Legislation cited: ACT Civil and Administrative Tribunal Act 2008, s 9

Health Practitioner Regulation National Law (ACT), ss 5, 156

Health Practitioner Regulation National Law Act 2010, s 8

Health Practitioner Regulation National Law (NSW), Sch 5D, cl 13

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

Dey v Medical Board of Australia [2014] QCAT 546

Health Care Complaints Commission v Bolton [2021] NSWCATOD 160

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Philipiah [2013] NSWCA 342

Howard v Psychology Board of Australia [2018] ACAT 127

Medical Board of Australia v CDA [2023] ACAT 64

Medical Board of Australia v McGavigan [2023] SACAT 65

Medical Board of Australia v Putha [2014] QCAT 159

Medical Board of Australia v Stone [2023] ACAT 38

Nursing and Midwifery Board of Australia v Bradley Alan Fisk [2018] SAHPT 2

Nursing and Midwifery Board of Australia v Herzog [2020] SACAT 117

Pharmacy Board of Australia v Respondent OR92024 [2025] ACAT 2

Psychology Board of Australia v Asher (Costs) [2020] VCAT 1281

Psychology Board of Australia v Roychowdhury [2019] ACAT 50

Victorian Legal Services Commissioner v Burrows [2024] VCAT 481

Wu v Nursing and Midwifery Board of Australia [2022] NSWCA 102

1. The respondent has behaved in a way that constitutes professional misconduct.
2. The respondent is reprimanded for that professional misconduct pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (ACT).
3. The conditions in the schedule are imposed on the respondent's registration.
4. Pending further order, the review period for the conditions imposed on the respondent's registration is nine months.
5. If a party wishes to make submissions about the length of the review period for the conditions imposed on the respondent's registration:
   1. the party is to provide those submissions to the Tribunal and the other party within 7 days of this decision;
   2. the other party may provide submissions in reply within 14 days of this decision.
6. The respondent is to pay the applicant's costs, as agreed or assessed.

1. The parties agreed that Dr McClymont engaged in professional misconduct by improperly accessing the medical records of a colleague, and by falsely telling his employer, the applicant (the Board) and this Tribunal that he had not done so. They also agreed that the appropriate disciplinary response, some years after the conduct occurred, and in circumstances where Dr McClymont has shown remorse and insight, is to reprimand Dr McClymont and to impose conditions on his registration.
2. I have found, for the reasons which follow, that Dr McClymont engaged in professional misconduct and that the disciplinary orders proposed by the parties are appropriate.
3. I rejected Dr McClymont's submission that there should be no order for costs. Contrary to his submission, I have found that, in disciplinary proceedings under the Health Practitioner Regulation National Law (ACT) (National Law), costs usually follow the event, absent any disentitling conduct on the part of the successful party. I am not persuaded that there was any disentitling conduct by the Board in these proceedings and, accordingly, I have ordered Dr McClymont to pay the Board's costs.

1. The parties have agreed upon the following facts.
2. Dr James McClymont is a medical practitioner who obtained provisional registration on 28 December 2020, and general registration as a medical practitioner on 1 October 2022.
3. The Board was, and is, the relevant National Board for Dr McClymont's profession.

Dr McClymont's employment with Canberra Health Services

1. In January 2021, Dr McClymont commenced employment with Canberra Health Services as an intern in the classification of Junior Medical Officer. Another female doctor (the Female Doctor) commenced employment with Canberra Health Services in the same position at the same time.
2. At the commencement of his employment with Canberra Health Services, Dr McClymont:

(a) received training in relation to appropriate use of medical records;

(b) was directed that medical records should only be accessed by the treating team for the purpose of treatment and that records should not be accessed by other people or for other purposes; and

(c) was given copies of policies of Canberra Health Services regarding appropriate access to medical records and appropriate use of IT resources.

Relationship between Dr McClymont and a female colleague

1. Shortly before they commenced their employment, Dr McClymont and the Female Doctor met at a work dinner. Dr McClymont, the Female Doctor and two other doctors developed a friendship.
2. In January 2021, Dr McClymont sent a message to the Female Doctor on Facebook Messenger stating, "I like you and was wondering if I could buy you a coffee on Sunday". The Female Doctor responded by saying that she was "down" for a coffee "but maybe just as friends at the moment if that's okay?". Dr McClymont advised "if friends is all you want I can reluctantly agree hahah".
3. Two days later, Dr McClymont and the Female Doctor met for a coffee.
4. A week after their coffee meeting, Dr McClymont sent a message to the Female Doctor stating "...I'm pretty attracted to you and haven't connected so well with someone in a long time so that's new for me hahah. Cool with your position though just wanted to be clear ☺" and "and no rush but can you tell me how you see me? Like honestly?" Dr McClymont and the Female Doctor then exchanged further messages.
5. In March 2021, Dr McClymont, the Female Doctor and two other intern doctors were socialising at a bar. Dr McClymont left the event before the Female Doctor and the other two doctors. After he left the event, Dr McClymont was assaulted and suffered a severe concussion and laceration to the skull over his right eye. He was admitted to hospital for one day and was off work for a week.
6. Shortly after the assault, on 17 March 2021, Dr McClymont sent a message to the Female Doctor stating:

It's ultimately my problem. Can't and won't ask you or anyone to change, but certain things done and certain things said put me in a less than ideal place purely as a result of how I perceive it in my context. I don't think it's fair to make others change for me so sometimes I just remove myself.

1. On 20 March 2021, Dr McClymont sent a message to the Female Doctor which stated "?" with no other words or content. The Female Doctor responded by saying "I'm not sure how you would like me to respond to that."
2. On 21 March 2021, the Female Doctor sent a text to Dr McClymont stating that she felt uncomfortable with his communications and wanted him to not contact her in the future. The Female Doctor wrote: "unfortunately I don't feel very comfortable with our level and type of communication, and I think it's best if we don't hang out with each other anymore." Although he did not understand why the Female Doctor had taken this position, Dr McClymont stated: "I'll respect that decision."
3. On 2 November 2021, Dr McClymont sent the following message to the Female Doctor on Facebook Messenger:

Hey ..., I hope you're doing well. It might be the fatigue on surg pod nights talking but I wanted to wish you well. I'm regrettably still saddened and disappointed by the events earlier in the year. I mean I remember us sitting at a Cafe in civic and you saying you just wanted to be good friends. I'm truly not certain on what it was that had me lose some of my closest friends in one night, and I would never want to repeat it. I apologise for any hurt or trouble I caused. I wish I hadn't gone out that night but so I did and here we are. have no expectations as to you responding to me, I respect that you didn't want further communication, but please understand this has still been weighing on me and I thought it owed expression. Again, I wish you all the best.

Unauthorised access to Female Doctor's medical records

1. On 12 July 2022, Dr McClymont accessed the medical records of the Female Doctor held by Canberra Health Services on a computer terminal at what was then Calvary Public Hospital, now North Canberra Hospital. The records accessed by Dr McClymont include pathology results, diagnostic results, laboratory results, clinical notes and ambulance notes. Dr McClymont admits that there was no clinical reason for him to access the records and that he did it due to a level of underlying anger and resentment in relation to the Female Doctor's response to his assault and in terminating their friendship. There were 14 separate acts of access over a period of less than two minutes.

Canberra Health Services investigation and interim personal protection order

1. Between 12 November 2022 and 16 November 2022, as a result of the Female Doctor expressing concern about her car mirror being vandalised and a post by Dr McClymont holding a car mirror, an audit was undertaken by Canberra Health Services of its computer system. This audit revealed the access to the Female Doctor's medical records, described above.
2. On 17 November 2022, the Female Doctor applied for an interim personal protection order restraining Dr McClymont from engaging with her or being near her in the various ways described in the order.
3. On 17 November 2022, Dr McClymont was suspended as an employee of Canberra Health Services, directed to cease contact with the Female Doctor and directed to undergo a psychiatric assessment.
4. On 18 November 2022, the Magistrates Court made an interim personal protection order, by consent, which restrained Dr McClymont from certain behaviour in relation to the Female Doctor.
5. On 29 November 2022, Dr McClymont was served by a police officer with the interim personal protection order.
6. On 30 November 2022, Dr McClymont posted to his Instagram account a picture of himself and words requesting anyone who was following him for the purposes of "screenshotting" and misrepresenting his mental state to Canberra Health Services and the AFP to unfollow him and stated that the actions were cowardly and disrespectful, and he wished the person could have approached him as a friend.
7. Dr McClymont was then charged with breaching the interim Personal Protection Order (PPO) by posting the above post.
8. On 1 December 2022, Dr McClymont was assessed by Associate Professor Saji Damodoran, psychiatrist, who informed Canberra Health Services in a written report dated 9 December 2022 that in his opinion Dr McClymont was suffering from chronic major depressive disorder, that he had a psychiatric capacity to work but due to his recent significant absence from work and the various matters he was currently dealing with in his workplace it was prudent that he returns to work on a graduated basis.
9. On 14 December 2022, Canberra Health Services issued a "show cause" letter to Dr McClymont. The letter:

(a) Stated that Dr McClymont was found to have engaged in serious misconduct;

(b) Stated that it was proposed that Dr McClymont's employment be terminated;

(c) Informed him that his employment had been suspended;

(d) Invited him to show cause as to why the termination of his employment should not occur.

1. On 16 December 2022, Dr McClymont responded in writing to the notice of proposed termination indicating that he was resigning from his position and denying a number of allegations in the notice of proposed action including that he had accessed the records of the Female Doctor.
2. On 29 December 2022, Dr McClymont gave Canberra Health Services a detailed response to the show cause letter. His response stated, inter alia:

(a) "As a general statement ahead of my responses to specific allegations, I vehemently deny all allegations of misconduct, that I inappropriately accessed [the Female Doctor's] medical records...".

(b) "Firstly, I would like to say that I have no recollection of accessing [the Female Doctor's] medical records. More than this, I would have no need nor any want to do so. Therefore, I deny the allegation that I accessed her records on the 12th of July 2022. Despite this, I am aware that her records were accessed on the 12th of July under my name, or at least while I was logged in to the computer. I am confident that while I'm sure I would have logged into a computer with my Imprivata swipe card access that would automatically log in to clinical accounts, that I was not the individual to search for [the Female Doctor]. I believe the fact that all of the episodes of access provided in evidence (attachment F) occurred in a 2-minute timeframe on the one day, highlighting the brief and speedy nature of this and also that these 14 access points would be in one brief episode, and not displaying a pattern of behaviour. I have witnessed on countless occasions (>20 times) staff searching patient details, and in some cases, colleagues, on someone else account that is already logged in, making it a very fast process. Moreover, I have seen colleagues searching their friends on their own account. Yet, in my cohort, I have never heard of anyone being reprimanded for this, until now, and, may I add, inappropriately. As previously stated, I deny being the individual who searched through [the Female Doctor's] record on the 12th of July, and by extension, refuse to accept the allegation of serious misconduct in this matter."

(c) "I've responded to each allegation by CHS that suggested, and to which CHS had somehow justified the proposition to terminate my employment, that I had engaged in serious misconduct. This is my first opportunity to provide my explanation to an organisation that has already reached a conclusion based on misrepresented and unverified information incorrectly interpreted with obvious bias. I have now explained why the supposition that I have engaged in serious misconduct is absurd and that I could not have any threat to [the Female Doctor]. I deny these allegations wholeheartedly".

1. On 9 December 2022, Dr McClymont notified the Australian Health Practitioner Regulation Agency (AHPRA) on behalf of the Board that on 2 December 2022 he had been served with an Interim Personal Protection Order dated 18 November 2022.
2. On 16 January 2023, AHPRA received a notification from Canberra Health Services. The notification included a number of allegations including that Dr McClymont had:

(a) accessed the Female Doctor's medical records 14 times in a period of less than 2 minutes in circumstances where he had never been a member of her treating team.

(b) been served with the Interim PPO.

1. On 20 February 2023, the Board made a preliminary decision to suspend the registration of Dr McClymont pursuant to s 156(1)(a) of the National Law and invited him to make a submission in relation to the proposed action by 27 February 2023.
2. Section 156(1) of the National Law gives the Board power to take immediate action in relation to a registered health practitioner in certain circumstances, including if it reasonably believes that, because of the practitioner's health, conduct or performance, the practitioner poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety.
3. On 23 February 2023, Dr McClymont made a statement to the Board in which he denied accessing the records of the Female Doctor. Dr McClymont stated:

I deny accessing [the Female Doctor's] medical record 12 times on 11 November 2022. I accept that some-one accessed the records briefly and under my login, however, I did not do this. I have seen many colleagues, nurses and doctors looking a patient or something else up on the CHS computer system using a colleague's login because that is the login that was open at the time.

1. Dr McClymont also adopted the contents of his 29 December 2022 response to the show cause letter he provided to Canberra Health Services.
2. On 27 February 2023, Dr McClymont made an oral submission to the Board in which he denied accessing the Female Doctor's records. Dr McClymont said that he did not access the records, that he had no reason to do so and nothing to gain from doing so.
3. On 27 February 2023, the Board suspended Dr McClymont's registration.
4. On 27 March 2023, Dr McClymont applied to the Tribunal for a review of the Board's decision to suspend his registration and also applied for a stay of the decision.
5. On 19 May 2023, Dr McClymont's solicitor, acting on instructions, made and filed a statement in support of the application, which stated:

The applicant denies that he has ever accessed [the Female Doctor's] medical records.

1. On 26 May 2023, Dr McClymont's solicitor, acting on instructions, filed submissions in support of the application, which stated:

All of the alleged conduct is denied. All of it is predicated on as yet untested assertions made in an ex parte application by [the Female Doctor].

1. On 21 June 2023, the application for a stay was dismissed.
2. On 3 July 2023, the charge against Dr McClymont of breaching the interim personal protection order was dismissed with costs.
3. On 22 August 2023, an agreement was reached between the Board and Dr McClymont, in relation to the application for a review of the decision to suspend his registration, that Dr McClymont would agree to the proceedings being dismissed and would pay a portion of the Board's costs, and AHPRA would instruct the Board to take all reasonable steps to conclude its investigation into Dr McClymont by 27 February 2024.

1. Following the resolution of the immediate action proceedings, AHPRA's investigation into the notification about Dr McClymont continued. During the investigation, AHPRA obtained amongst other things, the following records from Canberra Health Services:

(a) Dr McClymont's roster for the period of 7 July 2022 to 20 July 2022 which recorded that Dr McClymont was working in the rehabilitation centre (Namadji Ward) on 12 July 2022, including between at 10:50am and 10:53am;

(b) a record of use of Dr McClymont's access card, which recorded that Dr McClymont's card had been used to enter the Namadji Ward at various times, including 9:15am;

(c) a record that at 10:51am, Dr McClymont's user ID had been entered into a computer terminal at the Namadji Ward to perform a search of patient records of the Female Doctor;

(d) a record that at 10:51am and 10:52am, at the same computer terminal using Dr McClymont's user ID, 14 separate patient records of the Female Doctor had been accessed.

1. On 16 January 2024, Dr McClymont participated in an interview with the AHPRA investigator. During the interview, the investigator informed Dr McClymont that AHPRA had received information that Dr McClymont had been rostered to work on 12 July 2022 in the Namadji ward, at the same time and place that the Female Doctor's medical records had been accessed. Dr McClymont stated in relation to the allegation that he had improperly accessed the Female Doctor's records:

(a) "I, look, it's something that quite possibly that I may have done. I can't recall doing it."

(b) "I've seen doctors searching their friends' names and looking at their records".

(c) "But I, I, again, I can't, it didn't stand out. It wasn't anything that I would have used or gained from, but I might have done that in boredom searching, not really thinking about what I was doing."

(d) "Very much not thinking about what I was doing."

(e) "As I said, again, like, it wasn't, it wasn't a stand-out. Like, if, I presume I must have done it."

(f) "there wasn't a reason to do it. It was rather stupid and, and so from there I guess all I can say is that I do know the, the rules and regulations around accessing medical records."

(g) "And as I said, it just, it hasn't stood out to me as, in the past as something I've done, but it was with my log-in on a ward that I worked on with a low level of staffing and somebody that was known to me, so I do take responsibility for that."

1. On 8 February 2024, Dr McClymont's solicitor provided a copy of an education course Dr McClymont had completed in relation to privacy and professionalism and ethics.
2. On 14 February 2024, Canberra Health Services provided AHPRA with a bundle of additional documents for the purpose of its investigation.
3. Between 20 February 2024 and 11 March 2024, Dr McClymont's solicitor corresponded an investigator from AHPRA about the timing of the completion of the investigation.
4. On 10 April 2024, an investigator from AHPRA requested a statement from the Female Doctor. On the same day, in a telephone call between the Female Doctor and the investigator, the Female Doctor apologised for not responding to previous contact from AHPRA and stated that she was apprehensive about providing a statement to AHPRA due to fear of reprisal and the emotional toll of litigation.
5. Following that discussion, an investigator from AHPRA made further attempts at contacting the Female Doctor for the purpose of obtaining a statement in relation to AHPRA's investigation, but she did not respond.
6. On 15 April 2024, the Medical Board considered the application for a review of its decision and revoked the suspension of Dr McClymont.
7. In April 2024, Dr McClymont applied to renew his registration as he was no longer suspended. His registration was extended until 15 May 2024.
8. Before 15 May 2024, Dr McClymont again applied to renew his registration.
9. On 20 May 2024, the Board decided to refer allegations regarding Dr McClymont to the Tribunal.
10. On 18 July 2024. Dr McClymont was advised his registration had been renewed subject to the following conditions:
    1. The Practitioner must practise as a medical practitioner under supervision of a supervisor approved by the Board, consistent with the Board's Supervised practice framework, and
       1. in accordance with a supervised practice plan approved by the Board
       2. at the level of supervision outlined in the supervised practice plan, and
       3. at approved practice location(s) published to the public register.

For the purposes of this condition, 'practise' is as defined in the Board's Supervised practice framework.

1. If an approved supervisor is not available or not able to provide supervision at the level required, the Practitioner must immediately cease practice and must not resume practice until an approved supervisor is available.

1. The following allegations are relied upon by the Medical Board and are disputed by Dr McClymont.
2. On 22 June 2021, the Female Doctor made a report to the Medical Registrar, Canberra Health Services, that she was concerned about Dr McClymont's behaviour.
3. On 24 June 2021, the Female Doctor spoke to Lesley Pollock, Medical Administration to express concerns that Dr McClymont had been, amongst other things:

(a) slamming on the desk and chairs;

(b) parking his car close to her car; and

(c) saying to her "I don't know why you fucking cut contact with me. I should just go kill myself, hang myself."

1. In the discussion, the Female Doctor stated that she was anxious and concerned about coming to work.
2. On 25 June 2021 and 9 July 2021, the Female Doctor also discussed her concerns with Dr Shaun Zhai (Calvary DPET) and Dr Mike Hall.
3. In the discussion with Dr Zhai, the Female Doctor reported concerns about Dr McClymont:

(a) dismissing her comments and slamming a door;

(b) saying to her, "why did you cut off of communications with me";

(c) parking his car close to the Female Doctor's car;

(d) throwing her purple folder in the bin.

1. The notification received by AHPRA on 16 January 2023 also included allegations that Dr McClymont had engaged in various specified forms of threatening and intimidating behaviour towards the Female Doctor.

1. A hearing was held on 16 December 2024. Both parties were legally represented at the hearing.
2. The Tribunal had before it the Board's application for disciplinary action filed on 23 July 2024. The application enclosed a notice of allegations. The two allegations against Dr McClymont in that notice are as follows:
   1. That Dr McClymont engaged in:
      1. professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

1. unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, Dr McClymont improperly accessed the health records of [the Female Doctor] on 14 occasions without authorisation or proper purpose.

1. That Dr McClymont engaged in:
   1. professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law;

1. unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in making false and misleading statements about his access to [the Female Doctor's] medical records as described in Allegation 1 (above).

1. The Board also provided particulars of each allegation.
2. The parties relied upon a "statement of agreed and disputed facts and consequential action." The agreed and disputed facts are set out above.
3. Dr McClymont filed a response to the application for disciplinary action, in which he made a significant number of admissions, and made certain statements.
4. Dr McClymont also relied upon a witness statement he made on 24 September 2024. In that statement, he explained why he engaged in some of the conduct to which he had admitted. For example, he said that the Female Doctor wounded him "quite deeply" when she asked him not to contact her, and that he "felt betrayed, hut and dismissed." He stated that he believed "that a level of underlying anger and resentment at what [he] thought was quite a lack of care and lack of good reason for ending a friendship, at a time when [he] had been assaulted, led to [him] making the decision to access [the Female Doctor's] medical file." He acknowledged that this was "completely wrong."
5. Dr McClymont made the following apology in his witness statement:

I apologise for my misconduct. This was an immature way to protect myself from my own judgement, and undoubtedly that from outside. I realise that in a profession like medicine honesty is essential and I failed both myself and the profession by making a false denial. I have been reflecting on this over the last two years and realise that I erred badly and the fact that I believed the actions taken and allegations were unfair and the impact on my career was unfair, could never be a justification for a false denial.

1. Dr McClymont described, in his witness statement, the impact upon him of being unable to work as a doctor whilst suspended and the continuing impact, after the suspension ended, when he was unable to find a role consistent with the conditions placed on his registration. He stated that he had been seeing a psychologist monthly and was wholeheartedly committed to therapy. Dr McClymont described the process of reflection and his changed perception of the position of doctor, acknowledging the "level of professional care and responsibility and trustworthiness which such a position is held by patients and the wider community."
2. The Board provided a statement of reasons for its decision to refer Dr McClymont to the Tribunal under section 193(1)(a)(i) of the National Law.
3. The Board relied upon a bundle of documents, filed on 2 September 2024. The bundle included documents before the Board at the time of the decision to refer the matter to the Tribunal, including an affidavit affirmed by the Female Doctor in June 2023, material from the immediate action proceedings in the Tribunal in 2023, Good Medical Practice: A Code of Conduct for Doctors in Australia," October 2020 (the Code of Conduct), documents provided to AHPRA by Canberra Health Services and a large amount of correspondence.
4. The parties both provided the Tribunal with written submissions and supplementary written submissions.

1. I accept the agreed facts, set out above, on the basis that both parties have consented to them and that they are supported by the documentary evidence before me.
2. The solicitor for the Board, Mr White, did not take me to any documentary evidence to support the additional factual allegations made by the Board, which are disputed by Dr McClymont. In these circumstances, it would generally not be procedurally fair for the Tribunal to make positive findings about these disputed factual matters.
3. The first allegation, for example, is that, on 22 June 2021, the Female Doctor made a report to the Medical Registrar, Canberra Health Services, that she was concerned about Dr McClymont's behaviour. Having looked through the documentary materials, I have found support for this in the Female Doctor's affidavit made in 2023 in the immediate action proceedings. However, the Female Doctor did not give evidence in these proceedings. In circumstances where Dr McClymont did not have an opportunity to cross-examine her (as far as the Tribunal is aware), and disputes her evidence, it would not be fair to rely upon the disputed evidence.
4. Many other disputed allegations are in the same category; that is, they rely upon the Female Doctor's evidence given in other proceedings, in circumstance where she has not (as far as the Tribunal is aware) been made available for cross-examination.
5. I have not made the factual findings sought by the Board, in relation to this material.
6. The final disputed allegation is that the notification received by AHPRA on 16 January 2023 included allegations that Dr McClymont had engaged in certain threatening and intimidating behaviour towards the Female Doctor.
7. The notification received by AHPRA on 16 January 2023 is in evidence, although the notifier details have been redacted. It was not objected to by Dr McClymont's counsel.
8. The parties have agreed, in the statement of agreed facts, that the only allegations relevant to the proceedings in the notification of 16 January 2023 are those set out above. In those circumstances, it is difficult to understand why the Board is asking the Tribunal to have regard to allegations made in that notification which it has conceded are not relevant. I note that the circumstance that allegations were made by an unidentified person in a notification is highly prejudicial to Dr McClymont and of low probative value.
9. I have not given any weight to the allegations made in the notification of 16 January 2023, other than those identified by the parties as being relevant to these proceedings in the statement of agreed facts.

1. The main guiding principles of the national registration and accreditation scheme are set out in section 3A of the National Law. Subsection 3A(1) provides for the main guiding principle as follows:

_(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount - _

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

1. An entity that has functions under the National Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.[1] The Tribunal is such an entity.
2. A National Board, such as the Board, is required to refer matters to a responsible tribunal (such as ACAT)[2] in certain circumstances. Subsection 193(1)(a) of the National Law provides:

_(1) Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if - _

(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or ...

1. Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) permits a person to make an application to the Tribunal if an authorising law, such as the National Law, provides for this to occur.
2. The term "professional misconduct" is defined in the National Law as follows:[3]

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. The term "unprofessional conduct" is defined 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 to include certain specified forms of conduct.[4]
2. After hearing a matter about a registered health practitioner, a responsible tribunal may make a number of different decisions. These include that the practitioner has behaved in a way that constitutes unprofessional conduct or that the practitioner has behaved in a way that constitutes professional misconduct.[5]
3. If the responsible tribunal makes one of those decisions, it may then take certain action, including cautioning or reprimanding the practitioner, imposing a condition on the practitioner's registration, requiring the practitioner to pay a fine, or suspending or cancelling the practitioner's registration.[6] If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.[7] The term "review period," for a condition, means the period during which the condition may not be changed or removed, under section 125, 126 or 127.[8]

1. Dr McClymont has admitted the factual basis for each disciplinary allegation against him, namely that he improperly accessed the Female Doctor's health records on 14 occasions without authorisation or proper purpose (the first allegation) and that he made false and misleading statements about his access to those records (the second allegation).
2. I find that each of those factual allegations is substantiated.

1. The parties' agreed position is that Dr McClymont's conduct amounted to professional misconduct within the meaning of paragraph (a) of the National Law definition, being unprofessional conduct 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.
2. I agree.
3. Dr McClymont's conduct of improperly accessing the Female Doctor's health records constitutes unprofessional conduct in that it is "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."
4. The false statements made by Dr McClymont about his access to those records also constitutes unprofessional conduct in that it is professional conduct of a lesser standard than that which might reasonably be expected by the public or Dr McClymont's peers.
5. Both forms of conduct were "substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience" for the following reasons.
6. As the Board has submitted, Dr McClymont's conduct on both occasions was deliberate.
7. In relation to the first disciplinary allegation, there was no reasonable justification for Dr McClymont to access the Female Doctor's medical records. The conduct was especially serious in circumstances where he had been trained in appropriate and lawful access to medical records and the importance of patient confidentiality. That is, even though his "level of training or experience" was relatively low in a general sense (as an intern doctor), he had received training specifically about access to records and patient confidentiality.
8. The unauthorised access was, the Board submitted, contrary to various privacy principles under the Health Records (Privacy and Access) Act 1997, including privacy principle 6, which permits access to health records by a health practitioner, without consent, only when treating the patient, or if it is reasonably required to provide a health service.
9. Dr McClymont admitted that his conduct was contrary to privacy principle 6. I find that the conduct the subject of the first allegation was contrary to that privacy principle.
10. Dr McClymont has also admitted that his conduct fell below the standards of conduct in the Code of Conduct, in that it was contrary to:

(a) clause 4.4.1, which provides that good medical practice involves treating information about patients as confidential;

(b) clause 4.4.3, which provides that good medical practice involves accessing an individual's medical record only when there is a legitimate need;

(c) clause 5.2.3, which relevantly provides that good medical practice involves behaving professionally and courteously to colleagues and other practitioners;

(d) clause 10.1, which relevantly provides that, in professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community;

(e) clause 10.5.2, which provides that good medical practice involves ensuring that "your medical records" are held securely and are protected against unauthorised access.

1. There must be some doubt as to whether Dr McClymont's conduct was contrary to clause 10.5.2 of the Code of Conduct, which applies, on its face, to the doctor's own medical records. However, I find that Dr McClymont's conduct in accessing the Female Doctor's records was contrary to clauses 4.4.1, 4.4.3, 5.2.3 and 10.1 of the Code of Conduct.
2. The making of the false and misleading statements was extremely serious. As Dr McClymont has admitted, he made false statements to the effect that he had not accessed the Female Doctor's medical records:

(a) on 29 December 2022, in a response to a show cause letter to his employer;

(b) on 22 February 2023, to AHPRA and the Board in a written statement and submission;

(c) on 27 February 2023, to AHPRA and the Board during a meeting; and

(d) on 19 May 2023, to the Tribunal in a statement filed on his behalf.

1. The repetition of the false statements over a six-month period, and the circumstances in which they were made, including in the course of a regulatory investigation, added to the seriousness of the conduct. As the Board submitted, "[f]ulsome disclosure of accurate information to the regulator and the Tribunal by health practitioners ... is fundamental to the registration regime." The NSW Civil and Administrative Tribunal has commented that a health practitioner, the subject of disciplinary proceedings before it, had a "professional duty to be candid and honest with AHPRA" and that providing misleading information to AHPRA was "improper and unethical," demonstrating "a disregard for AHPRA and its role."[9] Those principles apply equally to a health practitioner practising in the Australian Capital Territory.
2. The making of those false statements was a significant breach of Dr McClymont's professional obligations of candour and honesty.
3. Dr McClymont has admitted, and I find, that his conduct in making false and misleading statements fell below the standards set out in the following clauses of the Code of Conduct:

(a) Clause 2.1, which requires doctors to be honest, ethical and trustworthy, and states that doctors are expected to display qualities such as integrity truthfulness and dependability;

(b) Clause 10.1, which provides that, in professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community; and

(c) Clause 10.11.1, which provides that good medical practice involves cooperating with any complaint procedure that applies to the doctor's work.

1. For these reasons, I have decided that Dr McClymont behaved in a way that constitutes professional misconduct in respect of both disciplinary allegations.[10]

1. The parties have jointly submitted that the appropriate disciplinary response, in the circumstances of this case, is to reprimand Dr McClymont and impose conditions on his registration, requiring him to be mentored by another registered health practitioner in relation to ethical conduct and practice.
2. It is not in dispute that the purpose of disciplinary proceedings is to protect the public, not to punish the practitioner.[11] That is consistent with the main guiding principle of the national registration and accreditation scheme that the protection of the public is paramount.
3. This Tribunal has previously set out the principles guiding the determination of disciplinary orders in cases concerning health practitioners in the following terms:[12]

(a) Determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the reputation of the profession.

(b) Determinations are not punitive in nature, but they may serve the objectives of specific and general deterrence.

(c) An assessment of the ongoing risk posed by the practitioner should be central to the imposition of a determination.

(d) The nature and seriousness of the conduct, any evidence of contrition, the degree to which the practitioner has acquired insight into his or her conduct, evidence of rehabilitation, character evidence, and the time between the conduct and the determination may all be relevant factors.

(e) Personal matters such as shame, personal ordeal, and financial difficulty are of little relevance.

1. I respectfully adopt that summary of the law.
2. Dr McClymont's conduct was very serious, for the reasons given above. In the absence of any admissions or remorse, a disciplinary response such as suspension or possibly even cancellation of his registration would have been appropriate.[13] However, as the Board has submitted, a mitigating feature of this case is that Dr McClymont now admits to engaging in the relevant conduct and has shown remorse for and insight into his conduct. He has taken steps to address the issues that led him to engage in the conduct, including by undertaking educational courses and seeking treatment.
3. As the Board submits and Dr McClymont accepts, undertaking appropriate mentoring with a senior practitioner is another appropriate step which would provide additional protection to the public.
4. The parties' agreed position as to the appropriate disciplinary outcome is to be given weight. The Victorian Civil and Administrative Tribunal (VCAT) has aptly summarised the relevant principles when dealing with an agreed position in occupational disciplinary proceedings as follows:[14]

(a) The Tribunal's role is to decide the appropriate characterisation of the conduct and the penalties to be imposed. An agreement by the parties does not displace the Tribunal's duty;

(b) It is appropriate for parties to make agreed penalty submissions and there is a public policy benefit for such submissions to be accepted where appropriate;

(c) It is desirable for the Tribunal to adopt the agreed penalty submission where it is an appropriate outcome.

1. I am satisfied that reprimanding Dr McClymont and imposing the agreed condition constitute an appropriate disciplinary response. The reprimand sends a message that it is unacceptable for health practitioners to access medical records without authorisation and to make false statements to an employer, a National Board and the Tribunal. It provides a form of general deterrence.
2. I note that the earlier suspension of Dr McClymont's registration by the Board, for 14 months, provided a form of specific deterrence to Dr McClymont. Suspending his registration again is not necessary to protect the public, in circumstances where he has demonstrated remorse and insight.
3. The proposed condition is well adapted to protecting the public, by helping to ensure that Dr McClymont will not engage in unethical conduct in the future.
4. For these reasons, I have decided to reprimand Dr McClymont and impose the agreed condition on his registration.
5. The parties did not propose any review period for the condition imposed. The Tribunal is required to decide a review period under section 196(3) of the National Law. My provisional view is that nine months is a suitable review period, to allow time for the condition to have some beneficial effect without unduly restricting the Board's discretion to remove or change the condition if it considers it appropriate to do so. I will invite submissions as to the appropriate length of the review period, given that this issue was not addressed.

1. The Board has applied for an order that the respondent pay its costs. Section 195 of the National Law provides: "The responsible tribunal may make any order about costs it considers appropriate for the proceedings."
2. Dr McClymont submitted that there should be no order as to costs. He submitted that the principle that costs should ordinarily follow the event does not apply. He referred to the circumstances that he had admitted the conduct, facilitated the expeditious resolution of the matter, not attacked the Board's witnesses, not pursued any defence and not unjustifiably prolonged the proceedings.
3. Dr McClymont also pointed to the Board's revocation of its decision to suspend his registration. In his submission, "[t]his indicates that the respondent was unable to work for 14 months based on a decision that the respondent posed a risk to the public, which the Board itself came to accept was not the case." Dr McClymont also submitted:

that the financial impact on a young person of a decision which was ultimately shown to be unjustified, resulting in the respondent having to utilise an inheritance in order to maintain himself financially, is a sufficient financial penalty for the admitted conduct.

1. Dr McClymont said that the Board had engaged in disentitling conduct, being its failure to complete the investigation within twelve months of the immediate action, where it had agreed to use its best endeavours to do so.
2. The principle applied in relation to costs under the National Law in the Territory, and by the New South Wales Court of Appeal, is that costs generally follow the event. I note that the costs provision, under the Health Practitioner Regulation National Law (NSW), is different from that applying in the ACT, but also gives the NSW Civil and Administrative Tribunal a broad discretion to make a costs order.[15] In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42], Emmett JA (with whom Beech-Jones J agreed) observed:

As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied.

1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [51], Meagher JA, with whom Emmett JA agreed, referred to the comments of Emmett JA in Philipiah, cited above, with approval.
2. In Wu v Nursing and Midwifery Board of Australia [2022] NSWCA 102 at [10], Gleeson JA referred to the usual practice, in proceedings under the National Law (as it applies in NSW), that "costs follow the event".
3. This Tribunal has also observed that it is usual in proceedings under the National Law for costs to follow the event.[16] That position has also been adopted in South Australia[17] and Queensland[18] (before s 195 of the National Law being disapplied in Queensland).
4. Dr McClymont relies upon some decisions of the Victorian Civil and Administrative Tribunal to the effect that costs do not ordinarily follow the event under the National Law. For example, in Psychology Board of Australia v Asher (Costs) [2020] VCAT 1281 at [40], VCAT observed:

[40] Section 195 of the National Law specifically directs the responsible Tribunal to consider the appropriateness of a costs order for the proceedings.

[41] The Tribunal must, if it is not to ignore the wording of the provision, look to the nature of the proceedings before it to determine the appropriateness or otherwise of an award of costs in any given case.

[42] This cannot be interpreted as a broad invitation to have costs follow the event in all proceedings.

[43] Section 195 of the National Law should not be read as intended to deter or inhibit the capacity of health practitioners or the Board to defend or bring proceedings.

[44] It is here that the question of appropriateness as set out in section 195 of the National Law comes into its own.

[45] The Board has a statutory obligation to bring proceedings before the Tribunal. It would be undesirable and inappropriate were costs to be an impediment to the bringing of cases.

[46] Similarly, we consider that a health practitioner should, in the usual course be entitled, in the setting of a Tribunal hearing where costs are not universally awarded nor sought, to have the issues fully canvassed and be entitled to put the Board to its proofs without fear of a costs award.

[47] We agree with the submissions of Mr Asher that it is important and appropriate that no cost impediment be put in the way of a practitioner fairly and properly testing the evidence adduced against him or her.

[48] If a practitioner facing serious allegations simply tests the evidence, it may well be that it would not be appropriate to award costs against him/her. We agree with the submissions put on behalf of Mr Asher that a practitioner should not be disenfranchised from appropriately exercising his or her rights to "engage in serious proceedings that have the potential to have devastating consequences" and should not run the risk of a costs award against him/her for so doing.

[49] We therefore agree with the submissions of Mr Asher that it will not always be appropriate to award costs where a practitioner does no more than put the Board to its proof.

[50] Conversely but similarly, if a regulatory Board on reasonable grounds determined to refer matters to the Tribunal, it may not be appropriate to make an award of costs against the Board simply because the allegations were ultimately not proven to the requisite standard. (original emphasis)

1. I am not persuaded that the words "it considers appropriate" in section 195 of the National Law are intended to have the effect attributed to them by VCAT. Section 195 confers a broad discretion as to the award of costs. That does not, in my view, displace the ordinary principles which govern such a broad costs discretion, including that costs generally follow the event. Whilst the New South Wales cost provision is different from that which applies in the Territory, it is relevant that that principle has been applied in that State by its Court of Appeal in proceedings under the National Law. The principle has also been applied by tribunals in Queensland and South Australia.
2. In my view, the principle that costs usually follow the event applies when exercising the broad discretion conferred by section 195 of the National Law. Dr McClymont has not demonstrated any disentitling conduct on the part of the Board in this case. The circumstance that the Board revoked its suspension of his registration does not mean that it accepted it had been in error in considering, at the time the suspension was imposed, that he posed a risk to the public. Rather, it found that the risk had diminished.
3. Dr McClymont has not demonstrated that the Board did not, in fact, use its best endeavours to complete the investigation within twelve months. The Board has explained, in its submissions, why the investigation took longer than first anticipated. As the Board submitted, Dr McClymont's concession was delayed, and this placed a burden on it to make additional inquiries. Even if Dr McClymont had demonstrated undue delay on the part of the Board in finalising the investigation, it is doubtful that that could be characterised as disentitling conduct.
4. Further, as the Board submitted, Dr McClymont's financial circumstances are not a relevant consideration.
5. At the hearing, Mr Crowe, for Dr McClymont, pointed to the Board's failure to join in filing joint submissions as a form of disentitling conduct. There was, however, no evidence as to the preparation of the submissions, or the correspondence leading to the parties filing different submissions. There is no evidence as to the extent to which filing joint submissions would have reduced costs (if indeed it would have done so).
6. I do not accept, in the absence of such evidence, that the Board's decision to file its own submissions constituted disentitling conduct or significantly added to the parties' costs.
7. For these reasons, I consider that the usual order as to costs is appropriate. That is, it is appropriate that the respondent be ordered to pay the applicant's costs, as agreed or assessed.

Schedule: Conditions imposed upon Applicant's registration

1. Dr McClymont (the Practitioner) must be mentored by another registered health practitioner in relation to ethical conduct and practice.

For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

1. The mentoring must comprise a minimum of six sessions with each session being of 1 hour duration occurring over a 6-month period.
2. Within 21 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
3. Within 21 days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:

(a) every month

(b) at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring

(c) whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance, and

(d) when otherwise requested by AHPRA.

1. In the event an approved mentor is no longer willing or able to provide the mentoring required the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
2. Within 60 days of the conclusion of the mentoring (i.e. the review period) the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practice.
3. Within 21 days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:

(a) within seven days of the commencement of practice at each subsequent place of practice, and

(b) within seven days of each and every notice of any subsequent alteration of these conditions.

1. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

[2] Health Practitioner Regulation National Law Act 2010, s 8

[5] National Law, s 196(1)(b)(ii) and (iii)

[9] Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [90]

[11] See, for example, Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at [41]

[12] Medical Board of Australia v Stone [2023] ACAT 38 at [8]

[13] See, for example, Nursing and Midwifery Board of Australia v Bradley Alan Fisk [2018] SAHPT 2, in which the registration of a practitioner who improperly accessed health records was suspended.

[14] Victorian Legal Services Commissioner v Burrows [2024] VCAT 481 at [72]. See also Pharmacy Board of Australia v Respondent OR92024 [2025] ACAT 2 at [38]

[15] See Health Practitioner Regulation National Law (NSW), Sch 5D, cl 13

[16] Medical Board of Australia v CDA [2023] ACAT 64 at [19]. See also Psychology Board of Australia v Roychowdhury [2019] ACAT 50 at [142]; Howard v Psychology Board of Australia [2018] ACAT 127 at [22]

[17] Nursing and Midwifery Board of Australia v Herzog [2020] SACAT 117 at [108]; Medical Board of Australia v McGavigan [2023] SACAT 65 at [55]

[18] Medical Board of Australia v Putha [2014] QCAT 159 at [39]; Dey v Medical Board of Australia [2014] QCAT 546 at [15]