White v Medical Board of Australia

Western Australia

1. On 19 February 2018 the Medical Board in Western Australia received a notification about the performance of Dr White in relation to his clinical care and management of two patients. Three days later there was a notification concerning a third patient.
2. The Medical Board brought disciplinary proceedings in the West Australian State Administrative Tribunal. On 23 July 2019 the parties agreed on terms on which the proceedings could be settled.
3. The Tribunal found Dr White guilty of professional misconduct because he had: 1. failed to maintain adequate clinical notes in relation to three patients, 2. failed to facilitate coordination and continuity of care for the three patients due to his failure to keep adequate notes and records, and 3. failed to undertake a proper examination of one of the patients and failed to provide that patient with an adequate and urgent referral to a paediatric neurologist.
4. Dr White was reprimanded and conditions were placed on his registration from 25 July 2019. Those conditions included mentoring of Dr White by a senior medical practitioner for one year and undertaking a course in relation to referral writing.

New Zealand

1. As we have said, Dr White had lived and worked as a doctor in New Zealand before he started work in West Australia.
2. Between 23 July 2018 and 30 May 2019 Dr White was charged with the following offences in New Zealand: 1. On 23 July 2018 - three charges of using forged documents. 2. On 18 September 2018 - two charges of male assault female. 3. On 31 October 2018 - an additional two charges of using forged documents. 4. On 10 December 2018 - one charge of wounding with reckless disregard. 5. On 8 February 2019 - one charge of obtaining by deception (over $1,000.00). 6. On 30 May 2019 - four charges of obtaining by deception (over $1,000.00), one charge of obtaining by deception ($500.00-$1,000.00) and one charge of using a document for pecuniary advantage.
3. On 1 July 2021, Dr White was convicted in Hamilton District Court of: 1. One charge of male assaults female, being an offence which has a maximum sentence of imprisonment of two years. 2. Four charges of using a forged document, being an offence which has a maximum sentence of imprisonment of ten years. 3. Five charges of obtaining by deception (over $1,000.00), being an offence which has a maximum sentence of imprisonment of seven years. 4. One charge of obtaining by deception ($500.00-$1,000.00), being an offence which has a maximum sentence of imprisonment of one year. 5. One charge of using a document for pecuniary advantage, being an offence which has a maximum sentence of imprisonment of seven years.
4. In New Zealand Dr White was subject to a Professional Conduct Committee (PCC) investigation concerning the following matters: 1. His failure to disclose on his Annual Practising Certificate (APC) application the competence concerns (in Western Australia) considered by Ahpra which had resulted in the conditions being imposed on his registration in Australia. 2. His failure to disclose on his APC applications in 2018 and 2019 that he was the subject of a police investigation and/or criminal charges.
5. On 11 November 2021 Dr White signed a voluntary undertaking to not practise medicine in New Zealand.
6. On 16 December 2021 Dr White was sentenced to four months home detention as a consequence of the convictions on 1 July 2021 and ordered to pay the victim $2,000 in reparations.
7. Dr White has said that he left New Zealand on 16 April 2022 which was immediately after serving his sentence.
8. On 27 May 2022 the PCC found that the convictions, the failure to disclose the criminal charges and the competence concerns demonstrated unprofessional, dishonest and deceitful conduct. On 15 July 2022 it laid a disciplinary charge against Dr White in the New Zealand Health Practitioners Disciplinary Tribunal (HPDT).
9. The charge was listed for hearing before the HPDT on 16 February 2023. Dr White's counsel had informed the HPDT that Dr White did not contest the PCC's submission calling for the cancellation of his registration and the conditions to be placed on any future re-registration.
10. On 20 September 2023 the HPDT concluded that Dr White's conduct amounted to professional misconduct in that it brought discredit to the medical profession. Dr White's registration was cancelled and he was censured and he was not permitted to apply for re-registration for 12 months.

NSW

1. Dr White applied to renew his specialist registration with Ahpra: 1. For 2018/2019 - on 25 September 2018. 2. For 2019/2020 - on 29 August 2019. 3. For 2020/2021 - on 23 September 2020.
2. Dr White did not disclose the fact that he had been charged with various offences in New Zealand in any of these applications.
3. On his next application for renewal in September 2021 Dr White did not disclose that he had been convicted on 1 July 2021 of most of the charges because of technical issues he had experienced using the Ahpra site. He did inform Ahpra by telephone on 3 September 2021 and confirmed the details in an email to Ahpra on 5 September 2021. His registration was automatically renewed: National Law, s 112(1).
4. On 17 April 2023 the Medical Board arrived at a proposed decision that Dr White was not a suitable person to hold specialist registration as a medical practitioner and gave him an opportunity to make submissions.
5. Meanwhile, the Medical Council had received a mandatory notification on 20 February 2023. It was asserted in the notification that Dr White had: 1. Over prescribed Schedule 8 medications to his partner's sister (regular fortnightly prescriptions for 50 diazepam and 25 Palexia tablets); 2. Prescribed zopiclone, Panadeine Forte and diazepam for his partner; 3. Prescribed a Schedule 4 medication for himself being Zopiclone 30 tablets on nine occasions between May 2021 and December 2022 allowing for continuous use for 107 days, greatly exceeding the recommended usage. 4. Kept inadequate medical records for those two patients.
6. As a consequence of the mandatory notification, the Council directed Dr White to attend for a hair drug screen and an alcohol screening test and sent him for an assessment to Dr Atherton, an addiction psychiatrist.
7. The hair drug screening was positive for codeine, diazepam and tapentadol, nordiazepam and zopiclone and the alcohol screening result was 2.2, indicating probable excessive or ongoing alcohol use.
8. Dr Atherton concluded that Dr White was an impaired practitioner as defined in the National Law. He diagnosed an Alcohol Use Disorder, Opiate Use Disorder, and Benzodiazepine Use Disorder. He noted concerns in relation to Dr White's character and honesty. He concluded that, as Dr White was an extremely valuable and dedicated rural and remote doctor working under extremely challenging conditions, especially during COVID, and had no other issues in relation to his practice and there had been no other complaints, he could safely work with conditions on his registration in a well settled and supportive environment.
9. On receipt of this information the Council convened an Impaired Registrants Panel Inquiry (IRP) on 28 September 2023 to consider the issues raised by the mandatory notification. Dr White attended at the Inquiry and gave evidence. He denied that he was related to the two patients and said they had asked him to keep their medical records brief. In relation to the self-prescribing, Dr White said he had only been continuing a medication regime instituted by other doctors because at the time it had been was difficult for him to consult a doctor.
10. The Panel agreed with the opinion of Dr Atherton and placed conditions on his registration effective from 26 October 2023.
11. Quite separately, the Medical Board was continuing to deal with Dr White's non-disclosure of the criminal charges in New Zealand in his application for renewal of his registration. It had received written submissions from Dr White which it considered at a meeting on 6 November 2023. Dr White attended the meeting and his legal representative was given a further opportunity make submissions.
12. At the conclusion of the meeting, the proposed Order made on 17 April 2023 to refuse Dr White's renewal application was confirmed on the grounds that Dr White was not a suitable person to hold specialist registration as a medical practitioner.

The Law - procedure

1. Section 175 (1) (a) of the Health Practitioner Regulation National Law (NSW) (National Law) provides that a medical practitioner can appeal to this Tribunal against a decision to refuse his registration.
2. An appeal under s 175 (1) (a) of the National Law is an "external appeal". In determining an external appeal, the Tribunal may make any orders that are specified in the "enabling legislation": Civil and Administrative Tribunal Act 2013 (NSW), s 79. The enabling legislation in this case is the National Law.
3. Our powers on determining the appeal are found in s 175C of the National Law which provides: (1) After hearing the matter, the responsible tribunal may- (a) confirm the appellable decision; or (b) amend the appellable decision; or (c) substitute another decision for the appellable decision. (2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
4. The appeal is a new hearing. Fresh evidence, and evidence in addition to or in substitution for the evidence that was before the National Board, may be given: National Law, s 175 (3).
5. Section 175 (3) is in the same terms as the appeal rights in s 159 (3) of the National Law. In Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122, the Court of Appeal, in considering s 159 (3) set out (at [9]) the following about the nature of a "new hearing": "On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it and having regard to the considerations relevant to the exercise of the discretion conferred by s 150."
6. In determining any matter under the National Law, the Tribunal is guided and informed by the objects and principles of the legislation found in s 3 and s 3A which provide: 3 Objectives and guiding principles (2) The objectives of the national registration and accreditation scheme are- (a) 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; … 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
7. The Medical Board has to establish that Dr White's registration should not be renewed. The standard of proof is proof on the balance of probabilities. Having regard to the nature of the allegations, and bearing in mind the range of possible consequences of adverse findings, only clear and cogent evidence will be capable of meeting the standard of proof required (see Briginshaw v Briginshaw (1938) 60 CLR 336). Where, in this decision, a finding is made as to whether or not a fact has been proven, it should be assumed that the finding has been made on the balance of probabilities on clear and cogent evidence.

The Law - registration

1. Dr White obtained specialist registration as a general practitioner in Australia but does not hold, and has never held, general registration in Australia.
2. A person is only eligible to hold specialist registration in a health profession if the person "is a suitable person to hold registration in the health profession": National Law, s 57(1)(c).
3. Section 55 sets out the circumstances in which a person may be considered unsuitable for general registration. The section also applies to specialist registration: National Law, s 60.
4. The Medical Board did not raise and we decline to find that there is any issue as to Dr White's competence to practise as a doctor: National Law, s 55 (h) (ii).
5. The Medical Board relies on ss 55 (1) (e) and (1) (h) (i). 55 UNSUITABILITY TO HOLD GENERAL REGISTRATION (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - …… (e) the individual's registration (however described) in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia; or … (h) in the Board's opinion, the individual is for any other reason-- (i) not a fit and proper person for general registration in the profession;

Section 55 (1) (e) - Cancellation of registration in New Zealand

1. The HPDT in New Zealand found Dr White guilty of professional misconduct: Health Practitioners Disciplinary Tribunal 1337/Med22/558P at [56]. It decided that the cancellation of Dr White's registration was the appropriate penalty in circumstances where the offending conduct was prolonged and diverse (at [90]).
2. It was submitted by counsel for Dr White that these findings by the HPDT are of less weight in circumstances where Dr White did not contest cancellation of his registration and the other orders sought by the regulator, he did not give evidence and the reasons given by the HPDT were simply to support the making of the orders agreed on by the parties.
3. We do not accept those submissions. The factual findings arose out of facts agreed to by Dr White. The HPDT expressly said it had arrived at its own findings as to the seriousness of the conduct and the appropriate penalty at [90] when it held: "Ultimately, the Tribunal has determined that the practitioner's registration be cancelled. This might be considered unsurprising given the substantial agreement between the parties. However, we have reached this view on our own accord, having regard to the penalty principles outlined above."

Section 55 (1) (e) - Finding

1. Based on the findings in New Zealand as to Dr White being willing to lie to obtain his practising certificate, his failure to act ethically and honestly, the misconduct being objectively serious and the cancellation of his registration we are satisfied that the correct and preferable decision is that Dr White is not a suitable person for the purpose of specialist registration by reason of s 55(1)(e) of the National Law.

Section 55 (1) (h) (i) - Fit and proper person

1. In Taylor v Medical Board of Australia [2023] NSWCATOD 126 the Tribunal considered the expression "fit and proper person" and held: 298. In Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, a case involving a lawyer convicted of manslaughter, Kitto J explained at [298]: It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed 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 the Bar; and to draw the dividing line is by no means always an easy task. 299. The Court of Appeal observed in Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 at [158]: … As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. 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. 300. The expression "fit and proper person" in s55(1)(h)(i) has to be read in the context of the legislation in which it sits. As discussed in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [59], it is the relevant statutory provision which must govern and not case law developed at an earlier time. The object and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public is the paramount consideration (s 3A), and in providing that protection the Tribunal is to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3). 301. As Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 explained: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [footnotes omitted] 302. So far as Meagher JA refers to upholding public confidence, it is primarily connected to the practitioner's malpractice or incompetence and setting standards deterring others from such conduct. But the statement also uses the expression "or otherwise not fit to practise, including those who are guilty of serious misconduct". A practitioner can be "unfit" when, he behaves or exhibits traits inconsistent with the honourable practice of an honourable profession, which regards integrity, trustworthiness and high moral and ethical values as an integral part of the practice of medicine. 303. Each case will depend upon an evaluative judgment being made by the Tribunal as to the nature and seriousness of the conduct (Chen at [20]). The emphasis is upon the Practitioner's current fitness to practise (Chen at [71]). 304. Given that fitness of a medical practitioner is to be decided at the time of the hearing, all circumstances of the behaviour and all the circumstances impacting upon current fitness including the interest of the public, are relevant considerations.
2. In Wu v Nursing and Midwifery Board of Australia [2021] NSWCATOD 183, the Tribunal observed at [150]: " ... we find that Ms Wu's cavalier attitude in failing to provide proper disclosure to the Board means that she is currently not a fit and proper person to hold provisional registration."
3. Similarly in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160, the Tribunal said: "[90] .. .it was Mr Bolton's professional duty to be candid and honest with AHPRA. This is an integral part of the proper functioning of the regulatory system. It was improper and unethical of him to provide misleading information to AHPRA. By his actions he demonstrated a disregard for AHPRA and its role. This conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical... [100] Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place".

Non disclosure of charges within seven days of being charged

1. There is an obligation on medical practitioners to disclose, within seven days, if they are charged with a criminal offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere: National Law, s 130. It is common ground that this includes New Zealand.
2. Between July 2018 and 30 May 2019 Dr White was charged with various offences all of which were punishable by 12 months imprisonment or more. It is common ground that he did not notify the Medical Board within seven days as required.
3. Dr White said that he was unaware that he was required to inform the Medical Board.
4. However, Dr White had a professional responsibility to be familiar with this requirement: Good Medical Practice: A Code of Conduct for Doctors in Australia March 2014, (Code of Conduct) issued pursuant to the National Law, s 39. Para 8.3 of the Code of Conduct points out that doctors are obliged to report various matters. The footnote refers to s 130 of the National Law.
5. We are satisfied that Dr White did not comply with s 130 of the National Law.
6. This was a breach of the duty on all medical practitioners to be familiar with the Code of Conduct and to apply the guidance it contains: Code of Conduct, at [1.2].

Non-disclosure of charges on renewal forms

1. In addition, Dr White did not disclose the charges in the three renewal applications he made on 25 September 2018, 29 August 2019 and 23 September 2020.
2. The relevant question in each renewal form to which he answered "No" was: "Since your last declaration to Ahpra, has there been any change to your criminal history in one or more countries other than Australia that you have not declared to Ahpra?"
3. Dr White said that he understood the reference to criminal history to be confined to convictions, not charges. However he conceded that he did not make any enquiries to check whether his belief was correct.
4. The expression does include charges and they should have been disclosed.
5. An application for renewal of specialist registration to the Board must be in the form approved by the Medical Board: National Law, s 107 (4)(a). It must be accompanied by a statement by the practitioner setting out any change in his or her criminal history: National Law, s 109. "Criminal history" is defined in s 5 as including every charge made against the person for an offence, in a participating jurisdiction or elsewhere. As we have said, it is common ground that New Zealand is a participating jurisdiction.
6. Dr White conceded in cross examination that, at the time he completed each renewal form, he had turned his mind to whether he should disclose the charges and had decided that he was only required to disclose convictions.
7. We are satisfied that Dr White could have easily ascertained that he was required to disclose the charges if he had chosen to make enquiries - 1. The expression "criminal history" is defined as including charges in a document on the Ahpra website titled "Registration Standard: Criminal History". 2. As we have said, para 8.3 of the Code of Conduct points out that doctors are obliged to report various matters. The footnote refers to s 130 and also to a publication by Ahpra - "Guidelines for mandatory notifications". 3. Dr White could have asked his medical indemnity insurer. We note that around the time the charges were being laid, he was dealing with the issues in Western Australia through his medical indemnity insurer. 4. Dr White could have called the Medical Board and asked for advice as he ultimately did in September 2021.
8. An object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners 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. These objectives cannot be attained unless the practitioners comply with their duty of disclosure to the regulators. (Bolton, supra at [100]).
9. We are satisfied that Dr White's failure to disclose the charges on his renewal applications was a serious breach of the duty on all medical practitioners to disclose the matters set out in s 109 of the National Law.

Late disclosure of convictions

1. Dr White was convicted of the various offences on 1 July 2021.
2. The evidence is to the effect that, in the weeks or days leading up to 3 September 2021, Dr White unsuccessfully attempted to disclose the convictions on his registration renewal form. He called the Medical Board on 3 September 2021 when he was advised to disclose the information in an email which he did on 5 September 2021.
3. Dr White should have, and failed to disclose the convictions within seven days: National Law s 130.

The facts underlying the criminal convictions and the failures to disclose

1. We consider that the conduct of Dr White which led to the convictions on 1 July 2021 impacts on whether he is a fit and proper person to be registered as a medical practitioner. While we do not have the police records, we do have the decision of the HPDT in New Zealand which proceeded on the basis of an agreed statement of facts.
2. The male assault female conviction arose out of an incident where Dr White struck a 15-year-old in the face with his fist as the person attempted to move away from him. Dr White concedes he has no excuse for his conduct and attributed it to his heightened state of anxiety due to personal issues.
3. Four of the charges arose from Dr White: 1. using a forged document to obtain a loan in October 2008; 2. signing a Finance Security Agreement in the name of his wife for $25,000.00 in March 2014; and 3. obtaining a false valuation on a boat and using an affidavit of another person in February 2017.
4. The remaining fraud charges related to an insurance claim Dr White filed on 20 January 2017, falsely stating that six Lladro figurines and bathroom tiles had been damaged as a result of an earthquake.
5. Dr White's offending conduct commenced in 2008 and continued until 3 September 2021. He assaulted a vulnerable child. He used forged documents for his own benefit on more than one occasion. He filed an insurance claim which he knew was false. His cavalier attitude to his professional responsibilities meant he withheld the existence of the criminal charges from the regulator where such disclosure was likely to have resulted in an inquiry as to whether he was a fit and proper person to be a registered specialist. We are satisfied that this conduct is entirely inconsistent with the honourable practice of an honourable profession, which regards integrity, trustworthiness and high moral and ethical values as an integral part of the practice of medicine.

Registration cancelled in New Zealand

1. In determining whether Dr White is a fit and proper person we take into account that his registration in New Zealand has been cancelled for professional misconduct.

Lack of candour

1. In addition to the matters we have already determined, we are satisfied that there is evidence of another situation where Dr White has not fully co-operated with the regulatory authorities.
2. Dr Dimarco is a psychiatrist who was retained by the solicitor for Dr White to provide an opinion to be used in this Inquiry as to whether Dr White is a suitable person for registration. She saw Dr White on 5 March 2024. She recorded the following history given to her by Dr White: "Dr White believed he started developing symptoms of hypomania when his first wife was ill with Anorexia. He was working long hours and used alcohol to aid his sleep … he described working excessively with "not enough break" and … became "slowly manic". He was more labile, excitable, and volatile in his mood ... … He described after a period of Christmas leave in 1997 or 1998 he "hit a brick wall and couldn't go back to work". He saw his GP and handed in his registration."
3. The HPDT noted in its decision on 23 September 2023: "In August 1999, Dr White's registration in New Zealand was cancelled by the then Medical Practitioners Disciplinary Tribunal for issues related to his clinical practice and unethical practice. At the time he was experiencing mental health issues."
4. Dr White, in cross examination, conceded that the information he had given to Dr Dimarco was incomplete and that he had omitted to tell her that his registration had been cancelled. In these circumstances we give Dr Dimarco's opinion little weight.
5. As we have said before, the regulatory system can only achieve its objectives if practitioners comply with their duty to co-operate with the regulatory authorities. Dr White's omission relates to a central issue in determining his suitability to practise. We therefore take it into account in determining whether he is a fit and proper person to be registered.

Role of deterrence

1. Counsel for Dr White submitted that the role of deterrence is irrelevant to the determination of whether Dr White is a suitable person to be registered.
2. However, as we have said, the protection of the health and safety of the public must be the paramount consideration: National Law, s3A (1).
3. In the context of formulating protective orders, the role of deterrence is expressed as an element of the public interest: Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. (Health Care Complaints Commission v Do [2014] NSWCA 307 at [35])
4. We do consider that members of the public and the medical profession should know that the findings we have made against Dr White are undesirable in a medical practitioner and, in the appropriate case, will be denounced. We will accordingly include the issues of personal and general deterrence in our determination of whether Dr White is a fit and proper person to be registered as a medical practitioner.

Shortage of medical practitioners

1. One of the objectives of the national registration and accreditation scheme is to facilitate access to services provided by health practitioners in accordance with the public interest: National Law, s 3 (2)(e).
2. We have no hesitation in accepting the evidence as to there being a shortage of medical practitioners in rural and regional Australia.
3. However, we accept the submission made by counsel for the Medical Board that while there is a public interest in ensuring access to health care in rural and remote areas, it is also critical that practitioners operating in these (as in all) areas are suitable and fit and proper persons.
4. We consider that this approach is consistent with the main guiding principle of the national registration and accreditation scheme which is that the protection of the health and safety of the public must be the paramount consideration.

Evidence of Dr White

1. There is evidence from Dr White as to having recently completed an ethics course, as this is one of the pre-requisites to Dr White being re-registered in New Zealand.
2. Dr White has given evidence as to the course having given him greater insight into has past poor behaviours and decisions with a view to avoiding such issues in the future. He expresses remorse for his past behaviour and action.

Character references

1. There are a number of character references in evidence attesting to Dr White's competence as a general practitioner. As we have said, this is not in issue in this Inquiry.

Section 55 (1) (h) (i) - Finding

1. Taking into account all of our findings in relation to s 55(1)(h)(i), we are satisfied that the correct and preferable decision arising out of the evidence before us is that Dr White is not currently a fit and proper person to hold specialist registration.

Suitability for registration

1. By reason of our findings in relation to ss 55(1)(e) and (h) we find that Dr White is not a suitable person to hold specialised registration as a medical practitioner.

Costs

1. The Medical Board seeks an order for Dr White to pay its costs of the appeal.
2. This Tribunal's position on costs in occupational matters is set out in NSW Civil and Administrative Tribunal's Occupational Division Guideline at [14] which provides that: The Tribunal may make a costs order in … an appeal brought under the Health Practitioner Regulation National Law. Costs are generally awarded to the successful party unless there are disqualifying circumstances.
3. This Guideline is consistent with the decision in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [84]-[85]: [84] Clause 13 in Sch 5D of the applicable National Law relevantly provided: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. [85] In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs").
4. The Medical Board has been successful on the appeal. Counsel for Dr White did not suggest that there was any disentitling conduct on the part of the Medical Board.

Decision 1. Pursuant to s 175C (1) of the National Law (NSW) the appellable decision is confirmed. 2. Dr White to pay the Medical Board's costs of the appeal.

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: 19 June 2024