1. Section 129 of the National Law relevantly provides:

(1) A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner's practice of the profession.

...

(4) A contravention of subsection (1) ... by a registered health practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken.

1. On 1 July 2016 the Board promulgated a "Registration Standard: Professional Indemnity Insurance Arrangements".[4] It sets out the Board's requirements for Professional Indemnity Insurance (PII) arrangements for osteopaths, stipulating the type and extent of cover which must be maintained. It provides that a practitioner must notify the Board within seven days if the practitioner no longer has such arrangements in place. The Standard provides in part:

What must I do? > > When you practise as an osteopath, you must be covered by your own or third party PII arrangements that meet this standard. > > Are there exemptions to this standard? > > There are no exemptions to this standard. The National Law requires you to have appropriate indemnity insurance arrangements in place when you practise as an osteopath.

2. Clause 8.5 of the Board's Code of Conduct for Registered Health Practitioners[5] states:

Insurance > > Practitioners have a statutory requirement to ensure that practice is appropriately covered by professional Indemnity Insurance (see the Board's professional indemnity insurance standard).

3. We make two observations. Firstly, the importance of these requirements is made pellucidly clear. Secondly, the appropriate insurance arrangements must be in place at the time of practice. A failure to have such arrangements in place at that time is not cured by "retroactive cover".

1. The respondent has practised as a registered osteopath since 7 August 2014. He does not have any relevant disciplinary history and does not have any conditions or undertakings attached to his registration.
2. Between 28 July 2014 and 28 July 2020, the respondent held PII cover through Guild Insurance (Guild).
3. The respondent received correspondence from Guild on 29 April 2015, 14 May 2015, 4 March 2020, 19 March 2020, and 2 June 2020,[6] advising on each occasion that his monthly instalment payment for his PII had not been successfully debited from his nominated account. On each such occasion, it can be assumed that the default was rectified and the PII cover remained in place.
4. Further correspondence from Guild on 31 July 2020[7] advised that:

(a) the monthly insurance payment of $186.68 due on 28 July 2020 had not been received;

(b) Guild would attempt to debit the respondent's nominated account on 12 August and, if that was unsuccessful, would attempt to debit two payments on 28 August; and

(c) if the additional attempts were unsuccessful, the policy would be cancelled on 4 August 2020.

1. The respondent received further correspondence from Guild on 18 August 2020[8] which relevantly advised that:

(a) a further attempt on 12 August to debit the nominated account had been unsuccessful;

(b) an attempt to collect two payments would be made on 28 August; and

(c) if unsuccessful, the respondent's policy would be cancelled on 4 September 2020.

1. On 4 September 2020 the respondent received correspondence from Guild[9] advising that payment had not been received and the policy had lapsed as from 28 July 2020. The letter made it clear that the respondent was no longer covered.
2. The respondent did not hold PII coverage with Guild or any other insurer between 28 July 2020 and 16 November 2021. The respondent continued to practise as an osteopath throughout this period and saw approximately 35 patients per week.
3. On 17 December 2020 the respondent submitted an on-line application to renew his registration for the period from 1 December 2020 to 30 November 2021 (the 2020 renewal). The renewal form required declarations based on the following questions:

(a) In the previous period of registration, did you meet the Board's registration standard for professional indemnity insurance arrangements?

(b) Do you commit to meet the Board's registration standard for professional indemnity insurance arrangements?

The respondent answered "yes" to each of these questions.[10]

1. The respondent accepts that his declaration in respect of question (a) was false as he had not complied with the standard throughout the previous period of registration. It is an agreed fact that the answer was false, and that the declaration was made in circumstances where the respondent was reckless as to its accuracy.
2. The declaration in relation to question (b) is not an assertion of fact, but rather a declaration as to future intent. It is essentially an undertaking. Although referred to in the initial allegations, it is not relied upon by the Board in these proceedings as a basis for an allegation of misconduct.
3. In or around early October 2021 the respondent was advised by AHPRA that he had been randomly selected for an audit of his compliance with mandatory registration standards. He was required to complete and return an audit checklist with supporting documentation. Documentation was required to establish that he had maintained PII insurance cover between 1 December 2019 and the time of the audit.[11] The audit checklist clearly detailed the nature of the documentation required.
4. The respondent submitted the audit checklist but did not provide documentation as had been required. The documentation that was provided demonstrated no more than that he had been invited to renew his cover in June 2019 and again in June 2020.[12]
5. By email dated 3 November 2021 AHPRA requested evidence in the required form for the period from December 2019 to 3 November 2021.[13]
6. By email dated 17 November 2021 the respondent advised AHPRA that he had telephoned Guild that day and had been advised that his insurance had lapsed in 2020. He stated that he had no idea that had occurred.[14]
7. On 17 November 2021 the respondent obtained a new PII policy with Guild for the period 17 November 2021 to 17 November 2022. Between 17 November 2021 and 25 November 2021, the respondent arranged with Guild for his cover to be retroactive, with the retroactive date being 28 July 2013. He was advised on 25 November 2021 that this had been granted after providing a "No-Claims Declaration Form" on that day.[15]
8. In supplementary submissions filed on 5 July 2024, the respondent indicated that he had not paid any premiums for the period from 28 July 2020 to 16 November 2021. The sum of premiums for that period if the policy had not lapsed would have been about $2,731.50. The respondent had offered to pay this amount to Guild to obtain retroactive cover but was told that such payment was not possible or necessary. The respondent had no intention of trying to avoid such payment.
9. On 23 November 2021 the respondent submitted an on-line application for renewal of his registration for the period 1 December 2021 to 30 November 2022 (the 2021 renewal). He again answered "yes" to the two questions set out in paragraph 17 above.[16]
10. The respondent admits that his declaration in relation to question (a) was false as he had not complied with the PII standard throughout the previous period of registration. He admits (and the Board agrees) that he was reckless as to the accuracy of the declaration. The context for this is presumably that the respondent expected that he would be granted retroactive registration and (wrongly) believed that this would mean that he would be regarded as compliant with the standard.[17]
11. By email dated 6 December 2021[18] the respondent advised AHPRA that he had not been aware that payments had failed or that the policy had been terminated. He stated: "Once I had learnt that my insurance was not in place, I took every action I could to make sure the issue was rectified and will be making sure, in future, that that account has enough money in it so this doesn't happen again".
12. Despite this intimation the evidence before the Tribunal suggests that further payments were defaulted on in December 2021, January 2022, February 2022, March 2022, and April 2022.[19] Obviously these payments were subsequently made good and the PII cover remained in force throughout this period. Nevertheless, it is concerning that the previous difficulties had not been remedied.
13. The Board decided to investigate the respondent's conduct, and the respondent was advised of this decision on 28 February 2022.[20] He subsequently provided a written response to the allegations on 22 August 2022.[21]
14. When asked to explain his reflections on the risk of practising without PII cover, the respondent stated:

I was shocked when I found out that I hadn't been covered for that time period. Working with the Guild employee, I took the steps to rectify the situation as soon as quickly as possible over the phone. It was after this phone call that I emailed AHPRA to notify them of the situation. > > If there was an adverse incident as a result of the treatment or an incident at the clinic, it leaves the patients, the clinic and myself in significant risk financially, not to mention the emotional effects of putting the people I work with and my family through that hardship. > > I have updated the direct debit details for Guild Insurance to ensure this will not occur again.

15. In submissions filed by his solicitors on 3 May 2024, the respondent explained the circumstances in which his policy had lapsed. He stated that he had received emails to the effect that payments had not been successfully debited from his nominated account. This was a joint bank account from which his and his wife's bills were paid. He put money into the account from time to time to cover various bills.
16. He had "assumed that, as had occurred previously, that the outstanding payment would be remedied". He "did not appreciate that the wording of the final email was different to the previous".
17. The respondent states that he did not know the policy had lapsed and did not know he was practising without PII cover. He did not know that his declaration for the December 2020 renewal was false. He accepts that he acted recklessly in making the declaration.
18. The respondent also accepts that he was reckless as to the declaration for the November 2021 renewal, as he had not received confirmation at the time of making it that he would be given retroactive cover. However, he thought it was likely that such cover would be granted.

1. The maintenance of appropriate PII cover is of fundamental importance for the protection of the public, the practitioner, and the profession. If an adverse event occurs during a period where cover is not held, the patient and the practitioner may be placed at serious risk, and significant damage may be caused to the reputation of the profession.[22]
2. We accept that the respondent had no intention of practising without PII cover. We accept that he did not realise that his cover had terminated, until advised of that fact on 17 November 2021. We accept that he then took immediate steps to obtain cover and promptly advised AHPRA of the situation.
3. The respondent's conduct in relation to the maintenance of his PII cover was extremely reckless.
4. There had been previous payment defaults. He received an email on 4 March 2020[23] advising that his February payment had not been received. He received notice on 19 March 2020[24] advising that a further attempt to bill the payment had failed. He was advised that one more attempt would be made and, if unsuccessful, his cover would be terminated. We presume this payment was eventually made.
5. He received notice on 2 June 2020[25] that the payment due on 28 May 2020 had not been received. He was advised that two more attempts would be made to collect this payment and, if unsuccessful, his cover would be terminated. We assume this payment was eventually made.
6. It appears that these previous defaults and warnings did not prompt the respondent to take any adequate steps to ensure the maintenance of his insurance cover.
7. He received notice on 31 July 2020[26] that the payment due in July 2020 had not been received. He was advised that two more attempts would be made to collect this payment and, if unsuccessful, the cover would be cancelled on 4 September.
8. He received an email on 18 August 2020[27] stating that a further attempt had been made on 12 August to collect the July payment, but the attempt was unsuccessful. He was advised that one further attempt would be made to collect the July payment on 28 August (together with the August payment) and, if unsuccessful, his cover would be cancelled on 4 September.
9. Despite the emails of 31 July and 18 August, the respondent took no effective action to ensure that the payment was made.
10. He received a letter on 4 September 2020[28] advising that his policy had lapsed due to non-payment. This was a letter as distinct from the emails previously received. The letter made it clear that he no longer had PII cover. The respondent states that he "assumed that, as had occurred previously, that the outstanding payment would be remedied". He "did not appreciate that the wording of the final email was different to the previous".
11. He obviously paid no attention to the clear contents of the letter. He took no effective action to ensure that any default was remedied, and he did not realise, despite the clearest of advice, that his cover had terminated.
12. He failed to appreciate, over the ensuing 16 months, that payments were not being taken from his account. He was prompted by the 2020 renewal form to consider his PII coverage but nonetheless remained oblivious to the true situation.
13. The respondent's lack of attention to his obligations was highly irresponsible and unprofessional. His conduct fell substantially below the standard reasonably expected of a practitioner of his training and experience.
14. We have no hesitation in agreeing with the parties that the respondent's behaviour in relation to Allegation 1 constitutes professional misconduct.

1. The respondent's declaration in the 2020 renewal application was not intentionally dishonest. The respondent did not realise that his cover had lapsed. In one sense the false declaration is the product of the deficiencies identified in allegation 1. The additional factor is that the respondent was asked to make a formal declaration to the regulator. He was under a professional obligation to ensure that the declaration was true and correct. He ought to have assured himself by appropriate reflection and enquiries that his PII cover had been appropriately maintained.
2. It is obvious that the respondent did not do so. This is no minor matter. The declaration was made for the purpose of renewing registration. The regulator required assurance as to compliance with the PII Standard before registration could be renewed. Statements as to such an important matter must be accurate. False statements in renewal applications (whether intentional or reckless) are a serious matter. We accept that the respondent's false declaration occurred in circumstances of recklessness. His conduct fell substantially below the standard reasonably expected of a practitioner of his experience and training.
3. As to the 2021 renewal application, it seems to be suggested by the submissions of the respondent that his declaration would not have been false if, at the time the declaration was made, he had obtained retroactive cover for the period in question.
4. That is not so. Section 129 of the National Law states that a person should not practise the profession without PII cover being in place at the time of such practice. The Board's Standard is in similar terms. The section is contravened when a person practises without cover (in this case, between 28 July 2020 and 16 November 2021). Nothing that happens subsequently can cure that contravention. Retroactive cover may ameliorate the potential consequences of the contravention but will usually only be granted where there are no known claims during the period (or will be expressed to exclude cover for any such claims). Retroactive cover does not change the fact that a contravention has occurred. It does not change the fact that the practitioner has not complied with the standard.
5. The respondent contravened the section and the Standard and his retroactive cover does not change that. He did not comply with the standard during the period he was uninsured. He ought not to have claimed in the renewal application to have done so.
6. Furthermore, he accepts that his retroactive cover had not been confirmed at the time of making the declaration. In that sense also, the declaration was false and recklessly so.
7. Considering the two declarations together, we agree with the parties that the respondent's behaviour in relation to Allegation 2 constitutes professional misconduct. It was conduct substantially below the standard reasonably expected of a practitioner of the respondent's training and experience.

1. The parties have jointly proposed that the following sanctions be imposed:

(b) a condition of registration requiring the respondent to:

(i) provide a certificate of currency for his PII cover on an annual basis by 30 September in each year;

(ii) advise AHPRA within 14 days of the imposition of the condition, and also within 7 days of any change of insurer, of the name of the insurer and allow AHPRA to confirm such coverage with the insurer; and

(iii) meet any costs of complying with the condition.

1. It is proposed that a five-year review period should apply to the condition.
2. Where there is an agreement between a respondent and a regulator as to proposed sanction, that is a highly relevant consideration to which the Tribunal should have regard. The view of the regulator as to what is required in the public interest is to be given weight. If the Tribunal regards the jointly proposed sanction as appropriate, it is a desirable practice to accept the proposal. Such promotes the public interest in reducing litigation and saving costs.
3. However, the Tribunal is not bound by the suggested sanction. In the end, the Tribunal must impose the sanction that it regards as appropriate. In this jurisdiction, that is the sanction that it considers necessary for the protection of the public.
4. Some earlier decisions have suggested that an agreed or jointly proposed sanction should be examined to determine whether it is "within the permissible range". Later decisions point out that this is not the correct approach and indeed is contrary to High Court authority.[29]
5. The Tribunal should consider whether the proposal is "appropriate".
6. In the present case, the Tribunal raised the question as to whether the proposed sanctions would be sufficient to protect the public. Conscious of the desire to not depart too far from what the parties had agreed, the Tribunal sought submissions as to whether a fine might also be appropriate. The parties made further written submissions in response.
7. In Pharmacy Board of Australia v Roberts [2022] SACAT 111 at [39] to [44], the Tribunal set out the following principles as to the imposition of sanction:

In NSW Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 at [12], the High Court confirmed that the purpose of disciplinary proceedings for a barrister was entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. > > This statement was adopted and applied to the discipline of health practitioners in Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 553-554, where Doyle CJ (Williams & Martin JJ agreeing) stated: > > The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession. > > The protection of the public may sometimes require disciplinary action which has a greater adverse effect on the practitioner than may be warranted if punishment was the relevant consideration. Unlike the process of sentencing for a criminal offence, personal circumstances of a practitioner may be of limited significance in the process of determining what is necessary in the public interest. > > In Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630, at page 636, the Court of Appeal made it clear that: > > The gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which it departs from the proper standards. If this is not done, there is a risk that the conduct of delinquents in a profession will indirectly establish the standards applied by the Tribunal. > > In Physiotherapy Board of Australia v Adey [2017] SAHPT 3 at para [36], the SA Health Practitioners Tribunal observed that: > > ... the imposition of disciplinary action may serve one or all of the following purposes:

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

In order to achieve these purposes, the Tribunal should impose disciplinary sanctions that adequately reflect the incompatibility of the misconduct with the fitness of the person to be registered. The disciplinary action should be such as to convey to other practitioners and the general public that such conduct is incompatible with registration and will not be tolerated. The sanction should be sufficient to assure the public that standards within the profession will be maintained and the public will be adequately protected. (Footnotes removed)

1. In Marin v Chiropractic Board of Australia [2020] SASCFC 74, at [73] the Full Court of the Supreme Court of South Australia was considering a sanction of disqualification. The Chief Justice made the following observation which we regard as also applicable to other sanctions:

In any event, the Tribunal must also impose a period of disqualification which emphasises to other members of the profession that unprofessional conduct will be visited with significant sanctions. Even though that consideration has some analogy with general deterrence, its purpose is to maintain public confidence in the system of regulation of registered practitioners. > > (Footnotes removed)

2. In Medical Board of Australia v Singh [2017] WASAT 33 at [30] the Tribunal referred to:

the need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession, such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval.

3. We consider that the following factors are significant in considering the appropriate sanctions in this matter:

(a) The respondent contravened s 129 of the National Law which is an important provision designed to protect the public.

(b) The contravention continued for about 16 months.

(c) The contravention was not deliberate.

(d) The contravention resulted from a highly reckless approach by the respondent to his professional responsibilities.

(e) The contravention was compounded by the making of false declarations to the regulator in renewal applications. These declarations were not deliberately false but resulted from recklessness on the part of the respondent.

(f) The practitioner reported his breach to AHPRA and was candid concerning the matter.

(g) The respondent appears to have been slow to gain insight into the seriousness of his contravention. After he became aware of the contravention, he made the false declaration in the 2021 renewal application and failed to ensure that further defaults in payment did not occur on his new policy.

(h) The respondent's response to AHPRA dated 22 August 2022 contained appropriate reflections and indicated improved insight. The respondent's admissions of professional misconduct are also indicative of increased insight.

(i) It appears that no harm was caused to any patient by the contravention. The respondent has declared that no claims arose during the relevant period and based on that declaration, retroactive cover has been granted. However, the potential for harm was obvious as was the risk to patients, to the respondent, and to the reputation of the profession.

(j) It is important to assure the public that failure to comply with the fundamental requirement of PII cover will not be tolerated and will lead to appropriate sanctions.

1. We accept that it is appropriate to impose a reprimand in this case. A reprimand will express the Tribunal's condemnation for the nature and extent of the respondent's conduct. We also consider that the conditions jointly suggested by the parties are appropriate. They will provide some direct protection for the public and will not be unduly onerous for the respondent.
2. However, we do not consider that the proposed sanctions are sufficient to secure the protection of the public. We consider that there is cogent reason to depart from what has been proposed.
3. We accept that a reprimand is not a trivial sanction. It is recorded on the register and is a serious matter for a professional person. We accept that the respondent would regard it as such. Most professionals would regard the prospect of a reprimand as a deterrent. However, even the most honourable of professions are known to occasionally have some "bad eggs" and they may require a more substantial deterrent.
4. More particularly, we are concerned to reassure the public that serious failures to maintain insurance cover will not be tolerated and will be met by a substantial sanction. We are not convinced that a reprimand (together with the proposed conditions) would provide the public with such assurance.
5. We have regard to the fact that the respondent has agreed to pay the costs of the disciplinary proceedings in an amount to be agreed. We take this into account, but it is an incident of the litigation and not part of the sanction applied by the Tribunal to protect the public. It does not substitute for an appropriate sanction.
6. In the absence of the parties' agreement, we would have seriously considered whether a period of suspension was the most appropriate way of protecting the public. Failure to comply with the Registration Standard and the making of false declarations are serious matters and significant breaches cannot be tolerated. Practitioners should be aware that suspensions will be considered if they infringe in this way in the future.
7. However, we do not intend in this matter to depart too far from what the parties have agreed. We consider it appropriate to impose a fine of $3,000.00 in addition to the sanctions proposed by the parties. This is not a punishment but an attempt to assure the public that such matters are being appropriately regulated. It is designed to maintain public confidence in the regulation of the profession and to encourage other practitioners to approach their PII responsibilities in a professional way.
8. We find that the respondent has behaved in a way that constitutes professional misconduct.
9. We impose the following sanctions:

(b) The Tribunal imposes the proposed conditions, with a review period of five years.

(c) The respondent is fined $3,000.00, payable to the Board by 31 January 2025.

1. The respondent is ordered to pay the Board's costs, to be agreed or taxed.
2. The conditions imposed by the Tribunal[30] were:
   1. Dr Gardner must provide a certificate of currency in respect of appropriate professional indemnity insurance coverage to the Osteopathy Board of Australia/ the Australian Health Practitioner Regulation Agency (AHPRA):

a. on an ongoing basis, by 30 September each year; and

b. within seven days of the policy anniversary date.

1. Dr Gardner is to provide to AHPRA the name of his professional indemnity insurer, together with an acknowledgement that AHPRA may contact the professional indemnity insurer for verification:

a. within 14 days of the notice of the imposition of these conditions; or

b. within seven days of any change to his professional indemnity insurer.

1. All costs associated with compliance with the conditions on his registration are at Dr Gardner's own expense.

[1] The National Law is to be found in schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act).

[15] Tribunal Book pages 168, 171, 178, 179.

[17] See the respondent's letter of response Tribunal Book page 236.

[22] Pharmacy BA v Elias [2020] VCAT 496 at [8]; Psychology BA v McDonald [2020] VCAT 158 at [9]; Chiropractic Board of Australia v White [2021] SACAT 44 at [35].

[29] Chiropractic Board of Australia v Oborne [2023] VCAT 770 at [15]- [19]; Medical Board of Australia v YZV [2024] VCAT 1134 at [19]- [22].

[30] Conditions as per Tribunal Order dated 11 December 2024.