1. We find that Dr Willcourt has in contravention of the Health Practitioner Regulation National Law Victoria Act 2009 (Vic) ("the National Law") engaged in unprofessional conduct within the meaning of s. 5 in respect of allegations 1A, 1B and 1C.
2. Leave is granted to the respondent to withdraw allegations 1D and 1E.

Pursuant to s. 196(2) of the National Law Dr Willcourt is:

1. Reprimanded
2. Fined in the sum of $7000 to be paid to the Medical Board of Australia by 5 September 2018.

Mr Halley of Counsel; Mr Petts, solicitor (on 19 February 2018 and 9 March 2018)

Mr Murray, solicitor and Mr Jolley, solicitor (on 21 May 2018)

1. On 6 December 2016, the Medical Board of Australia ("the Board") referred the matter of Dr Willcourt to this Tribunal in accordance with s. 193(1) of the Health Practitioner Regulation National Law (vic) Act 2009 ("the National Law").
2. Section 193(1)(a)(i) of the National Law provides:

A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if... for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason... the practitioner has behaved in a way that constitutes professional misconduct...

1. On 18 May 2017, the parties participated in a compulsory conference convened under s. 83 of the Victorian Civil and Administrative Tribunal 1998 (Vic) ("the VCAT Act").
2. Compulsory conferences have become an important method to assist in the resolution of disciplinary proceedings by this Tribunal.
3. Resolution by the parties of issues in dispute not only greatly reduces the expense and duration of Tribunal hearings, but dramatically reduces the impost on witnesses who may otherwise be required to give evidence before the Tribunal. It brings with it the ancillary benefit that health practitioners and the relevant Boards are able to discuss issues surrounding professional conduct in a frank and mutually respectful way.
4. Sometimes this means, as in this case, that a practitioner agrees that (most of) the alleged conduct occurred and (comes to) accept that it was below the standard expected of the health practitioner.
5. Sometimes the Board also gains an appreciation of the conduct from the practitioner's perspective, and as in this case, seeks leave to withdraw (some of) the allegation(s).
6. The parties are facilitated in their discussions by a member of the Tribunal who is a trained mediator.
7. Schedule 1 to the VCAT Act however requires the Tribunal to be constituted for the purposes of making a final determination under Part 8 of the National Law by at least three members, of whom at least two must be health practitioners with professional qualifications in the health profession regulated by the National Board that is a party to the proceedings.
8. Therefore, after a compulsory conference, a health practitioner hearing is conducted by a full panel of the Tribunal constituted by a different legal member and two health practitioner members
9. On 5 September 2017, the parties filed an Agreed Statement of Facts. The parties also proposed to make joint submissions as to appropriate findings and determinations.
10. The hearing commenced before us on 12 February 2018.
11. In Medical Board of Australia v Fox [2016] VCAT [6] the Tribunal, constituted by Deputy President Dwyer and Medical Practitioner Members Dr Molloy and Dr Collopy, said in describing the hearing process following a successful compulsory conference:

[6] We agree with the parties that there is now a well-established line of authority in support of the proposition that, where a regulatory body and respondent have reached a negotiated settlement and the penalty proposed is broadly speaking within the permissible range having regard to all the circumstances, a court or tribunal should not depart from the agreed sanction without a clear or exceptional reason for doing so. In terms of professional disciplinary proceedings, it nonetheless remains the duty of VCAT to determine the level of conduct and any appropriate sanctions, and no agreement between a regulatory body and a professional person under review can supplant that duty. Nonetheless, it is also now established that an agreement between the parties in such a case is a highly relevant matter for VCAT, will largely govern the manner in which the proceeding is conducted, and is an extremely important matter for VCAT to take into account in forming its own view on relevant matters. This is particularly the case where it is clear from the face of the agreement that it does not represent an arbitrary outcome, but reflects a carefully and extensively negotiated outcome that has proper regard to all relevant facts and circumstances.

[7] We have followed this approach in this proceeding.

1. In this case however issues arose.
2. We were not satisfied that the proposed Agreed Statement of Facts gave sufficient basis for us to make appropriate findings and determinations.
3. We also indicated to the parties that in order to reach findings and subsequent determinations we would benefit by hearing from Dr Willcourt. We were however advised by counsel for Dr Willcourt that he did not intend calling Dr Willcourt to give evidence because Dr Willcourt resides overseas and was not available to give evidence by telephone.
4. This was unfortunate. It is generally expected, as part of the disciplinary process, that health practitioners be actively engaged in the hearing. Frequently it is helpful to hear from the health practitioner to clarify issues that arise, even when an Agreed Statement has been prepared.
5. We were told that this would not be necessary as the parties had agreed in any event, on the proposed findings and determinations. We were told that the Board would seek leave to withdraw for our consideration any findings other than that of unprofessional conduct. It was submitted by Mr Murray, who was then acting for the Board, that this was an appropriate way of conducting the hearing.
6. We told the parties we would not grant leave for the Board to do so, but would hear submissions from the parties as to the appropriate findings and determinations.
7. S.196 of the National Law reads:

After hearing a matter about a registered health practitioner, the responsible tribunal may decide-

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

(v) the practitioners registration was improperly obtained because the practitioner or someone else gave the National board that registered the practitioner information a document that was false or misleading in a material particular

1. It is for the Tribunal to decide what the findings should be. The parties cannot through negotiation remove the Tribunal's statutory function.
2. Mr Halley of counsel, upon being told that this was the approach the Tribunal would take, indicated that he may seek instructions to argue that the Tribunal should be reconstituted on the grounds of apprehended bias. The hearing was accordingly stood down in order for Mr Halley to seek instructions from Dr Willcourt.
3. When the matter resumed, Mr Halley advised us that Dr Willcourt no longer wished to have the matter dealt with by consent but rather wished for the matter to proceed to a full hearing before a differently constituted Tribunal.
4. It is open to a party to take this course[1]. We accordingly adjourned the matter to a directions hearing on 9 March 2018. We directed the principal registrar to remove from the file and place in a sealed envelope marked "confidential - not to be opened without the consent of the parties" the amended Notice of Allegations and the Agreed Statement of Facts.
5. At the directions hearing, presided over by Deputy President Lambrick, Dr Willcourt, through his solicitor, Mr Petts, advised the Tribunal that he considered that the matter was, after all, still able to be resolved through an Agreed Statement of Facts with proposed Findings and Determinations being placed before the Tribunal. Mr Murray, who appeared for the Board, agreed. The matter was accordingly adjourned to an administrative mention, to enable the parties to advise the Tribunal in writing as to the further conduct of the matter. In due course, the parties filed a more comprehensive Statement of Agreed Facts and asked for the matter to be re-listed for hearing.
6. Given that the matter was continuing on its original trajectory, the matter was relisted before the original panel.
7. Mr Halley of Counsel, questioned this approach. We indicated that we would continue to hear the matter unless reason was provided for us not to do so. We also noted our surprise that the parties were yet again endeavouring to file a document purporting to remove from our consideration findings other than that of unprofessional conduct.
8. Mr Halley again sought to have the matter stood down in order for him to seek instructions as to whether he would seek reconstitution of the Tribunal.
9. When we reconvened, some 30 minutes later, Mr Halley advised us that the matter could proceed.
10. At this time, the Board advised us that it no longer sought to limit the findings open to us. The Board assured us that it understood that this Tribunal would make its own findings and that neither the Board, nor Dr Willcourt, could fetter the Tribunal in its approach. The Board did, however, seek leave to withdraw allegation 1D (which was an alternative to allegations 1A, 1B and 1C) and 1E which alleged that Dr Willcourt participated in the study and research program without ensuring that the program was approved by a Human Research Ethics Committee and/or acted in accordance with an approved research protocol. We granted leave for the Board to do so. We note at this juncture that Dr Willcourt is not, through these proceedings, alleged to have administered or supplied any performance or image enhancing drugs to any players of the Essendon Football Club.
11. The remaining allegations were proven by virtue of the admissions made by Dr Willcourt in the following Agreed Statement of Facts:

1. Dr Willcourt is a registered medical practitioner with unrestricted general and specialist registration (obstetrics and gynaecology), who was first registered on 1 January 1971.
2. Dr Willcourt holds a medical degree (MBBS) from the University of Adelaide and Fellowship of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists.
3. At the time of the events described in this statement, Dr Willcourt was the Medical Director of the Epigenx Medicine Clinic.
4. In or about November 2011, Dr Willcourt was introduced to Mr Stephen Dank by Mr Nima Alavi, Pharmacist. Mr Alavi was aware of Dr Willcourt's keen interest in athlete's health and in particular, injury prevention through optimal physiology. Mr Alavi advised Dr Willcourt that Mr Dank was also a sports scientist working with the Essendon Football Club (EFC).

1. At their meeting, Mr Dank told Dr Willcourt that Mr Dank was involved in a study at EFC to monitor EFC players to assess the effects of their training program. The study involved cardiovascular assessments and bloodwork. By monitoring the effects that the training program was having on the players, Mr Dank would liaise with Dr Bruce Reid, the EFC Dr, to determine how the training program and/or nutrition of the players should be modified.
2. Mr Dank asked Dr Willcourt whether Dr Willcourt would be interested in participating in the study. Dr Willcourt's proposed participation was to involve authorising the ordering of blood analysis tests of players at the request of Mr Dank.
3. Dr Willcourt states that Mr Dank told him that Dr Reid, was involved in the study but was overburdened with the usual workload that existed at EFC. Dr Willcourt states that Mr Dank told him that Dr Willcourt's role would be to assist Dr Reid by ordering blood tests and interpreting the results. Dr Willcourt was contacted by Mr Alvi specifically because Dr Willcourt was known to have a special interest in, and knowledge of, the potential impact of blood analysis. Dr Willcourt's experience was that blood tests that might be within the 'normal" range could nevertheless reveal underlying issues that would require investigation. Dr Willcourt states that his proposed participation was initially to authorise the ordering of the blood analysis test of the players. Dr Willcourt states that Mr Dank advised him that it was intended that following the initial blood analysis work, Dr Willcourt would become more heavily involved with the study that was being undertaken.
4. Dr Willcourt was keen to become involved as he had a special interest in the area and he agreed.

1. On the basis that Dr Willcourt was to become involved with the study he agreed to authorise blood analysis tests on seven Essendon players.
2. The process involved Dr Willcourt completing pathology requests to enable the blood tests to be undertaken in respect of the relevant players. Dr Willcourt was not present at the time that the blood samples were collected.
3. The tests ordered by Dr Willcourt included measurement of serum gonadotrophins, testosterone, sex hormone binding globulin, calculated free testosterone, red blood cell folate, vitamin B12, serum electrolytes, kidney function, liver function, iron studies, serum glucose, thyroid function, full blood examination, erythrocyte sedimentation rate and c-reactive protein.
4. Dr Willcourt subsequently received the test results at his practice, at which time he reviewed the results and highlighted any abnormalities. Dr Willcourt provided the test results with his notations to Mr Dank. He made no recommendations and he was not involved in assessing the progress of the study.
5. Dr Willcourt did not:
   • (a) take any clinical histories of any of the players; and/or
   • (b) conduct clinical examinations of any of the players; and/or
   • (c) establish a clinical need by any of the players; and/or
   • (d) ensure that each of the players had provided informed consent for the blood analysis work; or
   • (e) ensure that any other registered health practitioner had taken such clinical histories, and/or conducted such clinical examinations, and/or established such clinical need, and/or ensured such informed consent was provided.
6. Dr Willcourt states that Mr Dank advised him that all the tests had been sanctioned by Dr Reid and he relied upon Mr Dank's representation to him.
7. Dr Willcourt states that he believed that he was assisting Dr Reid with an assessment of the impact of the physical workload and dietary regime to which the Essendon players were subject. Dr Willcourt's view was that no examination of the players was required or necessary as the aim of the study was to identify, by blood analysis, the effects of the training and nutrition program that was in place and to explore ways of implementing improvements and Dr Willcourt's role was limited to authorising and analysis of the blood tests and results.
8. As for consent, Dr Willcourt states that he was assured by Mr Dank that the players voluntarily participated in the study and that the purpose of the study had been discussed with them so that they clearly understood the reason for the blood analysis work.

1. The blood test results revealed abnormal hormone results in respect of three of the players tested.
2. Regarding one of these players, Dr Willcourt made a notation on the pathology results, '*ALERT!!!' (requested 27 June 2012) and on another player's results he made a notation, 'TERRIBLE!' and 'WHY?' (requested 27 June 2012).
3. Dr Willcourt did not:
   1. provide any direct patient follow-up regarding the results of the blood analysis in respect of any of the players, including follow-up of abnormal results; or

1. ensure that such follow-up was provided by another medical practitioner.

1. Dr Willcourt maintained copies of the pathology results for each of the players tested, together with handwritten notations, check marks and arrows. Apart from the notations referred to above, these included 'why??' (requested 27 June 2012), 'why?' (on four test results requested 27 June 2012) 'low T' (requested 10 August 2012), and 'sort of ok' (requested 27 June 2012). Others were noted 'ok' or not noted.

1. Dr Willcourt did not keep records in respect of these players that contained relevant details of clinical history, clinical findings, investigations and other medical management.

1. Dr Willcourt states that it was his expectation that all follow-up and further medical management of the players was the responsibility of Dr Reid. Dr Willcourt states that he was not involved in the medical treatment of the players.

1. Contrary to what Mr Dank had told Dr Willcourt, subsequent to the blood tests, there was no offer made to Dr Willcourt for him to join the study nought have any ongoing role at all.

1. Dr Willcourt accepts the factual basis of the allegations and it is on this basis that we find the allegations proved. We note that we did not hear any evidence nor read any witness statements from any of the people referred to in the Agreed Statement of Facts, including Dr Willcourt. Accordingly, we have accepted the version given on behalf of Dr Willcourt.

1. As already discussed, the parties pressed upon us a finding of unprofessional conduct as defined in s. 5 of the National Law:

Unprofessional conduct, of a registered health practitioner, means 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.

1. We were ultimately satisfied that a finding of unprofessional conduct was the appropriate finding in relation to each allegation. We nevertheless indicated to the parties that we consider Dr Willcourt's conduct to be at the "highest end" of unprofessional conduct for the following reasons.
2. Good Medical Practice: a Code of Conduct for Doctors in Australia (2009) required, among other things, Dr Willcourt to:

1. - assess patients, taking into account the history, the patient's views, and an appropriate physical examination (paragraph 2.1.1); 2. formulate and implement a suitable management plan (including arranging investigations and providing treatment and advice) (paragraph 2.1.2);

1. consider the balance of benefit and harm in all clinical-management decisions (paragraph 2.2.4);

1. inform patients of the nature of, and need for, all aspects of the clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment (paragraph 3.3.3); 2. keep patients informed about their clinical progress (paragraph 3.3.7); 3. obtain informed consent or other valid authority before undertaking any investigation (paragraph 3.5.2); and 4. keep accurate, up-to-date and legible records, report relevant details of clinical history, clinical findings, investigations and other management (paragraph 8.4.1).
2. Dr Willcourt did none of this.
3. We read the comprehensive, expert report of Dr Robert Murdoch, dated 4 July 2016, together with his supplementary report, dated 9 July 2016. Neither report was controversial.
4. We agreed with the opinion expressed by Dr Murdoch that Dr Willcourt's clinical care of the patients was "non-existent".
5. Dr Willcourt provided requests for blood analysis on patients from whom he had not taken any clinical history, performed any appropriate examination, established a clinical need, nor sought consent. He failed to ensure any other registered health practitioner had done so.
6. It was unprofessional conduct for Dr Willcourt to authorise pathology requests when no doctor-patient relationship existed with him (or a deputy who was also a registered health practitioner).
7. It was unprofessional conduct for Dr Willcourt to authorise pathology requests at the request of a nonregistered health practitioner (sports scientist) when no doctor-patient relationship existed.
8. Dr Willcourt bore a responsibility to explain the purpose, nature and potential outcome of any test undertaken on the patients. This obligation exists regardless of the perception by doctor or patient that there is not a professional relationship.
9. We find that Dr Willcourt failed to provide the clinical care to patients that would reasonably be expected of a practitioner with a similar level of training and experience.
10. Furthermore, Dr Willcourt provided inadequate feedback on the results of the tests. He failed to inform patients of their results or the need for any follow-up or further management.
11. Dr Willcourt was the ordering physician. This created a doctor/patient relationship. The abnormal results required Dr Willcourt to follow-up or arrange further management by a registered health professional.
12. Whilst we accept that Dr Willcourt may have been "conned" by Mr Dank, this did not release him from his full clinical responsibilities to the patients involved.
13. The follow-up of results lies with the ordering practitioner especially in the case of abnormal results. This obligation exists regardless of the perception by doctor or patient that there is not any professional relationship. Deputising follow-up of abnormal results to a non-registered person is not adequate.
14. Dr Willcourt did not appropriately document the need for further action including further investigation and/or follow-up by others.
15. His conduct was unprofessional.
16. Dr Willcourt failed to maintain adequate clinical records in respect of any of the patients. The only records maintained by Dr Willcourt regarding the patients were copies of the pathology results in each instance, with minimal handwritten notations and check marks and arrows.
17. Regarding patient 1, Dr Willcourt made a notation on the pathology results "ALERT!!!" Regarding patient 2, Dr Willcourt made notations on the pathology results "TERRIBLE" and "WHY?"
18. The handwritten notations made by Dr Willcourt were inadequate and would not have provided satisfactory medical advice to anyone who would subsequently manage the patients.
19. We find that Dr Willcourt's clinical records were not of a standard that would reasonably be expected of a practitioner with a similar level of training and experience.

1. Section 196(1) of the National Law recognises a range of appropriate sanctions to fit the circumstances of the individual cases that come before the Tribunal.
2. Section 196(a) allows us to caution or reprimand a practitioner.
3. The parties urged us to reprimand Dr Willcourt.
4. We agreed that this was appropriate. In Peeke v Medical Board of Victoria (unreported, Supreme Court of Victoria no 10170 of 1993, 19 January 1993), His Honour Justice Marks observed that a reprimand being a serious form of censure and condemnation "does not trivialise a serious lapse of professional standards and has the potential for serious adverse implications".
5. Section 196(b) of the National Law allows us to impose a condition on the practitioner's registration.
6. The parties urged us to place conditions on Dr Willcourt's registration requiring him to undertake education and supervised practice. We were surprised by this submission. Dr Willcourt does not reside in Australia and does not intend to do so in the foreseeable future. He has signed a five-year contract overseas and does not intend to practise in Australia thereafter.
7. The parties agreed that, realistically, it is unlikely that Dr Willcourt will ever undertake the proposed education and/or supervision.
8. It seemed to us that to impose conditions on Dr Willcourt knowing that it is highly likely that he will never undertake those conditions would make a mockery of the disciplinary process.
9. It is not the role of this Tribunal to impose conditions that will never be utilised.
10. We considered, however, that for reasons of specific and general deterrence Dr Willcourt's conduct warranted a further sanction.
11. Section 196(c) of the National Law allows us to require a practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner.
12. We asked the parties to address us on this possible determination.
13. Neither party had taken instructions.
14. Mr Halley, stressed on behalf of Dr Willcourt that we should not move away from the agreed position without exceptional reason.
15. We had exceptional reason. The Tribunal will not impose ill-considered sanctions on a practitioner under any circumstances. The Tribunal will exercise its own judgement if the parties are unable to provide appropriate guidance.
16. The parties asked that we give them time to prepare submissions on this point. We accordingly reserved our decision and listed the matter for an administrative mention on 12 June 2018, (subsequently adjourned to 26 June 2018), to enable the parties to file further submissions.
17. In due course, the Board referred us to a number of cases in which fines have been imposed on health practitioners. The Board, whilst maintaining its position that the already proposed determinations were appropriate, submitted that:

In relation to the question of whether a fine ought also to be imposed, the Board submits that it is open to the Tribunal to do so, based on the considerations generally applying to the imposition of Determinations under the National Law. The Board neither presses for nor opposes a fine being imposed. In circumstances where the Tribunal does determine to impose a fine, the Board submits that the quantum of any such fine may appropriately be assessed by the Tribunal, guided by the decisions referred to above.

1. Solicitors for Dr Willcourt agreed with the submissions of the Board that the proposed Determinations were appropriate for the protection of the public, providing adequate individual and general deterrence. While conceding that the Tribunal could impose a fine, it was submitted on behalf of Dr Willcourt that to impose a fine when a finding of unprofessional conduct is made is an exception rather than the norm. It was submitted that the circumstances of the case before us did not warrant the imposition of a fine and that to do so would potentially lead us into the error of being punitive of Dr Willcourt rather than protective of the public.
2. We disagree. We are satisfied that it is appropriate to impose a fine in this case.
3. The cases to which the Board referred us[2] demonstrated the breadth of circumstances in which fines have been imposed.
4. Fines have been imposed where there have been findings of professional misconduct as well as where the findings have been of unprofessional conduct. They have been imposed in cases involving dishonesty, in cases involving a failure to maintain proper patient records, and involving a failure to refer patients to specialists.
5. In Dental Board of Australia v Masters (Review and Regulation) [2014] VCAT 1497 (4 December 2014), at [32], the Tribunal found that the practitioner had engaged in unprofessional conduct in that he had failed to keep and maintain proper patient records and had not referred his patient to a specialist. The Tribunal reprimanded the practitioner and imposed a $10,000 fine. In this respect, the practitioner had already been fined for previous conduct of a similar manner nature in December 2010, on that occasion having been cautioned, reprimanded and fined $25,000 for unprofessional conduct of a serious nature. The Tribunal noted that, in imposing the latest fine, it was not re-punishing the practitioner. The Tribunal noted its protective aims in imposing a fine in the following terms at [32]:

We consider that the imposition of a fine is appropriate. The importance of adequate record-keeping cannot be overemphasised. In order to ensure the protection of the public, Dr Masters and other practitioners must be deterred from taking shortcuts in this area of their practice. We consider that the proposed fine will achieve that purpose.

1. We consider Dr Willcourt's conduct to be serious for the reasons we have already set out. It is appropriate that a fine be imposed in this case where we have found Dr Willcourt failed to take appropriate clinical histories, establish a clinical need for the blood tests, ensure informed consent, provide appropriate follow-up and maintain adequate clinical records.
2. We will fine Dr Willcourt $7000. We will allow two months from the date of this Determination for the fine to be paid, noting that no submissions were made on behalf of Dr Willcourt about this.

[1] See Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2011] VCAT 2400 (19 December 2011) where the Tribunal (Deputy President Lambrick and Members Waterhouse and Draper) said at [21]: "The Tribunal acts independently. It was not bound to follow the proposals put forward by the parties. The Tribunal requires parties to attend before it and make submissions in support of any proposed findings and determinations. Had the Tribunal disagreed with the proposals put forward, and no satisfactory alternative resolution been found, the usual process of the Tribunal would have been to remove the statement of agreed facts, the proposed findings and determination from the file and reconstitute the Tribunal. The matter is not finally resolved until such time as the Tribunal enters judgement.

[2] Medical Board of Australia v Ross Douglas Jose [2015] WAST VR : 141/2015 (30 October 2015); Medical Board of Australia v Robert Wolman [2016] WSAT VR: 94/2015 (22 June 2016); Medical Board of Australia v Jai Ganesh Palaniappan [2014] WSAT VR: 156/2014 (29 January 2014); Dental Board of Australia v Masters (Review and Regulation) [2014] VCAT 1497 (4 December 2014_); Dental Board of Australia v Lozanova_ (Occupational and Business Regulation) [2012] VCAT 1943; Chinese Medicine Registration Board of Victoria v Huang (Occupational and Business Regulation) [2012] VCAT 1903.