The Board submitted that the respondent should be reprimanded, have his registration cancelled, be disqualified from practice for a period of seven years and be prohibited from providing any health service or using any title relating to a health service until he is returned to the register of health practitioners.

The respondent submitted that a reprimand was an appropriate sanction but sought no, or a significantly lower, period of cancellation and prohibition. The respondent submitted that there were significant mitigating factors that supported these sanctions including the respondent's personal circumstances at the time of the conduct, his subsequent insight and remorse and his commitment to continuing rehabilitation. The respondent further submitted that there is a shortage of health practitioners where he is currently located and that his skills were needed in the community.

• Dr Byrne is reprimanded;
• Dr Byrne's registration is cancelled;
• Dr Byrne is disqualified from applying for registration as a registered health practitioner until 4 January 2025;
• Dr Byrne is prohibited from providing any health service until 4 January 2025;
• Dr Byrne is to pay the Board's costs of and incidental to those proceedings in a sum to be agreed or assessed.

Health practitioners - Complaint by the Medical Board of Australia - Unsatisfactory professional performance - Unprofessional conduct - Professional misconduct - Sexual misconduct in connection with the practice of medicine - Illicit drug use - Supply of illicit drugs - Inappropriate prescribing - False and misleading statements to authorities - Reprimand - Registration cancelled - Disqualified from applying for registration for 4 years - Prohibited from providing any health service for 4 years

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 193, 196

South Australian Civil and Administrative Tribunal Act 2013 s 60

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

Marin v Chiropractic Board of Australia [2020] SASCFC 74

Medical Board of Australia v Singh [2017] WASAT 33 (S)

Ms H Luu with Mr D Olliver appeared for the applicant

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. Minor amendments have been made to the orders issued in this matter to address some typographical errors and to ensure the published reasons comply with the orders made pursuant to section 60 of the South Australia Civil and Administrative Tribunal Act 2013.
2. The finalised versions of the Statements of Reasons in this matter are annexed to this order and are dated 8 July 2024.
3. The relevant dates of these Orders is 8 July 2024.

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

1. This is the final determination relating to a complaint referred to the Tribunal by the Medical Board of Australia (the Board) on 17 March 2022 in relation to a registered medical practitioner, Dr Robert James Byrne.
2. The complaint was made pursuant to s 193 of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the National Law), and alleged Dr Byrne had engaged in conduct constituting professional misconduct pursuant to s 196(1) of the National Law.
3. The Board's complaint alleged Dr Byrne had engaged in professional misconduct in respect of six allegations: sexual misconduct; supply and use of illicit substances; inappropriate supply of prescription medications; inappropriate prescribing; self-prescribing; and providing false and misleading information in the course of the investigation of complaints against him.
4. Dr Byrne's registration was suspended by the Board on 4 January 2021.
5. The Tribunal heard evidence and submissions in relation to the allegations contained in the complaint on 9 and 10 January 2023, and on 3 April 2023 issued its findings and orders relating to the characterisation of Dr Byrne's conduct.
6. The Tribunal concluded that the sexual misconduct amounted to professional misconduct; the supply and use of illicit substances amounted to professional misconduct; the inappropriate supply of prescription medicines, inappropriate prescribing, and self-prescribing, amounted to unsatisfactory professional performance and unprofessional conduct; and the provision of false information in the course of the investigation constituted professional misconduct.
7. The Tribunal also concluded that Dr Byrne's conduct as a whole should be characterised as constituting professional misconduct.
8. This determination relates to the disciplinary sanctions applicable to that conduct.
9. In considering this matter the Tribunal had before it all the material before it in the original consideration of the characterisation of Dr Byrne's conduct, and in addition, a written outline of submissions on behalf of the Board with respect to disciplinary sanctions, and a statement by Ms XY (referred to by the complainant as a "victim impact statement"); and written submissions on behalf of the respondent, a personal statement by Dr Byrne, four character references in support of Dr Byrne, drug test results of 30 August 2023, and a report from Dr Byrne's general practitioner, Dr Chandler.
10. At this hearing Ms XY, who had been a witness at the earlier hearing in January 2023, read out her statement concerning the impact on her of Dr Byrne's conduct. Dr Byrne was present at the hearing by video link. On 12 April 2022 an order was made pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act), prohibiting the publication of the name or address of Ms XY or anything tending to identify her. That order remains in place.

1. Ms Luu provided a written outline of submissions, and also made oral submissions at the hearing.
2. Ms Luu submitted that the nature of Dr Byrne's misconduct, as established by the Tribunal, was such that it should attract a significant sanction. In particular she emphasised that Dr Byrne's misconduct ranged over a wide range of misconduct, including sexual misconduct, the provision of illicit substances to others and his own consumption of them, and improper prescribing, as well as the provision of false and misleading information to AHPRA, obstructing it in its investigations of the complaints against him.
3. Ms Luu submitted that this misconduct should attract a reprimand, which she noted was agreed by Dr Byrne, but also a cancellation of his registration as a medical practitioner, as this would reflect the broad spectrum of his conduct, as she submitted it had been established that he had acted in a manner not consistent with a health practitioner of his level of qualification and experience, and the conduct was not consistent with a person who was fit and proper to hold registration as a medical practitioner.
4. Ms Luu submitted that the disciplinary sanction to be imposed should reflect the totality of Dr Byrne's conduct, as well as address matters of principle with which the sanctions were concerned: including the assurance of public safety, the maintenance of professional standards, the provision of reassurance to the public, and the honesty of practitioners, including in respect of prescribing rights.
5. Ms Luu submitted the issue before the Tribunal was only the period of a disqualification for Dr Byrne. She submitted that an appropriate period was seven years.
6. Ms Luu told the Tribunal the Board accepted that Dr Byrne had undertaken rehabilitative actions, but she submitted the medical reports before the Tribunal indicated he was still vulnerable to relapse into unlawful drug use, and this represented an issue of public safety. In addition, she submitted that rehabilitation was only one factor the Tribunal should take into account, and she referred the Tribunal to the statement by Ms XY, which set out the significant, profound and continuing impact of Dr Byrne's conduct on Ms XY.
7. In her written submission Ms Luu referred the Tribunal to the discussion of the relevant sanctions in professional disciplinary proceedings under the National Law by Doyle CJ in Craig v Medical Board of South Australia ((2001) [2001] SASC 169; 79 SASR 545 at [41] - [48]) (Craig).This proposes that the purpose of the regulation of health professionals is to afford members of the public a degree of protection and reassurance that those administering important health services are suitably qualified and competent to do so, and a number of purposes which disciplinary orders should serve. She also referred to 12 further factors to be considered in respect of disciplinary sanctions identified in Medical Board of Australia v Singh ([2017] WASAT 33 (S) at [30]) (Singh). In Singh it is emphasised that in general, mitigation factors such as lack of previous misconduct, or service to the profession, are of considerably less significance than in the criminal process, because the jurisdiction is protective, not punitive. Craig emphasises that the protection of the public requires that the sanction imposed be sufficient to achieve both specific deterrence and general deterrence, and to maintain public confidence in the profession.
8. The sanctions sought by the Board in respect of Dr Byrne's conduct were a reprimand; cancellation of registration under the National Law; disqualification of Dr Byrne from medical practice for a period of seven years; and prohibition of Dr Byrne from providing any health service and using any title relating to a health service until he is returned to the register of health practitioners under the National Law.
9. Ms Luu submitted that a reprimand is a serious form of censure and condemnation and is appropriate in this matter.
10. She submitted that cancellation sends a clear message of unsuitability to practise, in particular in the context where the Tribunal has already found that Dr Byrne's conduct of professional misconduct and unprofessional conduct in respect of several circumstances has been established, and demonstrate conduct inconsistent with a health practitioner of Dr Byrne's level of qualification and experience. She submitted that cancellation was appropriate in the circumstances of this matter taking into account the Tribunal's findings concerning Dr Byrne's conduct, as well as the impact of his conduct on Ms XY as demonstrated in her statement, and the need to specifically and generally deter similar conduct within the profession.
11. Ms Luu also submitted that disqualifying Dr Byrne from practice would achieve the disciplinary objectives of the National Law. She conceded that the sexual misconduct was constituted by a single incident only, but nevertheless there were other matters which suggested that Dr Byrne may not be fit to return to practice. She referred to the statement of Kourakis CJ in Marin v Chiropractic Board of Australia ([2020] SASCFC 74 at [73]), where the Chief Justice refers to the need to demonstrate through the sanctions imposed that "unprofessional conduct will be visited with significant sanctions" with the purpose of maintaining public confidence in the system of registered practitioners. He concluded that "if the Tribunal were to confine itself to a subjective assessment of whether the particular practitioner is likely to have changed his or her ways, relatively shorter periods of disqualification might be imposed".
12. Ms Luu submitted that a prohibition order was appropriate in addition to an order for disqualification, for the same reasons, as well as noting that Dr Byrne's skills and training were readily transferrable to a number of other unregulated professions, and it was important to protect the public from any risk of him providing any health services, whether regulated or not, and that if a prohibition order was not made, this might undermine the effectiveness of the disqualification order if Dr Byrne was able to continue to provide healthcare services by a "backdoor" means.
13. Ms Luu also applied for an order for costs on behalf of the Board.

1. Ms Powell for Dr Byrne told the Tribunal the general principles underlying the imposition of disciplinary sanctions were accepted, in particular the protection of the public, and the promotion and maintenance of the integrity of the profession. She emphasised however that the imposition of sanctions is not intended to be punitive, and accordingly Dr Byrne's remorse, insight and rehabilitation were of relevance in considering appropriate sanctions.
2. Ms Powell said Dr Byrne accepted that a reprimand was an appropriate sanction in respect of his conduct. However, she told the Tribunal that cancellation and prohibition, and whether these sanctions were applied by the Tribunal, did constitute an issue for Dr Byrne.
3. Ms Powell submitted there were significant mitigating factors which applied in Dr Byrne's circumstances which supported no, or a significantly less, period of cancellation and prohibition.
4. Ms Powell submitted that Dr Byrne did not seek to diminish the reality of the impact of his conduct on Ms XY, as she set out in the statement she read to the Tribunal. Dr Byrne accepted the nature of his offending conduct, and he recognised that as well as its continuing impact on Ms XY, the sanctions to be imposed should reflect the diminution of confidence in the medical profession which might flow from his conduct, and that there was a need for both specific and general deterrence of such conduct.
5. However, Ms Powell drew the Tribunal's attention to the facts that there had been no adverse findings of a criminal nature against Dr Byrne; his personal circumstances at the time of the offending, including a period a decline in his mental health; and his stressful work and family circumstances at that time. She submitted that since the events had occurred, Dr Byrne had demonstrated insight and remorse, and was receiving ongoing support in these respects, and had demonstrated commitment to continuing rehabilitation. In addition, none of his offending conduct had occurred in relation to a patient, and there were no criminal charges and Dr Byrne has no criminal record.
6. Ms Powell referred the Tribunal to Dr Byrne's circumstances of nearly three years of loss of opportunity in his profession. She submitted that the professional references provided to the Tribunal demonstrated that his peers considered him to be a skilled doctor, and that his deregistration amounted to loss of skill in the loss of opportunity to practise.
7. Ms Powell also made submissions in relation to the findings of Dr Byrne's misleading conduct. She told the Tribunal that Dr Byrne did not wish to diminish his responsibility for his own conduct, but early in the investigation Dr Byrne was living overseas in stressful family circumstances, and was not legally represented. She acknowledged he had been unforthcoming in his interview with AHPRA, but said he was having difficulty in accepting his conduct at that time. She submitted that it was unlikely that Dr Byrne's denial at this stage of the investigation could be characterised as obstructing the investigation.
8. Ms Powell submitted that the imposition of a reprimand represented a serious sanction, involving loss of status, public embarrassment, loss of income and self-esteem. She submitted that additional cancellation of registration, where the practitioner has undertaken further study and education, and demonstrated a commitment to rehabilitation, was not a necessary sanction to protect the public and achieve the other objects of disciplinary sanctions. She emphasised that Dr Byrne's circumstances and activities since the offending conduct should be taken into account, and that punishment was not relevant to disciplinary sanction.
9. Ms Powell submitted that Dr Byrne's conduct should be seen in its context, without seeking to diminish its impact, in order to determine how best to provide protection to the public: the spectrum of conduct occurred in an isolated period of time, characterised by Dr Byrne's declining mental health, including drug use, and did not represent entrenched or ongoing conduct as may have been demonstrated by, for example, ongoing sexual harassment.
10. In particular Ms Powell submitted that there was a plain and clear nexus between Dr Byrne's offending conduct and the decline in his mental health. She submitted that the stressors on Dr Byrne at the time were extreme and were not recognised by himself, his peers or his supervisors. He has now obtained some insight into these issues and has treatment and a support network in place.
11. Ms Powell referred the Tribunal to Dr Byrne's ongoing engagement with a psychologist, Dr Kalava, and with his general practitioner, Dr Chandler, and that he had undertaken specifically tailored formal ethical training with a reputable provider. Positive reports were provided to the Tribunal in respect of all these commitments by Dr Byrne. In addition, other professional and personal references were provided in support of Dr Byrne, attesting to the quality of his work and his personal relationships, his commitment to rehabilitation, and his insight into the impact of his conduct. He has engaged with support, undertaken treatment, is clean in relation to illicit drug use, and his present lifestyle mitigates his risk.
12. Ms Powell referred the Tribunal in particular to the report of the AHPRA expert, Dr Prior, who provided two reports, dated 27 May 2021 and 24 June 2021. Dr Prior considered Dr Byrne showed evidence of generalised anxiety disorder and substance use disorder, but that he was receiving appropriate treatment through a psychiatrist. He considered Dr Byrne was still vulnerable to ongoing substance use abuse, but that he was safe to return to medical practise once he demonstrated evidence of abstinence from illicit drugs with a "clean hair test". Dr Byrne has now provided such evidence dated 30 August 2023.
13. Dr Prior suggested conditions on Dr Byrne's registration, including receiving treatment from a consultant psychiatrist with experience in addiction medicine; ongoing medical management from a general practitioner; drug use monitoring; and supervision by an experienced board approved supervisor. He also indicated that Dr Byrne was able to undertake all the procedures, activities and tasks required of a psychiatric registrar/medical practitioner, but his ability to prescribe, supply, administer, dispense or access any class of substances should be limited, and that it would be appropriate that scripts written by or for him be monitored.
14. Ms Powell submitted Dr Byrne is already complying with the medical and treatment conditions proposed by Dr Prior, and was willing to accept the condition of supervision and other monitoring if he returned to medical practise.
15. Ms Powell also referred the Tribunal to comments made in some of the reports concerning the state of the psychiatric and medical workforce in Australia, with a significant paucity of trained and experienced practitioners in this area, in particular in regional areas. She suggested that Dr Byrne's availability and capacity to undertake such work should be a significant consideration for the Tribunal in these circumstances.
16. Ms Powell also referred to the issue of proportionality in determining disciplinary sanctions. She told the Tribunal Dr Byrne presently lives with his parents, his wife and two young children. He has had a significant "fall from grace". His previous record was of honesty, caring conduct, and service. His specialist training has been interrupted by the consequences of his conduct, and any further interruption is likely to mean that he may be unable to complete it. Ms Powell said that his specialist psychiatric training is required to be completed within 12 years, and he commenced this training nine years ago, and still has two years to complete. Any lengthy cancellation is likely to mean he will be unable to complete this training.
17. Dr Byrne has provided a written statement of remorse, dated 8 September 2023. In that statement Dr Byrne acknowledges that his conduct was unacceptable, and that he accepted the Tribunal's findings concerning his conduct, and took responsibility for his actions. He states he is deeply sorry for his conduct, and extended apologies to Ms XY, his family, his colleagues, and the medical profession as a whole. He recognises that he did not manage his health appropriately and had demonstrated very limited insight in managing his health issues including his drug use. Dr Byrne states that he is presently working as an Uber driver and a barista, but misses his career in medicine, and while presently healthy is using a range of strategies to maintain his mental health. He acknowledges that he has had to sell family assets and rely significantly on his partner and parents. He states he has been abstinent from illicit substances for 2½ years, but recognises he must continue a lifelong dedication to avoid repeating past mistakes. Dr Byrne expresses "sincere regret" for distress and harm caused to Ms XY, and apologises to her "unreservedly".
18. Ms Powell submitted that the new evidence before the Tribunal, as well as other matters referred to in her submissions, indicated that a reprimand alone was an appropriate disciplinary sanction. She submitted that Dr Byrne's insight, and the measures he had put in place, provided adequate and appropriate protection to the public and he demonstrated no continuing risk to the public, and the force of a reprimand addressed other purposes of disciplinary sanctions. In addition, she submitted that Dr Byrne's skills were needed in the community.
19. She submitted that Dr Byrne should be reprimanded, and be permitted to return to medical practice with conditions imposed on his licence in accordance with the recommendations made by Dr Prior. In the alternative, she submitted that Dr Byrne's registration be suspended for a substantially less period of time than seven years; or that he be disqualified from applying for registration for a significantly less period of time than seven years.

1. Section 196 of the National Law governs the Tribunal's determination in this matter. There is only one substantive matter arising out of the complaint remaining to be determined, namely the appropriate disciplinary sanction to be imposed.
2. Section 196(1)(b) of the National Law empowers the Tribunal to decide one or more of the following as the appropriate characterisation of the practitioner's conduct:

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

...

1. The Tribunal has already made determinations in its order of 3 April 2023 concerning the characterisation of Dr Byrne's conduct pursuant to these provisions.
2. Section 196(2) of the National Law provides that where the Tribunal has made a decision pursuant to s 196(1) of the National Law concerning the characterisation of the conduct the subject of a complaint, it may make a decision concerning the disciplinary sanction to apply in respect of the practitioner. The sanctions specified are a caution or reprimand; the imposition of a condition upon the practitioner's registration; a fine; a suspension of registration for a specified period; or a cancellation of the practitioner's registration, including a review period for the cancellation. If the Tribunal decides to cancel the practitioner's registration, it may also prohibit the person from providing any health service or using any specified title (s 196(4)).

1. The issue to be considered and determined by the Tribunal in these proceedings is the appropriate disciplinary sanction to be applied to Dr Byrne in respect of the findings concerning his conduct.
2. The Tribunal has made findings that Dr Byrne's conduct amounted to professional misconduct in respect of the sexual conduct with Ms XY, with respect to the supply and use of illicit substances, and in relation to the provision of false information in the course of the investigation of the complaint; and unsatisfactory professional performance and unprofessional conduct with respect to the inappropriate supply of prescription medicines, inappropriate prescribing, and self-prescribing. The Tribunal concluded that Dr Byrne's conduct overall amounted to professional misconduct.
3. The Tribunal has before it all the material before it in the consideration of the characterisation of Dr Byrne's conduct. In addition, the Tribunal has reference to a written outline of submissions on behalf of the Board with respect to disciplinary sanctions, and Ms XY's statement which she read out at the hearing, as well as written submissions on behalf of the respondent, a personal statement by Dr Byrne, four character references in support of Dr Byrne, drug test results of 30 August 2023, and a report of Dr Byrne's general practitioner, Dr Chandler. The Tribunal takes all this material, including the additional material, into account.
4. We note that Dr Byrne is presently aged 39 years. He has a partner and two young children, and he lives with his parents and family in a regional area, in his parents' home. His registration as a medical practitioner was suspended on 4 January 2021, and he has not worked as a medical practitioner since that time. He is presently employed as an Uber driver and a barista.
5. Dr Byrne graduated with a Bachelor of Medicine degree in 2012, and was registered as a medical practitioner on 11 January 2013. He initially worked in rural New South Wales and commenced a speciality training program of the Royal Australian and New Zealand College of Psychiatrists, and completed a Masters Degree in Psychiatry. He moved to Adelaide in 2019, where he practised as a locum community health registrar at a community health centre from early 2019.
6. To qualify as a psychiatrist requires five years training to be completed within a 12-year period. Dr Byrne has completed three of these five years, and deferred this training when he moved to Adelaide.
7. The conduct the subject of the Board's complaint against Dr Byrne occurred while Dr Byrne was in Adelaide.
8. Dr Byrne has provided the Tribunal and the Board with a letter dated 8 September 2023 in which he expresses remorse concerning the conduct the subject of the complaints, and in which he apologises "unreservedly" to Ms XY, and identifies and acknowledges the shortcomings of his conduct and the harm it caused to Ms XY, his family, and his colleagues. We note that Dr Byrne also expressed remorse and apologised for his conduct in the course of his first interview with AHPRA in the course of the investigation, saying, "I am profusely sorry and I know that I've messed up really badly". We accept Dr Byrne's statement of remorse as appropriate and genuine.
9. Dr Byrne has undertaken a number of courses of action for the purpose of the development of insight and rehabilitation directed to address his mental health and address the risks of future misconduct. These include undertaking a program with a private education service to address professional ethical practice and decision making (the areas addressed included foundations of professional practice, ethics and ethical decision making, professional boundaries, safe and ethical prescribing, and treating friends and family). Dr Byrne undertook this program in 2022, and the program undertaken was specifically tailored to his particular circumstances, and was arranged at his own initiative. Dr Elizabeth McLachlan, a psychiatrist consulting with the education service, reports that Dr Byrne completed the course, and "demonstrated that he had reflected at length on the circumstances giving rise to the complaint. He demonstrated a refreshed understanding of ethical frameworks and ... presented as a caring and insightful practitioner. At all times he was keen to reflect on his learnings from the program and how he will incorporate these into his future practice".
10. Dr Byrne has also sought clinical treatment and support from a psychiatrist Dr Kalava, who diagnosed him with an adjustment disorder with symptoms of anxiety, secondary to psychosocial stress with past substance abuse and work related issues. She indicated Dr Byrne had a treatment plan including medication and regular psychotherapy, and that he was compliant with that plan, and she had no concerns about his ongoing compliance.
11. The AHPRA expert, Dr Prior, provided two reports to AHPRA (27 May and 24 June 2021) concerning Dr Byrne. Dr Prior confirms Dr Kalava's diagnosis, and endorsed Dr Byrne's treatment, including from a psychiatrist, as appropriate. He considered Dr Byrne's risk of relapse had reduced but that Dr Byrne was still vulnerable to ongoing substance abuse, but nevertheless concluded that Dr Byrne was safe to return to the practice of medicine with confirmation "by a clean hair test". We note Dr Byrne has provided this confirmation with a laboratory analysis dated 30 August 2023.
12. Dr Prior suggested that conditions should be considered in respect of Dr Byrne's registration, including ongoing treatment from a consultant psychiatrist in addiction medicine; ongoing GP medical management; urine testing; and ongoing supervision for a period of time. He also suggested that there should be limitations on Dr Byrne's ability to prescribe, possess, supply, administer, dispense or access any class of substance, and that his MBS or PBS records should be monitored.
13. We note also that Dr Byrne has continued to consult regularly with his general practitioner, and with a clinical psychologist.
14. We accept all this information and take it into account in considering the issue of appropriate sanctions applicable in this matter.
15. The central issue in relation to the appropriate disciplinary sanction to apply in relation to misconduct under the National Law is an assessment of the risk to the public, and in considering this the Tribunal must bear in mind the purpose of such sanctions under the National Law. These general principles are identified in the judgment of Doyle CJ in Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553:

The purpose of a disciplinary sanction is to protect the public and 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 that will prevent persons who are unfit to practice from practising, or by making orders that 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 that will assure the public that appropriate standards are being maintained within the relevant profession.

16. The disciplinary action must also be proportional and appropriate to all the circumstances of the case.
17. These principles, recognising that the purpose of disciplinary proceedings is to protect the public, maintain proper professional standards, and to assure the public that proper standards are being maintained in the relevant profession, have been widely accepted and applied.
18. In making an assessment of the risk Dr Byrne might present, the Tribunal was also directed to the 12 points identified in Singh as relevant in considering the issue of risk.
19. The factors identified in Singh are as follows:
    • Any need to protect the public against further misconduct by the practitioner.
    • The need to protect the public through general deterrence of other practitioners from similar conduct.
    • The need to protect the public and maintain public confidence in the profession ... [including] an emphatic indication of ... disapproval.
    • In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner.
    • Whether the practitioner has breached any (a) Act; (b) Regulations; (c) Guidelines or Code of Conduct...; and (d) whether the practitioner has done so knowingly.
    • Whether the practitioner's conduct demonstrated incompetence... .
    • Whether or not the incident was isolated... .
    • The practitioner's disciplinary history.
    • Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or lack thereof) ... .
    • The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction.
    • ... other matters relevant to the practitioner's fitness to practice and other matters which may be regarded as aggravating the conduct or mitigating its seriousness.
20. The focus of the sanctions to be imposed in respect of any finding of professional misconduct is the protection of the public, and the maintenance of professional standards and confidence in the medical profession. These concerns are not necessarily addressed by imposing punitive sanctions on the practitioner: the purpose of the sanction is not to punish the practitioner, but to protect the public, deter the practitioner from repeating the professional misconduct as well as deter other practitioners from engaging in similar conduct, and ensuring that public confidence in the medical profession is maintained and not undermined.
21. It is clear then, taking into account the guidance from the principles set out in Craig and Singh, that disciplinary sanctions should be directed to maintaining proper ethical and professional standards for the protection of the public, as well as for the protection of the reputation of the profession; they are not intended as punitive in nature, but may serve the objectives of both specific and general deterrence; an assessment of the ongoing risk posed by the practitioner should be central to the imposition of a determination; and the nature and seriousness of the conduct, any evidence of contrition, the degree to which the practitioner has acquired insight into the conduct, evidence of rehabilitation, and character evidence, may all be relevant factors. Matters personal to the practitioner as a consequence of the conduct and the disciplinary sanction imposed, such as shame, personal embarrassment, and financial difficulty, are of little relevance.
22. Considering these factors in the context of Dr Byrne's circumstances, we note the following:
    1. Dr Byrne has no prior disciplinary history.
    2. The complaints established in this present matter all raise issues relevant to the protection of the public. Dr Byrne's conduct in relation to the use of illicit drugs, and the inappropriate prescribing and misuse of prescription drugs, clearly present potential risk to the public, as does his failure to recognise appropriate boundaries in the context of his own drug use and the provision of illicit drugs to others, and in the sexual encounter with Ms XY. These considerations raise issues of protection of the public and the protection of the reputation of the profession.
    3. Although his conduct was not subject to any criminal charges, Dr Byrne's use and provision to others of illicit drugs directly raise the likelihood of breaches of the law, and a lack of awareness or failure to note or acknowledge the harms to which others may be exposed by such conduct goes to the heart of competence and professional behaviour.
    4. We note that Dr Byrne has expressed significant remorse and insight in relation to the matters the subject of this complaint. We accept that his letter of apology represents genuine remorse and insight, and this is reflected in the ongoing rehabilitation practices in which he has participated since the offending conduct, including the educational program addressing professional ethics (which we note he initiated); his ongoing psychological treatment; his ongoing regular consultations with his general practitioner; and abstention from illicit drugs for some period, along with his commitment to continuing this abstinence. We also note he has acknowledged the harms his actions have caused to Ms XY, his family and his professional colleagues.
    5. We accept the information presented to the Tribunal that at least some of Dr Byrne's conduct the subject of the complaint occurred when he was subject to significant personal and professional stress, and his mental health was in a poor state. We note that Dr Byrne's conduct in relation to the use of illicit drugs and misprescribing occurred over a period of time, but the sexual misconduct was isolated, and there is no complaint of ongoing sexual misconduct or harassment.
    6. We note Dr Byrne's present circumstances, in particular that he is essentially dependent on his parents and his wife; his registration as a medical practitioner has been suspended since 4 January 2021, he has most recently been working as an Uber driver and a barista; and that time is running out for the completion of his psychiatric qualifications.
23. Dr Byrne agreed with the Board's proposal that the imposition of a reprimand would be an appropriate sanction.
24. In our view, a reprimand does represent an appropriate sanction in this matter. A reprimand is to be regarded as a serious form of censure and condemnation, reflecting a public condemnation of established misconduct.
25. The Board also sought other disciplinary sanctions to be applied to Dr Byrne. In particular, the Board submitted that Dr Byrne's registration should be cancelled, and that he be disqualified from applying for registration for a period of seven years, and in addition, he be prohibited from providing any health service and from using any title relating to health services for a period of seven years. The Board also applied for its costs to be paid by Dr Byrne.
26. The Tribunal has accepted that Dr Byrne has made significant efforts at rehabilitation and has taken appropriate steps to address his health issues, including his use of illicit drugs. We have noted above his ongoing engagement with various forms of treatment over an extended period, and the reports indicating that he is compliant with treatment regimes, and we note he has returned pathology results demonstrating he is abstinent from illicit drug use. We also accept his ongoing commitment to this medical and psychological treatment and support, and note Dr Byrne is now in a supportive environment.
27. However, we note that Dr Prior, in his report of 27 May 2021, considered that at that time Dr Byrne, although able to return to medical practice, was still vulnerable to ongoing substance abuse. We note this assessment was made some time ago, and that Dr Byrne has provided evidence that he has not relapsed in relation to drug misuse, but we are not convinced that if he were able to recommence medical practise immediately, Dr Byrne would not still present some risk to the public.
28. We also note Dr Byrne has expressed remorse and demonstrated some insight in relation to his conduct toward Ms XY, and has undertaken further educational work in relation to issues of ethical practice and decision making, and better understanding boundaries. We take this into account and accept it is significant and relevant to our considerations, but we are also conscious of other purposes of disciplinary sanctions, which include the maintenance of public confidence in the profession, and to provide both specific and general deterrence.
29. It is our view that to ensure protection to the public, as well as to address public confidence in the profession and to provide specific and general deterrence, Dr Byrne's registration as a medical practitioner should be cancelled, and he should be prohibited for a period of time from reapplying for registration. A period of cancellation and disqualification from seeking further registration enables a further period for Dr Byrne's recovery and accordingly better ensure the protection of the public, as well as to send a clear message to both the public and the medical profession concerning the seriousness with which such misconduct is viewed.
30. However, in our view the period of time sought by the Board is disproportionate to the misconduct, and it does not take into account the significant steps taken by Dr Byrne to address his misconduct and his significant recovery from his substance misuse and in relation to his mental health, including his appreciation of the hurt and harm caused to Ms XY.
31. The Tribunal notes that various medical reports provided in respect of Dr Byrne's treatment are positive and supportive of his successful rehabilitation, and his peers who have provided references referring to his previous work as a medical practitioner, speak highly of his medical skills. We note too that Dr Byrne has already served a period of suspension of his registration since January 2021.
32. The evidence before us is that Dr Byrne demonstrated in his medical work prior to his misconduct that he was a good doctor, and he is part way through his training to qualify as a psychiatrist. Ms Powell submitted to the Tribunal that there is a well established shortage of both medical practitioners and psychiatrists, especially in regional Australia, where Dr Byrne has largely worked and now lives. We accept this, and while such an argument in itself cannot provide a basis upon which to determine the nature or period of a disciplinary sanction, it does demonstrate another factor to consider along with those identified above in determining appropriate disciplinary sanctions.
33. Significant public resources have been expended in educating Dr Byrne as a medical practitioner and in his psychiatric training, and there is an acknowledged public need for a return on those resources to the community through Dr Byrne returning to medical practise as soon as he is safely and appropriately able to do so. These matters related to public resources should not be discounted, and in our view this consideration is not an irrelevant consideration in this matter. In our view, taking this consideration into account along with the need to protect the public against the possible risk presented by Dr Byrne's misconduct recurring, as well as the other matters relevant to the imposition of sanctions, is that the period of disqualification for Dr Byrne reapplying for registration should be limited to a total period of four years.
34. This period of four years should take into account the period of suspension already in place, so the date on which Dr Byrne can reapply for registration as a medical practitioner will be 4 January 2025.
35. Accordingly, we will direct that Dr Byrne's registration as a medical practitioner be cancelled, and that he is disqualified from applying for registration as a medical practitioner until 4 January 2025.
36. In addition, it is our view that conditions should be considered in respect of Dr Byrne's registration when and if he does seek re-registration. We draw to AHPRA's attention the restrictions suggested by Dr Prior, and which we understand Dr Byrne has agreed would be appropriate, namely, ongoing treatment from a consultant psychiatrist in addiction medicine; ongoing GP medical management; urine testing; ongoing supervision; and some limitations on Dr Byrne's ability to prescribe, possess, supply, administer, dispense or access certain pharmaceuticals, and for his MBS or PBS records to be monitored.
37. We are confident, on the basis of the evidence before us, that Dr Byrne's return to medical practise after 4 January 2025, possibly subject to the conditions suggested by Dr Prior, would present no danger to the public, while the period of time before he can reapply for registration, along with a reprimand, will demonstrate the seriousness with which his conduct is regarded, providing both a specific and general deterrence in relation to such conduct, and protecting the standing of the profession and the confidence of the public in the profession.
38. The Board also submitted that Dr Byrne be prohibited from providing any health service for a period of seven years.
39. We are satisfied that such an order is appropriate to avoid a "back door" means of subverting the primary disciplinary orders proposed. Failing to avoid that possibility would mean the risk to patients and the public is not averted; the risk to the reputation of the profession and confidence in it is not avoided; and there is no effective deterrence to either the immediate practitioner concerned or other practitioners.
40. Accordingly, we are satisfied it is appropriate to make a prohibition order, but to coincide with the period of disqualification from applying for registration, namely until 4 January 2025.
41. The Tribunal has formed the view that the outcomes required by the imposition of disciplinary measures, namely to protect the public, deter the practitioner from repeating the professional misconduct as well as deter other practitioners from engaging in similar conduct, and ensuring public confidence in the medical profession is maintained and not undermined, will be achieved by reprimanding Dr Byrne; cancelling his registration, and disqualifying him from applying for registration until 4 January 2025; prohibiting him from providing any health services until that same date; and paying the Board's costs.
42. The Tribunal's view is that these sanctions appropriately, sufficiently and proportionately address the consequences of Dr Byrne's professional misconduct, and in particular appropriately protects the public; constitutes a deterrence to both Dr Byrne and other practitioners through the cancellation of his registration and the costs imposed on him; and addresses the issue of public confidence in the profession by these means and the reprimand issued.

1. The Tribunal makes the following orders in relation to this complaint:

(a) Pursuant to s 196(2)(a) of the National Law, Dr Byrne is reprimanded.

(b) Pursuant to s 196(2)(e) of the National Law, Dr Byrne's registration is cancelled.

(c) Pursuant to s 196(4)(a) of the National Law, Dr Byrne is disqualified from applying for registration as a registered health practitioner until 4 January 2025.

(d) Pursuant to s 196(4)(b) of the National Law, Dr Byrne be prohibited from providing any health service until 4 January 2025.

(e) Pursuant to s 195 of the National Law, Dr Byrne is to pay the Board's costs of and incidental to these proceedings in a sum to be agreed or assessed.

1. Pursuant to s 60(2)(g) of the South Australian Civil and Administrative Tribunal Act 2013, the publication of the name or address of, or any material tending to identify, Ms XY, is prohibited.