New South Wales Medical Tribunal CITATION : Re Dr Leonard Ware [2006] NSWMT 11 TRIBUNAL: Medical Tribunal PARTIES : Health Care Complaints Commission (Complainant) Dr Leonard Ware (Respondent) FILE NUMBER(S) : 40019 of 2006 CORAM: Rein, SC DCJ - Child, Dr D - Traill, Dr R - Gray, Ms A CATCHWORDS: Possession of prohibited firearms and unlicensed firearms - Breaches of AVO - Issue as to whether medical practitioner not of good character as a consequence of these convictions and other matters LEGISLATION CITED: Firearms Act 1996, ss 36, 51D Medical Practice Act 1992, ss 39, 60, 61, 64, 66 Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911); Re Davis (1947) 75 CLR 409; CASES CITED: McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907); A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1; Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 DATES OF HEARING: 13, 14 December 2006 DATE OF JUDGMENT: 20 December 2006 LEGAL REPRESENTATIVES: Mr P Saidi of counsel Mr S G Barnes of counsel ORDERS: See judgment. JUDGMENT: ORDERS 1. The Tribunal finds the complaint established that Dr Ware has been convicted of the offences of: (a) "possess more than 3 unregistered firearms any one of which is prohibited" (s 51D(2) Firearms Act 1996 ); (b) two counts of "possess unregistered firearm" (s 36(1) Firearms Act 1996 ); (c) breach of an apprehended violence order on four occasions. 2. The Tribunal reprimands Dr Ware. 3. The following conditions are imposed on Dr Ware's registration: 1. Within twelve months from the date hereof, Dr Ware is to spend a total of 30 days, either consecutively or non-consecutively, working in a Hospital with an experienced Anaesthetist approved by the NSW Medical Board. The approved Anaesthetist and Dr Ware are each to provide a written report to the NSW Medical Board at the end of this placement outlining the specific cases discussed and the areas covered concerning current anaesthetic practices. Dr Ware is responsible for any costs incurred in relation to the period of observation and any subsequent report. Dr Ware is to authorise the Anaesthetist to provide such a report to the NSW Medical Board. 2. Following completion of the 30 days referred to in para 1, for a minimum period of 6 months, or for such longer period as determined by the NSW Medical Board, Dr Ware is to meet with the approved Anaesthetist for at least one hour on a monthly basis, in a mentorship arrangement to review specific cases or any clinical incidents which may have occurred and thereafter at three monthly intervals for a further period of 18 months or such longer period as is determined by the NSW Medical Board. The approved Anaesthetist is to provide a written report to the NSW Medical Board at the conclusion of the specified mentoring program or immediately if there are any concerns or if the mentoring arrangement ceases. Dr Ware is responsible for any costs incurred in the mentoring program and any subsequent reports. Dr Ware is to authorise the Anaesthetist to provide such a report to the NSW Medical Board. 3. In the event that Dr Ware obtains employment at a medical practice or medical service he must request and authorise his employer to furnish a report to the Medical Board at three monthly intervals for a period of two years from commencement of employment, advising of any difficulties or concerns relating to Dr Ware's practice of medicine of which the employer has become aware, or the absence of any such difficulties or concerns. 4. Dr Ware is to provide the NSW Medical Board with evidence of participation in a relevant continuing education program either through MOPS (ANZCA) or an equivalent accredited program on a 6 monthly basis. 5. Dr Ware is to continue under the care of Dr Napper or another psychiatrist chosen by Dr Ware and approved by the NSW Medical Board, for a period of two years from today and for such time as shall thereafter be determined by the Medical Board. 6. These conditions may be varied by the NSW Medical Board or its Conduct Committee at such times as it considers variance appropriate. 4. Dr Ware is to pay the HCCC's costs of these proceedings. REASONS FOR JUDGMENT 1 This Tribunal was constituted to deal with complaints against Dr Leonard Ware by the Health Care Complaints Commission (" HCCC "). Mr S G Barnes of counsel appears for Dr Ware and Mr P Saidi of counsel appears for the HCCC. 2 The complaints were in the following form (Tab 1 Exhibit "A"): "… THAT Dr Leonard Ware … ("the practitioner"), being a medical practitioner registered under the Act: COMPLAINT ONE Has been convicted of offences in the State of New South Wales. PARTICULARS OF COMPLAINT ONE 1. On 23 September 2005 in the District Court at Wagga Wagga the practitioner was convicted of one count of the offence of Possess more than 3 Unregistered Firearms any one of which is Prohibited, contrary to s 51D(2) of the Firearms Act 1996 and two counts of the offence of Possess Unregistered Firearms, contrary to s 36(1) of the Firearms Act 1996, the offences committed at Goobragandra via Tumut on 6 January 2005. COMPLAINT TWO Is not of good character. PARTICULARS OF COMPLAINT TWO 1. On 23 September 2005 in the District Court at Wagga Wagga the practitioner was convicted of one count of the offence of Possess more than 3 unregistered Firearms any one of which is Prohibited, contrary to s 51D(2) of the Firearms Act 1996 and two counts of the offence of Possess Unregistered Firearms, contrary to s 36(1) of the Firearms Act 1996, the offences committed at Goobragandra via Tumut on 6 January 2005." The Legislative Framework 3 Section 39 of the Medical Practice Act 1992 (" MPA ") sets out the complaints that can be made about a practitioner and relevantly includes: (a) a complaint that the practitioner has been made the subject of a criminal finding for an offence (s 39(a)); (b) a complaint that the practitioner is not of good character (s 39(e)). 4 Section 60 empowers the Tribunal to exercise the powers set out in s 61(1) if it finds a complaint to have been proved. The powers available are: " 61 General powers to caution, reprimand, counsel etc (1) A Committee or the Tribunal may do any one or more of the following: (a) caution or reprimand the person, (b) order that the person seek and undergo medical or psychiatric treatment or counselling, (c) direct that such conditions, relating to the person's practising medicine, as it considers appropriate be imposed on the person's registration, (d) order that the person complete such educational courses as are specified by the Committee or Tribunal, (e) order that the person report on his or her medical practice at the times, in the manner and to the persons specified by the Committee or Tribunal, (f) order that the person seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Committee or Tribunal. …" and there is a power in s 62 to fine in certain cases. 5 Section 64 of the MPA provides that a medical practitioner can (relevantly) be deregistered if on a complaint the Tribunal finds that he or she has been convicted of an offence in NSW "and the circumstances of the offence render the person unfit in the public interest to practise medicine" (s 64(1)(c)), and if the person "is not of good character". 6 During the course of the hearing the HCCC sought and was granted leave to amend the particulars of Complaint One to include several other matters namely: "2. The conviction referred to in (1) above having regard to the circumstances of the offence renders the practitioner unfit in the public interest to practice medicine. 3. The Complainant relies upon the following further matters in support of this particular: The fact that the practitioner breached the provisions of an Apprehended Violence Order applicable to him on no less than 5 occasions in 2005-2006; The fact that the practitioner was convicted by a court of such breach; The lack of candour and honesty on the part of the practitioner in providing details of the circumstances of the commission of the firearms offences when providing information to the police, Dr Napper, the Office of the Health Care Complaints Commission, the District Court on his sentencing and in these proceedings; The practitioner's lack of insight into his conduct and the consequences of same so far as the District Court findings on sentencing are concerned." and the particulars of Complaint Two to include the following further matters: "2. The conviction referred to in (1) above having regard to the circumstances of the offence renders the practitioner unfit in the public interest to practice medicine. 3. The Complainant relies upon the following further matters in support of this particular: The fact that the practitioner breached the provisions of an Apprehended Violence Order applicable to him on no less than 5 occasions in 2005-2006; The fact that the practitioner was convicted by a court of such breach; The findings made by the Professional Standards Committee on the 18th February 2005; The findings made as a result of the s 66 inquiry held on 23 November 2001; The lack of candour and honesty on the part of the practitioner in providing details of the circumstances of the commission of the firearms offences when providing information to the police, Dr Napper, the Office of the Health Care Complaints Commission, the District Court on his sentencing and in these proceedings; The practitioner's lack of insight into his conduct and the consequences of same so far as the District Court findings on sentencing are concerned and the findings made by the professional standards inquiries." The HCCC, through Mr Saidi, made it clear that it would not be seeking to rely on 3(c) and (d) in respect of Complaint Two per se, but only as a foundation for the matters referred to in 3(e) and (f), and in the light of that clarification Dr Ware withdrew his objection to the Amended Notice of Complaint. The Circumstances of the Offences 7 Dr Ware, at the time of his arrest, had in his possession more than 30 firearms. Of these, nine were registered. The balance included rifles, shotguns and pistols, including semi-automatic and automatic weapons. Some of the unregistered weapons were prohibited weapons for which no license could be obtained. He had in his possession almost 18,000 rounds of ammunition, some of which (1202 rounds) he was not permitted to hold. 8 Dr Ware pleaded guilty to all three counts and he asked that offences relating to other weapons not included in the counts but seized by the police on the day of his arrest, be taken into account. 9 The maximum penalty set by the statute for the prohibited firearms (s 51D(2) of the Firearms Act 1996 ) was 20 years imprisonment. The maximum penalty for the registrable but unregistered firearms was 5 years (s 36(1) of the Firearms Act ). 10 On 23 September 2005 the sentencing judge, Judge Walmsley SC, imposed a sentence of two years, setting a non parole period of twelve months for the more serious offence, and imposed a sentence of three months for the lesser offence. The Form 1 offences, related to the weapons that were not included in the charges laid, were taken into account. The sentences imposed were set to run concurrently. 11 Dr Ware served one year in gaol and was released to parole on 22 September 2006. 12 Material relevant to the commission of the offences was put before Judge Walmsley including an Agreed Statement of Facts and a Probation and Parole Report. Dr Ware gave evidence before his Honour and was cross examined. That material has also been put before the Tribunal, together with Judge Walmsley's remarks on sentencing, the record of interview and statements of the police who attended at Dr Ware's property, and Dr Ware gave evidence before the Tribunal by means of a statement and he was cross examined. 13 There are a number of aspects relating to the circumstances of the offence which are unclear but the following matters appear now not to be in dispute: (1) That Dr Ware has had a considerable interest in guns since he was a young boy, an interest encouraged by his father who introduced him to guns and hunting. (2) That when Dr Ware's father died in 1995 Dr Ware inherited his father's collection of firearms. (3) That Dr Ware had purchased some of those firearms for his father. (4) That Dr Ware took physical possession of his father's collection at least by 2001, the firearms remaining until that time, on his evidence, at his mother's house. (5) That Dr Ware had a need for a firearm in keeping down feral pests on his property at Tumut but his use of weapons was by no means limited to that. (6) That Dr Ware kept some of his weapons including some of his pistols loaded. (7) That Dr Ware did not have adequate storage for all of his weapons, that is storage required by the firearms legislation. Some of the weapons were stored below floorboards and apart from the eight registered firearms seized from the locked rifle cabinet, Dr Ware did not take all reasonable precautions to ensure they were safely kept. (8) That on the day of his arrest Dr Ware had a loaded pistol on his bed. Dr Ware's explanation for that is that it was his habit to load and unload guns and shoot guns as a form of relaxation. (9) That the police were informed about the firearms by Dr Ware's wife who had recently left him taking their two children aged 15 and 10. The police had gone to the property to serve the Apprehended Violence Order ("AVO") taken out by Dr Ware's wife and to take possession of firearms. (10) That Dr Ware's wife had taken out the AVO against him following his threat to her "to wring her neck". (11) Although there was a lack of clarity about the matter it appears that not all of the unregistered firearms were inherited from his father – Dr Ware purchased good quality firearms and even a silencer for himself: T9.30 21/09/05; T20.52-21.6; T21.50-22.1; T22.50-23.9 (ammunition) 13/12/06; and he said he had been given some pistols: see Record of Interview Q/A 190-191 and Q143. (12) That Dr Ware had made no attempt at any time to obtain registration of the unregistered weapons notwithstanding his having obtained registration for nine weapons. Several explanations have been offered for this at different times: (a) he inherited most of the firearms and did not have physical possession of them until 2001 and that from 2001 he was so distracted with problems relating to his work (which we shall describe below) and the problems with his wife that he did not think about the issue or have the time to do anything about it; (b) he had so many firearms he did not know what to do with them (Q109 police record of interview); (c) he knew that he could not obtain registration for all of the firearms owned by him (told to Ms Harrison – pre sentence report 1/9/05 Exhibit "A"); (d) he repressed having the guns and never had the time, had too many things on his "plate", and thought "well lock them away and just get on with life": T26.20-34. 14 Dr Ware graduated from the University of Sydney in 1975. He commenced general practice in 1978 and in 1979 commenced a full time anaesthetics residency and obtained his Primary Fellowship with the College of Anaesthetists in 1980 – he has never passed the secondary exams. He has since 1980 always worked in the role of GP anaesthetist. His hope is to be able to continue in practice as an anaesthetist. 15 In 2001, complaints were made about Dr Ware's conduct as an anaesthetist at the Broken Hill Base Hospital (" BHBH "). Those complaints were investigated and found in some cases to be established (the report of the Medical Board is part of Exhibit "A"). One of the matters dealt with by the Board was that Dr Ware had left the operating theatre during an operation on various occasions (" the absenteeism complaint "). The delegates did not make any clear finding on this topic: see p 13. Dr Ware had been suspended from work on full pay whilst the Medical Board met and he was forced to relocate from Broken Hill to Tumut. The matter was subsequently referred to a Professional Standards Committee (" PSC "), which in 2005 reported on its investigation. The PSC found Dr Ware to have not complied with Department of Health Infection Control Policy and to have behaved inappropriately towards and in front of nursing and other staff, and without reasonable cause to have repeatedly refused to assist in the trauma resuscitation of a patient in the Emergency Department, although available to do so (see Tab 10 Exhibit "A"). The PSC imposed conditions on Dr Ware's practice. The PSC did not find the absenteeism complaint established: see p 29 Tab 10 Exhibit "A". The refusal to attend appears to have been connected with an issue about rosters, and competing priorities. Apprehended Violence Order 16 Following receipt by Dr Ware of the AVO, Dr Ware approached his son with the intention of handing him a gift at a location within 100 metres of the place of employment of Dr Ware's wife: see Tab 3 (xiv) Exhibit "A". He was arrested before he could do so by police and taken before a magistrate – he admitted breach of the AVO but was not convicted of an offence. Subsequently whilst in gaol he wrote to his wife on four occasions (see Court Based Parole Order 20/09/06 Exhibit "A"), apparently seeking to persuade her not to divorce him. The despatch of each of those letters was itself a breach of the AVO still in place and he was found guilty of having breached the AVO and fined $1300. There are therefore five AVO breaches, for four of which he was convicted. 17 Apart from the firearms offences and the breaches of the AVO, Dr Ware has had no criminal convictions of any kind. 18 Tendered in support of his case are a number of references/testimonials both from colleagues and friends. One of his oldest friends, Alexander Petlevanny, describes Dr Ware as "a bit different and a bit of a 'rebel'", who can be "prickly", "abrasive and forthright" and a "mountain man", and also refers to Dr Ware's love of the bush: Tab 11 Exhibit "1". 19 Dr Cameron Bardsley described Dr Ware as "trustworthy", "reliable" and an "excellent anaesthetist" who was "enthusiastic and diligent", "compassionate and appropriately empathetic with his patients": Tab 7 Exhibit "1". Dr R F Bennett, a surgeon with the Queensland Flying Surgeon Service described Dr Ware as having "excellent professional skills" and being a "very capable, competent, efficient Anaesthetist" who "has coped admirably with a very wide spectrum of anaesthetic patients": Tabs 4 and 5 Exhibit "1". Dr Robert Bourke, a general practitioner in Roma, described Dr Ware as conducting himself in the operating theatre "in a professional and highly competent manner as an anaesthetist": Tab 15 Exhibit "1". 20 Dr Ware of course does not dispute that he was convicted of the firearms offence, nor does he dispute that he had a large quantity of firearms. He knew that registration was required. We are not persuaded on the balance of probabilities that Dr Ware's personal problems were the reason for the failure to register. Even accepting that he did not take possession of many of the firearms until 2001, he had an obligation prior to that to obtain registration for those weapons since he had become the owner of the weapons inherited from his father and he had other weapons of his own, but focusing on the period from 2001 onwards, he had physical possession of them and knew that the registrable firearms had to be registered. We think it is more likely that his failure to register arose from a knowledge that he could not register all of them and a belief that the authorities would not become aware of his holding them. Nor are we persuaded that Dr Ware had after his father's death become less interested in hunting as a recreational activity. 21 The HCCC accepted that taken on their own, the circumstances of the offence did not render Dr Ware unfit to practise medicine. Not of Good Character 22 It was accepted by both parties that the approach to the question of "good character" to be applied in this case is found in: (1) McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907); (2) Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; (3) A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1 especially at 266-268; (4) Re Davis (1947) 75 CLR 409, and can be summarised in the following propositions (the first seven of which are taken from the dissenting judgment of Kirby P as he then was in McBride ): (1) "Good character" has to be assessed in the context of a medical practitioner and in relation to removal from the register – morality per se is not relevant save as it relates or may relate to the person's performance of duties as a medical practitioner. (2) Not every flaw of character, even a flaw relevant to a medical practitioner's entitlement to practise, will lead to a finding of not of good character. (3) A single act or even a connected series of acts, and even if pertinent to medical practice, may not be sufficient to establish lack of good character. (4) Wrongdoing by a practitioner extraneous to his or her profession may demonstrate want of good character but only if the conduct in question showed what can be taken to be a characteristic of the individual rather than an isolated lapse which is uncharacteristic to the practitioner or irrelevant to the practice of the profession. (5) Is the behaviour abhorrent; is it exceptional and hence unlikely to interfere with the function of the practitioner or does it betoken more serious flaws of character, attracting deregistration? Is the incident isolated or is it an indication of some deeper underlying quality which shows a character demonstrating defects relevant to medical practice? Motivation for the conduct in question will often be relevant. (6) Having classified the impugned conduct the Tribunal should look at all other evidence relevant to character – evidence of good fame and character, service to the community, and so forth. (7) The burden of establishing that the practitioner is not of good character rests on the complainant. With matters asserted in mitigation the onus rests on the practitioner. (8) The character issue must be assessed as at the date of the Tribunal's determination, not some earlier date: Tziniolis at 301. (9) Good character involves a test of "ethical fitness" which in turn involves enduring moral qualities (per Dixon J in Re Davis (1947) 75 CLR 409 at 420) and moral standards, attitudes and qualities, not just general reputation: Tziniolis and per Handley JA in McBride at 7. It is not just a summation of acts alone but relates to the qualities of a person: Tziniolis at 301. "The judgment as to character must be arrived at by giving due weight to all features": at 300-301. (10) The public interest, ie protection of the public from harm, is paramount and the relationship of doctor and patient is "one which touches matters such as trust, confidence, confidentiality and right conduct". "It is necessary that the public be protected against those who, though having the appropriate clinical skills, do not have the character appropriate for the opportunities and privileges which the right to practice gives": per Mahoney JA in Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911) at 11. This links to the point that "Medicine was to be an honourable as well as a skilled and learned profession" per Handley JA in McBride . (11) Reputation of a person is relevant but not the exclusive test. "Good" is used also in the sense of moral strength and "a man's conduct in respects known only to his intimates can evidence his character": Tziniolis at 330. (12) The standard of proof which is required for a finding that a practitioner is not of good character is "comfortable satisfaction" on the balance of probabilities, to indicate a level of satisfaction that takes into account the serious consequence of an affirmative finding: Bannister v Walton at 711. If it is a matter in mitigation the standard imposed would, we infer, be on the balance of probabilities, but without requiring "comfortable satisfaction". 23 Whilst we think particulars 3(c) and (d) to Complaint One might be viewed as potentially relevant to the circumstances of the offence, they are more appropriately dealt with in connection with the issue of character. 24 The HCCC relies on the following matters in combination to support its contention that Dr Ware is not of good character: (1) the fact of conviction for the firearms offences; (2) the circumstances of the offences; (3) the breach of the AVO; (4) the conduct of Dr Ware at the BHBH for which he was criticised; (5) his lack of candour in connection with the circumstances of the firearms offences in particular his reasons for having firearms, and for his failure to register them. 25 So far as the AVO breaches are concerned, whilst of course they should not have occurred, the breaches are very much at the low end of the scale of seriousness – it is not surprising that Dr Ware wanted to make contact with his son (which in itself was not prohibited) and his attempt to persuade his wife to abandon her steps to divorce him, when considered in the context of obvious emotional turmoil, are not matters we place much weight upon at all in considering his fitness to practise medicine or his character. 26 Mr Saidi drew attention to the following matters: (1) the inconsistencies between Dr Ware's various explanations as to why he had not registered the firearms; (2) his presentation of himself to the police as a peaceful man who did not enjoy killing anything (see Q/A 150 record of interview, Tab 3(iv) Exhibit "A"); (3) his attempt to downplay his interest and enthusiasm for guns and hunting; (4) his attempt to lead the HCCC to believe that he used guns only to eradicate feral pests; (5) he implied in his evidence that he had never had guns stolen from his property (see T29.34-40 13/12/06) but in fact he had (see T27.6-24 21/09/05); (6) Dr Ware evinced a refusal to accept authority over him in connection with the findings on the complaints as to his behaviour at the BHBH and he has the character of a man who "does not abide by the authority of others over him"; (7) the breaches of the AVO show a similar refusal to abide by authority; (8) his flagrant and continued breaches of the firearms legislation over a long period demonstrate a similar flawed character. 27 These matters, said Mr Saidi, raise doubt as to whether Dr Ware would abide by any orders made as he has no insight and refuses to accept authority over him. 28 It was accepted by the HCCC that we could not pay any regard to the actual findings of the PSC decision or earlier Board decision in determining whether Dr Ware is not of good character, and that the only relevance of the findings made was how Dr Ware responded to those findings. 29 Dealing with these matters, in our view, (1)-(5) are all correctly identified as matters of concern and can be summarised as an attempt to downplay the significance of his abiding enthusiasm for weapons and hunting. We think that Dr Ware has not been as frank and candid about his pursuits as he ought to have been. 30 As we have indicated, we are not satisfied on the balance of probabilities that his failure to register the firearms was caused by pressures induced by problems at work or marital problems although we do not doubt that he did, in 2001, face pressures arising from problems at work and the need to relocate and later problems with his wife. Like Dr Napper, a psychiatrist who gave evidence on behalf of Dr Ware, we think that there needs to be far more investigation in relation to whether or not Dr Ware's interest in guns and hunting and shooting is connected to some underlying emotional or psychological issues. This possibly connects up with his difficulties with his employers and other staff members at BHBH and some anger management issues, which have to date not been adequately explored (see T16 13/12/06). 31 So far as Dr Ware's attitude to the breaches found by the Board and the PSC is concerned, we accept Mr Barnes' point that one relevant matter is that Dr Ware always denied having left the operating theatre inappropriately and that matter was ultimately not found proven against him before the PSC (see p 29 Tab 10 Exhibit "A"). There are however some aspects of his attitude to the matters found against him by the PSC that engender concern, including the belief that he holds that there was a concerted attempt to remove him from BHBH for reasons other than his professional competence, but there has been, in the limited period since 2001 that he has been in practice, no misconduct or inappropriate behaviour alleged and we do not think that it can be inferred that because he kept firearms in breach of the legislation and having been punished by prison term for those offences that he will not accept constraints that might be imposed on him by the Tribunal. 32 We should emphasise that Dr Ware was dealt with by the PSC. It did not see fit to refer the matter to the Tribunal and hence accepted that it was not appropriate to seek Dr Ware's deregistration for the matters found established but rather to impose conditions. We do not think it is appropriate to revisit the conclusions of the PSC in this regard since no finding of professional misconduct was ever sought in the current proceedings and we were told that the only relevance of the findings was Dr Ware's attitude to the findings. 33 Although Dr Ware does not accept that all of the findings were justified, he has accepted that he must modify his behaviour, and the unchallenged evidence is that he has done so. This is not a case in which it could be expected that the lack of satisfaction on Dr Ware's part with the PSC's conclusions would be likely to lead to a continuation of the aberrant behaviour which is the subject of the PSC findings. We think that any residual concern that there is such a possibility can be met by conditions to which we shall return. 34 On the positive side we observe: (1) Although Dr Ware has been in practice since 1977 the only matters of complaint relate to his time at BHBH. (2) Since those complaints there have been no further complaints. Although his actual working period has been limited due not only to the 12 months in gaol, the almost six months since release, but also the lack of employment between 2001 and 2003, there are positive reports from two colleagues in Queensland and he apparently will be employed in Queensland if he is not deregistered. (3) The work that he does for the Flying Surgeon Service is important work and it is an area with an acute need for practitioners with specialist training and experience. (4) He had no convictions of any kind until the firearm offence convictions in September 2005. (5) Although convicted of breaches of the AVO, the breaches for which he was convicted all related to writing letters of reconciliation to his wife. The letters should not have been written but he has been fined and on the scale of breach of an AVO they are very much at the least serious end. The fact that the first breach, involving his attendance at his son's tennis game, was regarded by both Judge Walmsley as trivial and by the magistrate as not requiring conviction, points to it as being even less serious. (6) The positive references as to his character tendered in evidence. 35 Notwithstanding Dr Ware's possession of firearms, even when coupled with the breaches of the AVO, his lack of candour about the circumstances of the firearms offences and his attitudes to the Board's and PSC's findings, the Tribunal is not comfortably satisfied that he is a person not of good character. 36 Whilst we do not think that a finding of "not of good character" should be made, we are of the view that Dr Ware should be reprimanded for the firearms offences. Having regard to the fact that Dr Ware has had a two year gaol term imposed and has in fact served one year in gaol we do not think it appropriate to impose a fine. 37 The HCCC submitted that if we were not persuaded that Dr Ware should be deregistered we should nevertheless impose conditions in the same form as those imposed by the PSC in 2004 (see Tab 10 Exhibit "A") and updated, but also include a requirement for psychiatric treatment. Mr Barnes accepted that a continuation of treatment with Dr Napper would be appropriate and he did not seek any change in the orders made previously. The Tribunal is of the view that an extension beyond the conditions previously imposed is appropriate, and not only with respect to treatment, and we set out the conditions below, which incorporate but expand somewhat upon the conditions set previously: "1. Within twelve months from the date hereof, Dr Ware is to spend a total of 30 days, either consecutively or non-consecutively, working in a Hospital with an experienced Anaesthetist approved by the NSW Medical Board. The approved Anaesthetist and Dr Ware are each to provide a written report to the NSW Medical Board at the end of this placement outlining the specific cases discussed and the areas covered concerning current anaesthetic practices. Dr Ware is responsible for any costs incurred in relation to the period of observation and any subsequent report. Dr Ware is to authorise the Anaesthetist to provide such a report to the NSW Medical Board. 2. Following completion of the 30 days referred to in para 1, for a minimum period of 6 months, or for such longer period as determined by the NSW Medical Board, Dr Ware is to meet with the approved Anaesthetist for at least one hour on a monthly basis, in a mentorship arrangement to review specific cases or any clinical incidents which may have occurred and thereafter at three monthly intervals for a further period of 18 months or such longer period as is determined by the NSW Medical Board. The approved Anaesthetist is to provide a written report to the NSW Medical Board at the conclusion of the specified mentoring program or immediately if there are any concerns or if the mentoring arrangement ceases. Dr Ware is responsible for any costs incurred in the mentoring program and any subsequent reports. Dr Ware is to authorise the Anaesthetist to provide such a report to the NSW Medical Board. 3. In the event that Dr Ware obtains employment at a medical practice or medical service he must request and authorise his employer to furnish a report to the Medical Board at three monthly intervals for a period of two years from commencement of employment, advising of any difficulties or concerns relating to Dr Ware's practice of medicine of which the employer has become aware, or the absence of any such difficulties or concerns. 4. Dr Ware is to provide the NSW Medical Board with evidence of participation in a relevant continuing education program either through MOPS (ANZCA) or an equivalent accredited program on a 6 monthly basis. 5. Dr Ware is to continue under the care of Dr Napper or another psychiatrist chosen by Dr Ware and approved by the NSW Medical Board, for a period of two years from today and for such time as shall thereafter be determined by the Medical Board. 6. These conditions may be varied by the NSW Medical Board or its Conduct Committee at such times as it considers variance appropriate." Costs 38 We are of the view that Dr Ware should pay the HCCC's costs of this hearing since the Tribunal has accepted the need for some increased supervision, and the need for the hearing arose out of admitted conviction for a serious offence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.