1. Dr Win was born in Burma on 30 March 1979. Dr Win was a Burmese citizen but was part of an ethnic Chinese minority in Burma. This minority group is constantly discriminated against and is always at risk of being persecuted by the Burmese government.
2. Dr Win graduated with the degree of Bachelor of Medicine and Bachelor of Surgery from the University of Medicine 2 in Yangon, Burma, in 2005. Dr Win was accepted to the University of Medicine 2 in 1996. However, Dr Win could not begin her studies until 1999 because the university was closed due to civil unrest.
3. To be accepted to study at the University of Medicine 2, Dr Win had to sign a bond to complete at least three years of service to the Burmese government. After completing her studies, Dr Win was forced to join the Department of Medical Research in Yangon, which is part of the Ministry of Health. To obtain a position as a medical research officer, Dr Win was forced to sign a bond to work for the Department of Medical Research for five years. In addition, Dr Win was required to sign a bond to work for the Burmese Ministry of Health for 30 years.
4. Dr Win began working at the Department of Medical Research in January 2006. Dr Win remained working in this position until July 2010. Dr Win was constantly discriminated against during these four and a half years of service with the Department of Medical Research. Dr Win was prevented from undertaking further study, was not considered for promotion opportunities, was refused permission to resign on several occasions and it was very difficult for her to take leave.
5. During her employment with the Department of Medical Research, Dr Win was often exposed to very unsafe working practices. This included being ordered to repeatedly obtain blood samples from patients infected with HIV, Hepatitis B or Hepatitis C without any safety equipment such as gloves and goggles.
6. In July 2009, Dr Win was eventually able to take four weeks of leave from her employment with the Department of Medical Research. Dr Win used this leave to travel to Hong Kong without permission from the Burmese Government. Whilst in Hong Kong, Dr Win sat the Australian Medical Council Part One examination. Dr Win passed this examination and returned to Burma.
7. A number of months after returning to Burma, Dr Win was ordered to participate in a new research project. Due to begin in August 2010, this program involved applying an anti-venom substance to treat illiterate snakebite victims in rural villages. This anti-venom substance was made from chicken eggs. Dr Win was ordered to apply the new anti-venom substance to 'see whether it would work', and withhold the usual anti-venom treatment. Dr Win expressed significant reservations about this program and formed the view that she could not participate.
8. In June 2010, Dr Win received two weeks of leave from the Department of Medical Research. Dr Win decided to again leave Burma and did so by using her Chinese name listed on her passport. Dr Win travelled to Australia, obtained a visa and completed Monash University's Clinical Bridging Course. Dr Win remained in Australia until March 2011.
9. Dr Win was dismissed from her position at the Department of Medical Research as she did not return to work after two weeks of leave. This dismissal was conveyed by a letter dated 9 July 2010. In accordance with the usual practice of the Department of Medical Research and the Ministry of Health, Dr Win was deemed to have absconded from her employment.
10. The consequence of being deemed to have absconded is that a doctor is 'blacklisted' by the Department of Medical Research, Ministry of Health and Myanmar Medical Council. The immediate consequence of being blacklisted was that Dr Win was not able to work as a medical practitioner in Burma. There is also a high likelihood of imprisonment for doctors who are deemed to have absconded from government employment in Burma. This risk was much higher for Dr Win after she was blacklisted as she was considered to be a dissident from a minority group. Another consequence of being blacklisted is that the Ministry of Health and/or Myanmar Medical Council will not issue a certificate of good standing.
11. In March 2011, Dr Win was forced to return to Burma because she was not able to extend her visa in Australia. After returning to Burma, Dr Win was pursued by law enforcement authorities for absconding from her employment and for leaving the country without permission. On 30 June 2011, Dr Win was granted an Australian visa. After a number of attempts, Dr Win was eventually able to flee Burma by travelling across the Burma-China border on 19 July 2011. After travelling internally through China, Dr Win eventually arrived in Australia on 27 July 2011.
12. After fleeing from Burma in July 2011, government officials searched for Dr Win and pursued her family. Dr Win will not be able to return to Burma because of the very high likelihood of imprisonment for absconding from her employment, in addition to unlawfully leaving the country through China to travel to Australia.
13. On 18 August 2011, Dr Win received notice that her registration had been withdrawn by the Myanmar Medical Council, and that she had been reported to all government offices.
14. Dr Win was eventually granted a protection visa by the Australian Department of Immigration and Citizenship and became a permanent resident of Australia on 13 September 2012. Dr Win subsequently passed the Australian citizenship test on 10 February 2015 and is awaiting a decision about citizenship.

1. After completing the relevant examinations, Dr Win applied for provisional registration with the Medical Board on 29 October 2012. Provisional registration was granted on 18 December 2012.
2. The provisional registration application form[3] requires an applicant to complete all questions and then sign the form under a box which sets out a number of matters. These include consent to the Australian Health Practitioner Regulation Authority (AHPRA) making enquiries about the application regarding the applicant as a health practitioner and an acknowledgement that the Board may validate documents provided in support of the application. The form concludes with the following:

• that the above statements, and documents provided in support of this application are true and correct
• that I am the person named in the attached documents

• this declaration in the knowledge that a false statement may amount to perjury. It is also a ground for the [Board] to refuse registration.

1. In answer to a question on the application form for provisional registration regarding most recent registration, Dr Win declared that her most recent period of health practitioner registration was in Yangon, Myanmar from 6 March 2006 to 2 April 2015.
2. Dr Win agrees that declaration was not true. Dr Win agrees that her most recent period of health practitioner registration ended when she was blacklisted by the Burmese Ministry of Health in July 2010 and/or when she received notice on 18 August 2011 that her registration had been withdrawn by the Myanmar Medical Council.
3. When Dr Win was offered a position with her current employer, Portland District Health, she was advised that she would require a certificate of good standing to obtain provisional registration with the Medical Board.
4. On or about 12 November 2012, the Medical Board received a document dated 1 November 2012 which purported to be a certificate of good standing (certificate) from the Myanmar Medical Council.[4] The certificate says:

This is to certify that Dr YIN YIN WIN, MBBS (2004), had registered under the Myanmar Medical Council Law, bearing registration Number 18908, dated the 15th March 2006.

There are no cases against Dr YIN YIN WIN, MBBS (2004), and confirm that his/her name is still borne on the Council Register.

1. It is understood that in order to issue a certificate of good standing, the Myanmar Medical Council required the following conditions to be fulfilled:
   • (i) The candidate must attend in person or must send a person who has general power transferred by the candidate;
   • (ii) The candidate must be able to show the education clearance certificate. This requires a payment of kyat 1,000,000 (now approximately $1,154.77 AUD) to the Ministry of Health, followed by a one and a half year wait from the date of application for an education clearance certificate; and
   • (iii) The candidate must bring the required original documents, including MBBS, registration booklet and internship completion.
2. Dr Win was not in a position to fulfil these requirements and could not return to Burma because of a legitimate fear of persecution.
3. Dr Win agrees that she arranged for a family member in Burma to contact a source who can create false certificates of good standing. Dr Win does not know the identity of the source who provided the certificate.
4. Dr Win agrees that the certificate is a false document and that she arranged for it to be sent to the Medical Board.

1. Dr Win gave evidence before the tribunal. We said it was not necessary for her to recount the matters discussed above in any detail. On 13 August 2013, Dr Win made a statutory declaration in which she set out the above history and admitted that she provided the certificate to the Board and that it was not genuine.[5] Dr Win confirmed before the tribunal that the contents of that affidavit were true and correct. She also confirmed that she had been granted refugee status and that, two weeks before the hearing, she had obtained Australian citizenship.
2. Dr Win gave evidence about practising in Burma and confirmed that she did not agree with the manner in which she was required to treat patients. She believed that the practices where not in their best interests. Dr Win told us that she had some patients pass away because they were not given the effective snake venom treatment. She believed that particular study was unethical. She said she stopped practising because she was concerned about putting patients at risk.
3. Dr Win confirmed that she obtained the certificate because, due to her leaving the country illegally, she could not obtain a genuine document. She said she did not dare to return to Burma.
4. Dr Win was asked about why she did not explain her circumstances, particularly about obtaining a genuine certificate, with relevant people at Portland Hospital. She said she did not want to explain all of her problems. When asked to elaborate, Dr Win said that she did not know how to explain such a long, complicated story. She had been traumatised by what had occurred and did not want to tell people about it. She wanted a peaceful life. She was concerned that, if someone did not know the whole story of what had occurred, they might not believe her. Dr Win said she valued her character and so she decided to keep these matters private.
5. Dr Win accepted that her conduct was very wrong and that it could be very dangerous for a person to obtain registration based on a false document. She agreed that could bring the profession and medical care system in question. She appreciated that registration is very important to ensure practitioners are properly qualified and safe to practice. Dr Win agreed that it was very important that medical practitioners tell the truth when applying for registration because of patient safety and confidentiality.
6. Dr Win continues to work at Portland Hospital with the support of senior practitioners who are aware of the matters which have brought Dr Win to the tribunal and wrote references which were considered by us. Dr Win wishes to continue to work in emergency medicine but, if that were not possible, she would work as a general practitioner.
7. In response to questions from the tribunal, Dr Win explained that she knew what she was doing at the time was wrong and that she could lose her registration but she was concerned she would lose the chance to have the Portland Hospital job. She agreed that she had taken a gamble.
8. Dr Win was asked about the emotional and psychological support available to her at present. She said she lives alone, currently feels alright and is receiving psychological support. All of her family are in Burma and, as we understand it, Dr Win has not yet established a close circle of friends. Despite that, Dr Win said she was happy at the hospital and is now coping better. She now feels her life is more stable and is satisfied she has now admitted everything and so has a positive, clean slate.

1. The Board initially made two alternative allegations against Dr Win. The first was an allegation that Dr Win had improperly obtained her provisional registration by providing false documents to the Board.[6] The second was as follows:

Dr Yin Yin Win, a registered health practitioner engaged in 'professional misconduct' within the meaning of section 5 of the [Act] by providing false documents to the [Board] in support of her application for provisional registration as a medical practitioner, dated 29 October 2012 and received on 30 October 2012.

1. The particulars of allegation 2 concern the circumstances in which Dr Win completed the provisional registration application and obtained and submitted the certificate. It is not necessary to set them out here.
2. The Board told the tribunal that, as Dr Win had admitted to both allegations, if we found that allegation 2 had been proven, it would seek to proceed on the basis of that allegation only and withdraw allegation 1.

1. The Board alleges that Dr Win's behaviour as described in the particulars constitutes 'professional misconduct' within the meaning of section 5 of the Act definition.[7] That definition is as follows:

professional misconduct, of a registered health practitioner,

(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. At the hearing we informed the parties that, having regard to the content of the statement and the other material before it, including Dr Win's admissions, we were satisfied that Dr Win had engaged in the conduct set out in allegation 2.
2. Further, the tribunal was satisfied that, given the very serious nature of the conduct, it amounted to professional misconduct under the Act. In reaching that conclusion, we had regard to the words of paragraph (c) of the definition. We did not consider that Dr Win's conduct falls within that expected of a fit and proper person to hold registration as a medical practitioner. Dr Win acted dishonestly when she completed the application form and declared her most recent period of health practitioner registration was in Yangon, Myanmar from 6 March 2006 to 2 April 2015 when in fact it was in June 2010. She also acted dishonestly when she produced the certificate to the Board in support of her application.
3. The honesty and reliability of health practitioners is essential to ensuring that patients receive proper care and that patients and other practitioners may place trust in the expertise of those providing health care. It is also essential when practitioners are dealing with the Board and other regulatory agencies - those bodies rely on practitioners honestly providing information which is important to decisions regarding registration and other matters.
4. It is often the case that medical practitioners are asked to provide certificates or opinions in respect of patient's Medicare claims, their capacity to attend work, study or undertake other activities and in connection with workers' compensation and transport accident claims. Medical practitioners are also often asked to witness statutory declarations. Medical practitioners are relied upon by various organisations and the community at large to undertake these tasks honestly, mindful of their seriousness, and responsibly given the reliance that will be placed on their professional obligations and their word.
5. For these reasons, on 3 June 2015, the tribunal found that Dr Win engaged in the conduct set out in allegation 2 of the Applicant's Notice of Allegations and further found, under section 196(1)(b)(iii) of the Act, that Dr Win behaved in a way that constitutes 'professional misconduct' within the meaning of that term as set out in section 5 of the Act.

1. Having found that Dr Win engaged in professional misconduct, we must consider what decision to make under section 196 of the Act.
2. Section 196(2) provides that 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,
   • (c) 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,
   • (d) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
   • (e) suspend the practitioner's registration for a specified period;
   • (f) cancel the practitioner's registration.
3. The parties jointly submitted that, under section 196(1)(a), Dr Win ought to be cautioned and that, under section 196(1)(b)(i), a condition be applied to Dr Win's registration requiring her to attend education. The proposed education was two sessions of two hours duration in respect of ethical medical practice and decision-making and requirements to make and witness statutory declarations. The parties proposed further conditions associated with that education, including about the appointment of the educator, contact between AHPRA and the educator, reports about the education sessions and how the Board would take those reports into account when assessing Dr Win's compliance with the conditions and her future registration.
4. It is convenient to note here that Dr Win's conduct does not raise a question about her fitness to practice or the reliability of the material she has produced to demonstrate her training and qualifications. Although recency of practice is a matter registration authorities consider, as we understand it there is no suggestion that, had Dr Win correctly stated that she had last practised in June 2010, the Board would have refused to register her or required further information to justify registration.

1. We are satisfied that it is appropriate that Dr Win be cautioned about her conduct. It is likely that she will often be called upon to make a declaration about matters in her capacity as a medical practitioner. As discussed earlier, the Board and regulatory bodies such as AHPRA rely on practitioner's honesty when it comes to matters relevant to registration. Also, medical practitioners are often asked to provide a range of certificates and opinions and are often asked to witness statutory declarations. Dr Win and other practitioners must be cautious as to how they exercise that responsibility and privilege. With these matters in mind, we are satisfied that it is appropriate to caution Dr Win.
2. At the hearing we questioned whether, where a finding of professional misconduct had been made, a reprimand in respect of that conduct would be appropriate. In particular, we expressed the view that, mindful of the question of general deterrence, it might be appropriate for the tribunal to make it plain that conduct of this kind is unacceptable. While a caution looks ahead to future conduct, a reprimand is usually understood to address past conduct.
3. The Board explained that there had been other medical practitioners in other jurisdictions who had engaged in similar conduct and that the Board had cautioned them. We were told that there were no written decisions made in those matters. The Board said that, having regard to the admissions made by Dr Win, in the interests of parity and fairness, it considered a caution to be appropriate.
4. Dr Halley sought instructions from Dr Win about this issue. He told us that he would not contend that a reprimand would be outside the range of decisions available to the tribunal. He agreed that a caution was appropriate in the interests of parity of treatment, but would not argue against a reprimand.
5. We intend to reprimand Dr Win for her past conduct in order to ensure it is clear to her, other practitioners and the community that any professional misconduct and her behaviour in particular, is unacceptable for a medical practitioner.

1. We are satisfied that education sessions as proposed by the parties are appropriate and will assist Dr Win to better understand the matters to be canvassed. While satisfied that Dr Win acknowledges the gravity of her actions, we consider the proposed education sessions will ensure that the seriousness of what has been done will be appreciated within the context of day-to-day medical practice. The sessions will allow Dr Win to engage with an experienced practitioner who can share practical experiences about issues which arise in relation to ethical medical practice and decision-making and the witnessing of statutory declarations. That practitioner may be available to act as an informal mentor to Dr Win or be a point of reference should she need guidance in future. We are satisfied that the mechanisms for compliance with the proposed condition are appropriate.

1. After hearing from Dr Win and considering her experiences in Burma, the tribunal wished her to have an opportunity to fully understand and absorb her responsibilities as a medical practitioner in Australia and to understand standards of practice which apply. While satisfied that the parties' proposed education will address the ethical issues raised by this proceeding, we consider Dr Win ought to have some education and support in respect of broader medical practice in Australia.
2. It is apparent from the background set out above and from the detailed reasons issued in respect of Dr Win's refugee status, that the approach to medical practice and ethical conduct in Burma is entirely different from that which applies in Australia. We noted the overt role of the government in respect to medical decision-making and practice. Dr Halley told us that Dr Win had not had access to a course focusing on ethical and cultural awareness issues for new arrivals to Australia. While we accept Dr Win's acknowledgment of wrongdoing and accept that she is aware that dishonesty is wrong, given her experiences of coercion and corruption in Burma and her own misgivings about the treatment of patients, we wish to ensure that Dr Win is properly prepared for medical practice in Australia.
3. It seems to us likely that Dr Win will be regarded by members of the Burmese-Australian community as a leader and a person of significance. We consider it important that Dr Win is aware of and equipped to deal with any challenges that position may bring.
4. We consider a course of training which attempts to fill that gap plus the education sessions discussed above and her continuing and deeper engagement with colleagues and the broader community will assist Dr Win to establish a new life here with confidence and ensure that Australia benefits from her skills and expertise.
5. The parties provided information about three courses for our consideration. We have decided that the Clinical Communication Programme offered by the Cognitive Institute in the latter part of this year (or if necessary next year) would be suitable. The course information explains that it is conducted over six months and involves a total of 20 contact hours, four hours of telephone mentoring and counselling and six hours of reflective activities. In addition, doctors undertake clinical audits to gauge their pre-programme and post-programme practices and patient perceptions. The residential workshop component includes the development of communication skills and techniques through the use of role-play scenarios that focus on doctor-patient interactions.
6. During the three day residential component participants focus on five areas:
   • Theories of communication;
   • Value and ethical considerations of communication;
   • Development of specific communication skills and techniques;
   • The effect of personal experience on communication performance;
   • Doctor-patient relationships - behaviour change; and
   • Action plans and support for the real world.
7. As we understand it, the course is able to be tailored to each participant and so Dr Win's experiences and background ought to be able to be taken into account. Our orders provide for Dr Win to undertake that course this year or next and, if the course is not available, for the Board to approve an alternative with the same features and emphasis.

[2] In 1989, the name of the country was changed to Myanmar. As the parties tended to refer to Burma, we have used the same approach.