1. These proceedings concern a referral by the Medical Board of Australia under the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the National Law) to the Tribunal to determine appropriate orders in respect of the conduct of Dr Graeme Murphy, a general practitioner.
2. By way of overview, the Board submits that the Tribunal should cancel Dr Murphy's registration and disqualify him from being registered for three to four years for a range of conduct over the period 2015 to 2020. Dr Murphy accepts that some of the conduct requires orders, and he considers that it would be appropriate for the Tribunal to suspend his registration for about eight months, backdated.
3. The proceedings were heard over two days in June and July 2020.
4. The conduct was described in a Statement of Agreed Facts, which was a useful starting point but has not performed the function as such a document often would as Dr Murphy determined during the hearing that some of the agreed facts were not correct. It has therefore been necessary to make some findings as well as characterise the conduct that occurred and consider the appropriate orders to be made.

1. Dr Murphy is 64 years old and has been a general practitioner for over 30 years.
2. Dr Murphy developed an addiction to opioids in about 2002.[1]
3. The former Medical Practitioners Professional Conduct Tribunal of South Australia found Dr Murphy guilty of unprofessional conduct in relation to his personal use of drugs of dependence and on 13 September 2007 suspended his registration for 6 months.
4. He overcame the acute phase of his drug dependence approximately 14 years ago.
5. Dr Murphy's application for reinstatement of his registration following the 2007 suspension was not granted until May 2010. His registration was made subject to conditions ("the 2010 conditions") including that he not consume medication that was not prescribed for or recommended to him, that he not possess or supply Schedule 4 drugs of dependence, that he attend for urinalysis from time to time and that he only provide medical services to a maximum of 40 patients per day with appointments spaced at 15 minute intervals.[2]
6. Upon resuming an entitlement to practice medicine, Dr Murphy worked as a general practitioner at a general practice in Elizabeth from July 2010 until May 2014.

1. In 2012, the former Board commenced disciplinary proceedings against Dr Murphy in the former South Australian Health Practitioners Tribunal, alleging breaches of the 2010 conditions. One of the forms of action taken was immediate action under which the former Board required Dr Murphy to cease practice.
2. Dr Murphy sought and obtained from the former South Australian Health Practitioners Tribunal a stay of that immediate action and the disciplinary complaint proceeded.
3. The proceedings were protracted and the complaint was amended to incorporate what the Board alleged to be continuing breaches.
4. The breaches of the conditions alleged in the 2012 proceedings eventually covered a period between May 2010 and April 2015. During that period Dr Murphy moved practice from Elizabeth and worked from June 2014 until April 2015 at a day/night surgery in Plympton Park.
5. The allegations in the 2012 proceedings were that Dr Murphy had seen more than 40 patients a day on 15 occasions over approximately three years, that he had failed to attend for urinalysis on four occasions and attended late on 10 occasions over a period of approximately 18 months, that he had not attended the urinalysis centre on two occasions but had arranged his general practitioner to provide the samples and on a further occasion he provided a sample that was not signed by his general practitioner, that he administered Schedule 4 drugs to patients on four occasions in a twelve month period in 2013/14, that he failed to provide a list of his prescribing of Schedule 4 drugs within the time required on six occasions and that he obtained a prescription for himself for tramadol hydrochloride in 2011 from a physician who was not his approved treating doctor.[3]
6. In the 2012 proceedings, these breaches were admitted and the parties jointly proposed orders dated 29 April 2015 which led to Dr Murphy being reprimanded, having new conditions imposed upon him ("the 2015 conditions") and paying the Board's costs.

1. While the earlier proceedings were underway, Dr Murphy was charged with the criminal offence of two counts of uttering forged prescriptions for Tramadol and Stilnox on 13 February 2013. He pleaded not guilty but on 9 July 2015, a Magistrate found him guilty of those offences. He was sentenced to a period of imprisonment for 14 months, which was suspended upon him entering a bond to be of good behaviour for two years in the amount of $1,000.
2. Dr Murphy appealed that decision, first to a single Judge of the Supreme Court[4] and then to the Full Court.[5] Both appeals were unsuccessful. Those processes occurred over the period of September 2015 to August 2016.
3. Whilst the charges were laid during the 2012 disciplinary proceedings, and the Board was aware of them, the criminal process was protracted and the disciplinary proceedings continued independently of the criminal process. Accordingly, the 2012 disciplinary proceedings did not address the conduct alleged in the criminal charges.

1. The 2015 conditions repeated and expanded the earlier conditions and were very detailed and specific. Additional requirements included that Dr Murphy maintain patient logs, performance appraisals, consultations with his treating psychiatrist at a frequency determined by the Board, and that he refrain from prescribing for his family members.
2. The conditions required treatment for the addiction and quarterly psychiatric reports to the Board, professional supervision, and submission to drug testing.
3. The Board's complaint in these proceedings was filed in the former Health Practitioners Tribunal on 16 August 2017. Dr Murphy says that certain documents were received by him in February 2018 but that he did not open the documents because of anxiety and did not engage with the allegations until attending on Xenophon and Co, Barristers and Solicitors, in May 2018.[6]
4. In August 2019, the former Health Practitioners Tribunal was dissolved and the proceedings transitioned to SACAT. The complaint by then was in its fourth iteration, having been amended on several occasions to add alleged breaches said to have occurred since the earlier iterations of the complaint were filed. It was amended for the fifth and final time on 27 March 2020 to incorporate a further alleged breach said to have occurred in February 2020.
5. From December 2016 until December 2019, Dr Murphy continued to work as a general practitioner at the day/night surgery in Plympton Park. He worked for six months at an Ingle Farm practice between April and August 2019.
6. He has not worked since then except for a period of practice in New South Wales in February 2020.

1. The complaint as it was proceeded with before us contained 11 groups of allegations:

(a) Ground 1 containing allegations of 7 breaches of conditions imposed by the former Tribunal by its order of 29 April 2015 ('the 2015 conditions');

(b) Grounds 2 and 3 alleging that Dr Murphy knowingly uttered forged prescriptions at Frewville Pharmacy in 2012 (the same allegations that provided the basis for the criminal convictions);

(c) Ground 4 alleging that Dr Murphy knowingly falsely denied the facts regarding the forged prescriptions described in Ground 2, in an affirmation filed in the Tribunal;

(d) Ground 5, alleging that on multiple occasions Dr Murphy uttered forged pathology documents in the name of his general practitioner, knowing them to be forged;

(e) Ground A, alleging that on 13 occasions Dr Murphy prescribed Schedule 8 drugs to patients in contravention of the 2015 conditions;

(f) Ground B, alleging that on nine occasions Dr Murphy prescribed medication to himself in contravention of the 2015 conditions;

(g) Ground C, alleging that Dr Murphy twice prescribed medication to his brother in contravention of the 2015 conditions;

(h) Ground D, alleging that, when he did not have an approved place of practice or an approved supervisor, he practised medicine by issuing a prescription in contravention of the 2015 conditions;

(i) Ground E, alleging that when he did not have an approved place of practice or an approved supervisor, he practised medicine by ordering tests and making a referral for his wife in contravention of the 2015 conditions;

(j) Ground F, alleging that Dr Murphy practised as a general practitioner in Wagga Wagga in February 2020 without approval of that practice and without an approved supervisor, in breach of the 2015 conditions.

1. At the time of adding Ground F which alleged that Dr Murphy had practised in NSW without approval of his place of practice or his supervisor, the Board took immediate action and suspended his registration. That suspension endures and whilst not the subject of these proceedings, will be affected by the orders the Tribunal makes.

1. Dr Murphy was represented by two sets of solicitors during the period of these proceedings. When the proceedings transitioned to SACAT, he was represented by Xenophon and Co. In 2019 when Dr Murphy filed a response to the Third Amended Complaint, some of the factual allegations were admitted but Dr Murphy did not concede that any of the conduct amounted, either separately or cumulatively, to professional misconduct for the purposes of the National Law.[7]
2. Dr Murphy subsequently filed a response[8] to the Fourth Amended Complaint in January 2020. Xenophon and Co retained Senior Counsel for the hearing which was scheduled for 18 February 2020, but the legal team withdrew shortly before the hearing was due to be conducted and the hearing dates were then vacated to enable Dr Murphy to obtain new lawyers. He was then represented by Bourne Lawyers, but only on a limited basis not including a full hearing. During that period, a Fifth Amended Complaint and response were filed. The concessions made in the responses were largely reflected in the Statement of Agreed Facts which was filed and signed by his solicitors a few days prior to the hearing, including conceding in respect of some of the allegations that the conduct amounted to professional misconduct.

1. On the basis of the Agreed Facts, all of the factual allegations were admitted. However, the parties were not in agreement to how some of the conduct should be characterised, and in particular whether some of the conduct constituted professional misconduct, either separately or cumulatively.

1. The proceedings were heard over two days on 26 June 2020 and 15 July 2020.
2. The Tribunal was constituted of a legally qualified member (presiding), a medical practitioner and a consumer assessor.
3. The Board proceeded by way of reliance upon evidence it had filed that were contained in six volumes of materials and various affidavits, all of which Dr Murphy and the Tribunal were provided with in advance of the hearing, three outlines of argument filed in the lead-up to the hearing (dated 3 February 2020, 15 April 2020 and 19 June 2020), the Statement of Agreed Facts, and oral submissions.
4. The parties did not call witnesses but the Tribunal permitted Mr Ward on behalf of the Board to cross-examine Dr Murphy with respect to evidence that emerged when he made his submissions, that was inconsistent with the concessions in the Statement of Agreed Facts.
5. Dr Murphy did not file an Outline of Argument as directed prior to the hearing. However, on the first day of the hearing he provided a written document to which the Tribunal has had regard. The Tribunal will refer to this document as his Outline of Argument in the references made to it in this decision.

1. There were four issues to be determined in this matter.
2. The first was what orders should be made upon the admission of certain conduct by Dr Murphy, and the admission that the conduct amounted to professional misconduct for the purpose of s 5 of the National Law.
3. Section 5 provides that professional misconduct is:

(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. That definition makes reference to "unprofessional conduct" which is also defined as follows:

professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers and includes -

(a) A contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention;

(b) A contravention by the practitioner of

(i) A condition to which the practitioner's registration was subject; or

(ii) An undertaking given by the practitioner to the National Board that registers the practitioner;

(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practice the profession;

d) - f) ... (not relevant to these proceedings).

1. The second issue to be determined was what characterisation should be given to certain conduct that was admitted by Dr Murphy but where the Board and Dr Murphy did not agree as to whether it constituted professional misconduct and, following characterisation, what orders should follow.
2. The third issue to be determined was what findings to make in respect of assertions made by Dr Murphy that were contrary to the concessions made in the Statement of Agreed Facts.
3. The fourth issue was what, if anything, the Tribunal should do in response to Dr Murphy's request that the Tribunal, in making its orders, constrain the Board in its imposition of future conditions upon him. The respondent's position has been made clear to AHPRA for some time. In 2016, he wrote to AHPRA and said,

I wish to express the opinion that AHPRA has behaved highly inappropriately in regards to this matter. It's over 10 years since any drug testing has identified any non-prescribed drugs. Isn't it time to stop?[9]

Ground 1 - various breaches of the 2015 conditions

1. Ground 1 of the complaint, relating to eight breaches of the 2015 conditions, was admitted in the Statement of Agreed Facts:[10]

(a) Dr Murphy failed to supply patient logs to the Board within 14 days on five occasions in 2015 and 2016, establishing a contravention of condition 5.

(b) Between January and June 2019, Dr Murphy practised at the Plympton Park surgery while his supervisor was overseas, without arranging an alternate supervisor, in breach of condition 8.

(c) He failed to comply with the requirement in condition 10 that ensured an enduring relationship between him and his GP, Dr Maiolo, and did not seek approval for his new treating GP, Dr Rainbow.

(d) He did not provide quarterly reports from his treating GP from July 2016 to September 2017 in breach of condition 12.

(e) He failed to comply with condition 13 which circumscribed the manner in which he was required to submit to urinalysis, by not attending or otherwise failing to meet the requirements associated with testing, on 60 specified occasions between May 2015 and November 2019.

(f) He failed to incorporate Tramadol testing into his analysis when asked to do so by the Board in 2017 and thereafter provided tests on numerous occasions that did not test for the presence of Tramadol.

(g) He did not supply a fully complete list of Schedule 4 drugs to the Board for certain periods in breach of condition 16, because the lists he supplied did not indicate whether he had personally administered or supplied any Schedule 4 drugs.

(h) He failed to comply with condition 21 because he did not complete required education within the required period, did not provide the proposed education to the Board for approval before it was undertaken and did not undertake some of the required education at all.

1. On the basis that these breaches were all admitted in the Statement of Agreed Facts, the Board's case was that as each breach was a breach of a condition to which Dr Murphy's registration was subject, and a breach of the MBA Code. It submitted that the contraventions were conduct that was substantially below the conduct expected of a registered medical practitioner. The Board submitted that alone or together with the other breaches, the conduct was inconsistent with Dr Murphy being a fit and proper person to hold registration.
2. Broadly, the Board contended that the breaches demonstrated a "cavalier attitude" towards the conditions imposed upon him in 2015, and that the Tribunal should take into account that the gravamen of the allegations was the unwillingness or inability on Dr Murphy's part to comply with the regime ordered in 2015.

1. Dr Murphy spent a significant amount of the time allocated to him, and a significant amount of his written submissions, focused upon explaining or resiling from his admissions in respect of the Ground 1 allegations. In particular, he became resolute in his view that all but a very small number of the allegedly missed urinalysis tests were actually undertaken, and that many had been misplaced by AHPRA and later found.
2. In relation to the reporting obligations, Dr Murphy said he had to send one of the lists quarterly and one monthly and he "got them backwards".[11] Other contraventions alleged in Ground 1 were, in his view, "completely trivial". Further, with respect to contraventions, "if they can only complain about there's this four times in four years, I've actually had pretty good compliance."[12]
3. There were examples of urinalysis tests that he said had not been missed but had "gone astray". He submitted that AHPRA originally alleged that 462 were missing but some were subsequently located. He said

".. by the time of the 5th amended complaint there were only 99 [missing]. For the 99 in question, it's possible that I missed them, but it's also possible that AHPRA's chaotic system has lost them. I very rarely failed to telephone and on those occasions I did I usually informed AHPRA, but probably not as quickly as I should have."[13]

1. Dr Murphy pointed to the fact that the original allegations specified occasions that have since been withdrawn, because the missing tests had been found. He gave examples.[14]
2. He also admitted two examples where tests were missed. One was 4 May 2016. He said that on one occasion he forgot until the afternoon to ring the hotline with the recording which told him when the next test would be, so he did the test the next day instead and got confused over the fact that the following day was a test day as well, and therefore missed one test. He said,

The trouble was that I rang up and it was another urine test day and I thought, because there is no day on the announcement, that they hadn't changed the tape, so I didn't take it very seriously.[15]

1. He submitted in evidence that there were about thirty occasions that were originally claimed to be missing but subsequently the test results were located and the allegations withdrawn. This was at odds with the claim made in his outline of argument, which he was still writing during the hearing, which referred to 99 being missed. He said that "AHPRA is bold making a claim of anything on the basis of the urine records."[16]
2. Dr Murphy's evidence was that it was common for doctors to use a pseudonym in 2010 when seeking results for themselves or other doctors, to protect privacy from staff at the practice. Dr Murphy submitted that this had been approved by AHPRA but then conceded that it had been accepted by AHPRA without comment. He then conceded that it was not AHPRA but the former Medical Board of South Australia with which that arrangement existed. He submitted that, in any event, there was nothing in the rules that prohibited the use of a pseudonym.[17] It was agreed that after having been written to and requested to stop using a pseudonym, he did so. He described the allegation with respect to the use of a pseudonym as "egregious" and "a complete beat up".
3. In respect of the allegation that on numerous occasions he obtained the tests himself, bypassing Dr Maiolo, Dr Murphy submitted that he could choose to pay for the test himself, claim the rebate and that the utility of the test would not be impaired.[18] He described it as "extreme bureaucratic rigidity" and lacking a common sense approach to require him to submit to the arrangement to go through Dr Maiolo. As to the occasions on which he had forged Dr Maiolo's signature, he said,

Now I acknowledge that when I wasn't a GP, I attended Abbott Pathology and they gave me a blank form and I'd fill it in and I'd put "Dr Maiolo to receive the results", and sometimes they'd... and sometimes I would put a squiggle, so I was - I led a conspiracy to imply that Dr Maiolo had the result, and I apologise unreservedly for that and I will attempt to do what I can in the future to make sure that I never do that again. It was inappropriate.[19]

1. Dr Murphy resiled from the admission in the Statement of Agreed Facts that he had worked without arranging a replacement supervisor for Dr Ibrahim. His argument at the hearing was that he had emailed AHPRA nominating another doctor and he did not hear back so he assumed it was approved and that this was an "inadvertent breach".[20] He argued, in the alternative, that the fact that his supervisor was overseas did not constitute a breach.
2. In respect of the contraventions relating to education, he complained that AHPRA kept "moving the goalposts" and would not "give me the flexibility to decide [how to comply] myself". He said that AHPRA and he were "equally at fault".[21] He described the condition as being impossible to comply with. At this point in the proceedings, Dr Murphy drew an analogy between AHPRA and a perpetrator of domestic violence.[22] He said he felt micromanaged by AHPRA.[23]
3. He summarised his position in relation to Ground 1 as follows:

(a) It was "pretty trivial" that he sent in various lists late, and the allegations relate back to prior to April 2016 and have not been repeated;

(b) "At worst" he missed six urine tests in five years;

(c) He used the pseudonym on the assumption that AHPRA did not oppose the arrangement, and stopped when he was asked to;

(d) He no longer agrees that he contravened the requirement in respect of the provision of lists of Schedule 4 drugs;[24]

(e) He accepts that he failed to find a new general practitioner in a timely way.[25]

1. When asked to comment on what orders the Tribunal should make in respect of the admitted Ground 1 breaches, he submitted that the Tribunal should accept that the breaches would not have happened if AHPRA had not imposed conditions that were contrary to the recommendations of his doctors.[26]

1. Ground 1 did not contain the most serious of the allegations. However, the issue of the missed urinalysis tests occupied a significant portion of hearing time as it was evident that the conditions were a great source of frustration to Dr Murphy.
2. Dr Murphy resiled from his admissions in respect of some of the agreed breaches. We accept Dr Murphy's evidence that some tests that were originally claimed to have been missed were not the subject of allegations in the Fifth Amended complaint. We find that there is some doubt about at least one or more of the alleged failures. We find that some tests, admitted to by Dr Murphy, were missed. We have heard the variety of reasons as to why they were missed. The conclusions that can be drawn from the evidence about the urinalysis was:

(b) he complied most of the time but was not assiduous in compliance;

(c) Dr Murphy found the testing burdensome and thought it had no benefit; and

(d) he sought to justify any non-compliance and lay blame on AHPRA.

1. It would serve no purpose to make findings about each occasion of alleged non-compliance for the following reason. Even if all of the occasions alleged by the Board were established, the Tribunal would not find that they amounted to professional misconduct. Even if each of the tests that Dr Murphy alleged he had proven to have occurred, had in fact occurred, there are still some issues of minor non-compliance. Against the background, those admitted non-compliance incidents amounted, when viewed separately from the other non-compliance in Ground 1, and separately from the other Grounds, to unprofessional conduct.
2. In fact, in respect of each of the agreed Ground 1 breaches (except for those discussed below), we find that the breaches, viewed separately, constituted unprofessional conduct but not professional misconduct.
3. We note the statements of the NSW Tribunal, and the benefits of comity in respect of applying the National Law, in Health Care Complaints Commission v Townsend:[27]

The authorities have emphasised the need for health practitioners to scrupulously adhere to any conditions imposed. In Prakash v HCCC [2006] NSWCA 153, the Court of Appeal (at [74]) approved the comments of the Medical Tribunal in Re Dr Tan Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95):

When conditions are imposed, as they were here, for restoration to practice, those conditions must be scrupulously observed. It is even more serious when dishonesty supervenes ...

1. Whilst the Tribunal will not repeat this observation, it applies to each of the other grounds that relate to breaches of the 2015 conditions.
2. We consider that the allegations that constitute Ground 1, when viewed cumulatively, constitute professional misconduct. To fail to adhere to the conditions on so many occasions in different ways, even where no harm flowed from the individual breaches, demonstrated disregard for the disciplinary regime including the former Tribunal's orders.

1. The parties agreed that it was a term of the original conditions and the 2015 conditions that Dr Murphy was prohibited from possessing, supplying or administering Tramadol Hydrochloride or other Schedule 4 prescription drugs and that he only consume medications prescribed or recommended by his approved medical practitioners.[28]
2. It was agreed that Dr Murphy was convicted, in 2015, of two counts of knowingly uttering forged prescriptions for Schedule 4 drugs.[29]
3. It was an agreed fact that the conduct amounted to professional misconduct for the purposes of s 5 of the National Law.

1. The Board submitted that these breaches were very serious, particularly as one of the forged prescriptions was for Tramadol.
2. The Board referred the Tribunal to the judgment of Nicholson J in the Full Court appeal.[30] The Tribunal is expressly authorised to take into account the findings of any other court or Tribunal.[31] Nicholson J said,

The finding that it was the appellant who uttered P2 and P3 in the circumstances established by the evidence necessarily implied a finding that he did so intentionally and knowingly. That is, the appellant knew that he was handing over P2 and P3 with a request that he was to be supplied with each of the prescription drugs in question. The act of uttering could not have been accidental or inadvertent. Further, in the circumstances of this case, the fact that P2 and P3 were forgeries was incontestable and conceded by the appellant. Once it were to be found that the appellant knowingly had been the utterer, it necessarily followed that he must, at the time, have been aware that the scripts were forgeries, at least to the extent that by uttering the document he was representing himself as the person entitled to receive the drugs in circumstances where he knew that he had no such entitlement.[32]

1. The Board referred the Tribunal to MBA v I[33] in which a medical practitioner who used another practitioner's prescription pad to enable her to forge two prescriptions for herself in order to get access to drugs she was abusing. In that case, the South Australian Health Practitioners Tribunal found that the conduct was "substantially below the accepted standard of conduct" for a medical practitioner.[34]

1. Dr Murphy, whilst admitting the fact of his conviction, submitted that he still did not agree with it.
2. It was not a focus of his case, notwithstanding that the Tribunal directed him to make submissions about it on several occasions on the basis that the Tribunal's preliminary view was that it was a significant part of the Board's case.
3. In his outline of argument, he said:

In 2013 I was charged and convicted with an offence. The embarrassing details are available in the documents. I remain of the belief that the circumstances of the offence were different to that decided by the court, but I acknowledge that if the tribunal feels some additional penalty is appropriate, I need to accept that.[35]

1. In closing, Dr Murphy said that he accepted the court's finding and that it was "grievous misbehaviour or whatever you want to call it."[36]

1. The Tribunal finds the conduct alleged in Grounds 2 and 3 proven. The conduct was inimical to the proper conduct of a medical practitioner and was substantially below that which could reasonably have been expected of him as a practitioner of his experience.
2. Dr Murphy maintains that he was not dependent on opioids at the time of the offence. The nature of the conduct and the dishonesty attached to it lead the Tribunal to conclude that it was professional misconduct of the nature described by s 5(c), namely that which is inconsistent with the practitioner being fit and proper to practise.
3. The Tribunal observes that while the Board had only just imposed a new set of conditions upon Dr Murphy when the conviction occurred, and was already gathering evidence of Dr Murphy's failure to comply with the 2015 conditions on registration, there was a lot to be said for proceeding with this allegation that which makes up Ground 4, as a discrete complaint whereupon it may have been disposed of much closer to the relevant events. In our view, it would have been preferable for the Board to have ensured that this grave misconduct could have been dealt with as promptly as possible by the Tribunal. However, it is our view that we must respond to the conduct, notwithstanding that it occurred some seven years ago.

Ground 4 - that Dr Murphy knowingly provided false statements in connection with immediate action taken by the Board

1. The parties agreed that in support of his application to stay the immediate action taken by the Board in 2014, Dr Murphy filed an affirmed statement dated 6 March 2015 in the former Health Practitioners Tribunal informing the Tribunal with respect to the criminal charges he was facing at that time. In that affirmation Dr Murphy said that he "gave evidence denying the charges" in court.
2. Ground 4 alleges that this statement amounted to a statement that he was not guilty when in fact he was subsequently found guilty.

1. The Board submitted that Dr Murphy made affirmed statements to the Tribunal, knowing that they were false, and with the purpose of causing the Tribunal to believe that he was not guilty of the charges.[37] The Board alleges that to make a false affirmation knowing it to be false amounted to professional misconduct.

1. The respondent continues to assert that the conviction was wrong. The respondent maintains that there was no professional misconduct in the statement in his affidavit.

1. The Tribunal acknowledges that there was no requirement for Dr Murphy to make positive statements by way of affirmation in the Tribunal in order to proceed with the defence of the criminal charges. Nevertheless, the Tribunal does not consider the making of the affirmed statement amounts to professional misconduct. It was a bare assertion of denial and not an elaborate account of his version of events (unlike the account given at trial). It was merely consistent with the position he was taking at the time whilst defending the charges.
2. Of greater concern to the Tribunal is that notwithstanding what was described as a "complex" trial,[38] followed by an appeal before a single Judge of the Supreme Court which considered numerous grounds of appeal, all of which were rejected, and consideration by the Full Court of the Supreme Court which also rejected Dr Murphy's arguments, Dr Murphy continues to maintain that he was wrongly convicted. It is to be noted that Vanstone J concluded her judgment rejecting his various grounds of appeal with the following words,

I have carefully considered the arguments mounted by Mrs Shaw in support of this appeal. In my view none has substance. This was a trial containing some complexities. It was conducted in the Magistrates Court and a police prosecutor, rather than counsel from the Office of the Director of Public Prosecutions, appeared. However, the prosecution case was a strong one. The two main witnesses were impressive. The magistrate's reasons for decision were cogent. I have no misgivings about the magistrate's decision. [39]

1. We find the conduct in Ground 4 proved, in that the alleged statements were made in the affirmed statement filed with the former Tribunal.
2. We would not find that the practitioner has engaged in professional misconduct in respect of the words in his affirmed statement, though we find that they were false. We find it to be unprofessional conduct within the meaning of that term in s 5 of the National Law. It was below the standard that might reasonably be expected of a medical practitioner by his peers or the public. We do, however, take into account Dr Murphy's persistent denial of his guilt of the criminal charges in the face of an exhaustive examination of the circumstances. This becomes relevant to the exercise of our discretion as to the appropriate orders in respect of the other grounds that have been established.

1. Grounds 5A - 5R inclusive are each allegations that on particular dates between about 5 May 2016 and 21 June 2017, Dr Murphy presented requests for pathology documents in the name of his treating general practitioner, Dr Maiolo, having signed Dr Maiolo's name himself, knowing it to be forged.
2. This conduct was admitted by Dr Murphy in his Response to the Fifth Amended Complaint.[40] It was also admitted in the Statement of Agreed Facts.[41] It was further admitted that the conduct amounted to professional misconduct.
3. Dr Murphy submitted the pathology requests to a pathology laboratory on 22 occasions between May 2016 and June 2017. These requests related to urine drug screenings. In respect of the requests the patient's name was given as either Graeme Murphy or his chosen pseudonym, Mervyn Graham. All purported to have been requested by Dr Murphy's general practitioner, Dr Maiolo, but none had. Twenty of them had Dr Maiolo's name signed by Dr Murphy whilst stating that they were requested by Dr Maiolo. One was signed by Dr Murphy but stated that it was requested by Dr Maiolo.
4. AHPRA wrote to Dr Murphy in June 2016 advising him that the use of the pseudonym Mervyn Graham was prohibited and that he was required to have his urine sample taken at an accredited centre and not taken by his general practitioner.[42]
5. Dr Murphy ceased attending on Dr Maiolo as his general practitioner in July 2016.
6. The Statement of Agreed Facts acknowledges that each presentation of the false forms described above amounted to professional misconduct within (a), (b) and/or (c) of s 5.

1. The Board contended that the conduct comprising this ground should be understood as dishonest insofar as it entailed presenting to the pathology laboratory documents which purported to be from Dr Maiolo but were in fact from himself.

1. Dr Murphy maintained that obtaining a pathology test was not something that was restricted to a medical practitioner and that he could have obtained his own pathology tests but for the requirement imposed by AHPRA that it be obtained by Dr Maiolo.
2. He maintained that he obtained the tests in Dr Maiolo's name because he had ceased seeing Dr Maiolo but needed to continue to comply with the testing regime. He conceded that it took him too long to find a new general practitioner after he ceased seeing Dr Maiolo in July 2016.

1. The Tribunal finds the allegations in Ground 5A to 5R of the Fifth Amended Complaint to be proven. The Tribunal considers that the conduct of Dr Murphy in forging Dr Maiolo's signature on documents over an 18 month period to be serious misconduct. Dr Murphy commenced this conduct whilst still under a good behaviour bond imposed on him in relation to uttering forged prescriptions.
2. The conduct was dishonest.
3. We have considered the evidence that Dr Murphy was anxious, depressed and avoidant at the time. Whilst those attributes may have since been managed to some extent by the treatment that Dr Murphy obtained and continues to have, it was also apparent to the Tribunal that the avoidant behaviour, at least, is still present. This was manifested in the evidence that Dr Murphy had not read many of the documents setting out the case against him. We find that the conduct of forging his general practitioner's signature on the tests is conduct that is inconsistent with the practitioner being a fit and proper person to practice medicine and so amounts to professional misconduct within s 5(c) of the National Law.

Ground A - prescribing or administering Schedule 8 drugs to patients

1. Ground A of the Fifth Amended Complaint alleges that on 11 occasions Dr Murphy gave Schedule 8 medications to patients when he was subject to a condition that he not do so without authority.
2. This conduct contravened condition 14 of the 2015 conditions. Dr Murphy prescribed, and in some cases administered, the medications to 11 patients on different occasions between October 2017 and November 2019.[43]
3. The Statement of Agreed Facts provides that the parties agree that this conduct was professional misconduct within (a) and (c) of the definition in s 5 of the National Law.

1. This conduct was the subject of affidavits from Ms Notley[44] and Dr Ibrahim.[45] In respect of three of the patients to whom those drugs were administered, Dr Murphy admitted that he hid the records so that AHPRA would not find out.[46]
2. The Board submitted that each of the incidents in Ground A are separate incidents of professional misconduct. It does not assert that any adverse consequences flowed to patients from these prescriptions.
3. The Board maintained that the Tribunal should not accept Dr Murphy's assertion that he did not know that codeine phosphate, one of the drugs prescribed, was a Schedule 8 drug. Dr Ibrahim's affidavit states that the surgery's practice system contains an alert with respect to that drug[47] such that Dr Murphy could not fail to have been made aware that the medication was a Schedule 8 drug.

1. Dr Murphy stated that one of the 11 contraventions in this category described an incident where he was in fact correcting an error in another practitioner's prescription, not prescribing himself. Dr Murphy was cross-examined by Mr Ward about this occasion. Dr Murphy maintained that he rang a 1800 number to correct Dr Ibrahim's prescription and that he did not record that in the patient's record because it would have been clear from the prescription that this had occurred.[48] The Tribunal was not satisfied with Dr Murphy's evidence about that incident. It was too detailed in some respects and too vague in others, to be persuasive that it was an accurate recall of events. Further, if he took an approach of seeking approval in respect of that occasion, there was an inconsistency in respect of his evidence about his approach more generally to the prescription of Schedule 8 drugs which was that he knew that he was not permitted to do it and yet did so on several other occasions.
2. He admitted giving "sick patients morphine" on three occasions. His explanation for that was that he felt overwhelmed by AHPRA. He said he felt like a Jew in Nazi Germany. He said, "So defying them at that point was like defying my ex-wife over packing the dishwasher, in that there was a perverse pleasure in defying the autocrat. Now, I apologise for that, but that was my mindset at the time..."[49]
3. In respect of other occasions of prescribing or administering Schedule 8 drugs, his evidence was that following an occasion of prescribing a Schedule 8 drug and not receiving a letter from the Department for Health advising him not to do so again, he continued on in the belief that it was acceptable. He subsequently formed the view that possibly AHPRA told the Department not to inform him when he breached the condition because they were "stirring the pot".[50]

1. In accordance with the Statement of Agreed Facts and having heard the evidence, the Tribunal finds the allegations in Ground A proven.
2. Prescribing Schedule 8 medication when he was prohibited from so doing was a condition in relation to which the Tribunal considers that Dr Murphy could not fail to have seen the purpose. Further, the prohibition was clear and there was no room for doubt as to how compliance was to be achieved.
3. We are particularly concerned that Dr Murphy hid the prescription and administration of these medicines to the patients by not recording the events. On each occasion of so doing, the patients' interests in having accurate records of their medications were subordinated to his decision to avoid detection for his breaches.
4. The parties agreed that the conduct fell to be characterised as professional misconduct within s 5(a) and s 5(c) of the National Law. We consider that it is best characterised as within s 5(a), which is more apt for conduct that occurs in the course of the practise of medicine.

Ground B - Dr Murphy prescribed medications to himself on eight occasions

1. The Statement of Agreed Facts provides that, on eight occasions between May 2017 and September 2019, Dr Murphy prescribed medications for himself, in contravention of condition 17 of the 2015 conditions.[51]
2. The medication was Rosuvastatin (a treatment for high cholesterol) and Agomelatine (an antidepressant) and Denosumab (a treatment for osteoporosis).

1. The Board submitted that we should reject Dr Murphy's submission that the breaches were, in effect, inadvertent because they arose when he was running out of medication and could not get to a doctor. The Board submitted that Dr Murphy was working in a large medical practice and it was implausible that he would not be able to obtain a prescription without breaching the conditions.[52]
2. The Board submitted that it was a deliberate breach of his conditions and is conduct that was substantially below that which is reasonably expected of a medical practitioner of his experience. It was submitted that each instance amounted to professional misconduct on its own, and the group stood alone from the others, without the need to accumulate it with other breaches to amount to such.
3. The Board submitted that this contravention amounts to professional misconduct under s 5(a), (b) and (c) of the definition.

1. In relation to the prescription of medicines to himself, Dr Murphy described his conduct as "stupid" and he was "suicidal all of the time" at that time, being until 2016, and so he was "scared to death of not taking the medication".[53]

1. The Tribunal finds the allegations in Ground B of the Fifth Amended Complaint proven.
2. This breach exemplifies Dr Murphy's approach to the conditions. Where he does not consider that there is utility in the condition imposed upon him, he justifies non-compliance.
3. The writing of the prescription for the anti-depressant was a particularly egregious breach because of the fact that Dr Murphy was under the treatment of a psychiatrist (whose report stated that he was seeing Dr Murphy once each two to four weeks at that time).
4. We consider that this breach constitutes professional misconduct under s 5(b) of the definition.

Ground C - Dr Murphy prescribed medicines to his brother on two occasions contrary to the condition prohibiting him from prescribing to family

1. On two occasions six months apart in December 2018 and July 2019, Dr Murphy prescribed medication for his brother in breach of condition 17 of the 2015 Tribunal conditions. One was an ear drop and the other was Salicylic Acid in aqueous cream.

1. The Board tendered a letter from a firm of solicitors acting on behalf of Dr Murphy dated 26 November 2012 to AHPRA.[54] In that letter, Dr Murphy's then lawyers wrote,

"Dr Murphy was surprised that your request extended to such a broad category of family members many of whom are remote and far from immediate".

"In the absence of any specific definition of interpretive provision it is our submission that "family" in this context means "immediate family" being Dr Murphy's parents, spouses, siblings and children."

1. The letter supplied AHPRA with the details of people who meet this definition, including the brother in relation to whom Dr Murphy subsequently prescribed medications described above.
2. The Board submitted that these contraventions amounted to professional misconduct within (a) or (b) of s 5.
3. The Board urged us to reject the argument that these contraventions were trivial because the medications were ones that could be purchased without a prescription from a pharmacy.[55] The Board submitted that we should instead focus on the contumelious disregard for the conditions that Dr Murphy demonstrated.

1. In relation to prescribing eardrops for his brother, he described the situation as "a bit Monty Python", and that he did it because he "genuinely believed his [brother's] name was not on the list".[56]
2. He said that at the time, he was not aware that his brother was a person whose relationship with him came within the definition of "family" in the condition.
3. Later, he said that he was "guilty with mitigating factors", being his "extreme frustration" at the conditions having been in place for so long. He concedes he did not react rationally.[57] Dr Murphy did not admit that the conduct was professional misconduct.

1. The Board finds the allegations in Ground C to be proven.
2. We are prepared to accept that, in late 2018, Dr Murphy may have overlooked that the scope of the conditions was the subject of correspondence between his lawyers and AHPRA in 2012. However, we consider as he knew he was not entitled to prescribe to family members, it must have occurred to him that his brother came within that definition. At the very least, we consider that it was reckless of him not to check. Against the background of having been disciplined for breaches of conditions, we consider that where there was any doubt as to the meaning, it would have been prudent to enquire. His failure to do so, and to act instead in a way that was convenient to him, was conduct that fell below the standard reasonably expected of him.
3. We note that the medications were ones to which only a very low risk attached of an adverse outcome resulting from their prescription. We characterise this conduct, standing alone, as unprofessional conduct.

Ground D - Dr Murphy engaged in several acts of practising medicine without an approved supervisor or approved place of practice

1. Dr Murphy's employment at the Plympton Park Day/Night Surgery was terminated on 16 December 2019 after the practice determined that Dr Murphy was non-compliant with some of his conditions. At that point in time, his supervisor, Dr Ibrahim, resigned as the approved supervisor. From that point in time, Dr Murphy had no approved practice and no approved supervisor. Under the 2015 conditions (3 and 8), this effectively prevented him from practising medicine.[58]
2. After that date, on 21 December 2019, Dr Murphy issued a prescription to a patient for an antibiotic. The Statement of Agreed Facts contains an admission that this conduct occurred.

1. The Board submits that the conduct is professional misconduct within (a) or (b) of s 5. It says that the breach was deliberate and was conduct substantially below the standard reasonably expected.

1. Dr Murphy's response to the Fifth Amended Complaint admits a prescription to a patient, RQ, was made, and the admission is repeated in the Statement of Agreed Facts.
2. Dr Murphy explained that RQ was a long-standing patient with whom he played golf and whom he knew very well. He said that he did not charge Medicare and there could be no argument that there was any risk to the public in doing what he did.

1. We find the allegation in Ground D proved in accordance with the Statement of Agreed Facts and on the basis of the evidence before the Tribunal.
2. There is no suggestion that the patient received inappropriate treatment.
3. As an isolated event, the contravention of the condition is unprofessional conduct, and not professional misconduct. It is below the standard expected by the public and peers, but in the context of the long-standing relationship and the nature of the prescription, this particular conduct viewed in isolation was not so egregious as to be professional misconduct.

Ground E - referring his wife for pathology tests

1. On 4 February 2020, whilst he was still without a place of practice or an approved supervisor, Dr Murphy wrote a referral for his wife and a request for pathology tests for her.[59] This contravened his conditions as he did not have an approved place of practice or an approved supervisor.[60]
2. The conduct was admitted but there was no agreement as to how it should be characterised.
3. There was no suggestion that Dr Murphy's wife received inappropriate treatment.

1. The Board submitted that this conduct amounted to professional misconduct under s 5(a) or (b) of the definition.

1. Dr Murphy explained to the Tribunal that the prescription for his wife was because she was having chest pain and the quickest thing was to get blood tests to ensure it was not a cardiac incident. He made the point that although his actions contravened the conditions, he was still on the medical register.

1. We find the allegations in Ground E to be proven. We consider the conduct, in isolation from the history of the matter and the other contraventions, to be unprofessional conduct. It is below the standard of conduct that the public and his peers would expect as it contravened his conditions and there was insufficient explanation as to why it was not possible for his wife to be appropriately treated without this occurring.

Ground F - practising medicine in Wagga Wagga without approval

1. In the week commencing 24 February 2020, Dr Murphy commenced practice at a surgery in Wagga Wagga, New South Wales. The breach came to light when an AHPRA officer[61] was attempting to contact Dr Murphy to advise him of a proposed suspension of his registration due to the breaches that were later alleged in Grounds A, B and C of the Fifth Amended Complaint. When the officer reached Dr Murphy by phone she ascertained that he was working as a general practitioner in NSW.[62]
2. In the Statement of Agreed Facts, the conduct is admitted.

1. The Board submitted that there are protocols in place between AHPRA and the NSW Medical Council to address the treatment of conditions imposed on a registration.[63] In effect, the Board's position was that the Council would not have issued an approval to Dr Murphy to practise unrestricted if it had been made aware that he sought to practise there.
2. The Board submits that the conduct amounted to unprofessional conduct for the purposes of (a) or (b) of s 5.

1. Dr Murphy submitted that he went to work in NSW because the profession is regulated differently there. He believed that the Council would treat him more favourably than the Medical Board and AHPRA had done in South Australia.
2. Dr Murphy resiled at the hearing from the agreed fact that he did not seek approval from the Board or the NSW Medical Council to practise at Peter Street Surgery in Wagga Wagga.[64] He said that he told "Jacqui", the practice manager at Peter Street Surgery, that he was unable to practise without supervision in South Australia and that "I told her [to ring the Medical Council] and she said she had already done it before I started."[65] He said,

I did not believe it was illegal for me to commence working there and I believed that approval could quickly be organised, and I discussed it with the owner of the practice and he and I went online and Medicare allocated me a provider number. So I thought, "Well, if Medicare will allocate me a provider number, that's all ok.[66]

1. He could not remember the name of the person who was proposed to be his supervisor, who was the owner of the practice.[67] At the hearing, he requested an adjournment to obtain evidence to prove that he had asked "Jacqui" to seek approval on his behalf from the NSW Medical Council. That was one of three reasons that the proceedings were adjourned for a further day's evidence. However, when the proceedings resumed approximately three weeks later, that evidence was not produced.

1. We find the allegation in the Complaint to be proven.
2. The Board requested that we find that he is bound by his admission, however the nature of disciplinary proceedings does not lend itself to that approach. If a compelling account was provided of why an earlier admission was wrongly made and a fresh account was found to be established, the Tribunal would be required, in the pursuit of making appropriate orders for the protection of the public, to consider that evidence. However, that was not the case here. Dr Murphy did not establish that the admission was wrongly made. We find that it was properly made and represents the truth of the matter; Dr Murphy did not ensure that there was an approval in place for him to practise from the Wagga Wagga premises. We find that he did not ensure that he had an approved supervisor.
3. We consider that this breach constituted conduct that was professional misconduct within s 5(a) of the definition. It was conduct that fell substantially below the standard of conduct reasonably expected of a practitioner of Dr Murphy's experience.

Summary of the Tribunal's findings and characterisation

1. We have found that with respect to Ground 1 Dr Murphy has breached the 2015 conditions in that he:

(a) Failed to supply certain patient logs within 14 days on various occasions in 2015 and 2016;

(b) Practised at the Plympton Park surgery while Dr Ibrahim was overseas and was not acting as his supervisor;

(c) Did not identify and obtain approval for his new general practitioner, Dr Rainbow;

(d) Failed to comply with the requirements for provision of several urinalysis tests;

(e) Did not incorporate Tramadol into his testing in 2017 and provided tests that had not included Tramadol;

(f) Did not supply a fully complete list of Schedule 4 drugs; and

(g) Did not complete required education within the specified time and did not obtain approval for some education.

1. In respect of Ground 1, we consider that each individual incident of the conduct constitutes unprofessional conduct however, when these incidents are viewed cumulatively, they constitute professional misconduct within the meaning of s 5(b) of the National Law.
2. In respect of Ground 2, we have found that Dr Murphy uttered a forged prescription for Tramadol on or about 13 February 2013 and that this conduct constitutes professional misconduct within the meaning of s 5(c) of the National Law.
3. In respect of Ground 3, we have found that Dr Murphy uttered a forged prescription for Zolpidem Tartrate on or about 13 February 2013 and that this conduct constitutes professional misconduct within the meaning of s 5(a) and (c) of the National Law.
4. In respect of Ground 4 we have found that Dr Murphy knowingly falsely denied facts and matters in respect of the allegations made in Grounds 2 and 3, in an affirmed statement submitted to the former Health Practitioners Tribunal. We consider that this conduct constitutes unprofessional conduct within the meaning of s 5 of the National Law.
5. In respect of Ground 5, we have found that Dr Murphy uttered numerous forged requests for pathology services and we consider that the conduct is professional misconduct within the meaning of s 5(c) of the National Law.
6. In respect of Ground A, we have found that Dr Murphy, on several occasions, prescribed Schedule 8 drugs to patients and that each event constituted professional misconduct within the meaning of s 5(a) and 5(c) however it is best characterised as falling within s 5(a) of the National Law.
7. In respect of Ground B, we have found that Dr Murphy prescribed medications to himself on several occasions, and that each occasion constituted professional misconduct within the meaning of s 5(b) of the National Law.
8. In respect of Ground C, we have found that Dr Murphy prescribed medicines to his brother on two occasions and that this, viewed separately from the other conduct, constituted unprofessional conduct for the purpose of the National Law.
9. In respect of Ground D, we have found that Dr Murphy practised medicine on two occasions in late 2019 when he did not have an approved place of practice or an approved supervisor. We consider that, viewed separately from the other conduct, this was unprofessional conduct for the purpose of the National Law.

What sorts of orders can be made in response to these findings?

1. The findings we have made are that Dr Murphy has engaged in professional misconduct, which is one of several decisions listed in s 196(1)(b) of the National Law. Section 196(2) sets out the powers to make orders in consequence of such a decision, as follows:

196 - Decision by responsible tribunal about registered health practitioner

(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(a) caution or reprimand the practitioner;

(b) impose a condition on the practitioner's registration, including, for example -

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(e) cancel the practitioner's registration.

(3) 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.

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person, either permanently or for a stated period, from -

(i) providing any health service or a specified health service; or

(ii) using any title or a specified title.

Board's submissions as to the appropriate orders

1. The Board assisted the Tribunal by identifying various factors relevant to the consideration of the appropriate orders as set out in various cases.
2. It observed that the paramount purpose of orders is the protection of the public[68] and that in weighing the seriousness of conduct the question for the Tribunal to ask itself is how far below the standard expected of a practitioner with Dr Murphy's experience was the conduct that was found to have occurred.[69]
3. The Board reminded the Tribunal that factors that might be understood to mitigate professional misconduct are of less relevance to the making of appropriate orders in this jurisdiction than they are in the criminal jurisdiction because of the protective rather than punitive nature of this jurisdiction.[70] The Board recommended that the Tribunal take into account that this is the third disciplinary proceeding brought in relation to Dr Murphy.[71] The Board submitted that we should give careful consideration to the dishonesty attaching to the breaches of the conditions not to prescribe Schedule 8 drugs and the fact that Dr Murphy deliberately hid those from AHPRA by not recording those prescriptions in the patients' notes.[72] It referred us to the dishonesty attached to the supply of documents in Dr Maiolo's name. The Board submitted that the breaches demonstrate that he has learned nothing from the 2015 disciplinary proceedings in respect of the conditions imposed on him in 2010, such that the Tribunal could have no confidence that he would comply with conditions in the future.
4. In relation to the respondent's medical evidence, the Board submitted that it reveals that Dr Murphy is depressed but otherwise does not have a psychiatric condition, and that he is medically fit to practice. The Board identified that where offending is serious and over a period of time, evidence of mental illness does not indicate that orders by way of sanction are mitigated.[73]
5. The Board contended for a global approach to orders. The Board submitted that each separate ground constitutes professional misconduct. The Board submitted that the Tribunal should reprimand Dr Murphy to demonstrate that the conduct is not condoned. It submitted that we should cancel Dr Murphy's registration under s 196(4)(a) of the National Law and disqualify him from applying for re-registration for 3-4 years. He noted that the proceedings had been on foot for three years and Dr Murphy has not read the affidavits, and not prepared the case that he needed to, notwithstanding having been assisted by legal representatives for most of the period. The Board noted that an order of cancellation would override the current suspension operating on Dr Murphy under the immediate action order. The Board sought to have an order for costs in its favour.

1. Dr Murphy urged the Tribunal to stand back and reflect on the lack of any harm caused by the breaches. He said,

In regard to the above prescriptions [issued in contravention of the conditions], and indeed in regard to other breaches which include including the fact that I prescribed Agomelatine for myself when I'd run out, and that I'd prescribed ear drops for my brother in indeed cough syrup for someone with a cough, I ask the court to look at the issue as it evolved over the 14 years. Whilst it would have been better to avoid irritating the AHPRA bureaucrats, would an external observer find it reasonable that 14 years beyond having a problem, I could not permit a nurse to give Morphine to an acutely unwell patient, I could not prescribe myself an anti-depressant, order cough syrup for someone with a cough or offer ear drops to my brother. It is many, many years since there was any community protection interest in these restrictions. I think it's reasonable to say that they should have not been in place, but my relationship with AHPRA had become more and more toxic over the years, and AHPRA had left the restrictions in place for purely punitive reasons. In essence this is a childish response, an adult response would be to say what conditions are necessary to protect the public at this point in time, and the answer is very few. But the answer is also, listen to my treating doctors.[74]

1. In relation to insight, Dr Murphy described himself as having "strong narcissistic features" and said,

I do have strong narcissistic features and it's been a problem, a significant problem. What a narcissistic person does is they rationalise when things go wrong and - well, it's always the other person's fault. Now, I've done some really stupid things in the last 10 years, and I bear substantial responsibility for the point where we are now. Now, Mr Ward has predictably tried to argue I have no insight. Now, I am sure there's a hundred (indistinct) where my insight is incomplete, but a substantial contribution to where we are now is AHPRA's management of the conditions, and so far they've admitted no insight and no possibility that they might be wrong at all. So, firstly, I think AHPRA - and Mr Ward on their behalf's - lack of insight is a bigger problem than mine, and, secondly, if we're going to resolve this in the future and I'm stay in South Australia - which would be my preference - the Tribunal actually needs to constrain them in putting conditions in not recommended by my doctors ...[75]

1. Dr Murphy submitted that the "only way he can survive this" is if the Tribunal issues him a penalty and then constrains AHPRA to only imposing conditions that his treating doctors consider to be appropriate.
2. He submitted that cancellation and disqualification would be inappropriate because AHPRA contributed significantly to the situation that arose. He submitted that his mental health has been completely destroyed but that he is fit to practice,[76] and indeed happier when working. He asked the Tribunal to conclude that for most of the time that they have been in place, the conditions were inappropriate and in particular there was no utility in the 40 patient a day condition that it had caused him significant stress.[77]
3. Dr Murphy tendered a medical report of Dr Clarke dated 24 June 2020 and a report of Dr Kassapidis dated 23 June 2020 and a report of Dr Rainbow dated 23 June 2020. These are considered in more detail below.
4. Dr Murphy said he believed he should have a penalty. He thought it should be "no more than nine months and that it should be backdated to the 8th of December [2019, when he ceased working at the Plympton surgery] taking out the week that I worked in New South Wales".[78] He said that he considered that AHPRA should be "required to sympathetically re-register me imposing only those conditions where there was a genuine case of where there was a genuine [public] interest". He was not averse to the 40 patient a day condition except insofar as it was "aggressively audited". He considers that he should no longer be subject to urine tests. He says that if there were to be drug testing it should be hair testing for a fixed period. He would agree to a restriction that he not prescribe Schedule 4 or Schedule 8 drugs to himself or relatives.
5. He considered that 90% of the allegations had been disproven and that therefore the allocation of costs should be 90% against AHPRA.

1. The report of Dr Clarke, Psychiatrist, was dated 24 June 2020. It set out that Dr Clarke has been treating Dr Murphy since 2006 and that he had, since that time, attended at intervals of two to four weeks. Dr Clarke observed that Dr Murphy has a chronic adjustment disorder and has narcissistic and obsessional traits to his personality. He is of the view that these attributes "do not necessarily prevent Dr Murphy from safely practising medicine". He observes that the conditions on Dr Murphy have become counter-productive and Dr Murphy has become avoidant. He considers that the likelihood that Dr Murphy would abuse prescription or non-prescription drugs to be low and that this has been the case for some time.
2. Dr Paul Kassapidis, Psychologist, provided a report dated 23 June 2020. His report sets out that Dr Rainbow had referred Dr Murphy to him for management of anxiety. Dr Kassapidis set out that in February 2020 when he first saw Dr Murphy, he did not deny the allegations contained in the complaint but sought to explain them. Dr Kassipidis described him as agitated and eccentric. He said,

"Although he presents with appropriate insight with regards to the importance of said requirements regarding urine tests and supervision, he cannot 'move' from the steadfast view that these conditions are simple examples of 'bureaucratic rigidity' that he experiences as both overwhelming and essentially terrifying."[79]

1. Dr Kassapidis advised that he could not find any clinical evidence to suggest that Dr Murphy's capacity to practice medicine had been adversely affected but deferred to Dr Clarke on that issue. He found no clinical indicators to suggest that the public are at risk. He considered that Dr Murphy's risk of abusing prescription and/or non-prescription drugs is no higher than any other individual who has abstained from using drugs for such a lengthy time. He recommended that the conditions be removed.
2. Dr Murphy's treating general practitioner, Dr Rainbow, provided a report dated 23 June 2020. She said that she had treated him since August 2017 for depression and anxiety, which is "well-managed and does not impact on his ability to practice as a general practitioner". She observed that the current conditions on his registration impact on his mental health because he feels that they are unfair and punitive.

1. In Craig v Medical Board of South Australia, the Full Court set out the purpose of disciplinary orders. Doyle CJ said,

The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

...

In the case of a professional disciplinary tribunal, an obvious type of order protective of the public is an order cancelling the registration or recognition of a person as a member of a profession. Such an order removes the right to practise in the profession, thereby protecting the public against a person found unfit to be a practitioner.

...

In other cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest.[80]

1. In Health Care Complaints Commission v Litchfield, the New South Wales Court of Appeal said:

The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.[81]

1. The contraventions have in common Dr Murphy's frustration with conditions that he does not think are necessary. His view of what is required for the protection of the public is narrower than that taken by the Tribunal. The public must be protected in respect of the misuse of the architecture of medical practice which is expressed, in part, by controls over prescribing medications. The purpose of disciplinary orders also goes beyond the protection of patients from receiving the wrong treatment. They operate to ensure that the trust that the public puts into the medical profession is maintained. They also operate to ensure that the profession appreciates that any conditions placed upon a practitioner by the health practitioner regulatory regime, whether AHPRA or the Tribunal, must be scrupulously adhered to.[82]
2. On 7 October 2016, AHPRA reminded Dr Murphy that he could apply to have the conditions varied or revoked.[83] He did not take that path but continued to evade them from time to time. Herein lies much of the current problem, which has superseded the original problem of Dr Murphy's abuse of opioids. Dr Murphy cannot or will not comply with rules unless he sees their utility.
3. At this point, we observe that it was a theme of Dr Murphy's case that the conditions imposed upon him were imposed contrary to his doctors' recommendations. The Board's response to this claim was to point out that the 2015 conditions were made following an agreed position put to the Tribunal. The Board further pointed out that, irrespective of whether a doctor or doctors had made recommendations about the conditions (which was not conceded), once the conditions were in place it was incumbent upon Dr Murphy to comply with them assiduously or take some action to have them removed or varied. When the Tribunal adjourned after the hearing on 26 June 2020, one of the actions Dr Murphy stated that he proposed to take was to bring the evidence of those doctors' recommendations before the Tribunal. He described this as "pivotal" to his case.[84] Nothing then transpired in that regard. Nevertheless, we acknowledge that the recently-obtained medical evidence states that several of the conditions are not necessary to protect the public from the possibility that Dr Murphy will abuse opioids. The Board will need to bear this in mind.

In looking at the broader issue of whether Dr Murphy is a fit and proper person to be a registered medical practitioner, my assessment of his personality and the behaviours that he exhibited leading to his suspension in 2007 as well as the criminal charges also occurring in that year, raises questions as to his character and his suitability to practice.[85]

1. By reason of the lack of a psychiatric diagnosis other than depression, we accept that the medical evidence does not establish that Dr Murphy is unfit, in a medical sense, to practice, or that his fitness is a question that the disciplinary proceedings can determine.
2. We therefore simply observe that Dr Murphy's conduct during the hearing leaves the Tribunal with a considerable level of disquiet as to his suitability to practice medicine. In addition to forgetfulness, excessive irritability, and disorganisation, Dr Murphy's use of analogies referring to domestic violence and Nazi-led Germany were inappropriate and revealed an absence of insight, emotional regulation and objectivity that the Tribunal considers necessary for the discharge of the functions of a general practitioner. His outline of argument was rambling, self-righteous and sought to minimise his responsibility. It also revealed despair and anger at the seemingly paradoxical situation in which he finds himself with respect to the conditions. These are matters that he and the Board might reflect upon should there be an occasion upon which Dr Murphy seeks to practice medicine in the future.
3. It is the Tribunal's view that a reprimand is appropriate to convey disapprobation in respect of the conduct as a whole.
4. The Tribunal considers that cancellation of Dr Murphy's registration is the appropriate order to make, because of the gravity of certain of the conduct and because of the cumulative effect of other conduct. The conduct found (and largely admitted) in Grounds 2, 3, A and B is so serious that it is incompatible with Dr Murphy being a fit and proper person to practise medicine.
5. For the avoidance of doubt, we would cancel or suspend Dr Murphy's registration in respect of each of the findings made in respect of Grounds 2, 3, A and B without requiring any reliance upon other findings (including reliance on findings within that group). Once accumulated with one another, and with the findings of unprofessional conduct, these findings indicate that cancellation is appropriate.
6. We consider that Dr Murphy should be disqualified from registering as a medical practitioner for a period of three years. During that period, it is to be hoped that Dr Murphy might continue to address his mental health and take steps towards working, if he chooses to apply to re-register, within the regulatory regime that establishes the framework for the profession of medical practice.

1. The Tribunal made the following orders:
   1. The respondent is reprimanded.
   2. The respondent's registration is cancelled effective from 12.01 am on the day following this order.
   3. The respondent is disqualified from applying for registration for a period of three years from the day following this order.
   4. The respondent is to pay the applicant its costs in an amount to be agreed and in the event of no agreement, to be adjudicated by the Tribunal.
   5. Pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 we prohibit the publication of the names of, or anything tending to identify, patients referred to in the complaint.

[1] Response dated 4 June 2019 (filed in response to the Third Amended Complaint).

[2] Statement of Agreed Facts dated 24 June 2020 at [7].

[4] Murphy v Police [2015] SASC 193.

[5] Murphy v Police [2016] SASCFC 81.

[6] Affidavit of Dr Graeme Murphy dated 21 December 2018.

[7] Response dated 4 June 2019 at [20], [35], [43].

[8] The Response is contained as an annexure to the Affidavit of Nicholas Xenophon sworn on 24 January 2020.

[9] Book of Documents filed 22 June 2020 at page 1636.

[10] Statement of Agreed Facts dated 24 June 2020 at [9]-[20].

[11] Transcript of hearing on 26 June 2020 at page 53.

[13] Respondent's Outline of Argument dated 26 June 2020 at page 7.

[14] For example, the occasion on 17 June 2017 - see, Transcript of hearing on 26 June 2020 at page 53.

[15] Transcript of hearing on 26 June 2020 at page 55.

[17] Transcript of hearing on 26 June 2020 at page 58.

[24] Transcript of hearing on 15 July 2020 at pages 71 and 73

[25] See, for example, Respondent's Outline of Argument dated 26 June 2020 at [13.7].

[26] Transcript of hearing on 26 June 2020 at page 61.

[27] [2016] NSWCATOD 118 at [79].

[28] Statement of Agreed Facts dated 24 June 2020 at [22].

[30] Book of Documents filed 22 June 2020 at page p 1555.

[31] South Australian Civil and Administrative Tribunal Act 2013 s 39(1)(b).

[32] Murphy v Police [2016] SASCFC 81 at [59].

[33] [2014] SAHPT 18.

[35] Outline of Argument dated 26 June 2020 at page 11.

[36] Transcript of hearing on 15 July 2020 at page p 74.

[37] Transcript of hearing on 26 June 2020 at page 33.

[38] Murphy v Police [2015] SASC 193 at [71] (Vanstone J).

[40] Book of Documents filed 22 June 2020 at page 75.

1. [41] See also, Affidavit of Joanna Fraser dated 10 February 2020, Second Affidavit of Jessica Helyard dated 27 May 2020 (Exhibit A3), Affidavit of Georgia Combe dated 11 February 2020, Affidavit of Michael Futter dated 24 June 2020 (Exhibit A2) (and in particular MF1C), Affidavit of Nadine Shiells 29 May 2020, and Affidavit of Dr Natale Maiolo dated 4 February 2020.

[42] Statement of Agreed Facts dated 24 June 2020 at [36]-[50].

[43] Statement of Agreed Facts dated 24 June 2020 at [54]-[55].

[46] Transcript of hearing on 26 June 2020 at page 36.

[48] Transcript of hearing on 15 July 2020 at page 15.

[49] Transcript of hearing on 26 June 2020 at page 76.

[50] Ibid at page 75. Outline of Argument dated 26 June 2020 at page 13.

[51] Statement of Agreed Facts dated 24 June 2020 at [56].

[52] Transcript of hearing on 26 June 2020 at page 36.

[54] Accepted as exhibit A5 by the Tribunal.

[55] Transcript of hearing on 26 June 2020 at page 38.

[57] Transcript of hearing on 15 July 2020 at page 76.

[58] See, Affidavit of Jessica Helyard dated 10 March 2020 and Affidavit of Georgena Notley dated 10 February 2020, both in the Book of Documents filed 22 June 2020; Affidavit of Mohammed Ibrahim dated 23 June 2020 (exhibit A4).

[59] See, Affidavit of Jessica Helyard dated 10 March 2020 and Affidavit of Georgena Notley dated 10 February 2020, both in the Book of Documents filed 22 June 2020, and Affidavit of Mohammed Ibrahim dated 23 June 2020 (exhibit A4).

[60] Statement of Agreed Facts dated 24 June 2020 at [61]-[73].

[61] Affidavit of Jessica Helyard dated 10 March 2020, Book of Documents filed 22 June 2020 at page 1311.

[62] Transcript of hearing on 26 June 2020 at page 39.

[68] Craig v Medical Board [2001] SASC 169; (2001) 79 SASR 545, 553-555.

[69] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, 637.

[70] Pharmacy Board of Australia and Nyoni [2018] WASAT 134.

[71] Complainant's First Outline of Argument at [48].

[72] Transcript of hearing on 15 July 2020 at page 78. Complainant's First Outline of Argument at [51].

[73] See, by analogy, Legal Practitioners Conduct Board v Ardalich [2005] SASC 478.

[74] Outline of Argument dated 26 June 2020 at page 14.

[75] Transcript of hearing on 26 June 2020 at page 51.

[78] Transcript of hearing on 15 July 2020 at page 76.

[79] Report of Dr Kassapidis dated 23 June 2020 at page 3.

[80] Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 (Doyle CJ, Williams and Martin JJ). See, in particular, pages 553-555 (Doyle CJ).

[81] Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, 638 (Gleeson CJ, Meagher JA and Handley JA).

[82] Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74].

[83] Book of Documents filed 22 June 2020 at page 1642.

[84] Transcript of hearing on 26 June 2020 at page 86.

[85] Report of Dr Clarke dated 18 January 2010 at page 4.