(a) his history taking was inadequate, and he rarely sought corroborative evidence;

(b) he used broad and unconventional diagnostic criteria, for a period of years, to make a diagnosis of ADHD and/or bipolar spectrum disorder;

(c) he usually directed patients to increase the dose of medication and then select a dosage of dexamphetamine that they considered was most suitable for them to be taking. He did not require that they only adjust the dose after further consultation with him or their referring doctors;

(d) he failed to submit this unusual diagnostic and treatment regime for ADHD and/or bipolar spectrum disorder for review and comment by his peers;

(e) he rarely recommended therapies such as psychotherapy or cognitive behaviour therapy;

(g) he did not follow up patients who failed to attend appointments, or notify referring doctors that their patients had failed to attend appointments; and

(h) his record keeping was deficient, and his communication with referring doctors was inadequate on many occasions.[9]

1. Dr Reutens, a consultant in geriatric psychiatry and Dr Velakoulis, a neuropsychiatrist have both provided written psychiatrist assessments and their opinions as to Dr Orchard's mental health and in particular the question of any cognitive impairment. Both gave oral evidence before the Tribunal. Neither psychiatrist has experience or expertise in the diagnosis and treatment of ADD or ADHD. Neuropsychiatry can be defined, albeit in simplified terms, as the study, diagnosis and treatment of the psychiatric conditions that manifest secondary to organic brain disorders.

1. On 25 November 2011, Dr Velakoulis interviewed Dr Orchard over a period of two hours. In the interview Dr Orchard conceded that his patient record keeping and communication with referring doctors was below the expected standard but otherwise maintained his stance that he was the victim of a witch-hunt directed against ADD. This perceived witch-hunt had led him to challenge the Board and VCAT decisions. Dr Orchard also expressed his concern that he himself suffered from ADD in light of attention lapses he had experienced.
2. Dr Velakoulis performed what he termed 'bedside cognitive screening', the results of which were within the normal range. Dr Velakoulis had anticipated a better performance given Dr Orchard's educational and professional background.
3. Dr Velakoulis was not able to determine if Dr Orchard's attitude and performance were predominantly personality, psychiatric or cognitively based but identified his areas of concern as:
   • Dr Orchard's inability to view his behaviour as others would perceive it,
   • the possibility that his view of events was paranoid or due to a need to defend himself against narcissistic insults,
   • the adoption of a rigid and inflexible position in both his practise and attitude,
   • possible cognitive difficulties, and
   • Dr Orchard's suggestion that he, himself, possibly had ADD.
4. Dr Velakoulis recommended Dr Orchard undergo neuropsychological assessment, neuro-imaging and further clinical assessment. He advised that in the interim Dr Orchard should not practise.

1. Dr Velakoulis provided a supplementary report dated 4 December 2012, having received the reports of the neuropsychologist Ms Sharon Brown, Dr Reutens and Dr John Clarkson. Based on the neuropsychological report and that of Dr Reutens, Dr Velakoulis accepted that Dr Orchard did not have a cognitive defect. He also withdrew reference to paranoid behaviour which had been in his first report. He did not accept Dr Clarkson's diagnosis that Dr Orchard had ADD as this was based on a questionnaire completed by Dr Orchard and a SPECT scan. Dr Velakoulis was not prepared to make a diagnosis on the SPECT scan findings without a concurrent brain MRI (magnetic resonance imaging).

1. Dr Velakoulis was provided with a copy of the Tribunal Book and interviewed Dr Orchard for three hours and 40 minutes on 19 April 2013. Dr Velakoulis understood that the Board had refused Dr Orchard's application for registration based on his earlier report. However, his fears that Dr Orchard might not co-operate were unfounded.
2. In this interview Dr Orchard again expressed his belief that he had been 'persecuted', as had all doctors practising in the area of ADD, and his intention to campaign in the public sphere to right these wrongs.
3. Dr Velakoulis performed a five zone Neuro-psychiatric Unit Cognitive Screening Tool test which yielded similar results to those obtained in 2011 with scores of 16/20, 20/20, 18/20, 19.5/20 and 20/20, the lowest score (16/20) being in attention. Dr Orchard had been diagnosed as suffering from ADD by another psychiatrist and was taking dexamphetamine four times daily.
4. Dr Velakoulis viewed the brain MRI and had access to the radiologist's report. He concluded that Dr Orchard had 'moderate global atrophy that was appropriate for age'. Dr Velakoulis commented briefly on all Dr Orchard's correspondence with AHPRA and the Board and concluded, in summary, that:
   • Dr Orchard had been diagnosed with ADD,
   • Dr Orchard's diagnosis of ADD in the elderly population was a matter of concern,
   • Dr Orchard's belief that ADD was under diagnosed and under-treated persisted, and
   • His view was that those practitioners who diagnosed adult ADD were the subject of a witch-hunt.
5. Dr Velakoulis was of the opinion that Dr Orchard's psychiatric practice had been extremely narrow and needed to consider alternative diagnoses so that appropriate treatment was provided to his patients. Dr Velakoulis had been provided with copies of letters written by Dr Orchard and his application for registration wherein Dr Orchard stated that his interest in the diagnosis and treatment of adult ADHD that commenced in 2001 had resulted in increasing referrals of patients suspected of having the condition to such a level that before his retirement he was seeing 11 new patients a week with a resultant increase in his working hours and a diminution in the number of patients he saw who had other psychiatric disorders.
6. Dr Orchard's responses to and communications with AHPRA, the Board and VCAT were considered to be a reaction to a narcissistic insult on his professional practice and reputation.
7. The final paragraph of Dr Velakoulis third report said:

In order for Dr Orchard to practice as a psychiatrist it would be important that he be able to consider alternative diagnoses to ADD in adult patients and to prescribe appropriate pharmacological or psychotherapeutic treatments. As stated in an earlier report I would be concerned that Dr Orchard would have difficulty in being overseen or monitored in his practice. Given my observations and the evidence provided to me I would consider this an essential requirement if Dr Orchard were to be allowed to practise.

1. In his oral evidence before the Tribunal, Dr Velakoulis was taken to his three reports which were addressed in detail. In so doing, he corrected any implied concern that Dr Orchard exhibited delusional thought processes. He confirmed his opinion that Dr Orchard was not cognitively impaired but had excessively narrowed his area of practice and was rigid in his belief that ADD was under-diagnosed and under-treated - contrary to the psychiatric literature.
2. Dr Velakoulis was asked to enlarge on the supervision he considered to be essential should Dr Orchard return to practice. Dr Velakoulis, who had not previously turned his mind to this question, suggested a two week period of intensive face to face supervision involving Dr Orchard's consultations with predominantly new patients. This could be daily or every second day and modelled on the psychiatric registrars' training module of observing the doctor take a history, their intercourse with the patient followed by discussion of their performance with the supervising psychiatrist.
3. In cross-examination Dr Velakoulis identified Dr Orchard's narrowed diagnostic views as an impairment to practise although he had no personal knowledge of Dr Orchard's clinical practice.

1. Dr Reutens provided two reports having interviewed Dr Orchard on 1 November 2012. She obtained the details of the patient consultation that led to Dr Orchard's notification to the Board; Dr Orchard's belief that he was being persecuted for his management of ADHD; the report of Professor Schweitzer and Dr McArdle following the audit of Dr Orchard's practice and the subsequent restrictions placed on his hours of practice and Dr Orchard's account of his experiences with the hearing of his application to VCAT that led to his retirement.
2. Dr Orchard expressed his willingness to discuss his patients with a colleague, but given his own status and experience, doubted it would be possible to find a suitable mentor to supervise his practice. He was willing to participate in peer review meetings.
3. On mental state examination, Dr Reutens did not detect any evidence of psychosis or paranoia. Nor did she consider Dr Orchard to be cognitively impaired.
4. Dr Reutens had been provided with the reports of Dr Velakoulis, Dr Clarkson and the neuropsychological assessment by Ms Sharon Brown. These reports in concert with her own assessment of Dr Orchard resulted in her concluding that 'Dr Orchard does not have any significant cognitive dysfunction' and that the complaint and its subsequent investigation 'had constituted a narcissistic injury to Dr Orchard who considered himself to be at the forefront of ADHD diagnosis and treatment'.
5. Dr Reutens identified the areas of Dr Orchard's clinical presentation that concerned her as follows:
   • Dr Orchard's failure to inform her that he had been diagnosed as suffering from ADD and was taking 50 mgm daily of dexamphetamine in four divided doses, and
   • having gleaned this information from Ms Brown's report, she was concerned by the dosage given Dr Orchard's age, the incidence of side-effects and the lower tolerance of the drug in the elderly, and
   • she considered Dr Orchard's relinquishment of his registration to have been impulsive and not considered and that given Dr Orchard's belief in his pre-eminence in the field of ADHD and difficulties that might arise in finding a suitable supervisor, there remained the possibility that his compliance with oversight might be difficult to achieve.

1. Dr Reutens' second report of 10 May 2013 followed the provision to her of Dr Orchard's brain MRI report and CD and a copy of the Tribunal Book. Dr Reutens interpreted the brain MRI as showing mild cortical atrophy consistent with Dr Orchard's age. As she had not found any psychiatric disorder or cognitive impairment, Dr Reutens was unable to identify any reason why Dr Orchard should be prevented from practising psychiatry subject to supervision. In her opinion Dr Orchard's willingness to join peer review groups demonstrated a degree of flexibility and insight. She considered the letters written by Dr Orchard to AHPRA and others were a reflection of his personality style.
2. Dr Reutens declined to answer the posed question as to whether Dr Orchard was a fit and proper person, she having identified this as being a question for the Tribunal to address and determine.

1. Dr Reutens' oral evidence was heard prior to that of Dr Velakoulis. Dr Reutens maintained her written opinion. Her concerns relating to Dr Orchard's failure to inform her that he had been diagnosed with ADD were somewhat allayed by the information, provided by Mr Richardson, that Dr Orchard had been instrumental in ensuring that Ms Brown's report was made available to her and that he had been aware of its content relating to this diagnosis and his treatment.
2. Dr Reutens elaborated on the side effects and tolerance of dexamphetamine in the elderly and also the reluctance of most psychiatrists to diagnose ADD in this age group where other differential diagnoses were more prevalent. Dr Reutens was unaware of the availability of a slow release form of dexamphetamine but, having been so informed, agreed that this would decrease the risk of misuse of the drug in the wrong hands.
3. Dr Reutens suggested supervision should be modelled on the psychiatric registrars-in-training model combined with peer review as advised by the Royal College of Psychiatrists, for a period of one year. She informed the Tribunal that in Sydney there would be 10 or more consultant psychiatrists whose main area of practice was ADD and she anticipated there would be a similar number in Melbourne.

1. In summary, both experts are of the opinion that Dr Orchard does not have cognitive defect or impairment precluding registration to practise medicine, but, should he be registered, supervision of his practice by a suitable mentor is essential. Both have opined that Dr Orchard's written communications with AHPRA and other bodies were a personality driven defence response to a narcissistic insult or injury.
2. Dr Velakoulis considered Dr Orchard's narrowing of his practice to predominantly patients with ADD to be an impairment to practice.[10]

1. As a witness and under cross-examination we were impressed that Dr Orchard is clearly an intelligent man; he listened carefully and gave well considered answers. For the most part he was insightful, and admitted that most of the intemperate things that he had said and written were inappropriate, and expressed at a time of great stress. He retracted many of them but not all. He showed resilience as a witness, and more flexibility than one would have expected in the light of Dr Velakoulis' reports and the general dogmatic tone of his correspondence.

1. Dr Orchard has been assessed thoroughly in a medical sense; in fact far more thoroughly than most practitioners would be assessed, and reports have been written and considered. Dr Velakoulis, neuropsychiatrist, and Dr Reutens, old age psychiatrist, have interviewed Dr Orchard. Ms Suzanne Brown, neuropsychologist, has interviewed him and done rigorous and detailed psychological testing. An MRI has been done and reported on as normal for a man of his age. A SPECT scan was also done. We are satisfied there is no convincing evidence of cognitive impairment.
2. However the experts who have assessed Dr Orchard have all expressed some reservations about attitudes such as rigidity which they have labelled 'cognitive rigidity', and a 'narrowness' in his approach to diagnosis and treatment (which might also be referred to as tunnel vision), so that he appears to them to inappropriately over diagnose and over treat ADD. We accept those conclusions.
3. The Board also referred to an obvious minor error Dr Orchard made while giving his evidence, suggesting this showed 'confusion', and that this might indicate impairment. We viewed that error as no more than a slip of the tongue, and not of any significance.
4. We regard Dr Orchard's lack of preparedness to consider alternative diagnoses as a matter of his attitude, rather than being an impairment. It does not constitute a 'physical or mental impairment, disability, condition or disorder (including substance abuse or dependence)'. Dr Velakoulis' statement that Dr Orchard's views constitute an 'impairment to practice' uses the word 'impairment' in a way which goes beyond what is contemplated by that term , as it is defined and used in the Act.
5. We find that unsuitability under s 55(1)(a) is not made out.

1. The Particulars provided by the Board on 2 August 2013 of the allegation that Dr Orchard is not a fit and proper person to be registered are as follows.

(a) the prior transcript at pages 25-26;[11]

(b) that Dr Orchard has refused to accept past findings of unsatisfactory practice. He states that he has been the subject of a vendetta, a witch hunt and McCarthyist behaviours: see TB [Tribunal Book] 14, 39, 58, 136, 248, 265, 308, 343 and 338;

(c) that Dr Orchard has made improper comments about the Board. He has observed that it has 'railroaded' him out of medicine, has no credibility, has engaged in a criminal abuse of power, is corrupt, is dishonest and employs 'cowboys': see TB 13, 24, 48, 50, 119, 121, 249 and 347. There are parts of the Tribunal Book which demonstrate that Dr Orchard has been generally abusive towards the Board - for example he accuses the Board of being 'mind dead' (TB 15) and 'robotic' (TB 20);

(d) that Dr Orchard has refused to accept prior finding of VCAT: see TB 264;

(e) that Dr Orchard repeatedly challenges found matters arising from his earlier hearing before the Tribunal: see TB 308; 310, 314, 315, 317, 318, 319, 331;

(f) that Dr Orchard has impugned the Tribunal and describes its hearings as 'Russian show trial': see TB 261. He has called the Tribunal a lottery Court: see TB 348. He has stated that the Tribunal is the forum where 'the most convincing liar wins': TB 348. He has attacked the professional competence of Dr Reddy, as member of the Tribunal, and the prior Tribunal that dealt with him: TB 285. He has stated that the Tribunal 'railroaded' him out of medicine: TB 121;

(g) that Dr Orchard proffers diagnoses of ADHD in people he has never met, namely Martin Bryant, Dr Gel, Anders Brievic and Gary David: see TB 50-52;

(h) that Dr Orchard has not accepted the findings of the Tribunal and Professor Schweitzer and, in substitute, has run campaigns suggesting the decommissioning of the Medical Practitioners Board of Victoria and the Australian Health Practitioners Regulation Agency: see TB 342-349; and

(i) that Dr Orchard offers 'grenade therapy' to the Board: see TB 61.

1. These particulars refer to letters sent by Dr Orchard between 3 February 2011 and 18 June 2012. The first was addressed to the VCAT Senior Member who chaired the VCAT panel which heard his case in 2010. Dr Orchard stated that he was withdrawing his decision to voluntarily retire. Like the subsequent letters, it complained at length that he had been railroaded out of medicine. It was critical of the expertise of the Medical Practitioner's Board of Victoria (that is, the former Board under the Health Professions Registration Act 2005, which was replaced by the Board on 1 July 2010). It was also critical of the VCAT panel which heard his case. In particular it was critical of the psychiatrist who sat on the VCAT panel. It attached extensive material in support of his belief that the approach of the vast majority of psychiatrists to ADD is completely misguided. The enclosures included documents written on this subject by Dr Orchard himself plus journal articles, and the draft constitution of a proposed society for the study and treatment of ADD in adults.
2. The major letters written by Dr Orchard in 2011 were those of 17 March, 20 May, 3 June and 17 October. The major letters written by Dr Orchard in 2012 were those of 25 January, 7 February (to the Premier of Victoria), 17 May and 18 June (a re-writing of the 17 May letter).
3. The seven page letter of 7 February 2012 addressed to the Premier of Victoria repeated Dr Orchard's main grievances.
4. This correspondence culminated in Dr Orchard's letter of 17 May 2012. This could fairly be described as a 23 page diatribe, replete with outlandish accusations, threats, withering criticisms of individuals, self justification, and grandiose tangential asides. It included extensive bolding, underlining and capitalisation.
5. The Board submitted that:

The sum total of all this material is that one is left with a compelling sense that this behaviour, in holding such views and then writing such letters exposing these views is that both the holding of them and then their expression are utterly inappropriate and are so ill considered and cavalier that they reveal a person who is not a fit and proper person to be registered as a medical practitioner. Dr Orchard has exposed himself as a person against whom now there exists serious doubt whether he possesses the rectitude of character such that he may be safely entrusted with registration. It is submitted that the sum total of this material reveals that he does not.[12]

When such extravagant statements were put to the doctor, they were either persisted in, or simply said to be 'irrational and over the top comments'. Their gravity never seemed to be fully accepted. Their complete impropriety never seemed to be truly accepted. He described some of these statements as not 'politically correct'. He suggested that it might have been wiser to 'do a bit of editing'. At best there seemed to be mere regret and simple explanation that they were written in anguish. The gravity of these statements, and their utter inappropriateness, together with the manner in which they are dealt with, does little to diminish their seriousness, nor change their impact.[13]

1. Submissions made by Mr Richardson included the following:
   • The sequence of events suggests that the 'fit and proper' criterion was only relied upon late in the piece, and when further legal analysis was done - once the 'impairment' basis was shown by further reports not to be as strong as initially thought.
   • Dr Orchard accepted in his evidence that his correspondence was intemperate and an error of judgment.
   • It did not continue beyond June 2012.
   • The making of these intemperate statements by Dr Orchard in his correspondence was not conduct in the course of, or directly relating to, the treatment of patients. Unlike s 7(2)(a) of the Medical Practice Act 1994 or s 6(2)(a) of the Health Professions Registration Act 2005, the Act does not impose a requirement that Dr Orchard show he is of good character. The submission went on:

To the extent that the character of the applicant is a relevant matter then it is important to bear in mind that neither the Board nor this Tribunal are roving moral police officers. The following matters are relevant:

1. Matters not affecting a doctor's character in a professional sense (eg political views or conduct) would be irrelevant to their credit or character - see Roylance v General Medical Council [2000] 1 AC 311; [1999] UKPC 16 at [39].
2. As Kirby P held in McBride v Walton BC 9402907 at 16-17, (a dissenting judgment but it remains relevant to this aspect of the topic):
   1. Good character has to be assessed in the context of a medical practitioner and morality is relevant only so far as it relates to the person's performance of the duties of medical practitioner;
   2. Not every flaw of character, even a flaw relevant to a medical practitioner's entitlement to practise, will lead to a finding of not of good character.
   3. A single act or even a connected series of acts, even if pertinent to medical practice, may not be sufficient to establish lack of good character.

1. The fact that a person has radical political views or has adopted an extremist position in relation to contemporary issues provides no bar to the person being of good character unless their attitude renders them not fit and proper to be registered because 'his character, reputation or likely conduct fall short of the standards' properly to be expected of a professional: see a lawyer case - Re B [1981] 2 NSWLR 372 at 380.

1. In his evidence, Dr Orchard acknowledged that a lot of the statements he made in his correspondence in 2011-12 were stupid, irrational, intemperate and poorly considered. He said he was 'a bit horrified' to read some of his statements now. He said his statement that 95% of Victorian psychiatrists are incompetent was a 'loose comment'. This was an expression of his fervently held belief that ADD is treated the wrong way in Victoria. He acknowledged that his attack on VCAT, and in particular the psychiatrist who sat on the VCAT panel was irrational. It was a stupid thing to write. He said his letter to Premier Ballieu referring to VCAT as a 'lottery court' was irrational abuse. It was poorly considered.
2. On the other hand, in giving his evidence, Dr Orchard made it clear that he adheres as firmly as ever to his views on the way in which ADD should be treated. To that extent, he acknowledged he did not accept the VCAT decision of 30 June 2010. He said whilst he had to accept the 'umpire's' decision, on an intellectual level, he still did not agree with it. He believed that as a citizen in a democratic country he has a right to form such an opinion and express it.
3. Dr Orchard also made it clear that he did not resile from the views he expressed about the conduct of members of the old board, and of Dr Velakoulis. He maintains the view that they were out to get him. He specifically adhered to his statements that he believed they were dishonest in their pursuit of him, as well as being incompetent in terms of psychiatry. He also adheres to the comments he made about Martin Bryant and others being likely to suffer ADHD.

1. The phrase 'fit and proper' is not defined in the Act. In Hughes and Vale Pty Ltd v New South Wales (No 2)[14] Dixon CJ, McTiernan and Webb JJ made it clear that the phrase is not to be construed too narrowly. Its meaning depends on its context.[15] It includes whether a person has the necessary honesty, knowledge and ability.[16] More relevantly to the present case, it also includes whether a person 'is possessed of sufficient moral integrity and rectitude of character' such that he or she should be entrusted with registration.[17] The Board's contention here was that Dr Orchard's conduct in sending all the correspondence he did during 2011 and 2012 ─ even though it was not directly as part of treating patients, or the conduct of his practice ─ indicated he was not.
2. In the closely related realm of misconduct, Fullaghar J said in Ziems v Prothonotary of Supreme Court of New South Wales:[18]

... the whole approach of a Court to a case of personal misconduct must surely be very different from its approach in a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former.

1. In Ziems, a conviction for manslaughter after a barrister caused the death of a person whilst drink driving did not, given the powerful extenuating circumstances in that particular case, result in the barrister being struck off the roll of practitioners. It could not be said, after a careful examination of those circumstances, that at the conclusion of his jail sentence for manslaughter, the barrister was not a fit and proper person to practise.
2. The authorities referred to in the submissions on behalf of Dr Orchard, noted above, reinforce this: in contrast to Ziems, for example, sexual abuse by a doctor of his daughter was a matter of such seriousness that it constituted professional misconduct, despite occurring outside the conduct of his practice.[19]

1. We deal first with Dr Orchard's continued firm adherence to his views about the way in which ADD should be treated. We do not regard these in themselves as giving rise to the conclusion that Dr Orchard is not a fit and proper person to practise medicine (or indeed as being the basis for any ground of unsuitability under s 55 of the Act). Obviously a diversity of views is required in order to progress the science of psychiatry. History has many examples of independent thinkers who are 'outliers' (as Dr Orchard was described during the hearing, including by himself) whose views are not initially accepted, and who may even be vilified, but subsequently are shown to be correct.
2. Although touched upon at times during the Board's argument about fit and proper, we deal with questions relating to Dr Orchard's capacity under ground 1 (above) and 3 (below).
3. We now turn to Dr Orchard's intemperate criticisms of VCAT, his colleagues, the Board and Dr Velakoulis.
4. In considering these statements, while it can be said that it would have been preferable that they were not expressed so stridently or undiplomatically, we believe it is appropriate to bear in mind the circumstances as Dr Orchard saw them at the time. He had clearly found the experience of being investigated and being the subject of a VCAT proceeding very confronting. He appeared to be profoundly adversely affected by his experience of being cross-examined extensively and aggressively (as he described it) in the Tribunal. This may indeed have been heightened by his susceptibility to 'narcissistic insults' as Dr Velakoulis and Dr Reutens put it. He was also very upset about the effect this had on his partner, and also the effect of a serious car accident she was involved in. At one point during his cross-examination he said he was 'much healthier these days'. This was a reference to the fact that he himself has now been diagnosed with ADD, and is being treated for that condition. He says the treatment has been very successful. Further, it is understandable that a person who regards himself as an eminent psychiatrist, still at the top of his game, and who has adopted a new approach to a branch of psychiatry which is not accepted by the vast majority of his colleagues, could feel aggrieved at being wrongly described as suffering the impairments of possible paranoia, and possible cognitive decline. These were two provisional conclusions of Dr Velakoulis in December 2011. Both of these were subsequently abandoned.
5. As stated, Dr Orchard has now recanted on the outrageous statements he made about VCAT, and that is in his favour when considering the question of 'fit and proper'.
6. The major concern in our view is his non-recanted views about the old Board and Dr Velakoulis. However, applying the authorities referred to above, we do not believe this conduct renders him not fit and proper. We should be cautious before making a finding of not fit and proper in relation to conduct which is separate from the carrying out of Dr Orchard's medical practice. We do not regard Dr Orchard's correspondence as being particularly closely related to the conduct of his practice in the relevant sense. Of course, the subject matter of his correspondence arises out of, and relates to the treatment of psychiatric patients. But it is more properly characterised for present purposes as advocacy for his own position. The Board's case under this head - fit and proper - does not relate to his treatment of any patient(s). It is all about the intemperate expression of his views in correspondence. As such it is more appropriately categorised as conduct engaged in outside the practise of his profession.
7. The authorities referred to above make it clear that for such personal conduct to render a practitioner not a fit and proper person to practice, it must be of a very serious nature, such that it has a direct bearing on his fitness to practise. We certainly do not condone Dr Orchard's correspondence. Quite the contrary. It was well out of keeping with what would be expected of a senior member of the profession. Here, however, we find that Dr Orchard's correspondence does not go so far as to indicate a defect in character so profound as to affect his suitability to practise. It is of a different nature to matters such as sexual abuse of a relative (A County Council v W) or falsifying results of medical research (McBride).
8. The Board did not refer us to any authorities which suggested that such conduct in the course of public debate, or the carrying out of disciplinary processes would warrant a finding that a doctor is not fit and proper.
9. We find that the 'fit and proper' ground under s 55(1)(h)(i) is not made out.

THIRD GROUND - ABILITY TO PRACTISE COMPETENTLY AND SAFELY

1. Finally, the Board contended that Dr Orchard's conduct since the first VCAT case in 2010, and his evidence to the Tribunal in this case demonstrated that he did not accept VCAT's 2010 findings, and the consequence is that the public would be at risk if he was to resume practice. Here, the Board relied on s 55(1)(h)(ii) of the Act.
2. This ground was relied upon by the Board in the alternative, in the event that Dr Orchard's 'cognitive rigidity' was not found to comprise an impairment. Again, the Board also relied on Dr Orchard's non-acceptance of the VCAT decision of 2010, and the dangers of the proliferation of Dexamphetamine in the community.
3. Mr Richardson contended that this should not be a ground which the Tribunal should consider at all, because it was not one of the grounds of refusal relied upon by the Board. Indeed, it was only stated to be a ground on the very last day of the hearing, when final submissions were heard. Mr Richardson said this was a breach of procedural fairness. He referred to McBride.[20]
4. It is true that s 55(1)(h)(ii) of the Act was only raised explicitly as a ground relied on by the Board, for the first time in final submissions. However, the issue of whether Dr Orchard is able to practise safely and competently, is one which has been present in the background throughout. As noted above, Dr Orchard's 'capacity to practice the profession safely and competently, such that the safety of the public would not be at risk' was referred to in the Notice of Refusal of 20 July 2012. It was intermingled with the impairment and fit and proper cases put on behalf of the Board.
5. Also, because of the course which events have taken, the question of Dr Orchard's capacity has in practical terms been an issue which has been hanging, without being finally resolved, since the VCAT decision of 30 June 2010. The Tribunal found that Dr Orchard's professional performance in diagnosing and treating ADHD was unsatisfactory. In so finding, VCAT was indicating that his mode of practise needed to change. However, the orders made on 17 September 2010 were mainly tailored to the new circumstances pertaining by then, namely, that Dr Orchard had decided to retire from practice. Those orders required that he take certain steps to improve his mode of practise during the following six months while he wound it down. They limited him to 40 hours of patient contact per week, required him to take some steps towards improving his record keeping (albeit that he was allowed to keep using his old card based patient record system) and required him to be supervised.[21]
6. But the orders of 17 September 2010 also required that Dr Orchard see no new patients. So they did not address the key aspects of professional performance which the Tribunal found to be unsatisfactory. In particular, they did not deal with the main issue of Dr Orchard's approach to diagnosis of ADD.
7. As Mr Moloney said, VCAT is 'at large' in determining this matter. We are conducting a 'de novo' review.
8. The question of Dr Orchard's capacity to practise safely and competently was dealt with by both sides during the course of evidence and submissions. In the context of this case, there is a significant overlap between the s 55(1)(a) and s 55(1)(h)(ii) grounds.
9. During the hearing, both parties agreed that this case does not involve an in depth analysis of the controversy about how ADD should be diagnosed and treated in adults. Both agreed that would massively enlarge the scope of the hearing. Rather, the question of Dr Orchard's capacity to practise safely was argued on the basis of the material before the Tribunal, in particular the report of Professor Schweitzer and Dr McArdle, the 2010 VCAT case and the subsequent medical evidence, especially that of Dr Velakoulis and Dr Reutens.
10. In all the circumstances, we have concluded it is necessary for us to consider the question of whether there is any basis on which we should conclude Dr Orchard is not able to practise competently and safely and it is not unfair to Dr Orchard for us to do so in the circumstances described above.

Ability to practise competently and safely - findings

1. We are not satisfied on the evidence that Dr Orchard is unsuitable on the basis of s 55(1)(h)(ii).
2. On this point the Board relied on the evidence of Dr Velakoulis, which was given from the standpoint of impairment. The Board did seek to draw from the evidence of Dr Velakoulis that Dr Orchard's narrowed diagnostic approach supported its alternative contention of unsuitability under s 55(1)(h)(ii). However, Dr Velakoulis only ever addressed this question indirectly. As Mr Richardson said, Dr Velakoulis put up some vaguely worded 'paper tigers' and then knocked them down. For example he said that he had concerns about Dr Orchard's statement that there are 23 patient groups for whom a provisional diagnosis of ADD is appropriate. This is a concern. But the evidence of Dr Velakoulis did not explain to us precisely how and why this represented a danger to the public. He did not profess particular expertise in the diagnosis and treatment of ADD. And he did not give evidence about the diagnosis and treatment of particular patients.
3. Dr Velakoulis' and Dr Reutens' evidence falls well short of satisfying us that Dr Orchard is unable to practise competently and safely. Neither did an audit of his practice, or considered the way in which he treated individual patients. That was done in 2009 by Professor Schweitzer and Dr McArdle, when they conducted their joint audit of Dr Orchard's practice. They concluded that while there were concerns about his mode of practise (which gave rise to the VCAT findings of 30 June 2010) they were both not of the opinion that Dr Orchard should be prevented from practising.
4. Dr Reutens also said that it was her opinion that Dr Orchard could practise with appropriate supervision. Dr Velakoulis did not state that Dr Orchard should be prevented from practising.
5. There are legitimate and significant concerns about Dr Orchard's approach to the diagnosis of and treatment of ADD. However, the most recent occasion when his mode of day to day practice was investigated, was in 2009 when Professor Schweitzer and Dr McArdle conducted their audit of Dr Orchard's practice.
6. The Board submitted, or at least implied, that various statements made by Dr Orchard indicated that he did not have the capacity to practise safely and competently. For example, his statement that 95% of his colleagues are incompetent in their approach to ADD, and his suggestions that ADD was 'everywhere' and as prevalent as the 'common cold'. A related argument which the Board put was that Dr Orchard had not accepted the findings of VCAT, and so any conditions imposed which sought to put those findings into effect would not work. Dr Orchard was 'unsupervisable'.
7. The answer to this is that Dr Orchard has accepted VCAT's findings - to the extent described above. He said he would abide by any condition imposed. A concern that Dr Orchard will not comply with conditions is not a basis for refusing to register him in the circumstances of this case. If he fails to comply with conditions imposed, action will no doubt be taken by the Board to enforce them. This would obviously create further difficulties and expense for Dr Orchard. So it is clearly in his interests to comply with any conditions imposed by the Tribunal.
8. The Board also pointed to the dangers of the over-prescribing of Dexamphetamine. It is an addictive drug listed under Schedule 8 of the Drugs Poisons Controlled Substances Act 1981. Again, the Board's case here depends on implications, rather than proven facts - the evidence was to the effect that Dr Orchard had applied for and been granted the necessary permit to prescribe dexamphetamines. We have no basis on which to conclude that the regime in place for the protection of the public in relati

1. For the above reasons, we find that the grounds of unsuitability contended by the Board are not made out. Subject to any other statutory requirements, and conditions we refer to below, Dr Orchard is entitled to be granted general and specialist registration.

1. We have concluded, however, that a number of conditions are 'necessary or desirable' to be imposed on Dr Orchard's registration, under s 83 of the Act. These reflect the concerns which have been expressed by Professor Schweitzer and Dr McArdle, as well as Dr Velakoulis and Dr Reutens relating to Dr Orchard's approach to the diagnosis and treatment of ADD, especially in the context of the features of Dr Orchard's personality they observed.
2. In general terms the conditions require that Dr Orchard undergoes 60 hours of supervised practice (the equivalent of approximately two weeks' full time practice) before he commences to see patients alone, that he be supervised and mentored after that, that he limits his number of practising hours, that he receive specific further education, and participate regularly in an RANZCP Peer Review Group.
3. Dr Orchard's personality and the way his practice has evolved has led to him becoming isolated from the mainstream of his professional colleagues. While he is not necessarily expected to let go of his strongly held views (unless compelling evidence emerges to undermine them) he is required to conform to the norms of professional practice, that is, to engage with his peers (including his 'mainstream' peers) on professional matters, to participate in CPD, and to submit his diagnoses for second opinions where appropriate.
4. The more his approach to practice diverges from what is generally regarded as prudent for the treatment of psychiatric patients, the greater the onus is on Dr Orchard to cross-check and justify his diagnoses and treatment.
5. Both Dr Velakoulis and Dr Reutens expressed scepticism as to whether Dr Orchard would accept supervision. The ball is in Dr Orchard's court in relation to this. We find that supervision is essential. A supervisor must be found who is acceptable to both Dr Orchard and the Board. If the supervisor's reports to the Board are adverse to a significant degree, then the spectre of a further action by the Board arises.
6. The Board provided us with a set of proposed conditions, to apply in the event we determine that Dr Orchard should be granted registration. We have modified the conditions proposed in relation to this supervision to try to make them more practicable and effective. We agree with the limitations which the Board has suggested as to permitted hours of practise. Thirty hours of direct clinical contact will equate to at least a full working week overall. We have concluded that 60 hours of supervised practise is sufficient rather than the 120 hours sought by the Board. We envisage that the practice will be part time at first, due to the initial requirement that all consultations be supervised. We have put supervisory emphasis on new patients. We believe it is appropriate for Dr Orchard to provide his own report to the Board on every occasion when a supervisor or educator does so. This is intended to ensure the process is one which has buy in from Dr Orchard to the maximum possible extent.
7. We have also concluded it is not necessary to prohibit Dr Orchard from prescribing Schedule 8 drugs, in particular, dexamphetamine. There is of course a statutory regime in place to regulate the prescribing of Schedule 8 drugs. Also, Dr Orchard will be subject to a rigorous supervisory regime, and we believe the condition proposed by the Board would create unnecessary complexities in practice.
8. We do not believe it is appropriate to impose the condition which Mr Richardson sought at the conclusion of the hearing, that Dr Orchard be granted registration on the basis that he not practise for an initial period of three months. This was to allow him to seek to make arrangements for the resumption of his practice - but from the standpoint of it having being determined that he is to be allowed to practise. This decision makes that clear, and so achieves the outcome Mr Richardson sought in any event. But the effect of the conditions is that initially, Dr Orchard's practice must include the (minimum) 60 hours supervision, plus the education sessions, in the manner prescribed.
9. We have granted Liberty to Apply for a period of six months in the event the parties consider alteration to the details of the conditions is desirable. This is not an invitation to reopen substantive issues. It is granted in recognition of the fact that Dr Orchard did not have a long time to consider the proposed conditions after the Board handed these up on the last day of the hearing. It is to enable any issues of practicality to be resolved, preferably by consent. The review period set in the conditions under the Act is six months. We determine under s 125(2)(b) of the Act, that the review provisions of Subdivision 2 of Division 11 of the Act apply to these conditions. The result is that any application within six months is to VCAT (pursuant to Liberty to Apply). After that, an application to review the conditions may be made- to the Board. The effect of the conditions is that the fortnightly meetings with the approved ongoing supervisor and the three-monthly reports are to continue indefinitely, beyond the initial six month period. But the Board will have the ability to scale these back, or remove them if it is satisfied it is appropriate to do so. The same applies to participation in the Peer Review Group, although in our view there would have to be very good reason for this not to continue.
10. Mr Moloney also indicated that Dr Orchard would have to satisfy the Board's 'Recency of Practice' requirements. These may overlap with the conditions to some extent. However, they are a separate requirement.

[1] Attention Deficit Hyperactivity Disorder.

[3] [2010] VCAT 1135.

[4] Under s 63(1) and 71 of the Health Professions Registration Act 2005.

[5] Under s 63(3) of the Health Professions Registration Act 2005.

[6] It appears Dr Velakoulis was appointed to a professorship between the time of preparation of his second and third reports. For consistency, and to avoid confusion, and with no disrespect to him, we have generally referred to him as Dr Velakoulis throughout.

[7] In providing these particulars, the Board's solicitors stated that Dr Orchard's counsel previously briefed, Mr Glick SC, had indicated that he understood the way in which the Board's case was put, however, given that particulars were now sought by Dr Orchard's new counsel, Mr Richardson, these were provided at that point.

[8] Drury v Medical Board of Australia [2011] VCAT 858 at [8] - [15].

[9] [2010] VCAT 1135 at [107].

[11] This reference to the transcript in the Board's Particulars serves to indicate that Dr Orchard was put on notice on 6 February 2013 that the Board was relying on Dr Orchard's correspondence in 2011-12 as the basis for its contention he was not a fit and proper person to be registered.

[14] (1955) [1955] HCA 28; 93 CLR 27 at 156 - 7.

[15] See also Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [36].

[16] Hughes v Vale (1955) [1955] HCA 28; 93 CLR 27 at 156.

[17] Drury v Medical Board of Australia [2011] VCAT 858 at [19] - [21]; Wilks v Medical Board of South Australia [2010] SASC 287; Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at [76].

[18] [1957] HCA 46; (1957) 97 CLR 279 at [5].

[19] A County Council v W (Disclosure), referred to in Roylance v General Medical Council (No. 2) 1997 1 FLR 574. 2001] 1 AC 311; [1999] UKPC 16 at [39].

[20] [1994] NSWCA 199; BC 9402907, per Kirby P at [36], referring to Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256.

[21] Dr Orchard said that in actual fact, the Board never did nominate a supervisor contrary to what Order 3(d) provided.