal and general deterrence.
12. Our conclusion is that the respondent deeply regrets his conduct and is likely to be more careful about private and professional boundaries in the future. We are not satisfied that the respondent accepts that even when kept separate, the respondent's private choices reflect on him and on his profession in a manner likely, if known to the public, to damage confidence in them both in relation to the provision of obstetrics and gynaecology services.

1. We acknowledge and take into account the fact that the respondent has an unblemished disciplinary history. An allegation that the practitioner has, since the events giving rise to the current allegations, provided medical services to a colleague was referred to by counsel but the issue is not before the Tribunal and we disregard it.
2. On 5 May 2020, the respondent's membership of RANZCOG was terminated by virtue of his suspension from practice.[96] This does not act as a prohibition on his rights of practice.

1. There has been a lengthy period between the conduct and the determination of these proceedings. That has primarily been because of the fact that the primary action was taken in the respondent's main place of practice, New Zealand.
2. The respondent worked for several years after the conduct under conditions. We do not consider that the passage of time, in itself, is a significant factor in the orders we should make. It is evident that the respondent's attitude to the charges has changed somewhat over time and that the appropriate approach for the Tribunal to take is to consider what is required for the respondent and the public at the current point in time.

1. We also take into account that the respondent has been unable to work for several years and is approaching the end stages of usual career length. We accept that he has been adversely financially affected by the proceedings and that his reputation has been damaged in New Zealand by the publicity associated with the events. These matters contribute to a lessening of the risk of further professional misconduct by the respondent. However, the Tribunal does not accept that by offering to limit his work to locum work, in public hospitals, there would be no scope for him to use his medical rooms for sexual activity, because he would not have rooms.[97] There was no apparent appreciation that, the blurring of professional boundaries can occur in a range of ways and that the wrong-doing was not limited to the location.
2. The respondent contended that he wishes to practice as a locum in Australia and that if permitted, will do so. We accept that there is an unmet demand for gynaecologists and obstetricians in regional areas of Australia.

1. We have considered the orders available to be made under section 196(1)(b) of the National Law. When considering the appropriate orders to be made, a survey of cases involving similar features is helpful but the particular facts and circumstances are paramount. As Chief Justice Kourakis said in Marin v Chiropractic Board of Australia:[98]

It is well accepted that in sentencing for criminal offences the assistance provided by comparative sentences is limited. That is all the more the case in periods of disqualification imposed to maintain professional standards. In Lee v Health Care Complaints Commission, the Court of Appeal of New South Wales observed:

(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;

(b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is 'correct';

(c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;

(d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;

(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection ...

1. In Health Care Complaints Commission v Haasbroek,[99] Deputy-President Boland ADCJ said of a medical practitioner convicted of a family violence offence:[100]

We are conscious that our orders must first and foremost be designed to protect the health and safety of the public. No element of risk to the general public requires consideration in this case. There is no complaint before us that the practitioner has been other than a diligent and dedicated practitioner who has served the Leeton community well since 2002. > > Our orders, however, must also uphold the standards of members of the medical profession to ensure that they continue to be held in high regard by their patients, the public generally, and other professionals. This means practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour. General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary. > > Our orders must also have an element of deterrence, so that other practitioners will be aware of the consequences of inappropriate behaviour in both their professional and personal lives.

1. We consider that the respondent requires censure for his conduct. There are differing views as to whether a reprimand is necessary where orders with greater and/or more direct consequences are also imposed.[101] We take the view that in the circumstances of this case, a reprimand is appropriate as a statement to the respondent but also to the profession more broadly and to the public, that the Tribunal denounces the conduct.

1. Cancellation will be appropriate where the Tribunal is not satisfied that the practitioner will be fit for practice in the future. Suspension is appropriate where the practitioner will, after a period of suspension, be fit to resume practice.
2. In Barristers' Board v Darveniza,[102] Thomas JA said at [38]:

Striking off is of course reserved for the very serious cases where the character and conduct of the practitioner is seen to be inconsistent with the privileges of further practice. Suspension is a less serious result, firstly because a limited period is specified and secondly because the right to resume practice is then preserved without any further onus upon the practitioner to prove that he or she is now a fit and proper person to practice [sic]. > > The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner. (In Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ.)

3. Where cancellation is ordered, the practitioner may, following any period of disqualification, apply for re-registration.
4. Having considered these factors, the Tribunal is satisfied that cancellation is warranted. The proposal for the imposition of a significant array of conditions is, as was observed in HCCC v Litchfield,[103] itself demonstrative of the unfitness or registration.
5. We consider that a period of disqualification of two years is appropriate. The respondent will be required to re-apply if he wishes to seek registration after that period.
6. The parties may make written submissions in respect of costs within 14 days of this order, following which an order will be made without a further hearing unless the Tribunal determines otherwise.

1. The respondent is reprimanded.
2. The respondent's registration is cancelled.
3. The respondent is disqualified from applying for registration for a period of two years from the date of this order.
4. The respondent is, during the period of disqualification, prohibited from providing other health services.

[1] Tribunal Book ('TB') 125, Letter from Medical Council of New Zealand to respondent's solicitors (11 September 2019).

[2] TB 201, Affidavit of Nalendra Appanna in support of application for interim order staying the respondent's decision to suspend (affirmed 13 September 2019); CIV-2019-004-1727.

[3] TB 8, Voluntary undertaking (16 September 2019).

[4] TB 647, Appanna v MCNZ [2020] NZDC 4844 (Judge Harrop).

[5] TB 164, Notice of Intention to bring disciplinary proceedings before the Health Practitioners Disciplinary Tribunal (25 May 2021).

[6] Covid-19 restricted earlier hearing of the proceedings.

[7] TB 497, Health Practitioners Disciplinary Tribunal 1276/Med21/518P (21 November 2022), Appendix A.

[10] TB 1578, the refusal is described in the judgment of the appeal against it in the District Court of New Zealand's decision CIV 2023-085-618 Appanna v Medical Council of New Zealand [2024] NZDC 6834 (Judge Kelly).

[12] Agreed Statement of Facts, Proposed Findings and Issues for Determination (15 October 2024) [1.1] ('Agreed Facts Document').

[13] Ibid [2.3]. The relevant source document was unintentionally omitted from page 547 of the physical Tribunal Book, and the wrong document occurs at page 547 of the electronic Tribunal Book, but the event is an Agreed Fact.

[14] TB 597, Letter to respondent from AHPRA imposing immediate action and enclosures (1 October 2019).

[15] TB 675, Letter to respondent from AHPRA (15 June 2020) .

[16] TB 701, Letter to respondent from AHPRA (23 June 2020).

[17] TB 685, Letter to AHPRA from respondent (18 June 2020).

[18] TB 762, VCAT review of a decision application (11 July 2020).

[19] TB 877, Appanna v Medical Board of Australia [2021] VCAT 277 (Senior Member Wentworth; Members Williams and Phang).

[22] TB 893, Notice of Appeal (28 April 2021).

[23] TB 1023, Appanna v Medical Board of Australia [2021] VSC 679 (O'Meara J).

[25] By virtue of s 193 of the National Law, a referral by the National Board must be to "the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred".

[26] TB 1, Amended Initiating Application (13 August 2024).

[27] Health Practitioner Regulation National Law (South Australia) Act 2010 s 9.

[28] Agreed Facts Document (n 12).

[29] By virtue of the immediate action taken by the Board suspending his registration, and the confirmation of the Board's decision by VCAT in proceedings Appanna v Medical Board of Australia Z566/2020, and subsequently the Supreme Court of Victoria in Appanna v Medical Board of Australia [2021] VSC 679.

[30] TB 1453, Letter to respondent from RANZCOG (5 May 2020).

[31] The parties put this to the Tribunal as an agreed response to a question by the Tribunal on this issue.

[32] The Agreed Facts Document as referenced in footnote 12 is not in the Tribunal Book and was filed on 15 October 2024. Material in square brackets in the setting out of the agreed facts in this decision have been added for ease of reading. Numbering has also been changed from the original filed document, for ease of reading.

[33] Patient A is the person referred to as A in the Supreme Court of Victoria's decision.

[34] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Rajagopalan v Medical Board of South Australia [1998] SASCFC S6667, 9-11 per Mullighan J (Cox and Perry JJ agreeing) ('Rajagopalan'); Chan v Medical Board of South Australia (1986) 41 SASR 434, 440-441 (Cox J).

[35] [2016] SASCFC 107 (Kourakis CJ, Nicholson and Muecke JJ).

[37] Agreed Facts Document (n 12) [4]; Amended Initiating Application (n 26) [2]-[6].

[38] Amended Initiating Application (n 26) [3].

[40] Agreed Facts Document (n 12) at [4.1.2]; TB 1499, Medical Board of Australia, Code of Conduct for Doctors in Australia (at March 2014).

[41] TB 1551, Medical Board of Australia, Guidelines: Sexual Boundaries in the Doctor-Patient Relationship (at 12 December 2018).

[42] Agreed Facts Document (n 12) at [4.1.2].

[43] Ibid [4.1.3]; Code of Conduct for Doctors in Australia (at March 2014) (n 40).

[44] Agreed Facts Document (n 12) at [4.1.3].

[46] [2020] WASCA 58 (Buss P, Vaughan and Murphy JJA).

[48] TB 1292, Independent opinion of Associate Professor Grant (12 October 2023).

[49] (1997) 41 NSWLR 630 (Gleeson CJ, Meagher and Handley JJA) ('HCCC v Litchfield').

[51] [2001] SASC 169; (2001) 79 SASR 545, 551 [25] ('Craig').

[52] [2021] VSC 763 ('Zhao').

[53] (Review and Regulation) [2021] VCAT 85.

[54] Zhao (n 52) [147].

[55] [2012] NSWCA 171; (2012) 84 NSWLR 474, 492-493 [81].

[56] Craig (n 51).

[58] Rajagopalan (n 34)

[59] Ibid 10 quoting Richter v Walton (New South Wales Court of Appeal, Kirby P, Priestley JA, O'Keefe AJA, 15 September 1993).

[60] Craig (n 51).

[61] [2014] NSWCA 307 [35] (Meagher JA, Basten and Emmett JJA agreeing).

[62] [2021] SASC 16.

[63] HCCC v Litchfield (n 49) 637.

[64] TB 1611, Letter from Brenda Holloway to the NZ Health Practitioners Disciplinary Tribunal (20 September 2021), referring to the writer and the respondent being shareholding partners in a "short-lived laser beauty treatment business".

[65] TB 1619, Draft Minutes of Order _(_28 August 2024).

[67] HCCC v Litchfield (n 49).

[70] TB 1457, Report of Dr R Shieff (17 June 2020); TB 1458, Report of Dr M Lombard (17 June 2020).

[71] TB 1459, Report of Dr M Taylor (6 September 2021).

[72] TB 664, Morrison Report (15 November 2019).

[76] TB 213, Affidavit of Nalendra Appanna in support of appeal (affirmed 21 January 2020) [18].

[77] The course "When the Journalist Calls" is not suggestive of any content that would be protective of the public, except to the extent that such protection overlaps with the protection of the practitioner. Participation in the one-day Foetal Surveillance Education Program demonstrates the respondent's willingness to maintain his technical competence but does not have direct relevance to the respondent's conduct.

[79] [2009] VCAT 978 [8] (Deputy President Dwyer, Member Davis, Member Burge).

[80] Letter to AHPRA from respondent (n 17).

[83] TB 778, Respondent's written submission to VCAT (16 October 2020), TB 801.

[84] Agreed Facts Document (n 12) [3.1].

[85] Appanna v Medical Board of Australia (n 23) [61].

[86] Letter to AHPRA from respondent (n 17) TB 688, 696.

[87] TB 830, Affidavit of Nalendra Appanna (25 May 2021).

[88] TB 752, Letter to AHPRA from respondent (dated 3 April 2023).

[93] Agreed Facts Document (n 12).

[95] Respondent's Submissions on Sanctions (11 November 2024) [15].

[96] Letter to respondent from RANZCOG (n 30).

[97] Affidavit of Nalendra Appanna (n 87) [44].

[98] [2020] SASCFC 74 [79] (Peek and Nicholson JJ agreeing).

[99] [2018] NSWCATOD 177 (Boland ADCJ, Dep President, Senior Member Dr Diamond, Senior Member King, Member Kusuma)

[101] See for example: Nursing and Midwifery Board of Australia v Easdon [2024] VCAT 321 [106]; Chiropractic Board Of Australia v Ebtash [2020] WASAT 86.

[102] [2000] QCA 253 [38] (McMurdo P and White J agreeing).

[103] HCCC v Litchfield (n 49) 638.