1. The particulars of each Allegations are set out in the Annexure to these Reasons.
2. As already noted, Ms Zoch admits the conduct.
3. The particulars are supported by the material in the Tribunal Book.
4. We are comfortably satisfied, and find, that each of Allegations 1 and 2 are proven.

Findings as to characterisation of the conduct

1. Professional misconduct is defined in section 5 of the National Law and includes (in paragraph (a) of the definition) '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'. For these purposes, unprofessional conduct is defined to include a contravention of the National Law.
2. Section 129 of the National Law sets out a prohibition on a registered health practitioner from practising unless they have appropriate PII in place.
3. It is clear that Ms Zoch's failure to maintain PII for over two and a half years, while continuing to practice, was in breach of section 129. As the Board contends,[6] in light of Ms Zoch being an experienced practitioner,[7] her failure to notice that she had not paid for insurance, and/or that adequate PII was not in place, over that period 'is not insignificant'.
4. In Elias, it was observed that a regulator, like the Board, has an obligation to enforce compliance with PII requirements. In doing so, it necessarily relies on practitioners being truthful when they complete their annual registration renewals. We agree with the submission of the Board that Ms Zoch's false declarations on three separate occasions was 'reckless', in the sense that it 'ought to have triggered a reminder for [Ms Zoch] to check her PII status and ensure that she was appropriately covered'.[8]
5. We accept that the failure of registered health practitioners to maintain PII has a significant impact on the reputation of the profession as a whole and on the confidence of the public in the profession.[9]
6. In Elias, and also in Psychology Board of Australia v McDonald (McDonald),[10] similar conduct was found to represent professional misconduct. In the latter case, VCAT explained that the failure to maintain PII falls substantially below the standard reasonably expected of a practitioner given it is 'a base requirement' that is:[11]

there for the protection of the public ... [and] is one of the pillars upon which the profession ... can stake its reputation ... [as it] goes to the system of assurance which is in place to give members of the public comfort that if anything does go wrong there are ways of dealing with it.

1. We are comfortably satisfied and find that the conduct the subject of each of Allegations 1 and 2 was substantially below the standard reasonably expected of an osteopath of equivalent level of training and experience and, as such, amounts (in each case) to professional misconduct within paragraph (a) of the definition of that phrase in section 5 of the National Law.

1. The Board references VCAT's decisions in Medical Board of Australia v Jansz[12] and Medical Practitioners Board of Victoria v Naik[13] in support of its submissions regarding determinations. We accept that the purpose of imposing determinations is to protect the public and, conversely, they ought not be punitive. In considering the appropriate determinations, matters of specific deterrence, general deterrence and the facilitation of the practitioner's rehabilitation may all be relevant, although the balancing of those matters will depend on the circumstances, including the extent of the practitioner's remorse and insight. Of course, any form of official censure - including a reprimand - is of consequence.

Proposed reprimand and conditions on registration: Adopted

1. The parties jointly submit that Ms Zoch should be reprimanded and her registration be the subject of a condition requiring her to provide a certificate of currency for PII coverage.
2. A reprimand is a form of official censure and we accept that it is appropriate in this case. It reflects the fact that Ms Zoch's conduct has fallen substantially below the standard reasonably expected. It will appear on Ms Zoch's registration and serve as a reminder of the importance of maintaining her PII at all times. Members of the public who check the register will also learn of the reprimand and can, of course, ask Ms Zoch about her insurance if they have concerns.
3. We also accept that it is appropriate to impose the proposed conditions requiring Ms Zoch to provide an annual certificate of currency for her PII. The conditions clearly go to rehabilitation, serving to reinforce the need for Ms Zoch to be assiduous in maintaining her PII. Of course, it also provides a means for Ahpra and the Board to more readily monitor any non-compliance.

1. Despite accepting that Ms Zoch has 'demonstrated insight'[14] and that there is 'no requirement for specific deterrence in this matter',[15] the Board submits that a short period of suspension is warranted for the following reasons:[16]

(a) a short period of suspension is a meaningful disposition and has regard to the seriousness of the conduct; > > (b) the duration of one month is not so long as to be disproportionate; > > (c) the suspension and proposed duration meets the need for general deterrence and reflect to the profession the seriousness with which those practising must regard their legal and professional obligations; and > > (d) represents a message to the community that those who carry out similar conduct will be the subject of similar disciplinary conduct.

2. In calling for a suspension, the Board references the Tribunal's decisions in McDonald, Psychology Board of Australia v Elzo (Elzo)[17] and Psychology Board of Australia v Postlethwaite (Postlethwaite)[18] as comparable cases.[19] While the Tribunal did not impose any suspension in Postlethwaite, the Board submits the current case is 'more serious' as a result of the time over which the conduct occurred (double that in Postlethwaite) and the multiple false declarations made by Ms Zoch. In McDonald, a one-month suspension was imposed where the practitioner had not held PII for around four years. In Elzo, a one-month suspension was imposed where a practitioner did not hold PII for around 2 years and 4 months.
3. Ms Zoch submits that a period of suspension is 'neither warranted nor appropriate'.[20] In this regard, she points to the following matters:
   • she self-reported, without delay, which demonstrates insight and distinguishes this matter from cases where a failure to hold PII is detected by audit;[21]
   • she held PII before and after the relevant period, obtained retroactive cover for the relevant period and has 'put in place measures to ensure it never happens again';[22]
   • imposing a suspension where a practitioner has 'proactively notified' Ahpra of a lapse in PII 'may have the effect of discouraging other practitioners from self-reporting such conduct';[23]
   • in addition to the adverse financial impact, a suspension would impact on 'her ability to deliver reliable, timely, continuity of care to her numerous clients who have come to rely on her';[24]
   • the matter has been hanging over her head for an extended period (more than three years), which was recognised in Elias as a mitigating factor;[25] and
   • the context of the 'extreme personal difficulties' she was confronting in the lead up to and during the relevant period.[26]
4. As the Tribunal has made clear in other health practitioner disciplinary proceedings, care needs to be taken when looking at the determinations in prior cases, as each case will turn on its own unique set of circumstances.
5. In the present case, the following matters are relevant in assessing whether a period of suspension is necessary or appropriate:
   • Ms Zoch's self-notification: It was Ms Zoch who called her insurer on 2 December 2019, just after completing the renewal of her registration, when she discovered that she had failed to renew her PII cover for over two years. She spoke to her professional body, Osteopathy Australia, on 4 December 2019 and quickly acted on their advice to report the matter to Ahpra (this took place the next day, as an initial attempt to advise Ahpra on the same day was unsuccessful).[27] As Ms Zoch notes, this is not a case where the misconduct has been discovered through an audit or a notification by a third party.
   • Ms Zoch's co-operation with the investigation and the steps she took to rectify the insurance situation: The material in the Tribunal Book evidences that Ms Zoch has been co-operative throughout the investigation by Ahpra and the Board. Ms Zoch immediately obtained PII once she learnt that it had not been in place. Further, she also took steps to arrange retroactive insurance for the period in which she had not been covered.[28] This ensured there is no longer an ongoing risk to the public for any osteopathy services provided by Ms Zoch during that period.
   • Ms Zoch's personal circumstances during the period between 2017 to 2020: It is clear from Ms Zoch's letter to Ahpra of 26 November 2021[29] that she was undergoing a considerable amount of stress and anxiety in her personal life during the relevant period, with serious health conditions emerging for her young children (requiring regular travel from country Victoria to Melbourne for treatment), the unravelling of her marriage as a result of her husband committing serious criminal offences for which he received a custodial sentence and the consequent need to look after the family farm on her own, while still trying to manage her osteopathy business and care for her children.
   • References attesting to the conduct being completely out of character: Ms Zoch has produced references from the President and Secretary of the Pyalong Neighbourhood house,[30] another osteopath[31] and a clinical psychologist,[32] each of whom attest to her caring and professional nature and how the failure to maintain her PII was completely out of character and likely explainable by reference to the matters referred to in the preceding dot point.
6. In our view, having regard to all the circumstances, the imposition of a period of suspension is not appropriate or necessary and could well be looked on by the profession as involving a level of punishment. While there is a need for general deterrence, in our view this is appropriately served by the reprimand and condition on Ms Zoch's registration.

The allegations in respect of Joanne Zoch (Ms Zoch) referred to the Victorian Civil and Administrative Tribunal (Tribunal) by the Osteopathy Board of Australia (Board) pursuant to section 193(1)(a) of the Health Practitioner Regulation National Law (National Law) are:

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law; and/or > > (b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, between 30 April 2017 and 4 December 2019, Ms Zoch failed to maintain adequate and appropriate professional indemnity insurance (PII) cover in accordance with the Board's Code of Conduct (Code) and/or the Registration Standard: Professional Indemnity Insurance Arrangements (Registration Standard), in contravention of the Code and/or Registration Standard, and in contravention of section 129 of the National Law.

1. At all material times, Ms Zoch was a registered osteopath;
2. Since in or around 2006, Ms Zoch has owned and/or directed and/or worked at [her own osteopathy practice in regional Victoria];
3. Between in or around 2007 and 30 April 2017, Ms Zoch held PII through Guild Insurance (Guild);
4. On 30 April 2017, Ms Zoch's PII coverage expired;
5. Ms Zoch did not hold PII coverage with Guild, or with any alternative insurance provider, between 30 April 2017 and 4 December 2019;
6. Ms Zoch did not make any attempt to renew her PII with Guild between 30 April 2017 and 4 December 2019;
7. Ms Zoch was a practising osteopath and/or the owner and/or the director of [her own osteopathy practice in regional Victoria], between 30 April 2017 and 4 December 2019;
8. The conduct of Ms Zoch set out at particulars (i) to (vii) is of a lesser standard than that which might reasonably be expected of Ms Zoch by the public or by Ms Zoch's professional peers and is inconsistent with:

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

(I) When you practise as a osteopath you must be covered by your own or third party PII arrangements that meet this standard:

1. for all aspects of your practice
2. that cover all locations where you practise
3. that provide cover for you whether you are working in the private, non-government and/or public sector, and
4. that provide cover for you whether you are practising full-time or part-time, are employed or self-employed, are working in an unpaid/ volunteer capacity, or in any combination of these factors;

(II) There are no exemptions to this standard. The National Law requires you to have appropriate professional indemnity insurance arrangements in place when you practise as an osteopath; and

(III) The National Law provides that a registered health practitioner must not practise his/her profession unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner's practice of the profession (section 129 of the National Law).

(a) professional misconduct within the meaning of the definition of professional misconduct in paragraph (a) and/or (b) and/or (c) of section 5 of the National Law; and/or > > (b) unprofessional conduct within the meaning of the definition of unprofessional conduct in section 5 of the National Law;

in that, on or about 29 November 2017, 5 December 2018 and 30 November 2019, Ms Zoch made declarations to the Australian Health Practitioner Regulation Agency (Ahpra) when applying to renew her general registration to practise as an osteopath that were inaccurate and/or in circumstances where she was reckless as to the accuracy of those declarations.

(i) At all material times, Ms Zoch was a registered Osteopath.

(ii) Ms Zoch completed and submitted to Aphra online registration renewals forms on the following dates:

(iii) The registration renewal forms contained the following declarations:

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

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

(iv) On the dates set out at (ii) above, Ms Zoch made reckless and/or inaccurate declarations on the registration renewal forms, in that she said 'Yes' to the declarations at (iii) above when she was not, in fact, compliant with the Registration Standard;

(v) The conduct of Ms Zoch set out at particulars (i) to (iv) above is of a lesser standard than that which might reasonably be expected of Ms Zoch by the public or by Ms Zoch's professional peers and is inconsistent with:

Practitioners have a statutory requirement to ensure that they and their practice are appropriately covered by professional indemnity insurance (please refer to the Board's professional indemnity insurance registration standard); and

(I) When you practise as a osteopath you must be covered by your own or third party PII arrangements that meet this standard:

1. for all aspects of your practice
2. that cover all locations where you practise
3. that provide cover for you whether you are working in the private, non-government and/or public sector, and
4. that provide cover for you whether you are practising full-time or part-time, are employed or self-employed, are working in an unpaid/ volunteer capacity, or in any combination of these factors;

(II) There are no exemptions to this standard. The National Law requires you to have appropriate professional indemnity insurance arrangements in place when you practise as an osteopath; and

(III) The National Law provides that a registered health practitioner must not practise his/her profession unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner's practice of the profession (section 129 of the National Law).

[1] Ahpra Service Centre Record, 5 December 2019: Tribunal Book (TB), 12.

[2] [2020] VCAT 496 [8]-[10].

[6] Applicant's Outline of Submissions as to Facts, Findings and Determinations dated 14 February 2023 (AOS) [19(b)].

[7] She has been registered since 2006: Letter of referral dated 16 February 2022, 2 (Tribunal Book (TB), 5).

[10] [2020] VCAT 158.

[12] [2011] VCAT 1026 [368]-[373].

[13] [2009] VCAT 755 [60]-[61].

[17] [2020] VCAT 345.

[18] [2021] VCAT 569.

[20] Respondent's Outline of Submissions dated 17 February 2023 (ROS) [4].

[25] Ibid [14]-[15] (citing Elias, [2020] VCAT 496 [14]).

[27] Letter from Ms Zoch to the Board dated 26 November 2021: TB, 238.

[28] Witness statement of Matthew Hood, from Guild Insurance, dated 26 November 2021 [37].