Medical Board of Australia v Luke David Stuart Hamilton [2025] TASCAT 52

1. The parties have settled a comprehensive Statement of Agreed Facts. It's convenient for me to set out that Statement in full. It provides as follows.

Statement of Agreed Facts > > The Parties

• The respondent is currently 49 years old (dob 29/05/1974).
• The respondent obtained a Bachelor of Medicine / Bachelor of Surgery in 2011. He then worked at the Royal Hobart Hospital as an Intern and Resident Medical Officer (RMO) for three years. He started his training in general practice at Knopwood Medical Centre, Rokeby in Tasmania.
• In 2018 the respondent was employed by General Practice Plus as an independent contractor.
• The respondent first obtained registration as a medical practitioner under the relevant provision of the National Law on 2 January 2012. He obtained specialist registration in general practice on 1 June 2021.
• The respondent has signed an undertaking that he does not practice as a medical practitioner for a period of 14 days or until such time as the applicant considers appropriate or the undertaking is withdrawn by him.
• The respondent's registration is currently suspended with effect from 8 November 2021.

(i) The Australian Health Practitioners Regulation Agency (AHPRA) received two notifications on 1 October 2021 in respect of the respondent (notifications). One notification was from the respondent, who self reported and the other notification was from Tasmania Police.

(ii) The notifications arose after the respondent was charged on 15 September 2021 with a criminal offence under s 74A of the Classification (Publications Films and Computer Games) Enforcement Act 1995 (Tas) for possession of CEM.

(iii) On 18 October 2021 the applicant proposed to take immediate action in relation to the respondent's registration under s 156 of the National Law.

(iv) On 20 October 2021 the respondent agreed to an undertaking that he does not practice as a medical practitioner from 25 October 2021 for a period of 14 days until close of business on 8 November 2021 or such earlier time that the applicant considers appropriate or is withdrawn by the respondent.

(v) On 8 November 2021 the applicant took immediate action to suspend the respondent on the basis that it was in the public interest to do so.

(vi) On 8 November 2021 a delegate of the applicant decided to investigate the respondent under s 160(1) of the National Law.

(vii) On 8 February 2022, in the Magistrates Court in Tasmania, the respondent pleaded guilty to and was convicted of one count of possession of the CEM.

(viii) On 7 June 2022 an investigator of AHPRA outlined the issues for investigation and invited the respondent to provide a written response to the notifications. The respondent provided a response by letter to AHPRA dated 20 July 2022 along with an independent report from Dr Astrid Birgden.

(ix) On 15 November 2022 the applicant determined to refer the matter of the respondent's conduct to the Tribunal pursuant to s 193(1)(a) of the National Law because it reasonably believed that he had behaved in a way that constituted professional misconduct.

(x) On 16 February 2023 the applicant filed an application for a decision (application) in the Tasmanian Civil and Administrative Tribunal (the Tribunal). The allegations contained in the application are set out in an annexure. It states:

(a) On 15 September 2021 Tasmania Police executed a search warrant at Dr Hamilton's home address and located an Apple Mac Book laptop on Dr Hamilton's bed, an Apple I-Pad in a communal room and portable hard drive in a drawer near Dr Hamilton's bed.

(b) The hard drive was later examined by police and found to contain several thousand images of children in modelling poses, as well as 428 images and videos of CEM categorised under the Australian Child Abuse Categorisation Schema (also known as the Interpol Baseline Schema) as follows:

(i) Category 1 - 14 files (which depicted real pre-pubescent children under 13 years involved in sex acts, all with material focused on the child's anal or genital region), and

(ii) Category 2 - 404 images and ten videos (which depicted real children under 18 years involved in sex acts or focused on the child's anal or genital region, or cartoon material representing children engaged in sex acts).

(c) The images and videos found on Dr Hamilton's hard drive were downloaded between 3 August 2007 and 26 February 2012.

(d) On 1 October 2021 Dr Hamilton:

(i) Participated in a record of interview with Tasmania Police and stated:

1. He knew that police would find hundreds of images of CEM on the hard drive;
2. He started viewing CEM in the late 1990's and continued to do so until about a year prior; and
   1. He did so for sexual gratification and the feelings associated with doing something illicit; and

(ii) Was arrested and charged with one count of possession of CEM contrary to s 74A of the Classification (Publications Films and Computer Games) Enforcement Act 1995 (Tas).

(e) On 8 February 2022 Dr Hamilton pleaded guilty in the Magistrates Court of Tasmania to one count of possession of CEM.

(f) On 8 February 2022 Dr Hamilton was convicted of one count of possession of CEM and sentenced to a term of imprisonment of four months which was wholly suspended on the condition that for a period of three years he not commit another offence punishable by imprisonment during the period of the suspended sentence.

(g) Dr Hamilton's name was placed on the Community Protection Offender Register and he was required to comply with reporting conditions for a period not exceeding four years.

(xi) The respondent admits each of the allegations in the application. The parties jointly submit that the Tribunal should:

(i) Make factual findings in accordance with this agreed statement of facts, including the facts in paragraphs (a) to (g) inclusive above; and

(ii) Find that the admitted conduct constitutes professional misconduct as defined in s 5 of the National Law.

Facts Agreed and Admitted Relevant to the Allegations

History of accessing material:

(a) The Respondent first started looking at inappropriate material in the late 1990's. The Respondent viewed the material on and off since the late 1990's and stated that he has not viewed the materials which were the subject of the conviction since late in 2020 or early 2021 (as stated in his interview with Police) and later said approximately 12 months prior to being charged with possession of CEM., i.e. approximately September 2020.

(b) As the internet grew in the late 1990's, the Respondent started searching for more pornography. He started to find the material on the 'fringes' which he began to seek out.

(c) At the beginning, the Respondent used Google to view the inappropriate material but did not download it. He would focus on pubescent females, who were posed naked or in sexualised clothing such as bikinis. He viewed this material for sexual gratification and the feelings associated with doing something illicit. The Respondent knew it was wrong and felt ashamed of it.

(d) The Respondent commenced downloading, as distinct from viewing online, photographs in the early to mid-2000's. The majority of the files on the Respondent's hard drive were created between 3 August 2007 and 26 February 2012. The Respondent stated that he used to target his search to pubescent females and has explained that if he downloaded a large cache of files, there would be ages from either side of his target. This included younger females, which he did not delete, but were not of interest to him. The images were downloaded to a password protected hard drive and the Respondent did not transmit or distribute the material or pay for it. Some of the material accessed by the Respondent, includes pre-pubescent images, which were 'incidental' and not part of the material he was seeking out.

(e) Prior to his arrest, the Respondent was aware that he still had the password protected hard drive that contained CEM, and he had made 2 attempts to search for it to dispose of the material. He stated that he had been unable to locate the hard drive on those occasions.

History as a practitioner:

(a) The Respondent has a notification history.

(b) The prior notification related to driving offences, namely driving with a blood alcohol level of 0.062 and breaching conditions of his conditional license (blood alcohol level not to exceed 0.000).

(c) The Respondent also made two false declarations when applying for renewal of general registration as a medical practitioner in 2013 and 2014.

(d) The Respondent was given a caution pursuant to section 130 of the National Law.

(e) The Respondent has no other convictions for offences in relation to CEM which are the subject of this Application.

Conviction:

(a) On 1 October 2021, the Respondent was charged with one count of possession of CEM.

(b) On 8 February 2022, the Respondent was sentenced to a term of imprisonment of 4 months wholly suspended on the condition that for a period of 3 years, he does not commit another offence punishable by imprisonment.

(c) The Respondent's name was placed on the Community Offender Register, and he is required to comply with reporting conditions for a period not exceeding 4 years.

(d) The Respondent acknowledges that being charged with this crime may call into question his fitness for employment and suitability to practice in the medical profession.

Response of Practitioner to Notifications

The Respondent voluntarily ceased working as a medical practitioner from the time the Notifications were made.

The Respondent asserts that his interest in material has waned for some time.

At no time did the Respondent transmit or sell the material, and at no stage did he purchase the material.

The Respondent states that he has commenced a rehabilitation process. The Respondent states he has insight into the seriousness of his conduct and has taken steps to deal with the underlying causes of his past usage of material to ensure that it does not occur again by doing the following:

(a) Sought assistance from a psychologist with specialist knowledge, Dr Janet Haines. The Respondent commenced treatment with Dr Haines on 19 July 2022. The Respondent has attended on five occasions throughout 2022 and 2023. She has worked with the Respondent to provide him a specific set of tools to minimise the risk of any relapse.

(b) Had a regular GP at the Davey Street Medical Centre and has found another GP after his initial GP moved interstate. He has obtained a mental health care plan.

In the Magistrates Court of Tasmania, it was accepted that the Respondent cooperated with police, that he demonstrated remorse and that he entered an early guilty plea demonstrative of his full acceptance of responsibility, due to his genuine remorse.

Code of Conduct

At all times the Respondent was required to act in accordance with:

(a) the Applicant's Good Medical Practice: A code of Conduct for Doctors in Australia (March 2014 edition) (the 2014 Code); or

(b) the Applicant's Good Medical Practice: a code of Conduct for Doctors in Australia (1 October 2020 edition) (the Current Code); and

(c) the AMA Code of Ethics 2004, Editorially revised 2006, revised 2016 (Code of Ethics).

Admissions

The Respondent admits that:

(a) he engaged in the conduct alleged in the Application (admitted conduct), and

(b) (b) his conduct was in breach of the Code of Conduct and Code of Ethics.

Characterisation

The Applicant and Respondent agree that the admitted conduct constitutes professional misconduct as defined under s 5 of the National Law.

The Applicant and Respondent agree there is no other conduct other than that referred to above that should form part of the Tribunal's determination as to restrictions on practice.

1. Despite the parties having reached agreement upon the facts, the characterisation of the respondent's conduct and partial agreement upon the proposed sanction, the Tribunal nevertheless, has a distinct role to play. Such role has been described in these terms in Medical Board of Australia v Zhao [2021] VCAT 1053 at [9] to [10]:

The law relating to a negotiated settlement, of the kind reflected in the (agreed statement of facts), is well settled and summarised in the following principles;

(a) There is an important public policy benefit in receiving, and if appropriate, accepting agreed penalty submissions;

(b) A court or tribunal must have regard to any such agreement reached between the parties and should not readily depart from an agreed finding and sanction where a negotiated settlement and proposed penalty are broadly speaking within the permissible range, having regard to all the circumstances; and

(c) It is highly desirable for a tribunal to accept the parties' proposal, provided it is persuaded the agreed outcome is accurate and appropriate and does not represent an arbitrary outcome but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.

However, an agreement between the parties does not automatically determine the outcome and can never supplant the Tribunal's duty to determine the appropriate level of conduct alleged and the determinations to be imposed. The Tribunal must reach appropriate findings and determinations after examining all the circumstances, including the ASOF, applying the statutory definitions and having regard to applicable standards of professional conduct.

1. The Tribunal is obligated to apply the civil standard of proof to its determinations. It is also obligated to apply those principles set out in Briginshaw v Briginshaw [1938] HCA 34.
2. I am readily satisfied that the Respondent's conduct as particularised in the referral and agreed in the statement of facts, does constitute professional misconduct within the definition set out in s.5 of the National Law. I am further satisfied that such conduct on the respondent's part does contravene those standards of conduct and ethics prescribed for doctors by the profession's codes of practice and ethics.

1. I have found that the respondent's conduct amounts to professional misconduct. This finding enables me to impose those sanctions permissible under the National Law which I consider appropriate.
2. The parties are agreed that it would be proper for orders to be made imposing these sanctions:

(i) A reprimand pursuant to s.196(2)(a) of the National Law.

(ii) Cancellation of the respondent's registration under s 196(2)(e) of the National Law.

(iii) Disqualification from applying for registration under s 196(4)(a) of the National Law.

(iv) A prohibition Order prohibiting the respondent from providing any health service and from using the title 'Doctor' under s 196(4)(b) of the National Law until the respondent is re-registered.

1. Notwithstanding the parties having reached a partial agreement upon sanctions to be applied, the Tribunal has a duty to make its own assessment. See Medical Board of Australia v Zhao (supra). In this respect I adopt those principles set out in Nursing and Midwifery Board of Australia v Thomas [2024] TASCAT 175 [36] - [39] being:
   • The health and safety of the public is of paramount importance.
   • The primary purpose of sanctions is to protect the public, not to punish the practitioner, although determinations that properly address deterrence may be felt as punitive by the practitioner. That primary purpose, together with protection of the reputation of the profession in the eyes of the public, is achieved by ensuring that proper ethical and professional standards are maintained.
   • With that protective focus in mind, the Tribunal considers a range of factors including the nature and seriousness of the conduct, any plea of guilty, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence. Matters of general and specific deterrence may be relevant to the Tribunal's deliberations.
   • Determinations in other cases of similar or analogous conduct provide useful guidance. Consistency and proportionality are important, but every case is different.

1. The respondent's conduct has been comprehensively detailed in the Statement of Agreed Facts. I have found that such conduct constitutes professional misconduct. I am comfortably satisfied that a reprimand in accord with s196(2)(a) of the National Law is warranted, particularly as it serves to indicate a strong condemnation of the respondent's conduct by his own profession. See Nursing and Midwifery Board of Australia v Little [2020] VCAT 687.
2. Turning to the matter of cancellation of the respondent's registration. On this subject these helpful explanatory comments were made in Medical Board of Australia v Duck [2017] WASAT 2:

Where an order for cancellation of a practitioner's registration is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a practitioner. > > A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the conduct is so serious that the practitioner is permanently or indefinitely unfit to practice. > > The practical effect of an order cancelling registration is that if a practitioner wishes to resume practice, he/she must persuade the relevant authority that he/she is truly reformed and that he/she is a fit and proper person to resume practice.

3. It is my firm view that the respondent's conduct is sufficiently serious to render him unfit to practice medicine and to remain a medical practitioner. It follows that it is an appropriate sanction for his registration to be cancelled under s 196(2)(e) of the National Law.
4. I will deal next with the issue of a Prohibition Order. As already noted, the respondent has agreed to such an order being made. Again, I am satisfied that this is a further appropriate sanction as it will preclude the respondent from securing employment in a health service other than medical practice and will thereby provide a broadened protection to the public against those risks attached to the respondent.
5. Turning next to consider the respondent's disqualification from applying for registration.
6. The respondent accepts that his disqualification is an appropriate sanction. This, in my view, is a proper and obvious concession as I am comfortably satisfied that his conduct mandates disqualification. The real issue for me to determine is the duration of such disqualification. For the applicant it is submitted that a period of seven years commencing on the date of the Tribunal's order is warranted. However, it is argued for the respondent that an order for a disqualification period of 6 months with the same start date would be appropriate. Such an order, it is submitted, would effectively represent a disqualification period of almost 4 years when regard is had to the fact that the respondent has not practised since 20 October 2021 in compliance with a written undertaking given by him at that time. These competing submissions lead me to consider those factors relevant to the respondent's disqualification and its duration.
7. An obvious relevant factor is the nature and seriousness of the respondent's conduct. In my view it is unarguable that the respondent's behaviour was particularly serious. Notably, it involved him accessing and looking at grossly inappropriate material for an admitted period of around 20 years. For a portion of that time, he downloaded multiple images and videos of CEM which he stored on a password protected hard drive. His conduct led him to be charged and convicted of one count of CEM contrary to s74A of the Classification (Publications, Films and Computer Games) enforcement Act 1995. The Magistrates Court considered the respondent's conduct to be sufficiently serious to warrant a term of imprisonment, albeit conditionally suspended. This conduct, in my view, is a significant factor which needs to be reflected in the length of the respondent's disqualification, both to signal to the respondent that he understands the professional consequences of his behaviour and to convey a clear message to the medical profession generally and to the community at large that such conduct is totally unacceptable.
8. The risk of the respondent re-offending is a matter particularly relevant to the period of disqualification. Pertinent to this are two documents provided to the Tribunal by the respondent. The first is a Proof of Evidence provided by Consultant Forensic and Clinical Psychologist Dr Astrid Birgden. It is dated 18 July 2022. The proof shows her to have extensive experience in the assessment, treatment and rehabilitation of sex offenders. Dr Birgden undertook an assessment of the respondent to determine, inter alia, his risk of re-offending. She reported;

The risk assessment tools applied indicate that Dr Hamilton is low risk of re-offending through CEM use. However, some targeted treatment would be helpful.

9. The second document provided to the Tribunal is a "Reflection" authored by the respondent. I am mindful of the self-serving nature of this document. Nevertheless, it does indicate a clear insight on the respondent's part into and recognition of the gross inappropriateness and seriousness of his conduct. Too, it reveals his deep remorse for his conduct and an acknowledgement of its harm. Finally, it refers to the treatment he has received from a psychologist since his arrest. However, I note that such treatment has been modest at best, and I suspect falls short of the "targeted treatment" envisaged by Dr Birgden.
10. It is submitted for the respondent that the following factors are also relevant to the issue at hand:
    • The respondent voluntarily ceasing to practice.
    • The acknowledgement in the Magistrates Court that the respondent co-operated with the police, demonstrated remorse and entered an early guilty plea.
    • That because of his conduct the respondent has suffered adverse implications in all facets of his life. Notably he has been unable to find work in Tasmania and has had to move interstate where he has commenced work as a builder's labourer.

Whilst I accept that the above factors have some relevance I attach to them minimal weight.

1. An issue raised by the competing submissions is whether there should be a backdating of the period of disqualification to take into account the near 3.5 years that have elapsed since the respondent voluntarily agreed to him being suspended from practice. I have had brought to my notice several matters where this issue has been considered. In the result I accept that the National Law does not empower the Tribunal to take into account or offset periods of suspension served prior to a practitioner's disqualification. See Medical Board of Australia v Nguyen [2024] VCAT 233. Nevertheless, I also accept that the Tribunal may have regard to the period the respondent has been suspended in so far as it bears upon the extent to which there is a continuing need for the protection of the public. See Dental Board of Australia v Nairn [2022] WASAT 86.
2. Counsel for both parties have provided me with a number of helpful authorities which provide me with some guidance upon an appropriate period of disqualification. However, every case is different, and I must set a period which I consider, in the circumstances peculiar to this matter, to be appropriate and to adequately protect public safety. In my judgement the period of four years is fitting, to commence from the date of these orders. In settling on this period, I have had particular regard to the seriousness of the respondent's conduct extending over many years, his clear insight into his wrongdoing and the harm caused, the opinion of Dr Birgden that he is a low risk of re-offending, (although an opinion to be received cautiously in the light of the respondent's less than fulsome adoption of a treatment programme during the term of his suspension) and the period that has elapsed since the respondent agreed to cease practice.