1. Mr McMurray is reprimanded pursuant to section 196(2)(a) of the National Law;
2. Mr McMurray's registration is suspended for a period of six months from 24 May 2022, pursuant to section 196(2)(d) of the National Law;
3. Following Mr McMurray's return to practice, the following conditions are to be placed on his registration, pursuant to section 196(2)(b) of the National Law:

Mr McMurray is required to provide to the Board, on an annual basis:

(a) immediately after renewing his professional indemnity insurance, a certificate of currency in respect of his insurance; and

(b) evidence of compliance with the requirements of the Board's Registration Standard: Continuing Professional Development and Guidelines: Continuing Professional Development.

1. The review period for the above condition is four years from the date of return to practice.
2. Under s 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal directs that no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file.

1. This case concerns a podiatrist, Mr Stephen McMurray, who practised for five years (from November 2012 - November 2017) without being registered, and without holding effective Professional Indemnity Insurance (PII) cover.[1] While this occurred in the context of very unfortunate personal circumstances, Mr McMurray accepts full responsibility for his conduct. It came to light when he self-reported in November 2017. He has cooperated fully with the applicant (Board) since then.
2. In February 2020, this proceeding was filed with the Tribunal under s 193 of the Health Practitioner National Law (National Law)[2]
3. Following a compulsory conference, Mr McMurray's solicitors signed a Statement of Agreed Facts in June 2021. In October 2021, they signed a Supplementary Agreed Statement of Facts and Joint Submission on Findings and Determinations (these are together referred to as the Agreed Statement).
4. On 24 May 2022, a final hearing was held. Mr McMurray represented himself. The orders set out above were made, and brief oral reasons given. Subsequently, written reasons were sought by the Board. These are those reasons.

1. Mr McMurray commenced practising as a podiatrist in 1993. He had a busy practice, and also engaged in academic work. It is not necessary to set out in detail the distressing personal circumstances which impacted on him over many years, commencing prior to him qualifying as a podiatrist. Suffice to say they included a debilitating chronic health condition suffered by a close family member. Over time, this demanded more and more of Mr McMurray's attention. It encroached on his ability to practise full-time and to discharge his professional responsibilities. He had to give up his academic involvement. It increased his family responsibilities. Over time it led to great financial hardship. Mr McMurray's mental health suffered.
2. Mr McMurray said:

In late 2012 when I received my Podiatry registration renewal and realised that I had done zero CPD I panicked. I remember feeling sick. I couldn't sign it and say I had done it and I couldn't sign it and say I hadn't done it. So I made a massive error of judgement and ignored it. In the weeks that followed I inwardly hoped that someone would call me up and say, "Hey Steve, we haven't got your registration form. What's up?" Time went on and I knew I had to do something about it but felt paralysed act. I realised that I was probably going to be in trouble and that consequences could jeopardise my ability to practise. I was fearful of the consequences could of any action against me on [my family]. I kept hoping things would present an opportunity for me to get it sorted. My inaction was out of immense fear for myself and my family.

1. During the time between 2012 and 2017, further difficulties arose, and it was not until 2017 that there was some reprieve in his family circumstances and he 'saw a window of opportunity to finally get my lapsed registration sorted out'.
2. Once he made his self-report in November 2017, he ceased practising. It took five months, until mid 2018, before Mr McMurray was granted registration again.
3. In the hearing, Mr McMurray apologised for his conduct. He described it as a ridiculous mistake. He knew that what he did was wrong, but at the time, and under personal pressure, he succumbed to what his psychologist called 'avoidance behaviour'.

1. The allegation brought against Mr McMurray is as follows:

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

(b) unprofessional conduct within the meaning of paragraph (a) of the definition of unprofessional conduct in section 5 of the National Law;

in that he:

(a) failed to renew his registration under the National Law prior to the expiry of his registration on or about 30 November 2012, in circumstances where he intended to continue practising as a registered health practitioner and he knew or ought reasonably to have known that his registration was due to expire and that it was therefore necessary to renew the registration; and/or

(b) between on or about 30 November 2012 and 13 November 2017, continued to:

(i) practise as a podiatrist; and/or

(ii) use the title podiatrist; and/or

(iii) hold himself out as being registered under the National Law, in circumstances where he knew or ought reasonably to have known that he was not a registered practitioner under the National Law; and/or

(c) in the circumstances set out above at paragraphs (a) to (b) above, failed to ensure that his practice was covered by professional indemnity insurance, including in circumstances where he knew, or ought reasonably to have known, that practising whilst unregistered would or might affect his cover under any professional indemnity insurance he did obtain.

The particulars include, but are not limited to:

(i) Mr McMurray was first registered as a podiatrist on 14 December 1993;

(ii) his registration was due for annual renewal by 31 October 2012. He did not apply to renew the registration;

(iii) his registration expired on 30 November 2012, from which time he was no longer registered under the National Law;

(iv) he was registered again on 26 April 2018 and is and has remained registered under the National Law since that time;

(v) between the period 1 December 2012 and 13 November 2017, he:

• (A) provided services to approximately 11,796 patients;[3] and
• (B) with those services together generating gross payments of approximately $878,885 by patients, prior to any Medicare or private health fund rebate being applied.

(vi) the use of the title podiatrist during the relevant period is to be inferred from the fact that he:

• (A) provided professional podiatry services to each of the patients referred to in paragraph (iv) above from his practices in Eltham and Doncaster East; and
• (B) throughout the relevant period, maintained a website for his practices which identified him as a podiatrist;

(vii) for the relevant period, he held a policy of professional indemnity insurance from Vero Insurance and/or Insurance House Pty Ltd, but the policies contained an exclusion of liability for liability if practising whilst unregistered;

(viii) paragraph 8.5 of the Code of Conduct for Registered Health Practitioners (Code) as in effect from 17 March 2014 provides that:

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).

(ix) his conduct as set out in paragraph (vii) above was contrary to the Code as set out in paragraph (viii) above;

(x) paragraph 1 of the Registration Standard: Professional indemnity and insurance arrangements (Registration Standard) as in effect from 1 July 2016 provides that:

When you practise as a podiatrist or podiatric surgeon you must be covered by your own or third party PII arrangements that meet this standard:

for all aspects of your practice

that cover all locations where you practise

that provide cover for you whether you are working in the private, non-government and/or public sector, and

that provide cover for you whether you are practising full-time, part­ time, self-employed, employed, or in an unpaid or volunteer capacity, or any combination of these factors.

(xi) his conduct as set out in paragraph (vii) above was contrary to the Registration Standard as set out in paragraph (x) above.

1. In accordance with Mr McMurray's plea, and materials set out in the Tribunal Book, we find that he engaged in the conduct alleged. We also find that it is properly characterised as professional misconduct within the meaning of paragraph (a) of that term as defined in s 5 of the National Law. That is, we find that it is unprofessional conduct which is substantially below the standard reasonably expected of a podiatrist of Mr McMurray's level of training and experience.
2. The seriousness of the conduct is illustrated by the following:
   • Practising unregistered, and especially for such an extended period, undermines the system of professional regulation which the public relies on - of course the patients he saw during the five years from 2012 to 2017 would naturally have assumed that he was a registered podiatrist.
   • Practising without PII cover obviously placed his patients at risk, in the event they suffered compensable harm for which they could not recover against Mr McMurray as a result of there being no PII in place. Mr McMurray breached the requirements set out in the Code and in the Registration Standard set out above which required him to hold PII cover.

• The conduct engaged in attracts criminal sanctions. Mr McMurray breached s 113(1) and s 116(1) of the National Law by holding himself out as a registered podiatrist. Substantial penalties are provided for breaches of these provisions (although no criminal prosecution was undertaken in this instance).[4]
• Additionally, it is noted that practising without appropriate PII is specifically prohibited by s 129 of the National Law, and breach of that obligation renders the practitioner liable to disciplinary action.
• The figures provided by the Board indicate the magnitude of the implications of Mr McMurray's non-compliance with his obligations: there were 11,796 appointments generating gross payments of approximately $878,885.

1. When considering determinations, the two key considerations are the protection of the public and the of the reputation of the profession.
2. Having carefully considered all circumstances, we are satisfied that orders by way of determinations should be made in terms of the Agreed Statement. While of course the decision is ultimately that of the Tribunal's alone, the fact that the parties have reached an agreement is an important consideration for us to take into account. There is a significant policy benefit in receiving, and if appropriate, accepting, determinations which have been agreed between the parties. [5] Further, in this instance, we note the agreed position has arisen following discussion between the parties, in which Mr McMurray was legally represented.
3. First, it is appropriate that Mr McMurray be reprimanded. This is a formal statement of denunciation of his conduct which will appear on his professional record.
4. In terms of further sanction, we are conscious of the following mitigating factors:
   • Considerations relating to Mr McMurray's own mental health, although these only go so far in all circumstances. As he acknowledged, his conduct was wrong, but he was not able to bring himself to rectify it for five years.
   • The fact that Mr McMurray was unable to obtain his registration again for five months after self-reporting, and then, could only practise with supervision for a period after that.
   • Mr McMurray's insight and remorse, which was clearly demonstrated in the hearing, and his cooperation with the Board from the time of his self-report.
   • The fact that this matter has been hanging over his head for an extended period. (There have been delays both before and after issuing in the Tribunal, including delays associated with the investigation, the summonsing of material and the Covid-19 pandemic.)
5. However, the sheer magnitude of the divergence from the expected standards of professional conduct demands a substantial sanction, in the form of suspension of his registration, for the purposes of general deterrence.
6. Allowing some reduction for the mitigating factors, we find that six months is an appropriate period.
7. In our view, this sits comfortably with the applicable comparable cases referred to by the Board[6] (noting of course, that each case has its own particular facts and circumstances, both mitigating and aggravating). In those cases, the sanctions imposed were:
   • a reprimand, where the practitioner practised without PII for one and a half years (Carberry);
   • a fine of $7,000, where the practitioner practised_,_ unknowingly unregistered and uninsured, for a month, then, knowingly, albeit in a limited way, for two weeks (Ho);
   • a suspension for three months, where the practitioner practised without PII for five years (Rigley); and
   • a disqualification from applying for registration for 12 months, where the practitioner practised without PII, and without complying with his CPD requirements, for seven years, and engaged in dishonest conduct, still evident in the proceedings before the tribunal (White).
8. In our view, the conduct in this case sits towards the more serious end of the scale, given that Mr McMurray practised both unregistered and without PII for five years. But as indicated, after considering the mitigating factors, which are of some significance, a period of six months is appropriate.
9. Finally, as is usual in these matters, orders should be made which require the practitioner to notify the Board annually of renewal of his PII and completion of his CPD requirements, with a review period of four years applying to those conditions. Given the transgressions which have occurred, it is appropriate that conditions of that nature be imposed in order to provide additional protection for his patients in practical terms in this way.

[1] For most of this period, Mr McMurray did not in fact hold PII. But even for the remaining part of that period, for which he had paid premiums, his cover was not effective in practical terms anyway, since the policy contained an exclusion of liability if practising while not registered.

[2] The National Law is applicable in Victoria is set out in a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[3] This refers to 11,768 appointments being conducted over that period.

[4] During the period when Mr McMurray practised unregistered, breaches of those provisions were summary offences which attracted a maximum penalty for an individual of $30,000. While not relevant to Mr McMurray, it is noted that since 1 July 2019, these have been indictable offences which attract a maximum penalty for an individual of $60,000.

[5] Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 258 CLR 482, [2015] HCA 46.

[6] Dental Board of Australia v Ho [2019] VCAT 467 (Ho); Chiropractic Board of Australia v Carberry [2018] VCAT 147 (Carberry); Psychology Board of Australia v Rigley [2018] VCAT 1400 (Rigley); Chiropractic Board of Australia v White [2021] SACAT, unreported, case no 2020/ SHP 000019 (White).