1. From or around 19 February 2009 until 13 July 2010, the respondent:
   • Engaged in professional misconduct within the meaning of the definition of that term in section 3(1) paragraphs (a), (b) and/or (c) of the HPR Act and/or unprofessional conduct within the meaning of the definition of that term in section 3(1) paragraphs (a) and/or (b) of the HPR Act and/or his performance has been unsatisfactory by failing to exercise the care and skill of a reasonably competent osteopath, by failing to keep adequate clinical records of a standard that would be reasonably expected by his peers and the community; and/or
   • Behaved in a way that constitutes professional misconduct within the meaning of the definition that term in section 5 paragraphs (a), (b) and/or (c) of the National Law and/or unprofessional conduct within the meaning of the definition of that term in section 5 of the National Law and/or unsatisfactory professional performance within the meaning of the definition of that term in section 5 of the National Law by failing to exercise the care and skill of a reasonably competent osteopath, by failing to keep adequate clinical records of a standard that would be reasonably expected by his peers and the community.

1. The respondent, of his own volition, has not seen WorkSafe or TAC clients since the criminal charges were laid.
2. On 15 July 2011, WorkSafe wrote to the respondent giving notice that they proposed to determine to suspend payments for professional services provided by him, on the basis that WorkSafe reasonably believed that he had committed relevant offences.
3. On 8 August 2011, the respondent wrote to WorkSafe notifying them of his intention to voluntarily cease treating new WorkSafe patients, and requesting that no decision be made by WorkSafe in relation to suspending payments for professional services for his two existing WorkSafe patients until the outcome of the criminal proceeding.
4. On 26 September 2012, WorkSafe wrote to the respondent giving notice that it proposed to determine that the respondent's status of a provider of professional services for WorkSafe be revoked.
5. On 19 November 2012, the respondent wrote to WorkSafe stating that he agreed to WorkSafe's proposed determinations and voluntarily revoked his status as a provider of professional services for five years, effective from 8 August 2011 (until about 8 August 2016).
6. WorkSafe made a determination to revoke the respondent's status as a provider of professional services for WorkSafe for a period of four years, effective from 10 July 2012 until 10 July 2016.
7. The respondent voluntarily ceased providing services for which TAC is liable effective from 8 August 2011 and agreed to the continuation of such suspension until 8 August 2016.

1. Part of the conduct occurred when the respondent was registered under the Health Professions Registration Act 2005 (HPR Act), and part when he was registered under the National Law, which commenced on 1 July 2010.
2. In light of the applicable transitional provisions, for the conduct occurring prior to 1 July 2010, the Tribunal should make findings and determinations of the type that were available under the HPR Act, and for the conduct from 1 - 13 July 2010, the Tribunal should make findings and determinations pursuant to the National Law.[1]
3. The definition of 'professional misconduct' is set out in section 3 of the HPR Act, and includes:

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency.

1. The equivalent definition of 'professional misconduct' in section 5 of the National Law, includes:

(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.

1. Under the HPR Act, 'unprofessional conduct' includes:

(a) conduct of a health practitioner occurring in connection with the practice of the practitioner's health profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind.

(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner.

1. Under the National Law, 'unprofessional conduct' of a registered health practitioner means:

professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers...

1. There are two primary objectives to the imposition of determinations for findings of disciplinary impropriety: to protect the public and to protect the reputation of the profession.[2]
2. As the Tribunal is acting as a professional disciplinary tribunal, the deterrent effect is a key element in assessing an appropriate penalty.[3]
3. In relation to the role of general deterrence, the Victorian Court of Appeal recently quoted from the following passage of Judge Ross in Brott v Legal Services Commissioner [2008] VCAT 2399.

The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence. Related to general deterrence is the proposition that in deciding an appropriate penalty the Tribunal may have regard to the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of solicitors.

1. In relation to assessing specific deterrence, the Court of Appeal has stated that there must be an assessment as to how the penalty reflects the behaviour of the accused. Quoting Brott again, the Court said that this factor involves:[4]

A consideration in relation to specific deterrence is the extent to which a practitioner displays insight into his wrongdoing such as to demonstrate an appreciation that what was done was wrong and must not recur.

1. In addition to deterrence, the nature and gravity of the misconduct is central to the process of determining an appropriate sanction.[5]
2. The Tribunal may also consider a range of other factors in determining penalty, including:[6]

1. whether the practitioner pleaded guilty or other evidence of contrition or remorse; 2. whether there have been other disciplinary findings before or since the conduct in question;

1. evidence of rehabilitation; 2. any delay from the time the investigation started to the end of the Tribunal hearing; 3. other mitigating factors such as medical or psychological evidence, family circumstances or financial issues.
2. Personal matters such as shame, personal ordeal and financial difficulty likely to be occasioned by a determination are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.

1. The respondent has acknowledged that the criminal conduct in Allegations 1 and 2, to which he pleaded guilty and for which he has been sentenced, constituted professional misconduct, and agrees that the Tribunal should so find.
2. He accepts that the Tribunal should exercise its powers to impose sanctions that reflect the seriousness of the misconduct. He agrees that the Tribunal should impose sanctions of the kind identified by the applicant ie being cautioned, reprimanded, having a condition in relation to the completion of further education in relation to ethics and record keeping being imposed upon his registration and that a condition be imposed on his registration that his practice be subject to certain audits. He resists the applicant's submission that his registration should be suspended for a period.

1. There are two primary objectives to the imposition of determinations for findings of disciplinary impropriety: to protect the public and to protect the reputation of the profession.[7]
2. In his Outline of Evidence, the respondent admits that for the relevant period, his 'record keeping system was very poor'. The Tribunal is satisfied that this falls within the definition of 'unprofessional conduct' referred to in paragraphs 51 and 52 above.
3. As the Tribunal is acting as a professional disciplinary tribunal, the deterrent effect is a key element in assessing an appropriate penalty.[8]

1. As stated in Stirling, quoting Brott, it is necessary for the Tribunal to consider the extent to which the respondent has displayed insight into his wrongdoing so as to demonstrate an appreciation that what was done was wrong and must not recur. The Tribunal did not form the view that the respondent displayed insight and expressed remorse, other than his pleas of guilty. These must be viewed in the light of the weight of evidence against the respondent. His behaviour changed only when and because he was caught. Other than the plea of guilty, there was no evidence of insight into his wrongdoing. There is a clear need for specific deterrence.

1. The actions breached in allegations 1 and 2 clearly constitute professional misconduct. For a member of a profession to submit invoices fraudulently is to violate to a serious degree the standard of professional conduct observed by members of the profession of good repute or competency.

1. It is necessary for the determination of the Tribunal to inform the public and the profession that such behaviour falls well short of the standard of behaviour required of members of the profession.

1. This is closely allied to general deterrence. The disposition must be seen in the light of maintenance of proper standards of behaviour of members of the profession which, if maintained, act as a protection of the public.

1. Any actions which constitute a shortfall in the standard of professional conduct observed by members of the profession of good repute or conduct must be denounced in order to maintain the reputation of the profession.

1. Any other factors, as summarised in Nomikos do not add great weight one way or the other.

1. In weighing up the factors and requirements, it is considered necessary for the purpose of specific deterrence, protection of the public general deterrence, protection of the reputation of the profession and having regard to the nature and gravity of the misconduct that a period of suspension is appropriate.
2. In relation to allegation 3, the primary objective is protection of the public. This is achieved by the placing of conditions on the respondent's registration with the objective of improving his record keeping.

[1] The transitional provisions are section 31(1) of the National Law and regulation 30 of the Health Practitioner Regulation National Law Regulation. For more detail, see pages 249-250 of the Tribunal Book.

[2] Stirling v Legal Services Commissioner [2013] VSCA 374, [57] per Warren CJ, Neave JA and Dixon AJA.

[5] See the principles summarised in Psychology Board of Australia v Nguyen (Occupational and Business Regulation) [2011] VCAT 2437 at [43].

[6] See the principles summarised in Legal Services Commissioner v Nomikos (Legal Practice) [2014] VCAT 251 at [23].

[7] Stirling v Legal Services Commissioner [2013] VSCA 374, [57] per Warren CJ, Neave JA and Dixon AJA.