In a separate set of disciplinary proceedings concerning the pharmacist, the Tribunal had imposed a six months' suspension and conditions upon the pharmacist's resumption of practice.

The parties concurred upon a statement of agreed facts in which the respondent admitted that his actions constituted professional misconduct.

The complainant made submissions to the effect that:

• A harsher penalty than the one imposed upon the pharmacist is appropriate as there were notable differences between the professional experience of the respondent and the pharmacist and the pharmacist did not initiate the arrangement;
• The respondent's conduct falls within subsections (a) and (c) of the definition of "professional misconduct" under the National Law such that it would be appropriate to cancel his registration;
• The respondent's admissions to the conduct do not equate to an understanding of why the conduct amounted to professional misconduct; and
• The misconduct was serious as some patients had been prescribed with Schedule 8 drugs as a result of the arrangement.

The respondent made submissions to the effect that:

• A more lenient penalty than the one imposed upon the pharmacist is appropriate as the respondent did not co-opt the pharmacist into the arrangement. The pharmacist had already participated in the 2014 arrangement and his conduct involved dispensation of medication to many more patients and over a longer period of time;
• The respondent's conduct only falls within subsection (a) and not (c) of the National Law;
• The respondent obtained no financial benefit from the arrangement and the conduct was motivated by facilitating continuity of care to his patients;
• No patients were harmed as a result of the arrangement; and
• The staff member would only prescribe routine medication and some urgent medication as part of the arrangement.

• The respondent's conduct is more serious than that of the pharmacist;
• The different actions of the respondent and the pharmacist following the misconduct indicate that similar orders are not appropriate;
• Subsections (a), (b) and (c) of the definition of "professional misconduct" do not describe conduct that ascends in severity. Each subsection defines conduct of which orders may be appropriate for the protection of the public and conduct falling within any of the subsections may result in a cancellation of a practitioner's registration; and
• The respondent's conduct constitutes serious professional misconduct that falls within subsection (a) of the definition.

• The respondent's registration is cancelled; and
• The respondent is disqualified from applying for re-registration for a period of 18 months.

Health practitioners - Complaint by the Medical Board of Australia - Professional misconduct - Inappropriate patient management and care - Registration cancelled and disqualified from applying for registration for 18 months

Health practitioners - Complaint by the Medical Board of Australia - Professional misconduct - Inappropriate prescribing - Registration cancelled and disqualified from applying for registration for 18 months

Health practitioners - General principles - Categories of professional misconduct

Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) ss 39, 193, 196

Controlled Substances (Poisons) Regulations 2011 (SA) Sch 8

Pharmacy Board of Australia v Nguyen (2020/SA002872)

Medical Board of Australia v Tunbridge [2020] SACAT 34

NSW Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20

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

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

Physiotherapy Board of Australia v Adey [2017] SAHPT 3

Medical Board of Australia v Jansz [2011] VCAT 1026

Spicer v New South Wales Medical Board (NSW Court of Appeal Unreported 19 February 1981)

Medical Board of Australia v Cukier [2017] VCAT 109

Medical Board v Wong [2015] QCAT 439

Medical Practitioners Board of Victoria v Grolaux (No 2) (Occupation and Business Regulation) [2009] VCAT 978

Honey v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 526

For the complainant: Mr T Duggan QC with Mr S Hurburgh, Minter Ellison

For the respondent: Mr T Cox QC with Mr G Black, Wallmans Lawyers

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.

Order Cancelling the Practitioner's Registration

Made under the Health Practitioner Regulation National Law (South Australia) Act 2010.

1. This case concerns professional misconduct by a medical practitioner. It occurred when the respondent, Dr Singh, participated in an arrangement whereby certain of his patients were prescribed and dispensed medications in his name without Dr Singh treating them. It was an arrangement that entailed abdication of patient care and facilitating a person who is not a registered medical practitioner to issue prescriptions and to access patient medical records over a two week period in 2015.
2. The key issue in this case is whether the professional misconduct that Dr Singh admits to, and the context in which it occurred, are such that the protection of the public requires his registration to be cancelled, or whether some other order such as a period of suspension is appropriate.[1]
3. The Medical Board's referral to the Tribunal for orders in respect of the conduct proceeded by way of a Statement of Agreed Facts. The Tribunal makes the findings contained in that document. The agreed evidence was supplemented by detailed written submissions by the parties and oral submissions at a hearing on 14 August 2020.
4. A summary of the Agreed Facts is as follows:
   • The respondent is 83 years old and obtained a Bachelors of Medicine and Surgery from Singapore University before arriving in Australia.
   • The respondent holds a general registration and a specialist registration in general practice and was first registered to practise medicine in Australia on 30 July 1975.
   • The respondent practised as a medical practitioner at the All Health Medical Centre in Paralowie which was located near the Salisbury North Pharmacist Advice pharmacy in Salisbury, and the proprietor of that pharmacy was Mr Andrew Nguyen.
   • The All Health Medical Centre employed Mr Giuseppe Barbaro as a technical officer.
   • From at the latest 6 December 2011, the respondent was aware that Mr Barbaro was not a registered medical practitioner and had had his registration cancelled and that Mr Barbaro's duties at the All Health Medical Centre were restricted and did not permit him to treat patients or prescribe medication.
   • Dr Singh travelled overseas between 29 June and 23 July 2014 and during that period Mr Barbaro used the respondent's password and login details to access patients' medical records, and generated prescriptions for some of Dr Singh's patients using Dr Singh's name and prescriber number.
   • The patients were subsequently identified to the Tribunal in a schedule.
   • Certain patients had prescriptions generated by Mr Barbaro which were dispensed by Mr Nguyen at his pharmacy.
   • In the 12 months following his return from overseas, the respondent became aware that this had occurred.
   • Prior to the respondent travelling overseas on a further occasion between 27 April and 9 May 2015, he agreed with Mr Barbaro and Mr Nguyen that Mr Barbaro could access patient records to generate prescriptions for routine medications and some urgent medication, in the respondent's name and with the respondent's prescriber number, and Mr Nguyen could dispense those prescriptions without them having been signed by the respondent.
   • This arrangement was put into effect and the Tribunal was provided with details of various occasions on which it occurred and the patients in relation to whom the arrangement was put into effect. On some of those occasions, medication listed in Schedule 8 of the Uniform Poisons Standard as adopted by the Controlled Substances (Poisons) Regulations 2011 (SA) was prescribed and dispensed.
   • On one occasion, the respondent signed the prescription after his return from leave, and after the medication had been dispensed.
   • The conduct thus described breached various provisions of the Good Medical Practice, a Code of Conduct for Doctors in Australia, an approved code under s 39 of the Health Practitioner Regulation National Law (SA) Act 2010.
   • The conduct gave rise to a risk to the safety of the patients to whom prescriptions were generated.
   • The conduct compromised the integrity of the Medicare and Pharmaceutical Benefits Scheme.
   • The respondent's conduct had the effect of involving Mr Barbaro in activities outside the scope of his permitted work.
   • The conduct amounted to professional misconduct in that it was conduct substantially below the standard reasonably expected of a registered medical practitioner of the respondent's level of training and experience.

1. In addition to the Statement of Agreed Facts, a significant volume of material was provided to the Tribunal by the Board in support of the referral and we have relied upon that material to reach our decision.
2. Dr Singh did not provide a written statement or give evidence to the Tribunal. Dr Singh attended the hearing and we considered that this afforded Dr Singh an important opportunity, through the questions asked of the Board and the practitioner's representative, to hear the nature and extent of the Tribunal's concerns about the conduct.
3. Whether a practitioner who is subject to disciplinary action provides a statement or gives evidence is a matter for the practitioner to decide and the Tribunal is cautious about requesting that it occur as the practitioner may make a strategic decision not to expose himself or herself to questioning from the Tribunal members or in cross examination, if it is permitted. The Tribunal observes that the task of ascertaining the extent of insight a practitioner has into their conduct, and their plans for the future, are limited when such matters are conveyed through a representative. Nevertheless, in this case, the Tribunal was able to ascertain an adequate understanding of the practitioner's circumstances.
4. From the submissions and material provided to us, the following information additional to that which was contained in the Statement of Agreed Facts is relevant to our conclusions.
5. After arriving in Australia, the respondent practised in hospitals and private settings in NSW and then in regional South Australia.
6. The respondent lives with Guillain-Barré Syndrome, an immune disorder, which incapacitated him from work for nearly a year in the 1990s when it first affected him. Although he has recovered most of his basic function since then, this disorder has resulted in some lasting deficits to the condition of his health. It affected his speech and this made it difficult for him to gain employment as a general practitioner but he eventually commenced at the Paralowie practice in 2002.

The circumstances of before and after the 2015 arrangement

1. When he commenced at the Paralowie practice, Mr Barbaro was already employed there. The respondent was one of four practitioners employed by the practice and he was required to participate in supervising the arrangements under which Mr Barbaro was permitted to work at the practice. There was correspondence before the Tribunal that indicated that the respondent was aware of the nature of Mr Barbaro's breaches and the fact that the conduct that led to his registration being cancelled, was repeated instances of misconduct. These instances involved falsely notifying the birth of a child in New Zealand, and prescribing drugs to an undercover police officer on several occasions for non-medical purposes.
2. There was evidence before the Tribunal, in the form of a letter dated 6 December 2011 from Dr Singh that demonstrated that Dr Singh held Mr Barbaro in high regard.
3. The respondent became aware that, after his period of leave in 2014, Mr Barbaro had used his prescriber number to generate prescriptions for three of his patients in his absence. He did not report Mr Barbaro. The Tribunal was provided with evidence of the patients to whom medication was prescribed by Mr Barbaro, and dispensed by Mr Nguyen, during this period.[2] There was a significantly higher number of patients for whom Mr Barbaro generated prescriptions that were dispensed by Mr Nguyen, but the Tribunal proceeds on the basis that Dr Singh became aware, following his return from leave in 2014, of three of them.
4. In early 2015, the last of the other three employed medical practitioners left the practice such that the respondent was the only medical practitioner there. At that time, Dr Singh became Mr Barbaro's sole supervisor.
5. At some time prior to going overseas to attend a relative's wedding in June 2015, Dr Singh entered into the arrangement with Mr Nguyen and Mr Barbaro. There was no evidence before the Tribunal of an attempt by Dr Singh to arrange a locum, or to make arrangements with patients to ensure continuity of medication instead of the arrangement. Dr Singh did not know how many patients the 2015 arrangement would affect.
6. The Tribunal was provided with a description of each of the patients in relation to whom the 2015 arrangement resulted in dispensation of medication.[3] It is not necessary to recount them all here. There were 21 affected patients including three in relation to whom prescriptions for Sch 8 medications were dispensed. Others were issued with antibiotics and other medications. Two of the patients had not been issued with any prescription in the past by the practice but most had been issued with multiple previous prescriptions.
7. The instances involving Sch 8 prescriptions entailed patients being prescribed and dispensed medication such as OxyContin and Endone.
8. When interviewed by AHPRA during its investigation, the respondent gave an account of his reasons for entering into the arrangement which indicated that he considered that it would benefit his patients to have continuity of care during his absence but that there was no registered practitioner to provide that care. He told investigators that as Mr Barbaro was a doctor, the respondent was "making use of his knowledge but it doesn't abuse the system".[4] He expressed a concern about the inconvenience for patients having to go to other doctors to have continuity in their prescriptions and be "asked a thousand and one questions".[5]
9. Senior Counsel for Dr Singh invited the Tribunal to take into account that Dr Singh had developed some confidence in Mr Barbaro's skills and knowledge over their years of work together at the practice, based on the permitted activities. He committed that confidence to paper in a letter written on behalf of Mr Barbaro dated 6 December 2011. We were invited to take note that it was not an unqualified person to whom Dr Singh had entrusted prescribing authority.
10. After the investigation into his participation in the arrangement commenced, the respondent tried unsuccessfully to find work at a different practice. He was eventually successful in 2018 when he joined a clinic in Norwood.

Previous disciplinary history and current performance

1. AHPRA received a notification from the DOD Unit regarding Dr Singh's conduct with one particular patient in 2015.[6] This complaint arose during the period considered by the Tribunal for the current matter and was dealt with wholly within the relevant period. In respect of the prescribing complaint, Dr Singh gave an undertaking as set out in a letter of 11 December 2015 to cease prescribing Schedule 8 medication effective 1 February 2016.[7] That undertaking was subject to a review period and after that period concluded, the Board advised Dr Singh that no further action would be taken in respect of it, and Dr Singh's prescribing authority was restored.[8]
2. The Board has re-registered his practising licence five times since the conduct.[9] There have been no subsequent complaints regarding Dr Singh's conduct to which the Tribunal's attention was drawn.
3. Dr Singh provided a number of references from patients however it was not clear whether they knew the circumstances of the allegations. There were no references from current colleagues.[10]
4. Whereas Dr Singh worked 9 am - 5 pm, five days per week at the Paralowie practice, he now works four days per week from 10 am - 4 pm and a half day once a week.[11] He plans to reduce his time further in the future.
5. Against the agreed facts and the additional information received by the Tribunal, the parties were not in agreement as to the orders that the Tribunal should make in respect of the respondent. The Board, represented by Mr Duggan QC, submitted that the Tribunal should cancel the respondent's registration. Dr Singh, represented by Mr Cox QC, submitted that a short suspension of the respondent's registration would meet the needs of the disciplinary scheme and operate consistently with the Tribunal's orders in respect of Mr Nguyen, discussed further below.
6. The Tribunal has carefully considered the materials and submissions.

1. The referral to the Tribunal was made by the Board under s 193(2)(a) of Schedule 1 of the National Law. Because, in this matter, the practitioner has agreed that the conduct described in the referral amounts to professional misconduct, the Tribunal is required to decide, in accordance with s 196, whether to caution or reprimand the practitioner, impose a condition on his registration, impose a fine upon him, suspend his registration for a specified period or cancel his registration. Some of these actions may be imposed together. A cancellation can be accompanied by a disqualification period within which the practitioner may not re-apply for registration.

Consistency with the Tribunal's decision in relation to Mr Nguyen

1. In February 2020, the Tribunal heard the Pharmacy Board's application for orders in respect of Mr Nguyen arising from the arrangements described in these proceedings.[12] The Tribunal ordered that Mr Nguyen's registration be suspended for six months and that at the resumption of practice, Mr Nguyen be subject to certain conditions including a reprimand in strong terms. Proceedings concerning Mr Barbaro have not been finalised.
2. Senior Counsel for the Board submitted that the Tribunal should note the distinguishing features of Mr Nguyen's circumstances and those of the respondent including a significant difference in the professional experience of the two practitioners and the fact that Mr Nguyen did not initiate the arrangement.
3. Senior Counsel for Dr Singh made the point that it was not Dr Singh who co-opted Mr Nguyen. Mr Nguyen had already participated in the 2014 arrangement. It was argued that Dr Singh's case was a subset of the conduct of Mr Nguyen in that Dr Singh had only knowingly been involved in the second of the two periods whereas Mr Nguyen had dispensed medication on unsigned prescriptions during Dr Singh's leave in 2014 and then again in 2015. In respect of Mr Nguyen, there were 69 patients over 21 months to consider. In respect of Dr Singh's conduct, approximately 20 patients over 2 weeks were affected. It was argued that there should be consistency in decision-making and that in respect of the 2015 arrangement there was equal culpability between all three practitioners. It followed, according to Senior Counsel for Dr Singh, that an appropriately consistent order in respect of Dr Singh would be a period of suspension not exceeding six months.
4. The Tribunal does not accept that the account provided by either the Board or the practitioner addresses all of the circumstances relevant to a comparison of the two practitioners.
5. Firstly, the Tribunal considers that the role of a general practitioner in prescribing medication has paramountcy in respect of the obligation to fulfil a duty of care to the patient. Dr Singh had the duty to his patients to ensure that they were treated; that is, they received the benefit of his professional expertise as to whether medication should be prescribed with reference to the patient's medical history and their circumstances at the time of the consultation. The dispensing pharmacist also has a duty to the person who presents a prescription to be dispensed. The pharmacist must apply his or her professional expertise as to whether there may be any circumstance that suggests that the prescription may contain an error, and must ask such questions of the person seeking to have the prescription dispensed to confirm that dispensing the medication is appropriate. The pharmacist's duties are onerous and contribute in a vital way to the integrity of the legal protections in place with respect to the administration of medication. As part of that regime, the pharmacist relies upon a general practitioner having made a professional assessment that the prescription is appropriate and necessary. That assessment is based on a consultation with the patient, which gives the general practitioner information to which the pharmacist does not have access. It was Dr Singh whose abdication of care for his patients gave rise to the greatest risk to the patients. It was Dr Singh who went on leave and made no proper arrangements for continuity of care for his patients. Without that abdication, the arrangement was not necessary. We consider that Dr Singh's conduct is more serious than that of Mr Nguyen.
6. Secondly, Mr Nguyen's conduct related to more patients and was undertaken knowingly on two separate occasions. This would usually demand a greater sanction than that for a person who has participated in the same arrangement over a lesser period with fewer patients. However, the orders we must make are based upon the circumstances of the practitioner at the time we assess them and not at the time of the events themselves. Significantly, Mr Nguyen had not been practising as a pharmacist except on a very part-time basis as an employee for four years between the investigation and the hearing. He had, however, undertaken various courses and had a plan for how he would practice in the future. The Tribunal indicated that the appropriate period of suspension in light of the conduct was two years but because of what was effectively a self-imposed suspension, a period of six months was appropriate.
7. The only action taken by Dr Singh that signals to the Tribunal and to others that he has taken steps to avoid the possibility of the situation recurring in the future is that he has moved to a practice with other practitioners. However, there was no evidence as to any arrangement he has with those other practitioners to treat his patients when he is on leave, or of any education he has undertaken to better understand his obligations.
8. The Tribunal does not consider that the circumstances of Mr Nguyen's conduct and Dr Singh's conduct demand similar orders.

The aim of the orders and the relationship between the possible orders

1. The purpose of disciplinary action under the SA scheme was recently described in the following terms in Tunbridge:[13]

Purpose of disciplinary Action

19. In NSW Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 at [12], the High Court confirmed that the purpose of disciplinary proceedings for a barrister was:

"entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved."

20. This statement was adopted and applied to the discipline of health practitioners in Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553-554, where Doyle CJ (Williams & Martin JJ agreeing) stated:

"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."

21. The protection of the public may sometimes require disciplinary action which has a greater adverse effect on the practitioner than may be warranted if punishment was the relevant consideration. Unlike the process of sentencing for a criminal offence, personal circumstances of a practitioner may be of limited significance in the process of determining what is necessary in the public interest.

22. In Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, the Court of Appeal made it clear that:

"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 delinquents in a profession will indirectly establish the standards applied by the Tribunal."

23. In Physiotherapy Board of Australia v Adey [2017] SAHPT 3, the SA Health Practitioners Tribunal observed that:

"...the imposition of disciplinary action may serve one or all of the following purposes:

• preventing practitioners who are unfit to practice from practising;
• securing maintenance of professional standards;
• assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct (or unprofessional conduct) will not be tolerated;
• bringing home to the practitioner the seriousness of their conduct;
• deterring the practitioner from any future departures from appropriate standards;
• deterring other members of the profession who might be minded to act in a similar way;
• imposing restrictions on the practitioners' right to practice so as to ensure that the public is protected"

24. In Medical Board of Australia v Jansz [2011] VCAT 1026 at paragraph [368] - [372], the Tribunal stated:

"The objectives of determinations can be achieved through a variety of mechanisms, including by deterring the person concerned from further inappropriate conduct (specific deterrence), deterrence of other practitioners minded to conduct themselves similarly (general deterrence), and facilitation of rehabilitation on the part of the practitioner.

The likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination.

Personal matters such as shame, personal ordeal, financial difficulty likely to be occasioned by a determination are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.

The degree to which the practitioner has acquired insight into his or her conduct has been held to be of potential relevance to the determination in that it goes to the continuing risk posed by the practitioner. In this regard the opportunity to see and assess the practitioner is important, as is the capacity for a tribunal which consists partly of practitioners of the relevant discipline is important. In context, this "insight" might be reflected in a variety of ways, such as an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do that which is necessary to avoid further transgressions."

(footnotes omitted)

1. We respectfully adopt that analysis.
2. We observe that conduct relating to prescribing medication goes to the heart of the function of a medical practitioner and the expertise for which they enjoy the privilege and bear the duties of caring for the health of others. We respectfully agree with the Court in Spicer v NSW Medical Board,[14] in which it was remarked that:[15]

...it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner...

How does this conduct fit within the legislative scheme?

1. The parties have agreed that the conduct is professional misconduct and accordingly, the suite of possible orders listed in s 196 is available to the Tribunal. All of the orders are available irrespective of which limb of the definition of "professional misconduct" is found:[16]

(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 parties were concerned that the Tribunal reach a view as to which of the limbs of the definition was met as both submitted that a finding of (c) was suggestive of a need to cancel the practitioner's registration. The Board submitted that Dr Singh's conduct might be characterised as within subsection (a) and/or (c). It encouraged the Tribunal to find that the conduct was within subsection (a), but should nevertheless result in cancellation and also subsection (c) namely inconsistent with the practitioner being a fit and proper person to hold registration and therefore appropriate for a cancellation.
2. Dr Singh submitted through his Senior Counsel that his conduct may be found to come within subsection (a) but not within subsection (c).
3. The Victorian Civil and Administrative Tribunal considered what conduct was intended to fall within subsection (c) in Medical Board of Australia v Cukier.[17] The Tribunal decided to treat consideration of whether par (c) was engaged by reference not only to the conduct giving rise to the complaint, but also to the practitioner's conduct since the complaint and all of the objective and subjective circumstances available to the tribunal relevant to the question of whether the practitioner is, at the time of the making of the orders, a fit and proper person to hold registration. The Tribunal in that case conceded that a differently constituted tribunal might take a different approach.[18]
4. In our view, the three ways in which a person may be guilty of professional misconduct as set out in subsection (a), subsection (b) and subsection (c) do not describe conduct that ascends in severity. Each describes findings in respect of which orders may be appropriate for the protection of the public. Conduct may come within subsection (a) and subsection (c) or only one of them. Subsection (c) encompasses behaviour that might arise from conduct within or entirely separate from medical practice. Most if not all of the conduct described by subsection (a) is likely to have occurred in the course of performing the functions of a health practitioner. Conduct that is found to be within subsection (c) will usually result in an order for cancellation of the practitioner's registration, although not in all cases.[19] Conduct that is within subsection (a) or subsection (b) may attract an order of cancellation, or suspension or any of the other responses available to the Tribunal under s 196.
5. We consider that conduct that involves, as it did here, facilitating patients being prescribed medication by a person who was not a registered medical practitioner and in circumstances in which no consultation by a medical practitioner occurred, is extremely serious. It is well below the standard to be expected of any practitioner and particularly one of Dr Singh's experience.
6. We consider that the conduct was professional misconduct within subsection (a) of the definition. This descriptor best fits the practitioner's conduct as it concerned and was in the course of carrying on his functions as a health practitioner. It is not necessary to determine whether it is also conduct inconsistent with being a fit and proper person to be registered. As has been shown above, it will always be necessary for the Tribunal to consider, upon making a finding of professional misconduct, what orders will achieve the protection of the public.

1. The Board submitted that the circumstance of allowing Mr Barbaro's 2014 conduct to go unchecked and to enter into the 2015 arrangement in the knowledge of the 2014 conduct, accompanied by the lack of evidence of any subsequent insight and learning, are matters which weigh in favour of a cancellation of Dr Singh's registration.
2. Dr Singh conceded that his conduct could properly be described as a "serious lapse in professional judgement"[20] and that it would be open to the Tribunal to order a reprimand and a short suspension of his registration.[21] He submitted that the period of suspension should be less than or equal to that of the period applied to Mr Nguyen i.e. six months. He also accepted that perhaps after suspension a condition on re-registration that he only work in a group practice would be appropriate.[22] Dr Singh's Senior Counsel submitted that a long suspension or cancellation would be crushing upon him and that was a relevant although secondary consideration.[23]
3. The parties spent a considerable amount of time making submissions about whether insight had been demonstrated by Dr Singh. In Medical Practitioners Board of Victoria v Grolaux (No 2) (Occupation and Business Regulation)[24] the Tribunal said:

In context, this "insight" might be reflected in a variety of ways, such as an understanding of the nature of the conduct, an acceptance that the conduct was seriously wrong, an appreciation of why the practitioner engaged in that conduct, empathy with the consequences, and/or the willingness to take measures to identify risk factors and to avoid similar behaviour.

1. Had Dr Singh given evidence in some form, the Tribunal might have been given a stronger basis to be confident about the risks of his recidivism or his insight into his conduct. As it was, there was very little evidence of either and we retain a concern that Dr Singh does not appreciate why the conduct was wrong.
2. We accept the submission on behalf of the Board that admissions are not the same as an understanding of why the conduct amounted to professional misconduct and an understanding of why, in this case, foregoing the provision of proper treatment to enable continuity of medication was not acceptable patient care.
3. We infer that the financial aspects of the arrangement did not drive it. There was no consultation fee imposed, and no Medicare benefit paid. However, the Medicare system was evaded. Whilst no financial gain was achieved, patients were not tempted away from the practice. A locum was not required to be paid but Dr Singh made no profit.
4. We reject the suggestion that the fact that Mr Barbaro held medical qualifications is mitigating of Dr Singh's behaviour. On the case that we have been asked to decide, Mr Barbaro was not consulting and treating the patients. He was simply facilitating the provision of medication. No one was providing proper patient care under the arrangement. There has been no acknowledgement of that fundamental departure from the standards that Dr Singh's patients had a right to expect from him and that he was obliged to maintain.
5. However, the 2015 arrangement operated over a short period. We accept that Dr Singh saw it, wrongly, as the way to ensure the continued treatment of existing patients where there was no other registered medical practitioner available to do that. Dr Singh participated in a record of interview after being cautioned that he was not required to answer questions.[25] The mitigation afforded by this cooperation is limited by virtue of the fact that his practice had by this time been raided and the case against him was evident.[26]
6. Importantly, while there was a risk to patients, there is no evidence of any person being harmed. The three patients to whom Schedule 8 drugs were prescribed and dispensed had each been prescribed those drugs on numerous previous occasions.
7. Further, Dr Singh has moved away from the practice and now works in a group practice setting. This creates a significant safeguard against future failings though it is not failsafe. The Tribunal notes that none of his current practitioner colleagues provided referee statements in support of Dr Singh.
8. When considering whether a suspension or a cancellation is appropriate, the consequences of each are relevant. Upon cancellation, the practitioner must apply for re-registration and must satisfy the Board that he or she fulfils the qualifications for registration and it would be appropriate for him or her to be registered.[27] A suspension enables the practitioner to resume after a period, indicating that the Tribunal considers that the protection of the public requires no further action unless conditions are also imposed.
9. We consider that the appropriate order in this case is that Dr Singh's registration should be cancelled. Whilst we have reached this conclusion by reference to all of the circumstances, the facilitation of the arrangement for his patients to be prescribed and dispensed medication, including Schedule 8 drugs, without the care of a registered health practitioner, is such a departure from the proper standard of care that it warrants such an order. This takes into account the need to deter both Dr Singh and other medical practitioners from engaging in such conduct. It reflects the significant exposure to risk that patients bear if they are prescribed medications outside the strict regime that operates to protect the public from the disastrous consequences that wrongly prescribed medications can bring about.
10. We would further disqualify Dr Singh from applying for re-registration for 18 months. This period is shorter than what has been imposed in many other cases where there has been a cancellation, to reflect the fact that the conduct was short-lived. However, it provides the assurance that if Dr Singh re-applies for registration, his suitability for re-registration will need to be established. Given the significant unease that the Tribunal has as to how a practitioner of such experience could disregard the basic precepts of medical practice, we consider this to be an important safeguard for the public.
11. 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. The Board is invited to provide draft minutes of order reflecting the Tribunal's reasons in this matter.

1. On 21 October 2020, the Tribunal delivered a statement of reasons to the parties indicating that a cancellation of Dr Singh's registration and a further disqualification from re-applying for re-registration for 18 months were appropriate orders in this matter. The Board was invited to provide draft minutes of order to reflect the Tribunal's reasons and any proposed commencement date for the cancellation and disqualification period.
2. The Board has provided draft minutes of order and indicated that there is disagreement between the parties in relation to the appropriate commencement date for the cancellation and disqualification period. The Board submits that the appropriate commencement date would be 14 days from the date that the Tribunal delivered its reasons and the order should take effect at 12.01am on 5 November 2020. Dr Singh submits that 28 days from the date that the Tribunal delivered its reasons, at 12.01am on 19 November 2020, would be more appropriate to afford him sufficient time to continue particular courses of treatment for his patients that cannot be immediately handed over to other medical practitioners at his current place of employment.
3. Order 3 of the draft minutes of order indicates that the respondent is to pay the complainant's costs at an amount to be fixed by the Tribunal if not agreed by the parties. Although this order was not the subject of the Tribunal's reasons on 21 October 2020, the parties have agreed upon the proposed order and wish for it to be included in the Tribunal's orders by consent.
4. Taking into consideration both of these submissions, the Tribunal finds that it would be appropriate for the cancellation and disqualification period in respect of Dr Singh's registration to take effect at 12.01am on 19 November 2020 to provide Dr Singh with sufficient time to ensure the continuity of care of his patients. The Tribunal is satisfied that the proposed minutes of order adequately address the need to protect the public and reinforce professional standards, and therefore the Tribunal imposes the orders as proposed.
5. The Tribunal makes the following orders:

1. The Respondent's registration is cancelled with this order to have effect from 12.01am on 19 November 2020; 2. The Respondent is disqualified from applying for registration as a registered health practitioner for a period of 18 months with this order to have effect from 12.01am on 19 November 2020; and

1. The Respondent is to pay the Complainant's costs of the proceedings in an amount to be fixed by the Tribunal if not agreed.

[1] Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act). Schedule 2 of the Act sets out the Health Practitioner Regulation National Law (South Australia). We shall refer to the contents of this schedule as "the National Law".

[2] Schedule 1 to the Statement of Agreed Facts.

[3] Schedule 2 to the Statement of Agreed Facts.

[4] Record of interview of Dr B Singh dated 11 October 2017 at [990].

[7] Transcript of hearing on 14 August 2020 in Medical Board of Australia v Singh (2020/SA002899) at pages 24-25.

[12] Pharmacy Board of Australia v Nguyen (2020/SA002872).

[13] Medical Board of Australia v Tunbridge [2020] SACAT 34.

[14] (Court of Appeal (NSW), Hope JA (Reynolds and Hutley JJA agreeing, 19 February 1981).

[17] [2017] VCAT 109.

[19] Medical Board v Wong [2015] QCAT 439 was such an example; the practitioner's conduct occurred when the practitioner was affected by schizo-affective disorder and there was no reason to believe that the conduct would be repeated once the practitioner was treated.

[20] Transcript of hearing on 14 August 2020 in Medical Board of Australia v Singh (2020/SA002899) at page 43.

[24] [2009] VCAT 978 at [8] (Deputy President Dwyer, Member Davis and Member Burge).

[25] Record of interview of Dr B Singh dated 11 October 2017 at [99].

[26] Transcript of hearing on 14 August 2020 in Medical Board of Australia v Singh (2020/SA002899) at page 68.

[27] Honey v Medical Practitioners Board of Victoria (Occupational and Business Regulation) [2007] VCAT 526 at [41]-[61] (Judge Harbison and Member Davis).