Proceedings before SACAT and disciplinary action imposed

1. The matter was heard on Wednesday 14 August 2019 by a panel which had been constituted by the President of SACAT in accordance with the newly substituted s 9 of the Act.
2. The Tribunal made a finding of professional misconduct in relation to the totality of the matters alleged in the complaint.
3. It imposed a reprimand pursuant to s 196 of the National Law. It also disqualified the respondent from applying for registration as a registered health practitioner for a period of four years from the date of the order. The respondent was ordered to pay the costs of the proceeding.
4. The Tribunal now provides a statement of its reasons for this decision.
5. There were four allegations made against the respondent. It was asserted that each amounted to professional misconduct or, alternatively, that the allegations taken together amounted to professional misconduct. In brief, the allegations were as follows:

1. On 16 February 2016 police utilised a search warrant to search the home premises of the respondent. When his computer was subsequently analysed by police, he was found to have been in possession of ten images which constituted child exploitation material under s 63A of the Criminal Law Consolidation Act. Five images were found to come within category 1 child exploitation material (involving child nudity but no sexual activity) and five within category 2 child exploitation material (involving non-penetrative sexual activity between children or solo masturbation by a child). The respondent was charged in relation to the 10 images so described.
2. On 29 June 2017 the respondent entered a plea of guilty to the above offence. On 28 August 2017 he was convicted of such offence in the Magistrates Court. The respondent was imprisoned for a period of three months, but that sentence was suspended upon him entering a bond to be of good behaviour for a period of 18 months.
3. In his sentencing remarks,[2] Mr Fisher SM referred to the seriousness of offences involving child exploitation material. He pointed out that persons who provide an audience for such material contribute to an environment in which children will continue to be exploited. He acknowledged that the present offending was not at the most serious end of the scale of such offending. He sentenced on the basis that the respondent had previously been a person of extraordinary accomplishment and exemplary good character. He accepted that it was unlikely that the respondent would be able to return to practice as a medical practitioner following conviction.
4. As pointed out by counsel for the complainant, there is no suggestion in the sentencing remarks that the respondent had proffered any explanation for his conduct or any assurance that he was taking steps to address the issues underlying such conduct.
5. In the proceedings before this Tribunal, the respondent did not offer any explanation for the commission of the offence. He did not suggest that he had taken any steps to understand or to address the issues underlying the commission of the offence. The Tribunal had before it a letter dated 9 November 2017 from the respondent's solicitors to AHPRA[3] in which it was stated that:

"Our client is extremely distressed about his conduct and is seeking private psychological counselling."

However, there is no evidence as to the purpose, content or outcome of this counselling.

1. We accept the submission of the complainant that this offence discloses that the respondent has a sexual interest in children. He has been prepared to act on that interest by downloading the material. In doing so, he pursued his own gratification, notwithstanding the obvious abuse of children that the production of child exploitation material involves.
2. The Tribunal also notes that, by reason of this conviction, the respondent is a "registrable offender" within the meaning of s 6 of the Child Sex Offenders Registration Act 2006 (SA). He is a class 2 offender for the purposes of that Act. By operation of Part 5 of the Act, he is prohibited from applying for, or engaging in, certain kinds of child related work.

1. On 28 September 2017 the Magistrates Court of South Australia confirmed a paedophile restraining order ('PRO') against the respondent pursuant to s 99AA(1)(a)(ii) of the Summary Procedure Act 1921. The order had first been made on 7 February 2017. The order was based upon the Court being satisfied that on at least two occasions between 27 April 2015 and 5 February 2016 the respondent had been loitering near children and that, unless restrained, the respondent was likely to again so loiter. The Court was also satisfied, having regard to the matters set out in s 99AA(3), that the making of such order was appropriate in the circumstances.[4]
2. The Tribunal received the affidavit evidence that was before the Magistrates Court when the PRO was made and subsequently confirmed. There was cogent evidence of the respondent repeatedly parking his car and loitering in the near vicinity of schools at times when students were leaving the school. The respondent's explanations, when interviewed by police about the reason for his presence in the vicinity of the schools, were unconvincing.
3. The respondent "consented to" (or, more accurately, did not oppose) the confirmation of the PRO in September 2017. He says that he did so "without admission". Nonetheless, the Court could only make and confirm such an order if satisfied on the evidence that the statutory criteria were met. The Court was so satisfied. It made findings, as set out in paragraph 22 above, that were certainly supported by the evidence before the Court. It is inherent in the finding of "loitering" that the respondent had provided no adequate innocent explanation for his conduct in remaining in areas where children were present. The Tribunal adopts the findings of the Court.
4. The apparent purpose underlying s 99AA is to address situations where a person has demonstrated an unhealthy or unexplained interest in children, such that is appropriate for an order to be made to ensure the safety of children. It is in that context that the Court considered that it was necessary and appropriate to make and confirm the order.
5. In proceedings before this Tribunal, the respondent offered no explanation for his conduct in loitering near the schools. It is left unclear as to whether he perceives any need to address issues underlying the conduct that gave rise to the PRO.
6. Before leaving this topic, we make one matter clear. The affidavits which were before the Magistrates Court contained some assertions (arguably somewhat speculative in nature) as to the respondent's actions whilst loitering. These assertions have not been tested and the complainant asked us to make no findings in relation to them. We ignore those assertions and simply make findings, consistent with those of the Court, as set out above.

1. When arrested and charged on 21 December 2016 in relation to the matters in paragraph (a) above, the respondent failed to notify the complainant Board of such charges within seven days as required by s 130 of the National Law.
2. The failure to notify continued until 8 March 2017 when AHPRA wrote to the respondent. He was then advised that AHPRA were aware of the charges and would conduct an investigation into his conduct, including his failure to comply with s 130.
3. Hence the failure to notify was for the period from 29 December 2016 to 8 March 2017. During this period the respondent had "non-practising registration". His counsel advised the Tribunal that this was so that he could retain and continue to use the title "Doctor".
4. Counsel stated that the respondent was "aware, in a general sense" that his arrest might trigger some sort of obligation under the National Law but refrained from investigating that any further. He said that the respondent was in a state of distress.
5. Hence the respondent was facing very serious charges. He chose not to investigate or meet his professional obligations. He failed to advise the Board of those charges. However, it appears that he continued to take advantage of the title and status of a medical practitioner.
6. This was a serious breach of his obligations as a practitioner.

1. When convicted of the offences on 28 August 2017 the respondent failed to notify the Board of such convictions within seven days as required by s 130 of the National Law.
2. As stated above, his attention had previously been drawn to the provisions of s 130 and he knew he was already under investigation for his previous breach of that provision. His only explanation (to the Tribunal) for his failure to notify the Board of his conviction was that he had just been sentenced for a serious offence and his mind was clouded as he was in a state of distress. It was also put that he thought his medical career was over.
3. However, the failure to notify continued from 5 September 2017 to 19 October 2017 when AHPRA again wrote to the respondent and indicated that it was aware of the conviction. It was not until 9 November 2017 (after seeking an extension of time) that the respondent's solicitors provided a substantive response to that letter.
4. The respondent held "non-practising registration" until 30 September 2017. The failure to notify, or to remedy that omission at any time before receiving the letter from AHPRA, was a serious breach of the respondent's obligations as a medical practitioner.

1. The complainant submitted that we should look to the totality of the conduct. We agree that there is merit in that approach.
2. Whilst the criminal conduct giving rise to the conviction must by itself be professional misconduct, it would be artificial to examine the PRO in isolation from that conviction.
3. The conduct leading to the conviction indicated that the respondent had a sexual interest in children.
4. The conduct leading to the PRO suggested that the respondent had been prepared to act on this interest by loitering near children. His loitering (otherwise not adequately explained) is explained by his sexual interest in children. He acted in such a way that orders were made to ensure the protection of children. The Tribunal finds that his motivation for so acting was due to his sexual interest in children.[5]
5. It was suggested by the complainant that the loitering was evidence of the respondent acting on his fantasy in the "real world". We understand and accept the intent of that submission, but child exploitation material exploits real children in the real world and that fact should not be diminished. A person downloading such material is disrespecting and abusing real children in the real world.
6. We find that the respondent acted on his sexual interest in children by loitering near children. It was a step beyond the downloading of material on the internet.
7. We accept the respondent's submission that the loitering did not involve the commission of any offence.
8. The conviction and the PRO circumstances are totally inconsistent with the standards applicable to a member of the medical profession. They constitute serious professional misconduct.
9. The failure to comply with the provisions of s 130 represents misconduct of a different kind. The two breaches should be considered together. Regardless of the distress that the respondent was undergoing, they indicate a basic disregard of professional obligations. Taken together, they must be considered as a substantial departure from the standards reasonably expected of an experienced medical practitioner. We find that they constitute professional misconduct. They raise further questions as to the trust that can be placed in the respondent in the future.

1. A report from Dr Ross Ambler[6] had been placed before the Magistrates Court. It indicated that the respondent had a heart attack on 18 March 2017. He was treated with the insertion of coronary stents. Subsequently, he received cardiac rehabilitation and was placed on medication.
2. Two supporting references were placed before the Magistrates Court by the respondent and they were also before the Tribunal.
3. In a reference dated 10 July 2017[7], Dr David Kitchen, an eye surgeon and physician, stated that he had known the respondent since 1982 and regarded him as one of his closest friends. He described the respondent as having a wide range of strong interpersonal relationships and that many had found his friendship to be sincere and strong. He stated:

"Since [the respondent] revealed to me the situation he is now in, it is clearly evident that he is highly remorseful. I feel certain that this most regrettable period is behind [him] and do feel confident that it is not something which would be repeated"

1. In a reference dated 28 July 2017[8], Dr Arthur Loukas, psychiatrist, indicated that he had known the respondent professionally and as a friend for 25 years. The respondent also had a good relationship with his (Dr Loukas') wife and children. He described the respondent as "a trustworthy, good friend". He was considerate of others. He stated:

"Several months ago I noticed that [the respondent's] mood had changed with him being more withdrawn and making harsh comments about himself. When I enquired into this he informed me of his charges in front of the Court. He was angry at himself and apologetic for his actions voicing that he had 'let me down' as a friend. I felt he showed genuine remorse about his actions with him acknowledging his errors."

1. The Tribunal has regard to these references, but they do not of course provide an adequate basis to assess the respondent's degree of insight into his conduct. They do not enlighten the Tribunal as to whether the respondent has taken any steps to address the underlying concerns. They do not provide a reliable basis for assessing the level of risk that the respondent may present for the future.
2. Counsel for the respondent submitted that Dr Lee was aged 54. He had graduated in 1989 and had worked at various hospitals in this State. For a period of about 10-15 years before his registration lapsed, he had worked on a part-time basis.

1. We accept the complainant's submission that the appropriate disciplinary action is to be informed by the respondent's degree of insight into his misconduct and the degree of risk for the future.
2. It is significant that the respondent has failed to provide any explanation for his conduct. Further, he has failed to demonstrate that he had taken any action to understand or address the issues underlying his misconduct.
3. The respondent gave no evidence to the Tribunal and provided very little explanation through his counsel.
4. His conduct remains essentially unexplained except by reference to a sexual interest in children.
5. Counsel for the respondent submitted that a sexual interest in children in 2017 could not be taken as proof that such interest continues at the present time. Similarly, it was submitted that the existence of a risk in 2017 could not establish that a risk continues at the present time. The Tribunal does not accept those submissions. Where a practitioner has demonstrated by his misconduct that he has serious character flaws inconsistent with the practice of the profession, the mere passage of time provides no basis to suggest that such character flaws have been addressed or that reformation has occurred. Rather, it falls to the practitioner to clearly demonstrate such reformation. In Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at page 637, the Court of Appeal stated:

"In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 46; 84 WN (NSW) (Pt 2) 275 at 286:

"...Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.'

The respondent in this case has failed to demonstrate any such reformation.

1. The respondent has not been registered as a medical practitioner since 30 September 2017. The complainant submitted that he should be disqualified from applying for registration as a health practitioner for at least four years. In setting a period of disqualification, the Tribunal must have regard to comparative decisions. It must consider what is necessary to give assurance to the public that conduct of this nature will not be tolerated and that standards in the profession will be upheld. The Tribunal must consider what is necessary to protect the public from a person who is unfit to practise due to flaws of character.
2. The respondent has demonstrated character flaws that are totally inconsistent with the standards applicable to a medical practitioner. He is a registrable child sex offender. He has failed to meet professional obligations. He remains unfit to be registered.
3. There is presently no basis to suggest that the respondent will be able to demonstrate his fitness to practise at any time in the future. However, the authorities suggest that a period of disqualification should be fixed after which the respondent should at least have the opportunity of demonstrating his reformation and fitness.
4. Taking all these factors into account, the Tribunal decided to impose a disqualification for a period of four years, commencing on 14 August 2019. This period was chosen with regard to comparable cases[9] and reflects the respondent's continuing unfitness to practice. It reflects the need to protect the public and the integrity of the profession.
5. Four years is the period after which the respondent will be entitled to apply for re-registration. If he applies, the respondent will need to satisfy the Board that he is then a fit and proper person to be registered. The Board will need to consider whether it is prepared to accredit the respondent to the public as a person who can be trusted with all the responsibilities and privileges of a medical practitioner.[10]
6. Finally, the Tribunal notes that there was reference in the materials before us to alleged historical conduct of the respondent. We make it clear that this material formed no part of the complainant's case before the Tribunal and we have had no regard to it.

[1] The order was sealed on 7 November 2019.

[2] Book of documents, Exhibit C21 page 127.

[3] Book of documents, Exhibit C1 page 25.

[4] Book of documents, Exhibit C1 page159, 162.

[5] We are comfortably satisfied of that finding in accordance with the approach of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362.

[6] Book of documents, Exhibit C2 page 126C.

[7] Book of documents, Exhibit C2 page 126A.

[8] Book of documents, Exhibit C2 page 126B.

[9] NMBA v Pang [2018] VCAT 1221; NMBA v Brearley [2012] QCAT 324; MBA v Voon [2018] VR 155; NMBA v Hindley [2019] VR 22.

[10] Cf Sobey v Commercial Agents Board (1979) 22 SASR 70 at page 76.