Abstract
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.
No person is beyond redemption. To hold otherwise would be the ultimate counsel of despair.
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Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. … it must require clear proof to show some years later he has established himself as a different man.
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I Introduction
16 health professions in Australia are regulated by a national registration, accreditation, and professional discipline scheme that has been operating since 2010 — the National Law. 3 Each year approximately 220 of these health professionals face serious disciplinary charges in a public tribunal for reasons of serious misconduct or, less commonly, impairment or criminal conviction 4 and around 60 consequently have their registration cancelled. Deregistration prevents the practitioner from practising in their profession anywhere in Australia, or from using a professional title such as ‘doctor’. Unlike an order for suspension, cancellation of registration does not expire and remains in force until the practitioner successfully brings a later application to be reinstated or restored to the register. In doing so, it is the practitioner who bears the onus of proof to demonstrate on the balance of probabilities that they are now a ‘fit and proper’ person and safe to practise the profession.
It is estimated that only around 10–15% of previously deregistered health practitioners seek to return to their former profession. 5 While the Australian Health Practitioner Regulation Agency (‘AHPRA’), records the number of practitioners deregistered nationally (disaggregated to indicate those in the national scheme excluding NSW, versus those in NSW, and by registered profession), 6 there is no public data on the number of practitioners who apply each year to have their registration restored following disciplinary cancellation. 7 There is also, therefore, no data on success rates of reinstatement applications nationally, or by profession, gender, the period spent deregistered, or the kind of misconduct. 8
The contrast between processes under the National Law for the removal and for the reinstatement of health practitioners is surprisingly stark, given that the public interest and public health and safety factors are arguably identical in both determinations. Decisions that might lead to deregistration are undertaken in public, by an independent panel balanced with legal, relevant profession and community members, and result in published written reasons. However, subsequent decisions concerning whether to reinstate the very same deregistered health practitioners do not take place within a comparable framework. Everywhere in Australia (apart from NSW) reinstatement determinations take place in private, are undertaken by a panel of the National Boards comprised mostly or entirely of members of the relevant profession, and there is no published determination. Only if a practitioner is refused registration, or objects to fresh conditions imposed by the Board on reregistration, and subsequently appeals that decision to a tribunal, does the matter then become publicly ventilated and subject to written reasons. This means that there is generally no way for the public to understand why a health practitioner, who previously posed such a serious risk to public health and safety that they were removed from practice, is now assessed as safe to return. There is also no avenue for the decision to reinstate a practitioner by a National Board to be appealed. 9
NSW stands as an exception to the national approach, in that all reinstatement applications of practitioners who were deregistered in NSW (whether or not that is their place of residence or proposed return to practice) are heard by the tribunal (comprised of one legal member, two members of the relevant profession and a community member) rather than the professional National Board or NSW Council. 10 In NSW, these proceedings are held in public and all decisions are publicly released. 11
In sum, the limited information available on why health practitioners are restored to practice having previously been deregistered, or not, can only be found through NSW reinstatement decisions and the small number of appeal decisions from Boards elsewhere in Australia. Very little is written on the principled framework that guides the ‘instinctive synthesis’ 12 of identifying and weighing relevant factors in determining reinstatement, with almost all commentary pre-dating the advent of the National Law.
This article examines available decisions 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 13 or safe and ‘appropriate’ to apply for registration 14 in their profession. First, the article sets out the Australian legal framework, outlining what the paramount consideration of protection of the health and safety of the public means, before exploring how the different national and NSW requirements and processes govern reinstatement. Part II outlines key features of the case set to provide context in terms of who is applying for reinstatement and whether they succeed. Part III examines ‘repeat players’ among the case set to explore how risk and recidivism arise and how they are assessed in the reinstatement setting. In light of the numerous cases featuring histories of repeat misconduct, and multifaceted misconduct, I suggest that reinstatement determinations are misled if they focus only on the risk of the practitioner repeating exactly the same conduct that led to their deregistration. When reinstatement determinations address what was in the past referred to as ‘character’, examining issues such as honesty and candour, they are assessing the practitioner’s overall fitness to practise in terms of their likely future commitment to positive duties of professionalism. Part IV then examines the role of broader public protection and public interest factors in reinstatement determinations. This section argues that the issue of public confidence in the professions and in health regulation — although a major factor in deregistration — is rarely addressed in reinstatement. This is a significant omission, as it means that a narrow conception of public protection is applied, limited to the specific risk to the practitioner’s patients, overlooking broader protective and confidence considerations that are essential to the functioning of what is a primarily reactive, complaint-based system.
The article concludes that more can be done to build public confidence in our system of health regulation, through both legislative reform and policy guidance, to develop more structured and more transparent decision-making concerning the decision to return previously deregistered health practitioners to practice.
II The Legal Framework
A Protecting the health and safety of the public
The first named objective of the national scheme is ‘the protection of the public through ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’. 15 In NSW and Queensland, the legislation provides further that the protection of the health and safety of the public is the paramount consideration, and this provision applies to reinstatement determinations made by the NSW tribunal. 16 Recent policy directives have affirmed the paramountcy of public protection 17 and the primacy of this consideration in disciplinary proceedings at a national level. 18
The decision to reinstate a health practitioner, like the decision to deregister them in the first place, is a discretionary assessment weighing a number of factors specific to the practitioner and is always made with regard to the health and safety of the public. Importantly, public protection is not confined to the risk posed to specific patients of the practitioner and extends to the health of the public, the safety of healthcare, and the reliability of health regulation in a broader, more systemic sense. This overarching principle of broad public protection has been stated and restated in various forms by decision-makers in every jurisdiction,
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and is well encapsulated by Meagher JA in the well-known NSW Court of Appeal decision HCCC v Do: 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.
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Recent high-level guidance issued by AHPRA further notes that public protection encapsulates: • protection from actual harm caused by health practitioners who do not meet the standards required by law and codes of conduct; and/or • protection from a culture of substandard practice or lacking in professional ethics from which harm may flow.
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Public confidence in health professions has been expressly linked to achieving better public health outcomes, through ensuring that those who need medical treatment are not inhibited from seeking it. 22 Katie Elkin has argued that there are specific aspects of trust and confidence unique to health professions (cf lawyers, from whom many of the disciplinary precedents are drawn), 23 for example, patients may not have a choice of doctor, may be treated by a number of health professionals in the course of receiving treatment, and may receive treatment in settings with little time to establish rapport with a previously unknown practitioner. Thus, she argues, public confidence in the health profession as a whole is a critical dimension of the public interest, as a prerequisite to effective healthcare. 24 Likewise, Ian Freckelton argues that addressing the ‘erosion of trust and confidence’ must be a priority of regulators in the pursuit of public protection. 25
While this broad frame of public protection is often highlighted in the original determination of deregistration, it is more likely to fall away in the reinstatement process, as attention is focused heavily on the specific risk to patients of a repeat of the past misconduct. Laurie Warfe, a former Chair of the Victorian Board of the Medical Board of Australia, stated that reinstatement entails determining the risk of recidivism of the practitioner, ie the likelihood of the practitioner repeating the misconduct which led to the de-registration. This is an exercise requiring the analysis of several factors including the nature of the incident, the practitioner’s conduct since the incident, any other disciplinary history and, importantly, an examination of available evidence to determine whether the practitioner is currently a fit and proper person to be reinstated into the profession.
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Here, Warfe implicitly centres assessing the risk of recidivism as the key focus of a reinstatement inquiry. The tension between these broader and narrower conceptions of public protection and patient safety are analysed below. 27 I suggest that there is a further distinct element of public interest which is rarely addressed: that of public confidence in the system of regulation itself, which requires further attention.
B Law and principles on reinstatement
Throughout Australia, reinstatement to practise may be refused, allowed or allowed with conditions 28 (in contrast to the UK where only unconditional restoration is permitted). 29 The legislative framework structuring reinstatement determinations is sparing in NSW and even sparser elsewhere in Australia.
In NSW, the tribunal must conduct an inquiry and then may make a reinstatement order (and may also impose conditions on reinstatement). Alternatively, if reinstatement is refused, it may order a further non-review period before a new application can be brought. 30 The applicant is entitled to an oral hearing and to legal representation. 31 The question for the tribunal is simply the ‘appropriateness, at the time of the review, of the order concerned’. 32 Although it is well accepted that a reinstatement inquiry is not an appeal or review of the correctness of the original decision to deregister, the NSW legislation explicitly provides that the review ‘is not to review the decision to make the order, or any finding made in connection with the making of that decision’. 33 Unlike the National Law, the NSW provision also expressly requires that the review must take into account any complaints made to current or former regulatory bodies about the applicant, whether they were made before or after the original deregistration order and whether or not any form of regulatory action was taken on such complaints. 34
Under the National Law elsewhere in Australia, Boards assess applications for reinstatement under the general provisions concerning registration. If a Board is proposing to refuse registration it must send a letter of preliminary reasons to the applicant and provide them an opportunity to address those concerns in writing. Written reasons must be provided to the applicant if registration is then refused. 35 There is no right to an oral hearing 36 with legal representation in the Board process, although there is such a right if the decision is appealed to the Tribunal under the legislation governing tribunals. 37 Under the National Law, as with the NSW approach, reinstatement may be allowed, denied or allowed with conditions. Unlike the NSW system, National Boards do not have statutory power to impose a non-review period if reinstatement is denied.
A National Board may decide that an individual ‘is not a suitable person to hold registration’ under a set of criteria that relate to competence, impairment, and safety of the public. One provision specifically addresses applicants with a ‘criminal history’ that in the Board’s opinion means that they are not ‘an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession’. 38 There is then a ‘catch-all’ provision at the end of the section providing for a refusal of registration if ‘in the Board’s opinion, the individual is for any other reason not a fit and proper person for general registration in the profession’. 39
As the NSW Court of Appeal has recently put it, ‘the essential task of an applicant for reinstatement is to show that he or she is no longer unfit’.
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While the term ‘fit and proper person’ may appear nebulous, it is informed by a body of case law considering both the meaning of fitness for professional practise and the means by which it can be assessed,
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as well as through the overarching objectives of the National Law. Broadly speaking, courts and tribunals making determinations of reinstatement both before and after the National Law have stressed that: • the applicant bears a strong onus to displace the previous finding of unfitness and prove (on the balance of probabilities) that they now can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and present no risk to the safety of the public or to their confidence in the profession
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• the purpose of the jurisdiction is not punishment or further punishment of the former practitioner, rather it is the protection of the public
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• the mere passage of time or absence of further complaint does not displace the previous finding of unfitness
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• the power to reinstate should be exercised with great caution and only upon solid and substantial grounds
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• deregistration orders cannot be permanent
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and are always reviewable • in making an assessment of the applicant’s safety to practise the review body may draw inferences from what has happened in the past and, in particular, what led to their being removed from the Register.
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In assessing whether the practitioner can now be trusted to practise safely, consideration is given to whether the applicant demonstrates: • understanding of the basis on which the earlier findings of misconduct were founded • that they have learnt from, or acted to remediate, past failures • an appreciation of whatever factors may have contributed to the past conduct and a viable plan to prevent recurrence • sincere remorse for the misconduct (including the attitude displayed towards patients who were harmed by it) and • that they are unlikely to breach ethical codes or professional standards in the future (including consideration of the likely effectiveness of any proposed conditions).
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In short, the above factors are often referred to as rehabilitation or remediation, remorse, 49 insight, 50 and future trustworthiness. Notably, however, these principles have not been distilled from the disparate body of case law into any accessible form of administrative, 51 professional, or public guidance. 52
III The Case Set
The dataset comprises written decisions concerning 86 applicants applying for reinstatement as registered health professionals through the period 1993 to 2020, following disciplinary removal at some earlier point. 53 The majority of decisions were made since the National Law commenced, with only 16 cases determined prior to 2010. 52 practitioners were reinstated, while 34 had their most recent application refused. 54 Cases were coded for basic demographic data as well as thematically coded for issues such as the evaluation of insight, dishonesty, remediation efforts, expert evidence on risk of recidivism, and discussion of National Law principles on public protection and the public interest.
Because, as explained above, National Board decisions are not public, the cases available are dominated by applications heard in NSW by the tribunal, with a comparatively small number of decisions from tribunals and courts concerning Board registration refusals elsewhere in Australia. Of the 86 relevant reinstatement decisions, 67 were decided in NSW. However, the overrepresentation of NSW (78% of cases) is not as extreme as it first appears once the distribution of the deregistered population is noted. Although NSW is home to only 28.4% of the nation’s registered health practitioners, 55 it consistently deregisters health practitioners at a higher rate than other jurisdictions — accounting for over 60% of disciplinary cancellations of registration since the inception of the National Law. 56
There were 19 appeal decisions from elsewhere in Australia, comprising eight decisions from Victoria, six from South Australia, two from both Queensland and Western Australia, one from the ACT, and none from either Tasmania or the Northern Territory. All except three of these cases were re-hearings of the registration application, 57 that is, in 16 of the 19 cases from elsewhere in Australia, the court or tribunal dealt with the registration application afresh as opposed to an appeal on a point of law from the Board’s original decision. In this sense the ‘appeal’ decisions elsewhere in Australia were readily comparable with the NSW tribunal first instance decisions.
Key findings concerning the cohort of practitioners applying for reinstatement in the available cases, while they may not be representative of what is occurring among health practitioners on a national basis, still offer some important insights and provide context for the qualitative analysis to follow.
A Age
The age of the practitioner was not apparent in every decision. Of those who were identified by age, at the time of their most recent application for reinstatement, 26.5% (n = 17) were over 60 years of age. The oldest applicant was 83.
B Profession
Three quarters of all applicants were either doctors or nurses. Of the 86 practitioners, almost half (n = 40) were doctors, while 28 were nurses, and there were seven psychologists, five pharmacists, three dentists, two osteopaths and one physiotherapist.
While nurses outnumber doctors by more than three to one in the professional population in Australia, 58 doctors are overrepresented in the disciplinary setting. 59 A recent study of serious disciplinary cases found that doctors outnumbered nurses among respondents; 60 however, doctors were less likely to be deregistered such that a smaller number of nurses being deregistered at higher rates ultimately produced more nurses than doctors removed from practice. 61 This means that nurses are likely to be the most numerous profession within the absolute population of deregistered practitioners in Australia. Despite this, doctors made up most applications for reinstatement, and were more successful when they did so, with a reinstatement rate in the current study of 52.5% (compared to nurses at 35.7%). 62
Although not directly comparable, 63 the reinstatement rate of doctors in Australia appears markedly higher than that found in a recent UK study of 76 medical practitioner reinstatement decisions, which was 30.3%. 64 This difference may in part be explained by the fact that in the UK system, practitioners cannot be restored to practise subject to conditions following a disciplinary ‘erasure’ (deregistration). Thus, in the UK there is a starker choice of whether someone is fit to practise unrestricted, or not, without the option of a return mediated by conditions intended to protect public safety.
C Gender
Three quarters of registered health professionals in Australia are women. In a virtual mirror image, most professionals in the reinstatement dataset were men: with 73.3% (n = 63) male compared with 26.7% (n = 23) female applicants. Taking into account the gendered nature of the various professional populations (in which women make up almost half of doctors and almost 90% of nurses), and the countervailing gender balance in the disciplinary populations, 65 the prevalence of male applicants in the reinstatement cases still appears disproportionate. Among the reinstatement cases, 95% of doctors were male, with only two female doctors appearing. 66 Among the smaller number of nurses, 75% (n = 21) of the 28 applicants were female.
Female health professionals, while appearing in small numbers, were somewhat more likely to be reinstated than men. Among women in the dataset, 52.2% (n = 12) were reinstated, whereas 41.3% of men (n = 26) were reinstated. This difference cannot be explained by the gendered professional distribution, and indeed is confounded by it given that, as discussed above, women were most likely to appear as nurses, while men appeared as doctors, and nurses were generally less successful than doctors.
D Type of Misconduct
Following previous studies of serious disciplinary proceedings, the reason for deregistration was allocated one of five ‘main heads of misconduct’ (according to the most serious matter focused upon by the tribunal if there were multiple complaints involving different types of misconduct). The most common head of misconduct for which the practitioner had been deregistered was sexual misconduct 67 (n = 28), followed by ‘other misconduct’ (n = 22), illegal or unethical prescription (n = 18), inappropriate clinical care (n = 10) and impairment (n = 8). Although the numbers are not high, those who had committed sexual misconduct appeared more likely to be reinstated with a 46.4% success rate (n = 13), than those who had committed ‘other misconduct’ (31.8% reinstated, n = 7). 68
E Length of time out of practice
The time between the original deregistration decision and the most recent decision on reinstatement varied between one and 27 years, with the average length of time being 5.8 years. 69 While the majority (n = 60) of reinstatement decisions occurred within five or fewer years since the original cancellation, there were 16 applicants for whom 10 or more years had passed between being deregistered and their most recent reinstatement determination.
F Legal representation
Just over half of the applicants had legal representation (51.7%, n = 45) in their most recent application. 70 The level of legal representation varied across profession, with doctors more likely than others to have a lawyer present their case (63.4%). Notably this appears likely to be a much lower level of legal representation than at the original disciplinary proceedings which ordered deregistration. 71
The difference in outcome depending upon legal representation in reinstatement matters was marked. Of the 45 applicants with legal representation, 64.4% (n = 29) were reinstated compared to only 17.1% of those without legal representation (n = 7). This reflects similar findings in a recent UK study of reinstatement decisions concerning medical practitioners. 72
While there may be obvious reasons, such as reduced income, explaining the lower level of legal representation in reinstatement proceedings, it is also possible that applicants, particularly first-time applicants, for reinstatement did not prioritise legal assistance because they misunderstood the nature of the process and the heavy onus involved in proving fitness to practise. In cases brought by unrepresented practitioners, two ubiquitous errors stand out. First, any non-review period which may be ordered by the original tribunal, during which the applicant cannot reapply to register or to review the deregistration order, commonly appears to be misunderstood to be a set, finite, period of deregistration. Thus, practitioners may believe that they have ‘served their time’ and simply apply for registration or reinstatement orders without understanding that they are required to take active remedial steps during the period of deregistration to address the previous adverse findings and demonstrate present fitness to practise. Second, many unrepresented applicants believe their task is to challenge and overturn the previous findings. 73 Attacking the deregistration determination cannot assist an applicant to make out their case, and may in fact be fatal to it. This is because such an attack can be taken to demonstrate lack of insight and remorse 74 (and a concomitant absence of remediation), 75 as well as, on occasion, an inability to show a professional degree of respect for authority, which may impact upon the assessment of likely future compliance with regulation. 76
G Repeat applicants
Twenty-three deregistered practitioners had made multiple applications for reinstatement, nine of them in multiple jurisdictions. Applicants who had applied three or more times, of whom there were 15, were categorised as ‘recurrent applicants’ and discussed below. There were nine practitioners who had made between four and six applications each. Repeat applicants were progressively less likely to be reinstated. 77
H Complex complaints, repeat incidents, and criminal convictions
Applicants who had faced criminal proceedings regarding the original complaint were less likely to be reinstated: of 30 applicants who had faced criminal proceedings, nine were reinstated. Of those nine reinstatements, four involved practitioners who were ultimately not convicted: two practitioners having been found not guilty, while for two others it appears that the proceedings were discontinued. 78 Of the five who were convicted of criminal offences and still reinstated, two were for theft of drugs in the workplace associated with drug dependence, 79 while the other three had committed serious assaults, two of which involved a patient or patients. 80
Having a complex or repeat complaint history appears to significantly affect the likelihood of reinstatement outcomes, but to different degrees. ‘Complex complaint’ was defined as a deregistration decision involving complaints across more than one main type of misconduct category. ‘Repeat incidents’ involved more than one incident of misconduct within the original matter, that is, the same type of misconduct but relating to multiple patients. Some matters involved both complex and repeat complaints. It was not apparent on the face of every reinstatement decision whether the original matter involved a complex complaint or repeat incident. For cases where this information could be ascertained, 32 applicants were coded as having a complex complaint history. Of those, only six were reinstated (19%), whereas for those without a complex history, 30 out of 53 (57%) were reinstated. Of the 54 applicants who had been found liable for repeat incidents of misconduct, 21 (39%) were reinstated, compared to 52% of those who only faced proceedings for misconduct concerning a single patient (16 of 31 reinstated).
It is logical that those with more complex complaint histories and with repeat incidents of misconduct were less likely to be reinstated than those who could more readily claim a ‘one-off’ act or demonstrate a plan of remediation targeting a single type of failing. It is therefore notable that those with repeat incidents had a higher reinstatement rate compared to those with complex complaint histories — that is, a practitioner who had committed the same kind of misconduct repeatedly (even over a lengthy period) was more likely to be reinstated than one who was found to have done a number of different kinds of things wrong.
IV Repeat players, Recidivism and Risk
Marie Bismark and colleagues have documented that a small number of practitioners consistently account for a disproportionate number of complaints in the Australian health system, 81 and, by extension, absorb a very significant portion of protective resources. This observation rings even more true in the reinstatement setting. The dataset was replete with ‘repeat players’ in the sense that there were a sizable number of applicants who repeatedly applied for reinstatement. A careful reading of the decisions also revealed that many of the applicants were also repeat players in the sense that their history of formal disciplinary proceedings, both before, and in some cases after, the reinstatement determination, was extensive. While not questioning that there are many highly capable remediated practitioners — whose claims to fitness to return to practice must be judged impartially as at the time of the reinstatement application — there are nonetheless systemic problems that arise in the skewing of resources in the disciplinary system towards a small set of problematic repeat offenders 82 and recurrent applicants.
A Recurrent applicants
Fifteen practitioners had made three or more applications for reinstatement since the relevant deregistration. 83 They included 10 doctors, three dentists, and one psychologist, all of whom were male. Only one recurrent applicant was female, and she was also the only nurse. 84 Only two of these recurrent applicants were successful in being reinstated in their most recent attempt.
Taken as a whole, the failed recurrent applicant decisions tended to display certain common themes, such as findings that the applicant: ‘lacked insight’, 85 refused to accept wrongdoing, 86 and, relatedly, continued to attack the findings of the earlier tribunal, 87 had been dishonest in earlier 88 and/or current proceedings, 89 as well as in subsequent regulatory disclosures about the conduct or proceedings, 90 was resistant to the imposition of conditions, and/or had repeatedly breached conditions in the past. In some cases there were also indications in the evidence, and even on occasion findings of fact, that the recurrent applicant was impaired by mental illness or personality disorder.
Only in NSW does the legislation allow a non-review period to be ordered if reinstatement is refused. This power appeared to be exercised sparingly. For example, in Zaidi it was only at the conclusion of the fourth unsuccessful application in 12 years, during which the tribunal held that the practitioner had again offered untruthful evidence, that a 7-year non-review period was ordered. Elsewhere in Australia, there is no ability to order a period of non-review if a reinstatement application is refused. This is in contrast to the UK where an unsuccessful application for reinstatement by a medical practitioner automatically precludes any application for a further 12 months, and a second unsuccessful application triggers the power to order an indefinite non-review period. 91 Within the Australian legislative framework, deregistration orders cannot be made for an unlimited time, and there is moreover a widespread rehabilitative ethos — encompassing both the notion that ‘no person is beyond redemption’ and the principle (discussed below) that there is a public interest in restoring access to specialised health skills. However, it is worth considering the strain on the system posed by recurrent applicants and whether there could be a better allocation of regulatory resources when ‘redemption’ has been demonstrated to be extremely unlikely.
Even the decisions concerning the rare successful recurrent applicants may give reason for pause to consider whether rehabilitative concerns are being appropriately addressed within the overarching framework of public protection. Litchfield and Reimers were both reinstated by the NSW tribunal some 15 years after they had originally been deregistered. For Litchfield, it was his fourth attempt at reinstatement, 92 and for Reimers his fifth. 93 Both men had high public profiles as they had been tried and acquitted in criminal proceedings (for sexual assault and manslaughter of a patient, respectively) arising from the relevant misconduct. Both also had appeals from their disciplinary case determined by the NSW Court of Appeal, from which leading jurisprudence now bears their names. 94
Gerrit Reimers was an anaesthetist deregistered in 2003 with a 10-year non-review period. The case arose from the death in 2000 of a post-operative patient under Reimers’ care, after he had consumed opioids the previous night (in the course of a prolonged period of drug dependency). The tribunal found multiple gross failures of clinical care including failure to ensure that the patient was breathing in the operating room and failure to take appropriate action to resuscitate the patient once in recovery. It also found that Reimers had left the operating theatre when the patient was hypertensive, and that he had ordered excessive pethidine for the patient which he diverted for his own use. 95
Reimers was unsuccessful in a reinstatement application in 2015 before the NSW tribunal on the basis that he had not ‘come to terms’ with the deregistration decision.
96
However, in 2018, the tribunal held that ‘much had changed’
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and found that Reimers had, for the first time, spoken ‘frankly and in detail about the circumstances leading to his addiction and his state of mind at the time his patient died’.
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The frank admissions from Reimers included that he had left the patient in the operating room in order to hide pethidine he had diverted from the patient in his sock, and that he was at that time ‘absorbed by the prospect of taking the drug’.
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In accepting Reimer’s evidence, and that of his treating psychiatrists, that his insight and remorse were genuine,
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the tribunal referred to Reimer’s statements that he: • ‘fully accepted that his clinical management of the patient fell well below the required standard’; • ‘fully accepted the (deregistration) decision of the Tribunal as being the right one, in all the circumstances’; and • had apologised to the family (of the patient who died). ‘He knew their loss was his fault and he had no right to defend himself or receive any protection from the law. He described himself as being full of guilt and remorse’.
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The above statements are at odds with an open letter apparently authored by Reimers that was published less than 3 years later on an internet forum devoted to criticism of AHPRA, which states, among other things: I did all I could to save the patient. … Even though I am now fully exonerated, I cannot find work, so tarnished is my reputation. … As a result of the bullying that led to my impairment and the perfidy of the Medical Tribunal, Medical Council and HCCC, the income and life I should have enjoyed are now shattered dreams as I near the end of my working life.
What happened to me is extreme and unusual but it serves as a very unambiguous example of the lack of protection practitioners have against unfair and illegal administrative action and makes a very powerful case for the need for reform.
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In the UK, Paula Case has noted that ‘it is undoubtedly possible for practitioners to fake their remorse and make remedial gestures’ and has suggested further that such ‘strategic expressions of remorse and remediation’ are more likely when practitioners are ‘represented by a relatively small group of highly specialised counsel, well versed in fitness to practise hearings’. 103 The expression and assessment of remorse and insight are highly individualised and necessarily subjective matters. 104 The likelihood of the rehabilitative framework being strategically ‘gamed’ by a deregistered practitioner is unknown. 105 While it may be slight, it surely must increase in the context of multiple applications over a prolonged period — as, on each unsuccessful occasion, the applicant is provided reasons which outline in detail what their application lacked in terms of evidence of remorse, insight, remedial efforts, therapeutic oversight and so on.
Bruce Litchfield was a general practitioner deregistered in 1997 for sexual misconduct involving inappropriate intimate examinations and other sexualised physical contact with three female patients that occurred in 1987 and 1992 (and a fourth patient in 1992 whose evidence was not the subject of a formal complaint). 106 At the original hearing, Litchfield denied any wrongdoing — insisting that most of the contact was clinically justified and that some of it had not occurred at all. The patients were cross-examined at length and believed by the tribunal, which held that the relevant contact occurred, was intentional, and was not clinically appropriate.
Litchfield withdrew an application for reinstatement in 2000 in which he continued to deny any wrongdoing. He then applied unsuccessfully for reinstatement in 2003 107 and 2006. 108 In the 2003 proceedings, Litchfield stated that he accepted the prior misconduct as proved, but continued to characterise his intimate touching of the patients as the result of ‘poor communication skills, insensitivity and an overbearing manner’. 109 The 2003 tribunal held that Litchfield ‘tailored his evidence to meet the needs of the present application’ and found that he did not genuinely accept responsibility for the conduct. 110
In the 2006 application, Litchfield averred that he ‘absolutely accepted’ that much of the conduct had occurred, but that he had no memory of it. 111 In refusing reinstatement, the 2006 tribunal held that Litchfield’s claims to not recollect the events relating to two patients was deliberately untruthful and that this dishonesty pervaded his evidence in the 1996, 2002–3 and 2006 proceedings as well as the evidence of his treating psychiatrists who had based their opinions on his version of events. 112
In the 2012 proceedings, Litchfield’s position on what he remembered, and what he accepted, shifted. 113 He gave evidence that he now recalled what had happened with two of the patients through flashbacks of repressed memories which had been uncovered through therapy since the 2006 hearing. 114 In making a reinstatement order, the 2012 tribunal accepted that Litchfield was an ‘honest and reliable’ witness of truth who demonstrated ‘substantial and genuine insight’ 115 into his misconduct and held that ‘there is very little risk that the applicant will re-offend’. 116 The reliance on Litchfield’s honesty and insight is somewhat surprising, given that it rests on accepting his evidence of flashbacks of supressed memory which the 2006 tribunal had specifically held Litchfield had never lost (but had, in fact, repeatedly lied about for 14 years, including to the police). This is, however, possible because while the NSW Law prevents the tribunal on reinstatement from revisiting the findings of the original deregistration decision, the same restriction does not apply to subsequent findings of tribunals on review. At the time of publication, Litchfield is suspended from practice, although it is unclear when or why, as is usual the public register does not record the timing or reasons for interim suspension. 117
The 2012 decision in Litchfield illustrates a number of issues that bear examination in terms of how decision-makers grapple with the paramount objective of public protection. In the concluding paragraphs of the decision, the tribunal summarised opinions from four medical experts that there was little risk of the applicant re-offending (‘very low’, ‘exceptionally unlikely’ and ‘unlikely’) and shortly thereafter stated that it is ‘mindful that there was no criticism of the applicant’s clinical skills’. 118 The tribunal then held, with no other reference to public protection or confidence, that it was satisfied, ‘consistently with the need to protect the public and with the need to protect the medical profession, that it is no longer appropriate that the previous orders remain in force’. 119 This reasoning exemplifies two common themes: first the dichotomisation of unethical conduct and clinical skill (which then allows for a construction of the skill as an independently desirable asset regardless of its location within a practitioner who has been determined to be unsafe), and second, the inexorable narrowing down of public protection considerations to focus almost exclusively on the question of the risk to the patients of the practitioner of a repeat of exactly the same conduct. These themes will be explored further in the two sections below.
B Assessing Risk and Recidivism
Reinstatement determinations focus on the specific circumstances of the practitioner and make a close assessment of his or her remediation efforts, within a framework in which the prevailing question is whether there is a future risk to the public posed by a return to practice. This focus flows from the centring of the applicant’s case to ‘rehabilitation’ or their fitness (safety) to practise which is judged against, and must effectively displace, the risk justification for deregistration made by the original tribunal. As the former Chief Justice of the NSW Supreme Court has noted: where a Tribunal comes to review the continued appropriateness of the original order, attention will naturally focus on an assessment of whether or not there is any real risk of a repetition of such conduct.
120
With no legislative requirement other than whether the order ‘remains appropriate’ in NSW or the applicant is ‘fit and proper’ elsewhere (unless there is a criminal history in which case the public interest in registration is referenced), 121 the reinstatement determination often centres, or even exclusively addresses, the likelihood of a repetition of the same type of misconduct which the practitioner originally committed. Not infrequently decision makers will box their consideration in even further to the question of whether the applicant’s proposed conditions on return to practice will adequately address any risk of repetition of the conduct.
Even bearing in mind that serious disciplinary cases usually involve ‘multilayered’ misconduct 122 (ie more than one kind of misconduct, or multiple instances of the same kind of conduct), it is striking how many of the 86 practitioners in the reinstatement set were documented recidivists. Where available, earlier disciplinary determinations were gathered for each practitioner in the case set. These earlier cases, which were by no means complete, revealed that at least nine practitioners comprising six doctors 123 and three dentists, 124 all male, had been removed from practice, through suspension or deregistration, for separate incidents of serious misconduct at an earlier point prior to the deregistration that led to the relevant reinstatement decision. Among this twice — or thrice 125 — removed-from-practice cohort, four of the nine (two doctors and two dentists) were nonetheless successful in achieving reinstatement. Both of the dentists then faced subsequent disciplinary proceedings in different jurisdictions, resulting in interim suspension and deregistration, respectively. 126
Furthermore, there were another three doctors within the data set who had only faced a single set of proceedings and were successful in achieving reinstatement, but were subsequently subject to disciplinary proceedings at a later point. One was removed from practice following tribunal proceedings 5 years after being reinstated, 127 and two others are interim suspended at the time of writing. 128
Practitioners involved in repeat disciplinary proceedings appear to comprise a substantial minority of the overall cohort. It is notable that there were fewer practitioners who committed the same kind of misconduct 129 compared to those for whom later, or earlier, proceedings related to a completely different kind of conduct 130 (for example, sexual misconduct preceded by, or followed by, financial offences). 131 This suggests that narrowly focused assessments of risk which focus only on the likelihood of the same conduct being repeated may be misplaced when considering fitness to practise.
While the language of ‘character’ appears outdated, 132 and arguably morality-laden terminology is not countenanced by the National Law, 133 assessments of whether a previously deregistered practitioner is now fit to practise nonetheless rest on evaluations of the practitioner’s demonstrated commitment to professional standards and ethical conduct. That is, questions of ‘reliability’ and ‘future trustworthiness’ go beyond the risk of specific repetition of the conduct while still being properly focused on the requirements of the professional role 134 which include, among other things, honesty, candour, and co-operation with regulators. 135 So, for example in Drury v Medical Board of Australia (‘Drury’) the applicant had been deregistered in 2001 for sexual misconduct (sexual relationships with five patients and also inappropriate intimate examinations), which he had completely denied at the original hearing. 136 In his third application for reinstatement in 2011, Drury continued to deny the contact offences and one of the sexual relationships. Drury presented opinion evidence from a number of his treating psychologists and psychiatrists, which was concurred in by a psychiatrist who assessed Drury at the request of the Board, that he was ‘at low risk of further misconduct.’ 137 In contrast to the approach taken in Litchfield, the Victorian tribunal, in declining reinstatement, stated that the focus on ‘risk of re-offending’ ‘miss[es] the point’ given Drury’s extensive history of dishonesty about the conduct. The tribunal held that ‘honesty and integrity are essential attributes’ in a medical practitioner and as such Drury was not a fit and proper person to be registered. 138
More recently, the NSW tribunal elaborated on why honesty and candour are regarded as essential professional attributes as follows:
A lack of honesty and frankness in the context of the practice of medicine poses an obvious risk to patients. A medical practitioner must be able to deal with the suggestion that he or she may have made a mistake in an open and forthright manner. A medical practitioner must have the ability to disclose any mistake he or she may have made, regardless of the possible consequences for them personally or professionally. A medical practitioner who does not consistently do these things poses a danger to the public and is not a fit and proper person to be held out as worthy of confidence to the rest of the profession, to patients, and to the community.
139
V What is ‘the’ Public Interest in Reinstatement?
Broader questions encapsulated within the paramount principle of public protection such as the ‘intangible’ factors 140 of public confidence in the profession and regulators, and other public interest issues, are not often addressed in the text of reasons in reinstatement determinations.
While the ‘pubic interest’ appears in the National Law in contexts that indicate it is a factor to be weighted in favour of both inclusion
141
and exclusion from practice,
142
in the reinstatement setting the ‘public interest’ is only explicitly a matter for determination in matters where the practitioner has a ‘criminal history’.
143
In cases in which there is no criminal history, the public interest appears to be referenced in the reinstatement setting as implicit shorthand for ‘the public interest in having access to medical professionals and not wasting the public investment in their education and training’. So for example, Warfe refers to the ‘balancing exercise of weighing up public risk versus public interest in reinstatement’ and determining which of them ‘has priority’.
144
In recent regulatory guidance, APHRA stated, without further explanation, that: There is a broad public interest in ensuring that, when appropriate, people with special skills who breach the standards of their profession are rehabilitated and returned to practise.
145
This statement paraphrases well-known obiter dicta from Kirby P, as he then was, in dissent in a NSW Court of Appeal disciplinary case concerning a lawyer. There is 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 affirmatively proved reform, are afforded a second chance …
146
The above obiter has been regularly quoted with approval in the health disciplinary context, both before and after the National Law, particularly in NSW. 147 However, the original ‘shared morality’ formulation of Kirby P’s notion of the public interest combined both an overt incorporation of a Christian doctrine of ‘redemption and forgiveness’ combined with ‘economic interest’ in accessing ‘the skills of talented people who have undergone years of rigorous training’. 148 Mahoney JA in majority rejected the idea that forgiveness has any role to play in a protective jurisdiction concerned with upholding professional standards rather than punishment. 149 In the context of disciplinary proceedings, the notion of a public interest in having access to the practitioner’s special skills as a factor weighing against deregistration has been subject to sustained criticism — as being premised on the paradoxical notion that an unsafe practitioner is somehow beneficial to the community 150 and as inconsistently applied to retain doctors in practice at the expense of other health professionals whose skills were not viewed as similarly scarce (even when, as with nurses, they actually are). 151
Additionally, such a formulation of the public interest rests on the unstated premise that unethical conduct, and in particular sexual misconduct (characterised as personal), can somehow be severed from clinical competence (characterised as professional). Take, for example, the observation that there had been ‘no criticism of the applicant’s clinical skills’ in Litchfield152 when, with respect, inappropriate sexualised touching and remarks during the course of routine diagnosis and treatment would very likely be characterised as a profound failure of clinical skill from a patient’s perspective. In recent administrative guidance on the public interest issued by the NSW regulator, for use by NSW Health Councils, this implicit dichotomy between unethical conduct (of a personal, sexual nature) and clinical skill also appears, as follows: [The public interest] is multi-faceted and a decision maker will need to weigh competing considerations (for example the tension between the public interest against a practitioner engaging in a sexual relationship with a patient and the public interest in having the benefit of the services of that practitioner who in all other respects has demonstrated his or her competence) when making a decision.
153
In the reinstatement setting in particular, in which the practitioner has been adjudged so unsafe or unethical that they have been deregistered, I suggest that real caution should be exercised before unthinkingly aligning the public interest with a return to practice based on the premise that the misconduct is somehow distinct from the practitioner’s innate clinical skill.
While some of the state-based legislation that preceded the National Law referenced ‘public confidence in the profession’ as a consideration, this terminology has only appeared in the National Law since 2018 as an example of when immediate action may be ‘otherwise in the public interest’ 154 (ie, distinct from protection of health and safety) if a practitioner is subject to criminal charge. 155 Public confidence in the profession does not only arise as an issue as a consequence of criminal proceedings, but because current registration provisions specifically refer to consideration of the public interest when there is a ‘criminal history’, that is the context in which it is most commonly addressed.
In the 2009 case of Medical Practitioners Board of Victoria v Lal (‘Lal’) the Victorian Court of Appeal affirmed that public confidence in the medical profession is an important dimension of the public interest because it means that people will seek medical care.
156
However, it went on to state that: Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won — or lost — gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high.
157
On this formulation, public confidence in the profession would almost never be a determining factor in any reinstatement determination. Lal is a troubling decision for a number of reasons, including that the reinstating tribunal appears to revisit the original tribunal’s findings and the evidence therein, to find that his extensive misconduct (involving sexual harassment, and common, indecent and sexual assault of nine women over two separate periods) was ‘largely a product of his illness’ (Obsessive Compulsive Disorder) 158 when the original tribunal had refrained from such a conclusion.
Moreover, even though the original tribunal which deregistered the doctor had explicitly decided that public confidence would be undermined if he were to practise,
159
there was no reference to this factor by the 2008 tribunal which ordered reinstatement (on re-hearing, the Board having previously refused registration). On appeal, the Victorian Court of Appeal characterised the Board’s position concerning the impact on public confidence as a fresh claim and held: The maintenance of public confidence in the medical profession is a proper concern of the Board. But, for the reasons we have given, we reject the argument that the [review body] must, in every case, consider the likely effect on public confidence of the particular registration decision at hand.
160
I do not mean to suggest that the issue of public confidence would be determinative in every case, nor that it is necessarily an easy matter to evaluate. To the contrary, the question of how public confidence bears on reinstatement determinations is challenging and complex.
161
Paula Case and Gunjan Sharma have written about recent UK appellate jurisprudence in which public confidence was considered (in the context of a doctor’s return to practice following criminal proceedings for manslaughter). Case and Sharma argue that the courts and tribunals ‘still share common ground in characterising public confidence assessments as instinctual’ and that UK jurisprudence appears: to endorse the guesstimating of public opinion, which is then subjected to a corrective gloss should that opinion be found wanting. The test therefore becomes what an ‘expert’ thinks ‘the public’ thinks, with room for selective adjustment.
162
They contend that the decisions in a recent case ‘attempt to capture how public confidence should be assessed’ by rejecting ‘appeasement of populism’ but then oscillating between a deference to the tribunal as a forum of specialist expertise (which they argue is ultimately a deferral to the medical profession not the public because of their respective representation within that forum) and using an ‘ordinary intelligent citizen’ test.
However difficult it may be to evaluate public confidence in the health professions, it must be recalled that such confidence is fundamentally necessary for the provision of healthcare. Moreover, there is a further element of public confidence which is rarely addressed: confidence in the system of regulation itself. Rigorous registration and accreditation standards ensure that certain benchmarks must be met before health practitioners are permitted to practise but, once registered, our system of health regulation is heavily reactive and largely reliant upon notifications from the public and other practitioners to enable the identification of unsafe or unethical practitioners. 163
Marie Bismark and colleagues argue that: Complaints are best understood as sentinel events, and complainants as representatives of much larger groups of harmed or dissatisfied patients. By the time multiple complaints have accrued, substantial damage to quality of care is likely to have occurred already.
164
Thus expressed, complaints, and complainants can be conceptualised as a precious resource, sounding an alarm which then ultimately protects others. Making, and sustaining, a complaint through an investigation process (and through oral evidence and cross-examination in a tribunal case or even criminal proceeding) is potentially a very onerous burden, one that may come at considerable personal or professional cost for the complainant. For complainants to come forward in the first place, and for them to remain engaged through lengthy investigative and disciplinary processes in serious matters, they must have genuine trust in regulators. Maintaining public confidence is not about defensively ‘protect[ing] regulators from criticism’ 165 but rather proactively pursuing the paramount objective of protecting public health and safety through building, and justifying, trust in health regulators and health regulation. In the absence of such trust, those who have suffered or witnessed substandard or unethical practise may weigh up the cost to themselves and withdraw complaints, or not even raise the alarm at all.
VI Conclusion
This research sought an understanding of how and why deregistered health practitioners are returned to practice (or not) in Australia. Just over 60% of the applicants in this study were ultimately successful in being reinstated. Bearing in mind that it is unknown how many reinstatement applications are made each year, the extent to which the dataset is unrepresentative cannot be determined. Thus, the research represents incomplete and likely imperfect data, which is nonetheless the best available evidence on reinstatement determinations in Australia at the present time. The data set included a sizable minority of ‘repeat players’, including both recurrent applicants and applicants who had a history of repeat serious disciplinary proceedings. There was a very marked correlation between legal representation and successful reinstatement. Male doctors dominate the landscape of applicants, they were more likely to be reinstated than nurses in this study (and also compared to doctors in a recent UK study).
The opaque nature of the reinstatement inquiry in Australia contrasts with the openness and clarity of the UK approach which asks, in a public setting, ‘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?’ 166 In the UK, the overarching legislative objective of protection of the public is comprised of three elements that are clearly stated as mandatory considerations: protecting, promoting and maintaining the health, safety, and wellbeing of the public; promoting and maintaining confidence in the profession; and promoting and maintaining proper professional standards and conduct for members of the profession. 167
Reinstatement determinations are highly contextual discretionary decisions, based on the past and current circumstances of individual practitioners within a protective framework. There is a well-developed body of case law in Australia considering protective principles and reinstatement consideration, but these have not been spelled out in the legislation, nor have they been distilled into any form of comprehensive administrative guidance. The lack of structure in the Australian reinstatement setting increases the likelihood of errors, such as transposing the terminology, ‘glosses’ or considerations from earlier case law drawn from older legislative regimes or in different disciplinary contexts (such as lawyers) into those concerning health practitioners under the National Law, where they may not be justified. There is also the risk, apparent in some of the cases examined here, of focussing too narrowly on the specific risk of recurrence, overlooking both the importance of a more well-rounded assessment of the practitioner’s professionalism, as well as the significance of public confidence and broader protective objectives.
In the absence of legislative reform, the production of guidance on reinstatement would be a very helpful development in a number of respects. It would assist applicants in bringing forward and structuring relevant material in their application (especially when not legally represented) and aid decision-makers in disparate settings in consistently framing the issues for determination and addressing the governing principles. Such guidance would also improve public confidence in the reinstatement process and in health discipline more broadly through explicating the broad and narrow elements of public protection and public interest factors. The process itself of developing such guidance would also offer the opportunity to reflect on how to modernise and synthesise relevant principles, and to engage with the professions and the public on these issues, as the UK has recently begun to do in its consideration of how the ‘impact on public confidence’ is assessed in reinstatement determinations. 168
Consideration should also be given to whether legislative reform is necessary to improve the transparency, consistency, and efficiency of the current two-track system of reinstatement in Australia. The contrast between deregistration and reinstatement processes everywhere apart from NSW is stark. Only in NSW (and on appeal from a refusal of registration or imposition of conditions by the Board elsewhere) is the reinstatement determination made in public, with an oral hearing, a decision-making panel that is not dominated by the relevant profession and published written reasons. Deregistration and reinstatement determinations are decisions of equal magnitude both in terms of their impact upon the practitioner and the overarching objective of public protection. It is hard to understand what justification there can be for such a profound contrast in decision-making setting, process and public access between the original disciplinary hearing and the reinstatement determination in every jurisdiction except NSW. National adoption of particular features of the NSW Law on reinstatement, such as the non-reviewability of original findings, mandatory consideration of further complaints, and the ability to order further non-review periods to constrain repeat players from making multiple applications for reinstatement within a short period, could also be beneficial. Such measures would enhance consistency of decision-making and enable regulators to spread disciplinary resources more evenly.
While it is common to pose public protective objectives ‘versus’ the interests of practitioners in return to practice, I suggest that the pursuit of the legislative and policy reform measures noted above would enhance public confidence in the reinstatement system and also offer significant benefits to the largely self-represented health practitioners who utilise it.
Footnotes
Notes
— Case Histories of Repeat players
Monier Gad was deregistered in 2001 for inappropriate administration of medication to a child, improperly profiting from such provision and falsification of records: Re: Dr Gad No 40035/99 (Medical Tribunal of NSW, Unreported, 19 October 2001), appeal denied: Gad v HCCC [2002] NSWCA 111. Gad’s application for reinstatement in 2006 was refused: Re the Medical Practice Act 1992 and Mr. Monier Gad [2006] NSWMT 4. Gad had been previously convicted in 1986 of criminal offences related to overcharging, and in a 1990 disciplinary hearing the tribunal expressed further concern about overprescribing and held that he was in breach of conditions on his registration in finding professional misconduct and imposing a two month suspension: In Re Monier Gad (Medical Tribunal of New South Wales, Unreported, 12 September 1990).
Geoffrey Barratt was deregistered in 2004 for inappropriate prescribing: In Re Dr Geoffrey Ian Barratt and the Medical Practice Act 1992 [2004] NSWMT 7. His application for reinstatement in 2012 was unsuccessful: Barratt v Medical Board of Australia [2012] NSWMT 22. The 2004 decision records that Barratt had been previously deregistered for inappropriate prescribing in 1981 and reinstated in 1986: In Re Geoffrey Barratt, Medical Disciplinary Tribunal of NSW, Unreported, 16 September 1981; In Re Geoffrey Barratt and the Medical Practitioners’ Act, Medical Disciplinary Tribunal of NSW, Unreported, 21 May 1986. The voluminous disciplinary history is well summarised by Mendelson who notes that in all it covers a 35 year period involving the imposition of conditions on multiple occasions concerning drug use as well as multiple incidents of serious clinical incompetence and sexual misconduct: Danuta Mendelson, ‘Disciplinary Proceedings against Doctors who abuse Controlled Substances’ (2015) 23 Journal of Law and Medicine 24, 34–5.
Christopher Bradley was deregistered in 2007 for inappropriate prescribing, and unsuccessfully applied for reinstatement in 2013: Bradley v Medical Board of Australia [2013] SAHPT 5. Bradley had been previously suspended in 1999 for overcharging: Medical Board of South Australia v Christopher Mark Bradley [1999] SADC D86.
John Newcombe was deregistered in 2007 for sexual misconduct and was unsuccessful in a reinstatement application and appeal in 2013: Newcombe v Medical Board of Australia [2013] SAHPT 2. The decision notes that Newcombe had faced removal from practice in 2003 for inappropriate prescribing and at least two other prior serious disciplinary proceedings.
Christopher Alroe was deregistered in 2004 for sexual misconduct (and in 2006 was found guilty of further unsatisfactory conduct concerning inappropriate prescribing relating to the death of a patient). Alroe was successful in being reinstated to general registration in 2008, but continued to apply for specialist registration. In 2014 further disciplinary action was taken again him concerning inappropriate prescription and breach of conditions: Medical Board of Queensland v Alroe [2005] QHPT 004; Alroe v Medical Board of Queensland [2010] QCA 44; Medical Board of Australia v Alroe [2014] QCAT 677; Alroe v Medical Board of Australia [2015] QCAT 482.
Sabi Lal was suspended in 1999 for sexual misconduct from 1996 to 1999 concerning seven female patients which ranged from ‘inappropriate comments’ and an invitation to commence a social relationship to an internal examination which was not consented to, and was the subject of a criminal convictions for indecent assault, sexual assault and attempting to pervert the course of justice. He was reinstated with conditions in 2000 following a reprimand from the Board. In 2003 Lal was deregistered following convictions for common assault in 2001 on two pharmaceutical representatives who had been on his medical premises on business. The assaults were characterised by the tribunal as ‘conduct of a sexual kind that was not welcome and not consented to’; they took place in the context of Lal propositioning and grabbing each young woman, including trying to prevent one from leaving a room where he was holding the door closed. Lal was diagnosed with obsessive compulsive disorder: Re Dr Sabi Lal [2003] MPBV 32 [90]. In 2006 the Medical Practitioners Board of Victoria refused Lal’s application for registration. On appeal to the Victorian tribunal Lal was reinstated in 2008: Lal v Medical Practitioners Board of Victoria [2008] VCAT 2077 (on condition that he not see any female patients or children under 16, a condition which remains on the public register at the time of writing some 13 years later). The VCAT decision was upheld on appeal by the Court of Appeal of the Supreme Court of Victoria: Medical Practitioners Board of Victoria v Lal [2009] VSCA 109.
George Varnavides practised dentistry in Western Australia in the 1980s and in Victoria in the late 1990s and 2000s. Varnavides was found guilty of misconduct in Western Australia in 1981 concerning matters that appear to involve both issues of clinical competence and ethical violations, although the outcomes of those proceedings is unclear. He was found guilty of misconduct in Victoria in 1997 concerning overcharging and failure to maintain records and suspended, then again in 1998 and reprimanded and again in 1999 resulting in an agreement not to practise for 12 months. He was suspended in further proceedings in 2003 and following proceedings for contempt for continuing to practise while suspended, was ordered not to practice indefinitely in Victoria pending further order: Dental Practice Board of Victoria v Varnavides [2004] VCAT 1881. Further contempt proceedings took place in Victoria in 2006, and in 2007 he was convicted of an unrelated criminal offence. In 2009 he unsuccessfully appealed a 2007 decision of the Dental Board of WA to refuse registration: Varnavides and Dental Practice Board of Western Australia [2009] WASAT 184.
Urmas Aavelaid practised as a dentist in NSW in the 1980s. He was suspended in 1988 for misconduct concerning clinical competence involving the death of a sedated patient, then faced a further series of complaints concerning lack of informed consent in 1989 and was deregistered in NSW in 1993. He made a series of applications for reinstatement in Queensland, NSW and Victoria through the 1990s, and was reinstated by the Dental Practice Board of Victoria circa 2000: Aavelaid v Dental Board of Victoria [1999] VSC 54; Aavelaid v State of Victoria [1999] VSC 255.
Osvaldo Reyes Gonzalez was deregistered in 2001, and unsuccessfully applied for reinstatement in SA in 2003 (he was also denied registration in NSW), but was reinstated with conditions by the Dental Board of SA following a further application in 2007: Reyes-Gonzalez, Dr Osvaldo Antonio [2007] SADB 2. Reyes unsuccessfully appealed the decision to order conditions to the Supreme Court of SA, and unsuccessfully sought further review of the conditions by the Dental Board in 2009: Reyes-Gonzalez, Dr Osvaldo Antonio [2009] SADB 2. Reyes Gonzalez had previously been suspended for 12 months in 1997. He was subject to criminal convictions in 1997, 1998 and 1999.