(a) the respondent's prescribing was, in a number of respects, inappropriate as it:

(i) was not clinically justified;

(ii) was in inappropriate quantities;

(iii) was not within safe prescribing as outlined in the Australian Therapeutic Guidelines;

(iv) was in breach of the Medicines Act and the Medicines Regulations; and/or

(v) potentially exposed Patient X to harm;

(b) the respondent's warnings to Patient X to consume medication in accordance with the prescriptions were insufficient in the circumstances;

(c) the respondent's provision of replacement scripts to Patient X was not appropriate in the circumstances;

(d) the respondent's failure to keep any or adequate clinical records and/or provide complete or adequate specialist referrals increased the risk of harm to Patient X; and

(e) the respondent misled CFMS and ACT Police, by omission, in failing to identify that she had had a personal or romantic relationship with Patient X.

1. The parties did not agree whether any coercion, trauma or mental health issues experienced by the respondent arising from her relationship with Patient X caused or contributed to her admitted misconduct. We considered this was not material to characterisation, but it was relevant to our assessment of whether the proposed sanctions were appropriate for the purpose of section 55 of the ACAT Act. This is discussed below.
2. Having reviewed the documents and evidence filed for the proceedings, we were satisfied the amended Statement of Agreed Facts accurately described the key facts which, being admitted, establish the Board's allegations against the respondent.

Agreed characterisation of the conduct as professional misconduct

1. 'Professional misconduct' is defined in section 5 of the National Law as follows:

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 level of 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. 'Unprofessional conduct' is defined in section 5 of the National Law to mean:

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

(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

1. We accept the admitted conduct should be characterised as professional misconduct as defined in paragraphs (a), (b) and (c) of section 5 of the National Law. In our view, the conduct, which continued for a period of over 12 months:

(a) fell substantially below the standard reasonably expected of a registered general practitioner with almost 30 years' experience in medical practice;

(b) involved multiple instances of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner; and

(c) was inconsistent with the respondent being a fit and proper person to hold registration as a health practitioner.[9]

1. The parties proposed consent orders on sanction as follows:

(a) the respondent be reprimanded for her conduct;

(b) the respondent's registration as a health practitioner be cancelled;

(c) the respondent be disqualified from applying for re-registration as a health practitioner for a period of four months from the date of the tribunal's orders; and

(d) the respondent be prohibited from providing any health service for a period of four months from the date of the tribunal's orders.

The tribunal's power to make the proposed consent orders on sanction

1. Section 55 of the ACAT Act requires the tribunal to be satisfied that the proposed orders would be:

(a) within the powers of the tribunal; and

(b) appropriate for the tribunal to make.

1. In relation to jurisdiction, we were satisfied the tribunal had power to make the proposed orders on the basis that:

(a) it was the responsible tribunal pursuant to section 8 of the Health Practitioner Regulation National Law Act 2010;

(b) the tribunal could decide, under section 196(1)(b) of the National Law, that the respondent had behaved in a way that constitutes professional misconduct;

(c) consequently, the tribunal was empowered to make orders for one or more of the sanctions provided in section 196(2) of the National Law; and

(d) the proposed orders on sanction were consistent with those sanctions.

1. The next question was whether the proposed orders on sanction were appropriate.

Principles for assessing whether proposed orders on sanction are appropriate

1. The tribunal's task in considering proposed consent orders for occupational discipline has been widely considered.
2. As a general rule, the tribunal is reluctant to "go behind" a proper agreement reached by the parties, particularly where they are legally represented, unless an exceptional circumstance exists.[10]
3. This must be balanced with the tribunal's role and function in disciplinary proceedings, which is to set standards for the profession and protect the public.[11]
4. It is not necessary for the tribunal to determine whether it would have made the same orders had the matter proceeded to a full hearing, but it does need to be satisfied that the proposed sanction is an appropriate response to the conduct having regard to the particular facts and circumstances of the case.[12]

Were the proposed orders on sanction appropriate?

1. The principles guiding the determination of disciplinary orders for health practitioners were set out in Medical Board of Australia v Singh,[13] and relevantly include:

(a) The need to protect the public against further misconduct by the respondent (specific deterrence).

(b) The need to protect the public, through general deterrence, of other practitioners from similar conduct.

(c) The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions.

(d) Whether the practitioner has breached any Act, Regulations, Guidelines or Code of Conduct issued by the relevant professional body and if so, was this done knowingly.

(e) The respondent's disciplinary history.

(f) Any remorse or insight shown by the practitioner.

1. Where the parties agree on sanction, these principles assist in the assessment of whether the proposed sanction is appropriate for the purpose of section 55 of the ACAT Act.
2. The following paragraphs apply these principles to the present case.

1. This involved an assessment of the risk of further misconduct by the respondent. It was difficult to assess.
2. A key issue for us was whether the respondent experienced coercion or trauma in her relationship with Patient X and/or resultant mental health issues and, if so, what weight should be given to this in our assessment of the level of risk of reoffending by the respondent.
3. The authorities support that an impaired state of mind of a health practitioner at the time of their misconduct, and subsequent action taken by them to address the underlying circumstances, is relevant when assessing future risk to the public of the practitioner re-engaging in the same or similar conduct.[14] Where misconduct is related to a medical condition or mental health issue, it does not excuse the behaviour but may be taken into account as a mitigating factor.[15] This is consistent with the overarching purpose of disciplinary proceedings as protective, not punitive.
4. Submissions filed by the respondent before the hearing referred to coercion as a significant contributing factor to her poor judgement and decision-making. She asserted that, once free from the relationship with Patient X, there ceased to be a risk of re-offending.[16] If this position were accepted, it may favour sanctions at the lower end of the scale.
5. There is an alternative argument that, as a medical practitioner with almost 30 years' experience, the respondent ought to have identified the risks arising from her relationship with Patient X and sought support or independent professional help. Without appropriate training and support, there may be an ongoing secondary risk that the respondent could find herself in a similar situation in the future, exposing her patients to potential harm and causing further reputational damage to the profession. This would favour sanctions at the higher end of the scale, such as a longer disqualification period to give the respondent more time to obtain the treatment and support she requires to safely return to medical practice.
6. The parties did not agree on facts involving coercion, trauma or mental health issues experienced by the respondent. The parties agreed that the respondent had undertaken continuing education since her suspension but did not provide evidence or submissions about her current mental health or ongoing support strategies. When pressed by the Tribunal, the parties jointly submitted that no exceptional circumstances existed to warrant the Tribunal departing from the agreed sanction.[17]
7. We noted the respondent (via her legal representatives) had been given sufficient opportunity at the hearing to address this issue, and that the Board would consider this further if the respondent were to apply for re-registration in the future.
8. On balance, we considered these matters were relevant, but not determinative, and supported a finding that the proposed sanctions were appropriate.

1. A reprimand would be a formal and public denunciation of the respondent's conduct. Cancellation of her registration means she would need to satisfy the Board that she is fit and proper to hold registration as a medical practitioner if she were to apply for re-registration in the future. A disqualification period of four months before the respondent could apply for re-registration or provide a health service would be in addition to the respondent's existing suspension of two years and ten months.[18]
2. We considered the proposed sanctions would have significant personal, financial, and reputational implications for the respondent, and send a strong message of deterrence to the medical profession. This supported a finding that the proposed sanctions were appropriate.

Protect the public and maintain public confidence in the profession

1. General practitioners hold important responsibilities in the Australian community and are held to a high ethical standard. They are often the first point of contact for individuals in the health care system. Patients rely on their GP to provide holistic and coordinated care. This includes assisting patients to identify and manage health risks and seek appropriate help, including for drug and alcohol dependencies and in the context of dysfunctional relationships.
2. The respondent's failure to take steps to avoid a personal relationship with Patient X (such as by seeking professional help or support), her poor professional judgement which led to her unsafe and inappropriate prescribing, and her misleading contact with ACT Police and CFMS risked undermining the reputation of, and public confidence in, the medical profession.
3. This supported a finding that the proposed sanctions were appropriate.

1. The respondent's misconduct contravened the legal and regulatory framework governing health practitioners.
2. The respondent provided medical care for over 12 months to a person with whom she was involved in a close personal relationship. This breached the Code and significantly impaired her professional judgement.
3. The respondent's prescribing of Schedule 4 and Schedule 8 medications to Patient X contravened the Medicines Act, the Medicines Regulations, the Australian Therapeutic Guidelines, and the Code. Her inadequate record keeping and specialist referrals further contravened the Code and increased the risk of harm to Patient X. Her conduct continued after she became aware that Patient X had drug and alcohol dependencies and significant mental health concerns. The respondent did not disclose her conflict of interest to CFMS and ACT Police. Her conduct was unsafe, unethical and unlawful, and its seriousness cannot be underestimated.
4. These factors supported a finding that the proposed sanctions were appropriate.

1. Restrictions were placed on the respondent's registration in 2008 following a notification received by the NSW Medical Board. The respondent received treatment and participated successfully in a health program. The respondent submitted that her previous conduct in NSW was not of the same character as the misconduct the subject of these proceedings.[19]
2. We accepted the prior notification related to different facts and circumstances, but considered it raised similar questions as in the current proceedings about the respondent's state of mind and her capacity to identify risk and seek appropriate help. This is relevant to ongoing risk and will need to be considered by the Board if the respondent were to apply for re-registration in the future.
3. This supported a finding that the proposed sanctions were appropriate.

1. The respondent had completed numerous professional development courses, most of which were undertaken after her suspension in 2021. She had read and considered a range of relevant educational materials. She accepted that her admitted conduct constitutes professional misconduct.
2. These indicate a level of insight, and supported a finding that the proposed sanctions were appropriate.

1. Each case must be decided on its facts having regard to the specific conduct in the particular circumstances. It can, however, be helpful to consider comparative cases as a general guide as to what sanctions were considered appropriate in those matters.[20]
2. In Health Care Complaints Commission v Grech,[21] the practitioner prescribed medications to a patient with whom he had been in an intimate relationship, including anti-psychotic and weight loss drugs. The sanctions included a reprimand, six months suspension and conditions on registration.
3. In Medical Board of Australia v Stone,[22] the practitioner misappropriated and forged prescriptions for Schedule 4 and Schedule 8 medications, which he self-administered. The practitioner had been diagnosed with severe depressive disorder and alcohol misuse disorder. The practitioner engaged in extensive rehabilitation, provided evidence of his good character and insight, and gave a voluntary undertaking not to practice medicine. The sanctions included a reprimand and disqualification from applying for re-registration as a medical practitioner for a period of three months.
4. In Medical Board of Australia v Ainsworth,[23] the practitioner engaged in a social and/or close personal and/or intimate relationship with a patient. The practitioner prescribed medication whilst in the personal relationship and failed to maintain adequate clinical records. The tribunal found the practitioner was aware, or ought reasonably to have suspected, that he had a health condition or impairment that could adversely affect his judgement, his performance, or his patients' health. The sanctions included a reprimand, cancellation of registration and a disqualification period of six months.
5. In Medical Board of Australia v Bradshaw,[24] the practitioner entered into a sexual relationship with a patient and prescribed Schedule 8 medication knowing there was a risk of the patient becoming addicted. There was evidence the cause of the patient's subsequent death was a drug overdose (Schedule 8 medication). The practitioner's registration was immediately suspended in 2017. The tribunal subsequently ordered the practitioner's registration be cancelled and disqualified him from applying for re-registration until 2025.

1. On balance, and having regard to the above, we determined the proposed sanctions were appropriate for the purpose of section 55 of the ACAT Act and we made orders on the terms proposed by the parties.

1. The parties proposed that the respondent pay the applicant's costs on a party/party basis calculated using the ACT Supreme Court scale.
2. We were satisfied an order to this effect was within power and appropriate, having regard to section 195 of the National Law which gives the tribunal a wide discretion to award costs, and the general principle that costs are awarded to compensate a successful party.[25]
3. Accordingly, we made the proposed order on costs.

1. It is important for the purpose of general deterrence and maintaining public confidence and trust in the profession that these reasons are publicly available. This must be balanced against the need to protect the privacy of third parties.
2. Accordingly, we made orders under section 39 of the ACAT Act prohibiting public access to the file and publication of details that may identify a third party.

[1] Dielenberg v Medical Board of Australia (Occupational Discipline) [2021] ACAT 85

[2] Annexure A to the application contains a Notice of Allegations. During the hearing, the Board filed an updated Annexure A dated 21 February 2024, containing updated particulars

[3] Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014), issued by the Medical Board of Australia

[4] Therapeutic Guidelines, Pain and Analgesia: The role of analgesics in chronic pain (2020); Therapeutic Guidelines, Addiction Medicine: Alcohol; Benzodiaepines, zolpidem and zopiclone (2013); Therapeutic Guidelines, Psychotropic: Treatment resistant major depression in adults and young people (2021)

[5] Respondent's outline of submissions on characterisation, dated 19 January 2024 at [4]

[6] Transcript of proceedings, dated 21 February 2024, page 55 line 1 - page 59 line 14

[7] In these reasons, a reference to 'tribunal' refers to the ACAT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the members who heard the application

[8] As set out in the amended Statement of Agreed Facts

[9] For consideration of paragraph 5(c) of the National Law, see Psychology Board of Australia v Griersmith [2019] VCAT 52 at [67], Medical Board of Australia v Al-Naser (No. 2) [2024] ACAT 8 at [45]

[10] Health Ombudsman v SWB [2022] QCAT 267 at [65]; see also Medical Board of Australia v Martin [2013] QCAT 376 at [91]

[11] Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 (Izzard) at [9]-[10]

[12] Council of the Law Society of the ACT v Legal Practitioner 20214 (Occupational Discipline) [2022] ACAT 33 (LP 20214) at [92]; Nursing and Midwifery Board of Australia v Augustin (Occupational Discipline) [2022] ACAT 54 at [46]- [47] citing LP 20214;; Izzard at [10]

[13] [2017] WASAT 33 at [30]; applied in Al-Naser (No. 3) at [18]

[14] Medical Board of Australia v Stone [2023] ACAT 38 (Stone) at [13]

[15] Stone at [14]; Health Ombudsman v HSK [2018] QCAT 419 at [28]; Health Ombudsman v Joy [2020] QCAT 202 at [11]

[16] Respondent's outline of submissions on characterisation, dated 19 February 2024, at [9], [16]-[18]; Witness Statement dated 23 October 2023, at [17], [22], [25]-[26]

[17] Transcript of proceedings dated 21 February 2024, page 56, line 38-45

[19] Respondent's outline of submissions on characterisation, dated 19 January 2024 at [22]

[20] Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]; Chinese Medical Board of Australia v Zhou [2020] SACAT 23 at [98]

[21] [2021] NSWCATOD 14

[22] [2023] ACAT 38

[23] [2019] VCAT 734

[24] [2020] VCAT 584

[25] Healthcare Complaints Commission v Neale [2024] NSWCATOD 16 at [8]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342