The Court of Appeal of Western Australia has dismissed an appeal against orders of the Administrative Appeals Tribunal (the Tribunal), which disqualified the Appellant from applying for reregistration as a registered health practitioner for a period of 10 years.

The Tribunal found that the appellant had engaged in professional misconduct, carelessness and incompetence in his treatment of patients from 2008 until 2015. The Appellant advanced 11 grounds of appeal, 10 were struck out. The surviving ground of appeal was that the sanction was excessively harsh and punitive. The Court of Appeal found there was no error in the Tribunal's decision.

Background Facts

In 2017, the Tribunal found that the appellant had engaged in professional misconduct, carelessness and incompetence in his treatment of patients from 2008 until 2015. The misconduct findings arose from three separate applications to the Tribunal, two of which related to individual patients (Patient J and Patient B) and one which concerned the appellant's practice generally. Those three applications were ultimately consolidated into a single application.

The appellant is 63 years of age, he has four children, the youngest is a teenager. At the time of the Tribunal hearing, the appellant had practised medicine for 25 years as a specialist physician in Perth.

At the hearing of the application, the appellant gave evidence and a number of expert witnesses were called. The Tribunal's findings of misconduct concern the appellant's practice of inappropriately prescribing drugs and other treatments to patients, for which there was no proper therapeutic basis, and which unnecessarily put the patients at risk of the adverse effects of those treatments. The drugs prescribed included anabolic steroids, human growth hormone (HGH) and stimulants, inappropriate infusion of iron and fresh frozen plasma, the ordering of unnecessary DEXA scans and the prescribing of Clomid in contravention of the Poisons Act 1964 (WA). The purpose of the conduct was to assist patients with weightloss and body building.

The Tribunal considered the appellant's disregard for the adverse risks of the drugs prescribed as critical to their finding that the appellant had acted carelessly, incompetently and improperly. In formulating the sanction, the Tribunal has regard to the general principles in relation to the imposition of disciplinary sanctions. The following principles were applied by the Tribunal:

  1. The purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.
  2. Protection of the public has various dimensions, which includes the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of their conduct and to the need to deter the practitioner from future breaches.
  3. As the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations.
  4. Permanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioners' registration.

The Tribunal imposed a penalty on the appellant pursuant to the Health Practitioner Regulation National Law (WA) Act 2010, the appellant was disqualified from apply for re-registration as a registered health practitioner for 10 years. The appellant appealed the Tribunal's decision, 10 of the 11 grounds of appeal were struck out. The remaining ground of appeal was pressed on the basis that the disqualification was 'excessively harsh and punitive', left the appellant and his children 'destitute' and 'it would not be easy for [him] to create a new career'.

Issues

The issue facing the Court of Appeal was whether the Tribunal had made a legal error which resulted in a decision which is unreasonable or unjust. It was not relevant to consider whether the Court of Appeal would have imposed a different sanction, the appeal would only be successful if an error in the exercise of the Tribunal's discretion was established.

Findings

The Court of Appeal accepted the Tribunal's articulation of the principles underpinning disciplinary proceedings and sanctions under the National Law. After 10 of the appellant's 11 grounds of appeal were struck out, the appellant's challenge to the Tribunal's decision was limited to the disqualification and related issues about whether the sanction was punitive and the appellant's ability to make a living. The Court of Appeal found:

  1. Each case must be judged on its own facts and circumstances and any penalty imposed must be directed to the objective of the protection of the public, having regard to the particular circumstances of the case. The Tribunal correctly characterised the appellant's misconduct as very serious, and a significant period of disqualification was warranted in all of the circumstances.
  2. The financial implications the disqualification would have for the appellant were taken into account by the Tribunal. This however, was a secondary consideration, particularly in light of the risk that the appellant posed to the public.
  3. The appellant's references were of little effect as of the practitioners providing the references were aware of the detailed findings of misconduct by the Tribunal, which were made over seven years after the references were given.
  4. The appellant was dishonest, and continued to deny that he had treated and prescribed drugs to body builders. He showed little to know insight into the risks associated with his conduct.

Orders

The appeal was dismissed by the joint judgment of Quinlan CJ and Pritchard JA, with Allanson JA agreeing, but making additional comments in relation to the National Law.