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Published online by Cambridge University Press: 01 January 2025
Each year approximately 60 registered health practitioners in Australia have their registration cancelled for reasons of serious misconduct or, less commonly, impairment or criminal conviction. Cancellation remains in force unless the practitioner successfully brings a later application to be restored to the register. While the decision to deregister takes place in a public tribunal process, with published reasons, throughout most of Australia determinations concerning reinstatement are undertaken by professional Boards in private. This research examines available reinstatement decisions concerning 86 health practitioners to analyse how the health regulatory system in Australia determines questions of public interest and public safety when deciding whether deregistered health practitioners who seek reinstatement are now ‘fit and proper’ to practise their profession again. There is a considerable body of case law on the meaning of fitness to practise for health professionals, and the process by which it can be assessed. However, there is remarkably little legislative content or administrative guidance to structure the reinstatement inquiry, assist applicants in the process or to ensure consistency of decision-making, in particular by drawing attention to broader public protection factors. Reinstatement determinations would be improved through the introduction of structured guidance on how to apply the paramount objective of public protection. The article also suggests that having all reinstatement determinations take place in public with published reasons would improve public understanding of, and confidence in, the reinstatement process.
Thanks to the UTS Law Health Justice Centre for funding; to Ray Carr for research assistance and to David Carter, Tim David and the reviewers for their helpful comments on an earlier draft. The author was a part time Senior Member of NCAT from 2015–2021 making health practitioner decisions, including two that comprised part of this dataset. NCAT had no role in design of the research nor in the views expressed here. ATTESTATION: I confirm I am the sole author of this original work.
1. Edelsten v Medical Practitioners Board of Victoria [2000] VSC 565, [2] per Nathan J.
2. Ex Parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448, 460–1, quoted with approval by the Court of Appeal in HCCC v Litchfield (1997) 41 NSWLR 630, 637.
3. This is a uniform scheme enacted through state and territory laws adopting (with some variation) a model law first enacted in Queensland: Health Practitioner Regulation National Law Act 2009 (Qld) (‘National Law’). For background, see Ian Freckelton, ‘Regulation of Health Practitioners: National Reform in Australia’ (2010) 18(2) Journal of Law and Medicine 207.
4. National Law s 196(4); Health Practitioner Regulation National Law Act (NSW) 2009 (NSW) ss 149C(5), (5A) (‘NSW Law’).
5. Comparing the number of reinstatement cases in NSW (bearing in mind that it is the only jurisdiction for which the cases represent reinstatement applications in absolute numbers) with AHPRA deregistration data, see (n 6), produces an application ratio for reinstatement of approximately 15% among the deregistered population. In the UK, there were 76 applicants for restoration to the register during a period in which 636 doctors were deregistered (producing a ratio of approx. 12%): Bryony Milroy et al, ‘The Outcome of Applications for Restoration to the Medical Register Following Disciplinary Erasure’ (2021) 89(1) Medico-Legal Journal 13, 16.
6. Outcomes of disciplinary proceedings at Tribunal level, divided into HPCA (NSW) and AHPRA (rest of Australia) are reported by AHPRA in Annual Reports from 2011/2: see AHPRA, Annual Report 2012/3 (Report, 2014) 136; AHPRA, Annual Report 2013/4 (Report, 2015) 133–4; AHPRA, Annual Report 2014/5 (Report, 2016) 38–9; AHPRA, Annual Report 2015/6 (Report, 2017) 50–1; AHPRA, Annual Report 2016/7 (2018) 53–4; AHPRA, Annual Report 2017/8 (Report, 2019) Table 21; AHPRA, Annual Report 2018/9 (Report, 2020) Table N6; AHPRA, Annual Report 2019/20 (Report, 2021) Table N6.
7. The author made a data request to AHPRA on 25 August 2021, supported by UTS Ethics Approval ETH21-6526. The request sought the number of applications for registration to National Boards by health practitioners previously subject to a cancellation order on an annual basis from 2012/13 to 2019/20. On 13 December 2021 APHRA research staff confirmed that this would require manual data extraction and undertook to pursue the request but were unable to fulfil this by the time of publication in December 2022.
8. The above data request also sought a breakdown of applications for re-registration by cancelled practitioners by: profession; gender; outcome (ie, granted registration with no conditions, granted registration with conditions, refused registration) and the number of those decisions subject to appeal. This aspect of the request was refused on 13 December 2021 on the basis that it would require manual data extraction at an estimated cost of $12,000 and, even if fully funded by the author, was ‘not feasible’ due to resourcing constraints.
9. A further effect of the Board process is that a practitioner effectively has two opportunities to make their case for reinstatement, first to the Board and then, if unsuccessful, a complete rehearing on the merits at tribunal. In NSW where the application is made directly to the tribunal, an appeal by either party is only available on a point of law.
10. NSW Law (n 4) s 149E.
11. This reflects the ‘co-regulatory’ nature of the National scheme, in which NSW carried over its pre-existing disciplinary framework when adopting the National Law in 2010. See Merrilyn Walton et al, ‘Management and Outcomes of Health Practitioner Complaints in Australia: A Comparison of the National and New South Wales Systems (2020) 44(2) Australian Health Review 180. While Queensland has since moved to a co-regulatory disciplinary approach with the Office of the Health Ombudsman in Queensland, the responsible agency (rather than AHPRA) for much complaint handling, this does not have any impact upon the reinstatement process.
12. Shelley v Nurses & Midwives Tribunal of NSW & Anor [2007] NSWSC 1240, [38].
13. Prior to the National Law, state and territory laws regulating the medical profession used ‘fit and proper’ and ‘of good character’ variously. See discussion of these and other historical terms in Ian Freckelton, ‘“Good character” and the Regulation of Medical Practitioners’ (2008) 16(3) Journal of Law and Medicine 488, 495–6.
14. See contrasting views on the relevance of ‘fit and proper person’ in the NSW reinstatement setting: Wang v HCCC [2018] NSWCATOD 34, [54]–[78]; cf Ghannoum v Medical Council of NSW [2018] NSWCATOD 118, [57].
15. National Law (n 3) s 3(2)(a). This objective sits with a number of objectives and principles.
16. NSW Law (n 4) s 3A.
17. See COAG Health Council, Paramountcy of Public Protection when Administering the National Scheme 2019-1 (Policy Direction, 2019) <https://www.ahpra.gov.au/about-ahpra/ministerial-directives-and-communiques.aspx>.
18. AHPRA & National Boards, Regulatory Guide (2021) 75 <https://www.ahpra.gov.au/Notifications/Further-information.aspx> (‘AHPRA Regulatory Guide’).
19. See, eg, Health Ombudsman v Haririchian [2021] QCA 141, [11]. For well-known examples prior to the National Law, see: Craig v Medical Board of South Australia (2001) 79 SASR 545, 555 [47]; HCCC v Litchfield (n 2) 637.
20. HCCC v Do [2014] NSWCA 307, [35].
21. AHPRA Regulatory Guide (n 18) 75, quoting HCCC v Waddell (No 2) [2013] NSWNMT 2, [106].
22. HCCC v Lindsay (NSW Medical Tribunal, 20 August 2008) archived at <https://web.archive.org/web/mcnsw.org.au/resources/698/LindsayMTCdeidentified.pdf>. ‘If the reputation of the medical profession falls into disrepute, members of the community will not use or trust it, and their health may suffer’: at 1. See also Medical Practitioners Board of Victoria v Lal (2009) 23 VR 702, 717 [58]; Cassim v Medical Board of Australia [2021] VCAT 595, [69]–[71].
23. In Chen v HCCC (2017) 95 NSWLR 334, 337 [4] Basten JA stated:
[O]ne should be cautious in relying upon cases concerned with legal practitioners when dealing with the regulation of the medical profession. First, the institutional structures within which the respective professions operate are, and have been historically, different in significant respects. Secondly, the functions exercised by each profession differ significantly. To take merely an obvious example, an important purpose of regulating lawyers is to ensure that they deal properly with clients’ property and money. With respect to doctors, a significant purpose is to protect the physical integrity of patients.
Payne JA added, ‘The definitions of unsatisfactory professional conduct and professional misconduct in [the Legal Profession Uniform Law (NSW) and the National Law] bear little relationship to each other’: at 349 [61]. See also Drury v Medical Board of Australia [2011] VCAT 858, [18] (‘Drury’).
24. Katie Elkin, ‘Medical Practitioner Regulation: Is it all about Protecting the Public?’ (2014) 21(3) Journal of Law and Medicine 682, 696.
25. Ian Freckelton, ‘The Margins of Professional Regulation: Disjunctions, Dilemmas and Deterrence’ (2005) 23(2) Law in Context 148, 150.
26. Laurie Warfe, ‘Determining the Risk of Recidivism in Previously De-registered Health Practitioners’ (2013) 21(1) Journal of Law and Medicine 67, 68.
27. Paula Case also notes this tension in ‘Putting Public Confidence First: Doctors, Precautionary Suspension and the General Medical Council’ (2011) 19(3) Medical Law Review 339, 353.
28. The imposition of conditions on reinstatement is common, and these conditions appear on the publicly searchable National Register.
29. Medical Practitioners Tribunal Service, Guidance for Medical Practitioners Tribunals on Restoration Following Disciplinary Erasure (2019), A2, A7 <https://www.mpts-uk.org/doctors-and-representatives/hearing-resources#mpt> (‘MPTS’); Milroy et al (n 5).
30. NSW Law (n 4) s 163B(1), (4), (5).
31. Ibid s 165J.
32. Ibid s 163C(1).
33. Ibid s 163C(2) (emphasis added).
34. Ibid s 163C(3).
35. National Law (n 3) ss 81, 82.
36. Which may also disadvantage the decision-maker in that it does not allow for an assessment of the applicant and other witnesses through questioning.
37. See, eg, Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 62.
38. National Law (n 3) s 55(1)(b).
39. Ibid s 55(1)(g).
40. Qasim v Medical Council of NSW [2021] NSWCA 173, [19] (Brereton JA). In the UK, the question for determination in reinstatement has recently been expressed as, ‘having considered the circumstances which led to erasure and the extent of remediation and insight, is the doctor now fit to practise having regard to each of the three elements of the overarching objective?’: General Medical Council v Chandra [2018] EWCA Civ 1898. The overarching objective is public protection, comprising maintaining and promoting: the health and safety of the public; public confidence in the professions; and professional standards.
41. In Alroe v Medical Board of Australia [2015] QCAT 482 [18]–[21], the tribunal summarised the concept as ‘both character and competence based’, including ‘the professionalism … to keep proper standards and meet public expectations in discharging professional duties and responsibilities’ and as requiring a future focused assessment.
42. See, eg, Zepinic v HCCC [2020] NSWSC 13 approving the formulation in Shah v HCCC [2014] NSWCATOD 94, which drew from Scully v HCCC [2013] NSWNMT 7. See also Newcombe v Medical Board of Australia [2013] SAHPT 2, [9]–[11]; Haber v HCCC [2018] NSWCATOD 16; Qasim v Medical Council of NSW (n 40) (Brereton JA).
43. Craig v Medical Board of South Australia (n 19).
44. Drawn from a NSW Court of Appeal decision many years prior to the National Law but approved extensively since: Ex parte Tziniolis (n 2) 461. See, eg, Re Zaidi [2006] NSWMT 6 (although note subsequent rejection of the implicit standard of ‘probable permanent unfitness’ endorsed in that earlier case law by the NSWCA in Chen v HCCC (n 23)).
45. See, eg, Newcombe v Medical Board of Australia (n 42), [10], quoting Re Zaidi (n 44) with approval.
46. See, eg, Marin v Chiropractic Board of Australia [2019] SADC 17. Cf prohibition orders which are worded as ‘either permanently or for a stated period’: National Law (n 3) s 196(4)(b).
47. See MPTS (n 29), B4–5.
48. See, eg, Scully v HCCC (n 42) [40]; Health Ombudsman v DKM [2021] QCAT 50. See similar formulations in the UK context in MPTS (n 29) Part B; Milroy (n 5) 14.
49. Given that the National Board process is not set up to receive, and test, direct evidence from the practitioner through an oral hearing it is interesting to note that the recent APHRA regulatory guide says, ‘The most effective way for a decision-maker to assess the level of insight or remorse demonstrated by a practitioner is by hearing direct evidence from the practitioner’: at AHPRA Regulatory Guide (n 18) 90.
50. See MPTS (n 29) B6–12; and recent discussion in the UK context Timothy David and Sarah Eillson, ‘The Meaning of Lack of Insight into Failings in the Context of Fitness to Practise Proceedings’ (2021) 14 Irish Law Times 202; see also Freckelton (n 25) 504.
51. AHPRA regulatory guidance does not include any specific material on reinstatement, but see guidance text outlining insight, remorse and rehabilitation in disciplinary settings (n 18).
52. Cf guidance in the United Kingdom: MPTS (n 29). See for practitioners themselves, General Medical Council, Guidance for Doctors on Restoration Following Disciplinary Erasure (Report, 2019) <https://www.mpts-uk.org/doctors-and-representatives/hearing-resources#gmc>.
53. Cases were included in the dataset where the professional had applied for reregistration having been previously subject to deregistration through a disciplinary process or surrendered their registration to avoid such process. Cases were excluded if the applicant/appellant was denied registration for a non-disciplinary reason such as lack of appropriate training.
54. All applicant names were checked against the National Register in October 2020, to identify whether (a) reinstated practitioners in the dataset had any later serious disciplinary event recorded and (b) practitioners refused reinstatement in the tribunal or court decisions from outside NSW were subsequently successful in achieving reregistration from a National Board. Two applicants whose published appeals were refused are currently on the register, meaning that a subsequent application to the Board was granted; they were counted here as successful in reinstatement.
55. AHPRA, Annual Report 2019/20 (n 6) Table R3.
56. Ibid 67.
57. Reflecting that, even prior to the National Law, most state-based regulatory schemes allowed for appeal of registration decisions on the basis of hearing de novo. The exception in the case set was South Australia where matters were dealt with by judicial review prior to 2010.
58. See Merrilyn Walton et al, ‘Profile of the Most Common Complaints for Five Health Professions in Australia’ (2020) 44 Australian Health Review 15. Nurses and midwives currently comprise 56.3 % of all registered health professionals, while medical practitioners make up 15.7%: AHPRA, Annual Report 2019/20 (n 6).
59. Matthew J Spittal et al, ‘Outcomes of Notifications to Health Practitioner Boards: a Retrospective Cohort Study’ (2016) 14 BMC Medicine 198; Marie M Bismark et al, ‘Sexual Misconduct by Health Professionals in Australia 2011–2016: a Retrospective Analysis of Notifications to Health Regulators’ (2020) 213(5) Medical Journal of Australia 218.
60. Doctors appeared in serious disciplinary cases at more than double their proportion of the practitioner population, while nurses and midwives appeared at half: Jenni Millbank, ‘Health Practitioner Regulation: Has the National Law Produced National Outcomes in Serious Disciplinary Matters?’ (2019) 47(4) Federal Law Review 631.
61. Ibid, finding that of the cases studied where misconduct was proved, 27.9% of doctors were deregistered compared to 45.7% of nurses. See also similar disparities in the UK and New Zealand: Rosalind Searle et al, Bad Apples? Bad Barrels? Or Bad Cellars? Antecedents and Processes of Professional Misconduct in UK Health and Social Care: Insights into Sexual Misconduct and Dishonesty (Report, 2017); Lois J Surgenor et al, ‘New Zealand’s Health Practitioners Disciplinary Tribunal: An Analysis of Decisions 2004–2014’ (2016) 24(1) Journal of Law and Medicine 239.
62. Psychologists had the highest reinstatement rate at 57.1% but with only seven cases in total this could easily shift. Rates for the remainder were: dentists (33.3%, n = 3), and other (25%, n = 8) (pharmacists, osteopaths, and one physiotherapist).
63. That study covered decisions across an 8.5 year timeframe, January 2012–June 2020.
64. Milroy (n 5).
65. Millbank, ‘Health Practitioner Regulation’ (n 60) Figure 1.
66. The disproportion is also reflected in a recent UK study of reinstatement determinations concerning medical practitioners, in which 90.8% of applicants were male: Milroy (n 5) 15.
67. Sexual misconduct includes both sexual relationships with patients and inappropriate contact. For a more detailed analysis of these cases see Jenni Millbank, ‘Restoration to Practice of Health Practitioners Removed for Serious Sexual Misconduct: Evaluating Public Confidence and Assessing Risk’ (2022) 31 Griffith Law Review 123.
68. In Milroy et al’s recent UK study of reinstatement 4 of 23 had committed sexual misconduct (ie 17.4%): (n 5) 15–16.
69. In contrast in a recent UK study (bearing in mind a minimum 5 year disqualification period there since 2000), the time between erasure and most recent reapplication determination averaged 8.4 years for those who were reinstated, and for those who were refused, 9 years: Milroy (n 5) 15.
70. 41 applicants had no legal representation (47.1%), and one applicant had representation for half of the proceedings.
71. In a recent study of disciplinary tribunal hearings, 82% of all health practitioner respondents were legally represented; among doctors this figure was 93.4%: Millbank, ‘Health Practitioner Regulation’ (n 60).
72. In that study only 42% of applicants (32 of 76) had legal representation. Among those who were legally represented (n = 23) the reinstatement rate was 55.2 %, compared to only 24.1% for those not represented: Milroy (n 5) 16.
73. See, eg, Wilks v Medical Board of South Australia [2010] SASC 287, [42].
74. It is not a prerequisite to reinstatement that a practitioner admits to the previous misconduct: HCCC v Hatoum & Anor [2004] NSWCA 30, [22]. However, ‘continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness …’: Zaidi v HCCC (1998) 44 NSWLR 82, 100. See also Health Ombudsman v Harirchian [2021] QCA 141, [16].
75. See, eg, Holbrook v HCCC [2014] NSWCATOD 86.
76. See, eg, Zepinic v HCCC (No 2) [2018] NSWCATOD 166; Zepinic v HCCC (n 42); Bar-Mordecai v Medical Council of NSW (No 2) [2015] NSWCATOD 58. See also Milroy (n 5) 16.
77. Only one of the cohort was declared by the Supreme Court (on application of the Attorney General) to be a vexatious litigant, such that any application for further proceedings had to be authorised by the court. This cohort member, Bar-Mordecai, has instituted over 20 different proceedings on a variety of matters both personal and professional; he was declared vexatious in 2005, with the order varied in 2018: Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13.
78. Reimers v Medical Council of New South Wales [2018] NSWCATOD 180 (not guilty of manslaughter); Litchfield v Medical Council of New South Wales [2012] NSWMT 8 (‘Litchfield’) (not guilty of sexual assault); In re Annetts [2004] NSWMT 14 (assault charges against wife declared by the tribunal to have been false claims); In re Abou-Hatoum (New South Wales Medical Tribunal, 28 May 2003) archived at <https://web.archive.org/web/20160302073142/ http://mcnsw.org.au/resources/291/MrAbou-Hatoum.pdf>, (indecent and/or sexual assault charges against three patients apparently discontinued).
79. Flynn v HCCC [2011] NSWNMT 6; Nesbit v Nurses and Midwives Board [2009] NSWNMT 10.
80. Ristevski v Medical Council of NSW [2016] NSWCATOD 18 (assault occasioning actual bodily harm against his partner/patient); Lal v Medical Practitioners Board of Victoria [2008] VCAT 2077 (two common assaults against female colleagues and three indecent and sexual assaults against patients); Reyes-Gonazalez v Dental Board of South Australia (Dental Board of South Australia, 23 June 2009) (assault police, drink driving and resist arrest).
81. Marie M Bismark et al, ‘Identification of Doctors at Risk of Recurrent Complaints: A National Study of Healthcare Complaints in Australia’ (2013) 22 British Medical Journal of Quality and Safety 532. Bismark et al studied 11 years of complaint data and found that 3% of all doctors accounted for 49% of complaints. See also Owen M Bradfield et al, ‘Characteristics and Predictors of Regulatory Immediate Action Imposed on Registered Health Practitioners in Australia: a Retrospective Cohort Study’ (2020) 44(5) Australian Health Review 784; Matthew J Spittal et al, ‘Identification of Practitioners at High Risk of Complaints to Health Profession Regulators’ (2019) 19(1) BMC Health Service Research 380.
82. Bismark et al (n 81) found that the number of prior complaints was a ‘strong predictor of subsequent complaints’: at 535. Doctors with two complaints had nearly double the risk of recurrence compared to those with one prior complaint, and doctors named in a third complaint had a 38% chance of being the subject of further complaint within a year. They also found that male doctors had a 40% higher risk of recurrence compared to female doctors: at 535.
83. They were: Fareed Bahrami/Farid Bahramy; John Bannister, Michael Bar-Mordecai, John Drury, John Good, Gerrit Reimers, Bruce Litchfield, Rosemary Rein, Mansoor Zaidi, Michael Papps, Osvaldo Reyes-Gonzalez, Vito Zepinic, Geoffrey Edelsten; Urmas Aavelaid, and Christopher Alroe.
84. Rosemary Rein.
85. Milroy et al note the link between insight and risk assessment, (n 5) 16.
86. See, eg, Re Zaidi (n 44); Drury (n 23).
87. See, eg, Reimers v Medical Council of NSW [2015] NSWCATOD 38.
88. See, eg, Edelsten v Medical Practitioners Board of Victoria [2001] VCAT 723; In Re Bannister [2007] NSWMT 13.
89. See, eg, Re Zaidi (n 44).
90. For example. the 2003 decision concerning Litchfield addressed in detail his misleading answers to questions about previous professional disciplinary action when applying for a real estate license in 1998, In the matter of Mr Bruce Litchfield, 40002/02, (Medical Tribunal of NSW, 16 June 2003), 16–17, archived at <https://web.archive.org/web/20160302073147/ http://mcnsw.org.au/resources/774/LitchfieldBruceMTRdecision10-6-2003.pdf>. See also In Re Bannister (n 88); Bahramy v Medical Council of NSW [2017] NSWCATOD 146.
91. See MPTS, above (n 29), A1. That study found that 5 of 53 refusals included such indefinite suspension of the right to make further applications, at 14.
92. The 2003 decision notes that there was an application in 2000 that was withdrawn by Litchfield ‘at the last moment’ prior to hearing: In the matter of Mr Bruce Litchfield (n 90) 19.
93. Reimers made and then withdrew an application for registration in Victoria prior to the National Law and then made a further two unsuccessful applications for registration which he appealed to the Victorian Tribunal and Queensland Tribunal, respectively, as well as two unsuccessful NSW Court of Appeal challenges to the NSW deregistration order, prior to the two applications for reinstatement in NSW under discussion. See Reimers v Medical Practitioners Board of Victoria and Anor [2011] VCAT 2004; Reimers v Medical Board of Queensland [2010] QCAT 241; Reimers v HCCC [2012] NSWCA 317; Reimers v HCCC [2013] NSWCA 366.
94. The 1997 NSW Court of Appeal decision in Litchfield is still frequently quoted for the principle that, ‘The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards’. In considering the role of protective orders, the Court of Appeal overruled its own earlier decision in Richter v Walton (1993) to adopt the dissenting position of Priestley JA that a practitioner who cannot be trusted to be alone with female patients should not be regarded as fit to practise medicine at all: HCCC v Litchfield (n 2). The 2012 NSW Court of Appeal decision in Reimers is precedential for the principle that the same factual conduct may properly give rise to a complaint of both of misconduct and impairment: Reimers v HCCC [2012] (n 93) [11].
95. Re Dr Gerrit Reimers, No 40011 of 2002, (Medical Tribunal of NSW, 4 November 2003) archived at <https://web.archive.org/web/20160302073224/http://mcnsw.org.au/resources/251/ReimersG.pdf>.
96. Reimers v Medical Council of NSW (n 87) [56].
97. Including, significantly, independent evidence for the first time of drug screening to corroborate that the applicant was no longer drug dependent: Reimers v Medical Council of New South Wales (n 78) [164].
98. Ibid [165].
99. Ibid [94]–[95].
100. While self-represented in all of his previous applications and appeals, Reimers was represented by a barrister in the 2018 reinstatement application. This was the same counsel who had appeared for Litchfield in his successful 2012 application.
101. Reimers v Medical Council of New South Wales (n 78) [77], [79] and [80], respectively.
102. See Gerrit Reimers, ‘Dr Gerrit Reimers — Tribunal Decision Overturned’, MyAhpra, (Web Page, 18 February 2021), <http://myahpra.com.au/uncategorized/dr-gerrit-reimers-tribunal-decision-overturned/>.
103. See Case (n 27) 611.
104. Ahmad v HCCC [2019] NSWCATOD 35, [54]: ‘The task of assessing whether a person’s expression of contrition is genuine is difficult as it cannot be objectively measured and is inevitably impressionistic’.
105. Gabrielle Wolf argues that ‘There are … no reliable measures to draw on to assess whether an offender is genuinely remorseful, feigning this emotion, feeling sorry for having his/her crimes detected rather than for committing them, or exhibiting some other emotion altogether’: ‘Not Black and White? Disciplinary Regulation of Doctors Convicted of Child Pornography Offences in Australia’ (2019) 45(2) Monash University Law Review 487, 514–5.
106. Litchfield was deregistered in 1997 (following appeal by the HCCC from the tribunal’s original suspension order): Re Dr Bruce Desmond Litchfield, No 40013 of 1995 (Medical Tribunal of NSW, 15 November 1996) archived at <https://web.archive.org/web/20160302074428/ http://mcnsw.org.au/resources/377/Litchfiled.pdf>; HCCC v Litchfield (n 2).
107. In the matter of Mr Bruce Litchfield (n 90).
108. Re Bruce Litchfield [2006] NSWMT 3 (‘Re Bruce Litchfield’).
109. In the matter of Mr Bruce Litchfield (n 90) 20.
110. Ibid, [15] and [24]–[25]. For instance, Litchfield denied having moved JT’s underwear away from her when she reached for it to get dressed and then taken her hand and placed it on his erect penis. The 1996 tribunal held that this did occur and that it was not accidental. In 2003, Litchfield ‘accepted that in all probability it must have happened’ (at 23) but continued to offer an account in which he was actually taking the patient’s pulse and ‘momentarily’ and ‘without awareness’ held the patient’s hand against his groin (22–3).
111. The application was supported by a treating psychiatrist who gave the opinion that while ‘Litchfield had experienced much difficulty in the past in understanding the magnitude of his unethical behaviour and the reasons that it was so potentially damaging to his patients,’ he had ‘made slow progress to the point where he now expressed appropriate levels of remorse and contrition’: Re Bruce Litchfield (n 108) [27].
112. Re Bruce Litchfield (n 108) [69]–[74]. The 2006 tribunal further held that Litchfield did not have any real understanding of the nature and significance of the misconduct and continued to minimise it and to justify his actions: [75]–[80].
113. While continuing to assert that there had been a therapeutic purpose for the contact, he accepted the original tribunal finding that there was ‘a sexual component’: Litchfield (n 78), [28], [60]. See also [61].
114. Ibid [54]–[55].
115. Ibid [63], [102].
116. Ibid [125].
117. The public register also indicates that two of the three medical practitioners who provided character references for Litchfield in 2012 have since faced serious disciplinary action.
118. Litchfield (n 78) [126], [128].
119. Ibid [131].
120. HCCC v Hatoum & Anor (n 74) [8] (Spigelman CJ).
121. National Law (n 3) s 55(1)(b).
122. Katie Elkin et al, ‘Doctors Disciplined for Professional Misconduct in Australia and New Zealand, 2000–2009’ (2011) 194(9) Medical Journal of Australia 452, 455.
123. Re Monier Gad [2006] NSWMT 4; Barratt v Medical Board of Australia [2012] NSWMT 22; Bradley v Medical Board of Australia [2013] SAHPT 5; Newcombe v Medical Board of Australia (n 42); Alroe v Medical Board of Australia (n 41); Medical Practitioners Board of Victoria v Lal (n 22). See summary of proceedings in Appendix.
124. Varnavides v Dental Practice Board of Western Australia [2009] WASAT 184; Aavelaid v Dental Board of Victoria [1999] VSC 54; Aavelaid v State of Victoria [1999] VSC 255; Reyes-Gonzalez [2009] SADB 2. See Appendix.
125. See, eg, Varnavides v Dental Practice Board of Western Australia (n 124).
126. Aavelaid v Dental Practice Board of Victoria [2002] VCAT 1763; Reyes-Gonzalez v Dental Council [2016] NZHC 2047.
127. Medical Council of NSW v Ameisen [2020] NSWCATOD 18.
128. Bruce Litchfield, discussed above. Dr Abou-Hatoum was deregistered for sexual misconduct in 1999 and reinstated in 2003: In re George Abou-Hatoum and the Medical Practice Act (NSW Medical Tribunal, Unreported, 28 May 2003). An appeal of that decision by the HCCC to NSW Court of Appeal was denied in 2004: HCCC v Abou Hatoum & Anor [2004] NSWCA 30. As at December 2021 the public register indicates that Hatoum is suspended, with media reports indicating criminal charges for fraud were laid against him in July 2020: ‘Doctor Caught up in CTP Insurance Fraud Scam’ The Daily Telegraph, (Sydney, 2 July 2020).
129. See Re Monier Gad (n 123); Re Dr Sabi Lal [2003] MPBV 32; Aavelaid v Dental Board of Victoria (n 124); Medical Council of NSW v Ameisen (n 127).
130. See Barratt v Medical Board of Australia (n 123); Bradley v Medical Board of Australia (n 123); Newcombe v Medical Board of Australia (n 42); Abou-Hatoum (n 128) Varnavides v Dental Practice Board of Western Australia (n 124). See also Hoong Pan Sze-Tho discussed in Millbank, ‘Restoration to practice of health practitioners’ (n 67).
131. See also, outside the scope of this study, John Rolleston, who was deregistered in 2013 following conviction for multiple counts of sexual assault on patients in the 1970s. Rolleston had previously been convicted of nine criminal offences relating to prescribing in 1975 with no disciplinary action taken, and 12 criminal offences related to overservicing in 1986. Rolleston was deregistered in 1987 as a result of the latter convictions, but reinstated in 1990: HCCC v Rolleston [2013] NSWMT 12. See also Hoong Pan Sze-Tho and Abraham Stephanopolous/Stephanson, discussed in Millbank, ‘Restoration to practice of health practitioners’ (n 67).
132. But see Mahoney JA’s spirited defence of the term within a future focused risk assessment (in the face of criticism by Kirby P in dissent):
It is always difficult to judge how a man will act. But, in law and in other areas of life, judgements of this kind must be made. In judging whether an applicant will, in the future, act differently from the past, the court is not required to act on psychological theories or analyses. Nor, where ‘character’ is referred to in the cases is the court concerned with innate disposition or the principles of behaviourism. Normally what is meant by ‘character’ in this context is the standards, of right and wrong and of behaviour, which the applicant has exhibited.
Dawson v Law Society [1989] NSWCA 58, 12 (citations omitted) (‘Dawson’).
133. See Chen v HCCC (n 23), Payne JA emphasised that while earlier disciplinary case law from both medical and legal fields was replete with ‘notions of moral culpability’, ‘The statutory language in the National Law does not involve any element of moral turpitude’: at [67].
134. Warfe (n 26) 71.
135. See Health Practitioner Councils Authority, Legal Practice Note 10.1, The Public Interest (February 2020), 2.
136. Drury (n 23). It is also worth attending to forms of expression in both expert evidence and the text of reasons to see how often it is the practitioner who is expressed to be at risk of recurrence rather than as posing the risk of repeated harm.
137. Ibid [49].
138. Ibid [56]. See similarly, Re Zaidi (n 44).
139. Vigours v Medical Council of NSW [2019] NSWCATOD 75, [127].
140. Freckelton (n 25) 167. Cf Mendleson who argues that these considerations are not authorised under the National Law because they are ‘extraneous’ to the text of the legislation: Danuta Mendelson, ‘Disciplinary Proceedings for Inappropriate Prescription of Opioid Medications by Medical Practitioners in Australia (2010–2014)’ (2014) 22 Journal of Law and Medicine 255, 278.
141. National Law (n 3) s 66.
142. Ibid s 156(1)(e).
143. Ibid s 55(1)(b). ‘Criminal history’ includes matters where the practitioner was acquitted of charges (unlike some of the earlier state laws which were limited to findings of guilt, see, eg, Medical Practice Act 1994 (Vic) s 6(2)(d)), as well as situations where the criminal charges do not arise from professional practise.
144. Warfe (n 26) 68 (emphasis added).
145. AHPRA, Regulatory Guide (2021) (n 18), 92 (emphasis added).
146. Dawson (n 132) 16 (Kirby P).
147. See, eg, Shah v HCCC (n 42).
148. Dawson (n 132), 14–15, citing two chapters of the Bible for authority for the first proposition, ‘St Matthew’s Gospel’ and Acts.
149. Ibid 33.
150. Elkin, ‘Medical Practitioner Regulation’ (n 24); Helen Kiel, ‘Regulating Impaired Doctors: A Snapshot from New South Wales’ (2013) 21(2) Journal of Law and Medicine 429; Jenni Millbank, ‘Serious Disciplinary Proceedings against Australian Health Practitioners for Sexual Misconduct’ (2020) 44(1) Melbourne University Law Review 212.
151. Millbank, ‘Serious Disciplinary Proceedings against Australian Health Practitioners for Sexual Misconduct’ (n 150).
152. Litchfield (n 113) [126], [128].
153. Health Practitioner Councils Authority, Practice Note 10.1: The Public Interest (February 2020), 2 (emphasis added).
154. Owen Bradfield, Matthew Spittal and Marie Bismark, ‘In Whose Interest? Recent Developments in Regulatory Immediate Action against Medical Practitioners in Australia’ (2020) 28(1) Journal of Law and Medicine 29.
155. National Law (n 3) s 156(1)(e).
156. [2009] VSCA 109 (‘Lal’).
157. Ibid [59] (emphasis added).
158. Re Dr Sabi Lal (n 129) [88], [97], [98]. Cf Lal v Medical Practitioners Board of Victoria (n 80) [129], [133], [176].
159. Re Dr Sabi Lal (n 129) [97].
160. Lal (n 156) [63] (emphasis added). Cf UK position in which a failure to have regard to each of the three elements of the overarching objective of public protection (health and safety of the public, public confidence in the profession and maintenance of professional standards) has been held to be a legal error: The General Medical Council v Dr Shekhar Chandra [2018] EWCA Civ 1898.
161. See Health Ombudsman v Harirchian (n 74) [14].
162. Paula Case and Gunjan Sharma, ‘Promoting public confidence in the medical profession: Learning from the case of Dr Bawa-Garba’ (2020) 20(1) Medical Law International 58, 65.
163. David Carter, Deborah Street and Stephen Bush, ‘Building public confidence in medical registration revalidation: Reform of medical registration law in Australia, a new risk-based approach’ (2018) 25(4) Journal of Law and Medicine 1009.
164. Bismark et al (n 81) 102.
165. Harirchian v Health Ombudsman (No 2) [2020] QCAT 414, [15], revd Health Ombudsman v Harirchian (n 74).
166. MPTS (n 29).
167. Moreover decision-makers are supported by clear administrative guidance on considerations in assessing individualised factors of remediation and risk, which are also laid out in plain language guidance for practitioners.
168. Professional Standards Authority, ‘How is Public Confidence Maintained when Fitness to Practise Decisions are Made? Advice to Secretary of State' (Report, April 2019). This was undertaken following Norman Williams, Gross Negligence Manslaughter in Healthcare: The Report of a Rapid Policy Review (Report, June 2018); see Case and Sharma (n 162) 66. See also General Medical Council, ‘Promoting and Maintaining Public Confidence in the Medical Profession' (Research Report, January 2019).