Reimers v Medical Board of Australia

NCAT Occupational|2023-11-21|Before: Dr J

Introduction

On 1 August 2023, the Medical Board of Australia (Board) refused the application of Dr Gerrit Reimers (the Practitioner) for specialist registration as a medical practitioner in the field of anaesthesia pursuant to s 82 of the Health Practitioner Regulation National Law (National Law). By letter dated 3 August 2023, the Board informed the Practitioner of the grounds for its decision, which were that: "(a) in the Board's opinion, you are not a fit and proper person to hold specialist registration under s 55(1)(h)(i) of the National law; and (b) in the Board's opinion, you are unable to practice the profession of anaesthesia competently and safely under s 55(1)(h) of the National Law."
Pursuant to s 175 of the National Law the Practitioner appealed against the Board's decision. Section 175(3) of the National Law provides that the Practitioner's appeal "is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the National Board".
The Board filed a Tribunal Book (Exhibit R1) which contained relevant documents behind 39 numbered tabs. The Practitioner tendered a Tribunal Book (Exhibit A1) which contained relevant documents behind 7 numbered tabs.
Although the Practitioner filed extensive submissions and other documents, including Tribunal and Court decisions, he did not file or rely upon evidence given by himself or any witness in his case. The Tribunal explained to the Practitioner, who although holding a degree in law, represented himself, was entitled to be treated as a litigant in person, that the absence of evidence in support of his case may create obstacles to its success. The Tribunal explained that, if he elected to give evidence, the Practitioner was likely to be cross-examined by Counsel for the Board.
Counsel for the Board properly made clear that it would make submissions about the absence of evidence from the practitioner or anyone on his behalf. The Practitioner maintained his election to not give evidence.

The Practitioner's preliminary application

At the commencement of the hearing the Practitioner sought that it be adjourned. When the hearing might resume was not explained. The Practitioner did not make clear whether, if the hearing were adjourned, the Tribunal would need to be reconstituted. Although the Practitioner's complaint was extensively articulated, it was not made clear how refusing to adjourn the proceedings could, or would occasion him any procedural unfairness.
The crux of the Practitioner's adjournment application was that, 20 years after a decision to cancel his registration, the Board's case was ultimately in continued reliance on the findings made against him in the 2003 proceedings. The Practitioner described his "regulatory history" as "like a Russian doll where every successive decision contains all of the prior decisions and that the heart of the doll is the 2003 Tribunal's finding of deficits of character and skill". Counsel for the Board made clear that, other than in the context of the Practitioner's regulatory history, or to the extent that findings from 2003 were referred to or relied upon in a 2018 Tribunal decision, the Board did not rely upon any finding made against the Practitioner in the 2003 proceedings.
The Tribunal endeavoured to explain to the Practitioner that it was a matter of history that, in 2003 his registration was cancelled and that, until 2018 that continued to be the case and, as required by the National Law, the Tribunal would determine the Practitioner's appeal on the basis of the facts as revealed by the evidence at the time of this decision. The Tribunal suggested to the Practitioner that, 20 years later, and unlike the findings made in 2018, positive or negative findings made with respect to him in 2003 would play no part in the Tribunal's determination of the issues with which we have been concerned. It was made clear to the Practitioner that he was able to make such submissions as he wished with respect to the 2003 Tribunal decision.

Background

Some relevant dates and events are not in contest. In 2003 the Tribunal found the Practitioner guilty of professional misconduct and his name was removed from the Register of Medical Practitioners. The Tribunal ordered that any application for review of its orders could not be made for a period of ten years. Prior to the events in 2000 which gave rise to the decision of the Tribunal in 2003 the Practitioner practised medicine as a specialist anaesthetist.
In 2014 the Practitioner sought to review the Tribunal's 2003 orders pursuant to s 163A of the National Law. His application was unsuccessful. In 2018 the Practitioner again applied for a review of the Tribunal's 2003 orders pursuant to s 163A of the National Law. The Tribunal concluded that the Practitioner was a fit and proper person to be granted general registration, subject to twenty-eight conditions.
The decision of the Tribunal in 2018 (Reimers v Medical Council of New South Wales [2018] NSWCATOD 180) has been before the Tribunal in the present proceedings. As the decision was favourable to the Practitioner, and provided the opportunity for him to regain his specialist registration, no prejudice to the Practitioner results from that. The reasons for that decision necessarily assume significance in determining the present appeal. We will refer later in detail to the findings made and conditions imposed by the Tribunal in the 2018 proceedings.
In 2020 the Practitioner sought a review by the Medical Council of NSW of the conditions of his registration which were imposed by the Tribunal in 2018. On 14 October 2020 the Medical Council agreed to remove the condition requiring the Practitioner to complete a period of observership in a Medical Council approved teaching hospital in the light of the difficulties the Practitioner was facing in finding an employer willing to take on that responsibility. The Medical Council also agreed to remove the requirement that the Practitioner undergo drug testing in circumstances where he was not currently working, but noted that, should the Practitioner return to work, he would need to recommence drug testing.
On 23 February 2021 the Practitioner again sought changes to the conditions on his registration. On 30 April 2021 the Medical Council refused that application.
On 2 November 2021 the Practitioner made a further application for a review of his conditions. That application was determined on 22 February 2022. The Medical Council agreed to amend certain conditions of the Practitioner's registration in relation to supervision in order to ensure that those conditions were consistent with the level of supervision provided to an intern resident in a hospital.
On 7 April 2022 the Medical Council informed the Practitioner that he was in breach of the conditions of his general registration because he had not nominated a professional mentor, but stated that it would not take further action while the Practitioner was not working.
On 28 June 2022 the Practitioner made a further application for review of his conditions. That application was rejected on 21 October 2022.
On 22 March 2023 the Practitioner made a further application to change his conditions. On 18 May 2023 the Medical Council amended the Practitioner's conditions to permit greater flexibility to him in roles for which he might apply. The Medical Council stated that any role would have to entail "a supported and graduated return to practice" and would require Medical Council approval.
On 10 January 2023 the Practitioner applied for specialist registration in the field of anaesthesia. On 9 June 2023 the Medical Board informed the Practitioner that it proposed to refuse his application and invited the Practitioner's views in relation to that proposed decision. On 16 June 2023 the Practitioner provided a written submission in response to the Board's proposal. On 1 August 2023 the Board determined to refuse the Practitioner's application. The Practitioner was notified of that decision on 3 August 2023.
On 16 August 2023 the Practitioner sought a review of the Board's decision. It is not in contest that the Practitioner has not practised medicine, as a specialist or otherwise, for more than twenty years.
Section 55(1)(h)(i) of the National Law provides that a National Board may decide that an individual is not a suitable person to hold general registration in a health profession if the individual is: "(i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the professional competently and safely."
Those were the two grounds on which the Board relied in making its decision of 1 August 2023, and upon which it relied in the present proceedings.
Section 57 of the National Law, which is headed "Eligibility for specialist registration" relevantly provides that an individual is eligible for specialist registration in a recognised specialty in a health profession if the individual meets the five criteria identified in the section. Section 57(1)(c) records the requirement that the individual is a "suitable person to hold registration in the health profession".
Section 60 of the National Law makes clear that s 55 applies to the making of a decision by a National Board that an individual is not a suitable person to hold specialist registration in a recognised specialty and provides that a reference in s 55 to "general registration in the health profession" is "taken to be a reference to specialist registration in a recognised specialty", and that "health profession" is taken to be a reference to the recognised specialty.
Section 77 of the National Law is concerned with applications for registration. The Practitioner's application which was rejected by the Board on 1 August 2023 was made pursuant to s 77.
Section 82 of the National Law provides that a Board must do one of a number of things, including 82(1)(c) refusing to grant registration in the health profession if any of six criteria is established. Section 82(1)(c)(i)(C) provides that being "not a suitable person to hold registration" is a ground, if established, which requires the Board to refuse to grant registration.
Section 117 of the National Law provides that a registered health practitioner must not knowingly: "(b) claim to be qualified to practise as a practitioner in a health profession or a division of a health profession in which the practitioner is not registered" and provides for substantial monetary penalties and custodial sanctions for breaches of that provision.
Given the provisions of the legislation to which reference has been made, the Tribunal asked Counsel for the Board which party bore the onus of establishing pursuant to s 55(1)(h) of the National Law that the Practitioner was not a fit and proper person for registration or was unable to practise the profession competently and safely or whether, in accordance with s 57, the Practitioner bore the onus of establishing that he was a suitable person to hold specialist registration.
Counsel for the Board referred the Tribunal to the decision in Taylor v Medical Board of Australia [2023] NSWCATOD 126 in support of the Board's contention that the Practitioner bore the onus of establishing that he was a fit and proper person to hold specialist registration. In Taylor the Tribunal accepted at [40] that the practitioner needed to establish on the balance of probabilities that he satisfied the requirements of s 57, "including that he is a suitable person to hold registration in the health profession". The Tribunal added, however, [41] that "In so far as the Medical Board seeks findings against the practitioner that he is not a suitable person, then the forensic onus shifts to the Medical Board", and that the "question of whether that level of proof has been reached is to be assessed having regard to all the relevant evidence".
With respect to the Tribunal in Taylor, we consider that the position is less than entirely clear. Having regard to the relevant provisions of s 55 and s 57 of the National Law, it is arguable that the persuasive onus of proof is not the same with respect to the operation of both sections, and that each party bears an onus- the Practitioner to establish suitability, the Board to establish that the Practitioner is not a fit and proper person. As this is the Practitioner's appeal against the rejection of his application for specialist registration, and proceeds as a hearing de novo, logic suggests that the Practitioner bears the onus of proof of suitability pursuant to s 57(1)(c) of the National Law.
The "burden of proof" which applies in most civil proceedings in courts does not necessarily apply, or apply in the same way, in administrative law proceedings (McDonald v Director-General of Social Security (1984) 1 FLR 354; S v State Administrative Tribunal [2012] WASC 306). Arguably, in the absence of an express or implied legislative imposition of an onus of proof on a party to proceedings, the critical issue may be whether, on all of the evidence before it, the Tribunal is affirmatively satisfied, in this case, that the Practitioner is a suitable person within s 57(1)(c). If the Practitioner is not found to be, he is likely, but not necessarily, to be found to be not a fit and proper person within s 55(1)(h)(i) of the National Law. In either circumstance, the Practitioner's appeal would fail.
The Board also relies upon the provisions of s 55(1)(h)(ii) of the National Law which is concerned with inability to practise the profession "competently and safely". Section 52(1)(a) and (b) are concerned with a Practitioner being "qualified" for registration, and having been examined to "assess the individual's ability to competently and safely practise the profession". Albeit more than 20 years ago, the Practitioner has satisfied these requirements. In the circumstances, it is arguable that the Board bears the onus of proof with respect to s 55(1)(h)(ii) of the National Law.
The Tribunal does not need to determine this issue. As will be seen, if there is an onus of proof, whether the Board bears the onus of proving that the Practitioner is not a fit and proper person to hold the registration he seeks, or the onus is on the Practitioner to establish that he is a suitable person to hold such registration, the outcome of this case would not change.

The Practitioner's submissions

As recorded earlier, the Practitioner did not give evidence in the proceedings. Nor did he call any witness in his case. In his written outline of submissions the Practitioner asserted that there had been a "lack of valid reasoning" by the Board in refusing his application for specialist registration and that it "acted in excess of its power and hence the invalidity of the decision".
Nothing to which the Practitioner has referred the Tribunal establishes that the Board lacked jurisdictional power to refuse his application on 1 August 2023. It follows that the Tribunal has jurisdiction to hear and determine the Practitioner's appeal against that decision. As the present proceedings involve a hearing de novo, the reasons for the Board's decision are ultimately of little relevance. The issue is whether the Practitioner is a suitable person to hold the registration he seeks and/or is unable to practise the profession competently and safely. Findings in terms of either of the provisions would result in rejection of the Practitioner's appeal.
By reference to the decision of the High Court in Australian Broadcasting Tribunal v Bond ("Bond Media Case") (1990) 170 CLR 321; [1990] HCA 33, in which the concept of "fit and proper" was considered, the Practitioner submitted that "in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question." The Practitioner submitted, correctly in our view, that being a fit and proper person is "not the same thing as an inability to practise competently and safely". We do not understand the Board to suggest otherwise.
The Practitioner submitted, correctly, that the Board "cannot say that improper conduct will never occur". Equally apparently the Board cannot say, of any practitioner, that improper conduct will never occur. The issue which the Tribunal is required to determine in these proceedings does not necessarily involve making a prediction with respect to the likelihood of future improper conduct. The legislation refers to "fit and proper person" and the cases in which that concept is considered provide the guidance for the Tribunal. If the evidence established the probability of future improper conduct, that would encompass a finding that the Practitioner is not a fit and proper person to be registered. The absence of such a finding does not establish the converse.
The Practitioner emphasised that he had only engaged in improper conduct once, which was more than 20 years ago, and at a time when he was impaired. He submitted in those circumstances that his impairment was "relatively brief and was not aggravated by any contraventions or recidivism, it was "passing" and cannot be said to form a proper basis for a finding of unfitness". As the events subsequent to 2003 to which we have referred confirm, the Practitioner's offending conduct prior to that time does not provide an adequate basis for finding unfitness now. The Board does not suggest it does.
The Practitioner submitted that a "finding of fitness and propriety was made in 2018 by the Tribunal but that the Board (in 2023) had erroneously sought to distinguish between specialist practice and generalist practice, unlike the Tribunal in 2018. The Practitioner submitted that "none of the experts giving evidence at the 2018 Tribunal hearing opposed anaesthetic practice" and that the Medical Council of New South Wales did not oppose anaesthetic practice which was asserted to "contradict the Board's assertion that I am not fit and proper to practise as a specialist".
The Practitioner submitted that the Board's position was "also illogical" for the reasons which he advanced. The Practitioner submitted that he "should be managed as a doctor who was once impaired but now enjoys over 20 years of recovery". Under the heading "Performance deficiencies", the Practitioner relied upon his competence prior to 2003, and the finding made by the Tribunal with respect to his high level of academic achievement since the 2003 decision, which included a Degree in Law and a Doctorate in Philosophy.
The Practitioner submitted that there were "three possibilities with respect to defects in his character" in 2003. The Practitioner submitted that the 2015 and 2018 Tribunals "heard, and accepted, evidence that cast doubt upon the separate existence of these deficits thus agreeing with me and preferring", the possibility that any prior deficits in his character, "have no existence outside of impairment" and "might even be impairment" which, had it been the case, would have been "remediable and not sufficient justification for a ten years long ban".
The Practitioner submitted that the 2018 Tribunal "was forced, using a principle of statutory interpretation, to "read down" the 2003 decision in order to maintain validity (implying that the decision was otherwise invalid). The Practitioner further submitted that the "2018 interpretation is to be preferred as it was based on actual evidence, and the 2003 finding loses any remaining credibility".
As the Tribunal endeavoured to explain to the Practitioner during the course of dealing with his preliminary application, no part of these proceedings involves preferring the 2003 decision of the Tribunal to the Tribunal's decision in 2018. It is a matter of history that the Practitioner's registration was cancelled in 2003 and that in 2018, albeit on the basis of an extensive list of conditions, the Practitioner's general registration was reinstated.
The Practitioner submitted that the "conditions currently on my registration do not prevent me from practising anaesthetics or intensive care" and that, as such, no risk to the public would be involved in granting his appeal. Further, the Practitioner referred to a provision in the Australian and New Zealand College of Anaesthetists' regulations for specialist anaesthetics practice to be limited in specific cases to non-interventional work, such as undertaking pre-operative assessments only. The Tribunal considers that it is not possible to undertake such work without recency of practice. Undertaking pre-operative assessments requires an understanding of current anaesthetic procedures and their risks, and current knowledge of the spectrum of medical disorders which patients might have and of medications they may be taking. The Practitioner acknowledged that it "cannot be denied that I lack recency" but submitted that that was "due to the restrictions that have been placed on me and not to anything I have personally done".
The Practitioner relied significantly on the decision in Smithson v Medical Council of New South Wales [2016] NSWCATOD 82 in support of his contention that there was no legitimate reason for refusing to grant him specialist registration. As is not in doubt, the practitioner in Smithson gave evidence before the Tribunal with respect to his post-offending studies and therapeutic treatment. In that case, the Tribunal had expert opinion evidence from Dr Jonathan Phillips, Dr Michael Diamond and Dr Keith Roberts, as well as reports from Dr Alex Wodak, Dr Glenys Dore, Professor Phillip Mitchell and Dr Anura Thalagala.
The Tribunal in the case of Smithson v Medical Council of New South Wales [2016] NSWCATOD 82 considered the evidence under the heading "Is the Applicant a fit and proper person to engage in the practise of medicine". In the course of doing so, the Tribunal recorded its acceptance of the evidence of the medical practitioners to whom it had earlier referred, to the evidence of the Respondent's engagement in activities to keep abreast of developments in psychiatry, his authorship of appropriate texts, participation in academic projects, and the Practitioner's unchallenged evidence with respect to attendance at Doctors in Recovery, Narcotics Anonymous and volunteer work at the Wayside Chapel, Darlinghurst. The Tribunal referred [84] to the Practitioner's expenditure of "considerable funds on participating in thrice weekly urinalysis over an extended period" which was accepted as having been undertaken "not only to demonstrate to a Tribunal his recovery from drug addiction, but also as a tool to assist him to stay "clean"". The Tribunal referred [87] to the evidence with respect to the Practitioner's "single minded focus on regaining his registration as a medical practitioner". The Tribunal ultimately concluded [90] that the Practitioner had "overcome the high hurdle to justify being reinstated but subject to conditions to ensure the safety of the pubic and his own health and wellbeing".
There are, with respect to the Practitioner, very significant differences between this case and Dr Smithson's case.
In oral submissions, the Practitioner reiterated that he lacked recency and was obliged to acknowledge that there is no evidence before the Tribunal establishing that he has done any formal or informal training, continuing professional development or other study which provides a rational basis for finding that, more than 20 years since he last practised as an anaesthetist, the practitioner is currently able to practise the profession competently and safely. Other than his qualified assertions in that regard, there is simply no evidence.
The Practitioner asserted that he had "been singled out for special treatment", and sought to illustrate that by a table purportedly comparing his case with those of four other medical practitioners. As is readily apparent, each case turns on its own facts and circumstances, and anything purportedly involving or attempting "comparable sentencing" of the kind the Practitioner has is unhelpful. The differences between this case and the Smithson case to which we referred make this clear. The Practitioner did not demonstrate why the cases to which he referred supported his claim. Nothing to which the Tribunal has been referred establishes that the Practitioner has been "singled out" for any special, unfair or harsh treatment. To the extent that anything could turn on it, the variations in the conditions attaching to the Practitioner's registration since 2018 suggest the contrary, but that is not a matter about which we need to speculate.
In oral submissions the Practitioner reiterated his contention that his lack of recency was "remediable". There is no evidence before the Tribunal which enables us to make a finding in those terms. It is significant in this regard that it has been more than 20 years since the Practitioner practised medicine in any capacity, and that he has adduced no evidence of relevant study or experience during that time.
In oral submissions the Practitioner further said that it was important to him to be able to use the title "Specialist", notwithstanding that he did not wish to have the conditions attaching to his registration altered or varied in any way. The current conditions attaching to the Practitioner's registration create no impediment to his attempt to regain his specialist qualifications and, arguably, provided a "road map" which, had the Practitioner followed it over the past 5 years, may have placed him in a very different position to the one he currently finds himself in, but we cannot and need not speculate about that.
The Practitioner submitted that granting his specialist registration would have no real impact on public health and safety. The Tribunal, which must exercise its jurisdiction with the health and safety of the public as its "paramount consideration", has great difficulty with that proposition.
The Practitioner relied on the decisions in Hanna v Medical Council of NSW [2019] NSWCATOD 139 at [74] in which, by reference to the decision of the Tribunal in Asar v Medical Council of NSW [2019] NSWCATOD 132, it was said that "where a medical practitioner has demonstrated that the issue which led to the cancellation of registration is now fully recognised, and is controlled, the imposition of a further period before re-registration could be granted would serve no purpose". That may have been the finding on the facts in that case. That does create, or could permissibly create, a principle in those terms. A finding in those terms would potentially advance the Practitioner's case, but could not be determinative of it in his favour.
The Practitioner also referred to the statement by Kirby P in Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 that there was "no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have an affirmative reproved reform, are afforded a second chance". In 2018, having found it to be an "appropriate" case, the Tribunal undoubtedly afforded the Practitioner a "second chance".
Ultimately, although vehemently maintaining that he was a fit and proper person to regain his specialist registration, the Practitioner impliedly acknowledged that his lack of recency justified the Board's refusal of his application. The expression "unable to practise the profession competently and safely" in s 55(1)(h)(ii) in our view potentially embraces recency of experience and education in a case such as this, having regard to the very lengthy time which has elapsed since the Practitioner last practised as an anaesthetist.

The submissions of the Board

The Board relied upon the decision in Hanna at [80] in which it was said that the Tribunal "must be confident that the Applicant is a fit and proper person to practise". As was made clear in the passage from Bond Media Case, at [65], the issue is whether a person is fit and proper "to undertake the activities in question", which in this case are those of a specialist anaesthetist.
The Board submitted that expression "fit and proper person" in s 55(1)(h)(i) has to be read in the context of the legislation in which it finds expression (see Chen v Health Care Complaints Commission [2017] NSWCA 186). As is not in doubt, the purpose of the National Law is to protect the health and safety of the public which, in the exercise of functions under the National Law is the "paramount consideration", s 3A.
Section 3(2)(a) of the National Law relevantly provides that the object of the Law is to provide for the protection of the public by ensuring that "only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". It is well accepted that it is critical that confidence in the standards of the medical profession is upheld (Health Care Complaints Commission v Do [2014] NSWCA 307). As submitted by the Practitioner, and suggested to the Practitioner during the course of his submissions, it is difficult to accept that permitting him to regain his specialist registration after more than 20 years out of practice, with no evidence of study, training or experience in the intervening period, would be conducive to maintaining public confidence in the high standard of medical practitioners which the authorities recognise is part of the public interest when functions are being exercised pursuant to the provisions of the National Law.
In a series of submissions, Counsel for the Board dealt comprehensively with what were asserted to be the flaws in the Practitioner's case. It was there made clear that the Board continued to rely upon the provisions of s 55(1)(h)(i) and s 55(1)(h)(ii) of the National Law in support of its case.
The Board submitted [34], correctly, that since the decision of the Tribunal in 2018 that the Practitioner was suitable for general registration, he had not been able to obtain any engagement as a medical practitioner and that, as a result, "it has not been possible to assess his suitability for specialist registration by reference to a period of general practice in a junior position". It was submitted, correctly in our view, that the need for such an assessment was central to the conclusions reached by the Tribunal in 2018, and that the Practitioner acknowledged that that was the case. Before the Tribunal, the Practitioner confirmed his view that the Tribunal's decision in 2018 was "right at the time it was made", or expressed views to that effect.
The Board relied upon the Tribunal finding, and the Practitioner accepting, that if he was to return to practice, he would "need to be highly supervised and have a graduated return to practise". In 2018 the Practitioner accepted that it would be appropriate that he initially work under supervision for 12 months in a general medical position in a public hospital approved by the Medical Council. That has not happened.
The Tribunal recorded in 2018 the intention of the Practitioner to "seek a generalist position in a public hospital and, thereby, to rotate through the terms. When he was comfortable with his level of knowledge, and his supervisors agreed, he would consider the next step. After two years he may be able to get back into anaesthetics under Level A or B supervision where he would be placed like a junior doctor". That has not happened.
The Board relied on the Practitioner's acceptance in 2018 that he was "now at the level of a junior doctor". It is difficult to accept that, after 5 further years of no experience the Practitioner could be at any higher level. The substantial "apprenticeship" in the hospital system which the Practitioner acknowledged in 2018 was necessary has not even begun, 5 years later. Significantly, the Tribunal in 2018 recorded [161] that "Whether (the Practitioner) is again allowed to practise in a specialty, such as anaesthesia, can only be answered well into the future and in the light of his achievements during that period." That observation could as validly be made now as it was in 2018. It is apparent from the Tribunal's findings in 2018, and the 28 conditions attaching to the Practitioner's registration that it did not accept that the Practitioner had demonstrated that it was appropriate that he be granted specialist registration.
The Board succinctly submitted [40] that "Since the 2018 decision, the (practitioner) has not commenced in a junior position and his skills and abilities have not been assessed in light of his performance in such a position. The Tribunal should therefore not conclude that he is a suitable person to be registered as a specialist in the field of anaesthesia".
The Board submitted [41], correctly, that whether the Practitioner is a fit and proper person to hold specialist registration must be determined by reference to the "current position, not the historical position". In that regard the Board relied on the absence of any evidence of drug testing by the Practitioner since 2018. Counsel for the Board made clear that the Board was not asserting, and could not successfully assert, that the Practitioner was using drugs at the present time but rather that, having regard to the findings of the Tribunal during its 2020 and 2022 reviews, the absence of evidence of non-use of drugs was significant.
The Board further submitted [41], correctly, that the Practitioner had not "advanced any evidence attesting to his current state of mind, mental health and general suitability for specialist practice". The Practitioner submitted that there is no evidence of an absence or deficit in relation to any of those matters. The Board cannot prove that any of those matters would militate against granting the Practitioner the registration he seeks.
Perhaps more importantly, the Board submitted, accurately, that the Practitioner had not advanced evidence about his "plan for professional development and re-entry to specialist practice in the event that specialist registration was granted", or his future employment prospects, including whether there is any realistic prospect of his obtaining a position which depends on specialist registration in the field of anaesthesia. In our view these matters are relevant to both s 55(1)(h)(i) and (ii) of the National Law.
The Board relied upon the effect of the Practitioner's conduct in 2003 on the Practitioner's reputation and standing. It was submitted that "It would undermine the public's confidence in the medical profession, and in particular in the specialty of anaesthesia, if the (Practitioner) was to be granted specialist registration". In our view, there would be considerable public disquiet if, after more than 20 years absence from the practise of anaesthesia, with no evidence of study, training or experience in that specialist field in the interim, the Practitioner were to be granted specialist registration enabling him to do so. Granting the Practitioner's appeal would be difficult to reconcile with the need to maintain public confidence in the medical profession and its regulation. It is unnecessary to rely upon the Practitioner's offending conduct prior to 2003 in order to support these concerns- they have a foundation not directly related to that conduct.
The Board submitted that there was no pressing demand for the Practitioner's services, particularly in a specialist capacity, with the result that there was "no public interest reason to grant specialist registration in his favour, in that such grant would improve availability of medical services to the public". Although that submission is factually well founded, were it otherwise appropriate to grant the Practitioner specialist accreditation, we would not decline to do so on that basis.
As explained to the Practitioner during the course of his submissions, unless a medical practitioner was a fit and proper person and had the capacity to practise the profession competently and safely, the need for services of the kind which the Practitioner usually provided would not justify granting general or specialist registration.
The Board made submissions [44] with respect to the Practitioner's asserted inconsistent positions with respect to the 2003 decision. The Board asserted [45] that, in the light of the Practitioner's statements about the 2003 decision of the Tribunal, even now, the Practitioner lacks "adequate insight into the nature of his conduct that led to the 2003 decision". We do not need to speculate about that. The Tribunal determines this appeal on the basis of the evidence which is before it. Whether the Practitioner now feels aggrieved by the 2003, or any subsequent decision, is a matter of comparative insignificance. Feeling unjustifiably aggrieved by prior decisions in disciplinary is not necessarily incompatible with the Practitioner being granted specialist registration.
The Board submitted that the series of serious allegations against various statutory bodies and public authorities which have considered the Practitioner's matter, "lack any proper basis and indicate that the (Practitioner) is lacking judgement and insight". It was further submitted that the complaints "suggest that the (Practitioner) may be unwilling to comply with any conditions or restrictions imposed upon him by these bodies now or in the future".
There is no evidence before the Tribunal that the Practitioner has failed to comply with conditions or restrictions imposed upon him in 2018 or subsequently, or to the extent that he may not have fully complied with such conditions or restrictions, failed in ways which have prompted the Board or any other regulatory body to take action against him. Similarly, there is no evidence, or finding that, during the period from 2003 to 2018 the Practitioner attempted to provide health services whilst not registered to do so.
There is no doubt that the Practitioner is emotionally as well as professionally invested in these proceedings. That is unsurprising given that his future in the medical profession is involved. Nothing to which the Tribunal has been referred provides support for any of the Practitioner's complaints about regulatory bodies, much less that they have attempted to "silence", intimidate or harass him or "cover up" any inappropriate conduct, or otherwise been biased against him., Making those unsubstantiated allegations, although reflecting little credit on him, would not of themselves persuade the Tribunal that the Practitioner was not a fit and proper person to have the specialist registration which he seeks.
Importantly in the light of the submissions of the Practitioner to which we have referred, the Board submitted [48] that the Practitioner's claim that his present conditions permit him to practice in anaesthetics was incorrect, as the Practitioner is not currently "entitled to practise in any position, because the approval of the Medical Council is required before he can take up any role. In any event, even if the (Practitioner) was approved for a position that might involve anaesthesia, it does not follow that it is appropriate for the (Practitioner) to be publicly recognised as a specialist anaesthetist".
The Tribunal accepts that, contrary to what might hypothetically be the case, as asserted by the Practitioner, the reality is that he would not be approved by the Medical Council for a position which involved, or might involve the practice of anaesthesia. As submitted by the Board, in those circumstances there would be little utility in the Practitioner being able to hold himself out as a specialist anaesthetist, and considerable scope for risk to public health and safety in his doing so.
The Board submitted that "no useful analogy can be drawn" between the position of the Practitioner and the other cases to which he referred, each case turning on its own particular facts. As the authorities make clear, reference to what has happened in other cases in the context of proceedings pursuant to the National Law are of limited utility. The Tribunal has read and considered each of the authorities upon which the Practitioner relied. They do not materially advance his case. Unlike the present case, the practitioner in those cases gave evidence and called witnesses in support of his or her case. That has not happened in this case.

Whether the Practitioner is a "suitable person to hold registration in the health profession" or is not a "fit and proper person" to hold registration in the health profession

Section 57(1)(c) provides that, an individual is eligible for specialist registration if, inter alia, "(c) the individual is a suitable person to hold registration in the health profession". The meaning of "suitable" is not defined in the legislation. The Cambridge University Dictionary definitions of "suitable" include "acceptable or right for something". Applying that definition in this case is not contra-indicated by the context in which suitable finds expression in the National Law (Project Blue Sky Inc v Australian Broadcasting Association (1998) 194 CLR 355; [1998] HCA 28). The question is thus whether the Practitioner is acceptable or right to be registered to practise anaesthesia.
If the issue for determination in the present circumstances is whether the practitioner is "not a fit and proper person" for specialist registration, it is difficult to see how a person could be "suitable" if the person is not "fit and proper". Conversely, if a finding of suitability is made but no finding in terms of s 55(1)(h)(i) is made, the person would be entitled to the registration which he or she seeks. The meaning and effect of "suitable" and the term "fit and proper" is informed by the statutory instrument in which they find expression. Although in this case nothing turns on it, it can be inferred that the legislature did not intend the two expressions to have the same meaning and effect.
In Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, Kitto J said at [298] that "There are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness" for a particular profession and that "to draw the dividing line is by no means always an easy task". In Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 at [158], by reference to the Judgment of Kitto J in Ziems the Court of Appeal said that the "fit and proper person" test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances".
In the Bond Media Case, the High Court recorded that: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of a person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
The Tribunal accepts that the issue for determination, whether by reference to whether the Practitioner is suitable, or is a fit and proper person to be accredited as a specialist in anaesthesia, and held out to the community as being fit and proper to practise that specialty, is not determined solely by reference to the character of the Practitioner. A Practitioner's character may assume significance in, or be determinative of, the issue. The Tribunal does not consider that on "character" grounds the Practitioner is not a fit and proper person to be an accredited specialist if the evidence supports finding that he is "suitable" to be accredited. Good fame and character and an absence of criminal convictions or findings do not advance the Practitioner's case. It is expected that members of the medical profession will be of good fame and character, and not have criminal convictions or findings of guilt with respect to criminal offences. The critical issue in this case is whether the Practitioner is a suitable person to hold the registration he seeks. Being suitable may involve broader considerations than those with respect to being fit and proper, but the outcome of this appeal does not turn on such a distinction, if it exists.
The Practitioner gave evidence and was cross-examined in the proceedings before the Tribunal in 2018. Evidence was given by Dr Sexton, an Anaesthetist who had previously worked with and supervised the Practitioner. The Tribunal recorded [111] that Dr Sexton stated that he would continue to support the Practitioner, even if he failed with his application for re-registration. Dr Sexton has not provided evidence for the Practitioner in these proceedings.
Three other medical practitioners gave evidence in the 2018 proceedings. Dr Ricardo Farago, a Consultant Psychiatrist had treated the Practitioner since 2015, and seen him on 51 separate occasions up to September 2017 [112]. Dr Glen Smith, a Consultant Psychiatrist and specialist in addiction psychiatry, gave evidence. Dr Peter Anderson, who was also a Consultant Psychiatrist, provided a report and gave evidence. Dr Michael Amos, a Specialist Anaesthetist, provided an expert assessment of the Practitioner's proposed return to practice plan.
Drs Farago, Smith and Anderson met via teleconference, and prepared a "conclave statement" which recorded a number of matters [114], relevantly including agreement that the Practitioner "had insight into the conduct found by the Tribunal in 2003", that he had "remorse in relation to his prior conduct", that it was "agreed that he had overcome the defects in his character that led to his deregistration and that there were no current character defects impacting on his ability to practise medicine." The experts agreed that there was a risk of relapse present in any patient with a history of severe substance use disorder, that the Practitioner presented as "not currently impaired and as fit to practise medicine on the proviso that he was to be monitored in the health program with strict conditions if re-registered", there were no "current psychological or behaviour aspects" of the Practitioner which may "affect his judgement or ability to act in the best interest of his patients". The only point of difference between the doctors was whether the Practitioner should abstain from alcohol. It was agreed the Practitioner had not relapsed despite significant stressors in his life and that was a positive factor, that returning to medical practice would be a "substantially stressful period associated with an increased risk of relapse" and that there was "necessarily a high standard for reduction of risk of relapse given the specific risks to patients associated with relapsing medical practitioners" and there was "general support" for the Practitioner's application for restoration to the Register.
The Tribunal accepted [165] the joint opinions of Drs Anderson, Smith and Farago, and found that all of the evidence before the Tribunal "speaks of a person who has, over time, come to grips with his personal problems and his drug addiction" and was now "a fit and proper person to be registered as a medical practitioner". The Tribunal accepted that, on his return to practice, the Practitioner "must be bound by strict and comprehensive conditions". The Tribunal imposed 26 conditions on the Practitioner's registration, and made 2 additional orders to give effect to those conditions. As is not in doubt, the conditions were onerous. We have earlier referred to subsequent variations of the conditions.
As is not in doubt, the Practitioner has not practised medicine in any capacity since his registration was reinstated in 2018. It has been more than 20 years since the Practitioner practised medicine. There is no evidence that there has been any relapse with respect to his previous substance abuse. The Practitioner has given no evidence of his attempts to secure positions which the conditions imposed in 2018, and subsequently varied on two occasions, enabled him to pursue. The Practitioner has called no evidence from any medical practitioner who may be willing to supervise or mentor him in anaesthesia. The Practitioner has adduced no evidence of a return to practice plan.
In the circumstances, the Tribunal is satisfied that the Practitioner is not a suitable or fit and proper person to be registered to practise as a specialist anaesthetist. As recorded earlier, our determination does not involve any implied finding of impropriety, or defect of character on the part of the Practitioner. As the authorities to which we have referred make clear, it is whether the Practitioner is suitable to practise the profession of anaesthesia with which we are concerned. He may be suitable to pursue a number of other vocations, but that is not our concern. Our concern is the health and safety of the public.
Regrettably, the Practitioner has adduced no evidence of any attempts to regain his specialist accreditation by following the "road map" which the conditions imposed by the Tribunal in 2018, and subsequently varied, laid out for him. Not insignificantly, the Practitioner has adduced no evidence with respect to any of the conditions provided by the Tribunal's 2018 decision directed to his regaining of specialist qualifications.
The Tribunal is not satisfied that the Practitioner is a "suitable person" to be registered as a specialist anaesthetist. On the same grounds, the Tribunal is also satisfied that the Practitioner is not a "fit and proper person" to be so registered.

Whether the Practitioner is unable to practise the profession competently and safely

Section 55(1)(f) of the National Law provides that an individual may not be a "suitable person" to hold registration in a health profession if "the nature, extent, period and recency of any previous practise of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to general registration in the profession". The Board has not relied upon that provision but on the broader basis provided by s 55(1)(h)(ii), which is an asserted inability to practise the profession competently and safely. The Practitioner adduced no evidence of his current capacity to practise the profession of anaesthesia competently and safely. The Practitioner submitted that his absence of recency was "remediable".
The Tribunal observes that the conditions provided by the Tribunal in 2018, and subsequently amended, provided the Practitioner with the opportunity to "remedy" the lack of recency arising from his having, by that time, not practised anaesthesia for almost two decades. The Practitioner has not practised in any capacity involving anaesthesia in accordance with the conditions of re-registration which the Tribunal imposed in 2018, or the subsequently varied conditions attaching to his registration.
The Practitioner has adduced no evidence of any attempts by him to maintain currency in any discipline in the practice of medicine, by study, tuition or continuing professional development since 2018. In reality, the risks which the Tribunal accepted in 2018 attended the Practitioner's re-registration have probably been exacerbated by a further period of 5 years absence of any experience or training in anaesthesia. The Tribunal need not make a finding in those terms, it being sufficient to record that the Practitioner is no more able to practise the profession of anaesthesia competently and safely now than he was in 2018. As the conditions attaching to the Practitioner's re-registration in 2018 make clear, the risks to public health and safety of the Practitioner regaining his registration were found to be substantial. There is no rational basis for finding that they are any less so now.
The Tribunal is satisfied that the Practitioner is "unable" to practise the profession of Anaesthesia competently and safely. He may one day be able to do so, but unless he more successfully pursues the "road map" created by the Tribunal in 2018, and subsequently varied, it is difficult to see how that would not continue to be the case.

Disposition

The Tribunal is not satisfied the Practitioner is a "suitable person" and is not a "fit and proper" person to be registered as a specialist in anaesthesia and his appeal must be rejected. Even if the Tribunal did not make those findings, it would be comfortably satisfied to reject the Practitioner's appeal on the basis that he is unable to practise the profession of anaesthesia competently and safely.
The authorities recognise the importance of upholding public confidence in the medical profession. In the Tribunal's view, to uphold the Practitioner's appeal would be contrary to the principles and objectives of the National Law and involve an unacceptable risk to the health and safety of the public. To permit the Practitioner to practise anaesthesia, or hold himself out as being registered to do so, would, on the findings we have made, constitute an unacceptable risk to public health and safety. It is now more than two decades since the Practitioner practised anaesthesia, and five years since the Tribunal granted the Practitioner re-registration as a medical practitioner, and clearly set out the conditions pursuant to which he could seek to regain specialist registration. There is a complete absence of evidence of the Practitioner having attempted, much less achieved any of the objectives referred to in the conditions imposed in 2018 and subsequently varied. Allowing the Practitioner's appeal would send a most unsatisfactory "message" to medical practitioners and to the public, both with respect to the standards of the medical profession and the vigilance with which the Tribunal maintains those standards.

Costs

The Medical Board sought an order for costs of the proceedings in the event that the Practitioner's appeal was unsuccessful. For the reasons briefly advanced by the Board, and consistent with the decision in Qasim v Health Care Complaints Commission [2015] NSWCA 282 unless the Practitioner advances cogent reasons for not doing so, the Tribunal would award the Board its costs of the proceedings.

Orders 1. The appeal is dismissed. 2. The Appellant pay the Respondent's costs of the proceedings as agreed or assessed on the ordinary basis. 3. If the Appellant seeks to vary order (2) of these orders he is to file written submissions not exceeding 5 pages in length in support of such variation within 21 days of the Tribunal's decision. 4. In the event that the Appellant files written submissions seeking to vary order (2) the Respondent file and serve written submissions not exceeding 5 pages in length in opposition to such orders within 42 days of the Tribunal's decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2023

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