Medical Tribunal New South Wales Medium Neutral Citation: Barratt v Medical Board of Australia [2012] NSWMT 22 Hearing dates: 23, 24, 25 July 2012 Decision date: 09 November 2012 Before: Colefax SC DCJ; Ms. A. Collier; Dr. S. Howle; Dr. V. de Carvalho Decision: 1. Appeal against decision to refuse to grant an application for general registration dismissed. 2. Appellant to pay respondent's costs as agreed or in default of agreement as assessed. Catchwords: Medical Practitioner - not fit and proper person - not able to practice competently and safely - insufficient recency of practice - appeal against decision of Medical Board of Australia's refusal to grant general registration - onus on proof of appeal - hearing de novo - costs follow the event Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (now repealed) Medical Practice Regulation Cases Cited: In Re Dr Geoffrey Ian Barratt and the Medical Practice Act 1992 [2004] NSWMT 7 Ohn v Walton (1995) 36 NSWLR 77 Health Care Complaints Commission v Perroux (No. 2) [2011] NSWMT 15 Category: Principal judgment Parties: Geoffrey Barratt (Appellant) Medical Board of Australia (Respondent) Representation: Ms. Baker - (Respondent) Geoffrey Barratt; in person, unrepresented (Applicant) File Number(s): 40001 of 2010 Publication restriction: No Judgment Introduction 1On 12 December 2011 the New South Wales Board of the Medical Board of Australia refused an application by Dr Geoffrey Barratt for general registration under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2In its written reasons for that decision, the Board stated that it had decided Dr Barratt was not a suitable person to hold general registration because: (a)"the nature, extent, period and recency of [his] previous practice of medicine [was] not sufficient to meet the requirements specified in the Approved Medical Board of Australia's Recency of Practice Registration Standard"; and (b)"[he was] not a fit and proper person for general registration in the profession"; and (c)"[he was] unable to practise the profession competently and safely." 3In coming to those conclusions the Board relied upon the following three considerations: (a)"repeated failure to comply with the conditions that were placed on [his] previous registration"; (b)(b) "lack of insight into [his] own responsibility for [his] inappropriate behaviour over many years"; and (c)"concerns relating to [his] clinical skills/competence and [his] failure to satisfy the Medical Board of Australia's Recency of Practice Registration Standard requirement". 4Pursuant to section 175 of the National Law, Dr Barratt has appealed to this Tribunal against that decision to refuse registration. 5The Tribunal convened to hear the appeal on 23, 24 and 25 July 2012. 6On that occasion Dr Barratt appeared unrepresented for himself and Ms Baker, a solicitor advocate with the Crown Solicitor's Office, appeared for the Board. 7At the commencement of the hearing Dr Barratt conceded that the Board had made out the factual bases upon which the application had been rejected. However, Dr Barratt submitted in his opening address that the proper outcome of the appeal should be that his application should be granted - subject to conditions. The nature and quality of that concession, however, will need to be revisited later in these reasons by having regard to the written submissions filed by Dr Barratt dated 22 August 2012 (see paragraph 12 below). 8The evidence in the proceedings concluded on 25 July 2012 at which time Ms Baker provided both written and oral submissions to the Tribunal. 9At the conclusion of those submissions, Dr Barratt was given the opportunity (after the intervening luncheon adjournment) to immediately make oral submissions or to have the (further) opportunity of obtaining legal assistance to prepare written submissions. He chose the latter. 10The Tribunal accordingly directed Dr Barratt to file and serve those written submissions by 5 p.m. Friday 24 August 2012. The Board was directed to file and serve any written submissions in reply by 5 p.m. 7 September 2012. 11On 13 August 2012 Dr Barratt (by e-mail) sought a variation of the direction concerning his submissions. He sought to be able to make oral as well as written submissions. Later that day the Tribunal replied and indicated that any application to vary the directions as to submissions would need to be made in a formal sitting of the Tribunal (constituted by the Deputy Chairperson alone). Details as to where and when that application could be made were provided. These two pieces of correspondence have been marked for identification 1 in the Deputy Chairperson's chambers and placed in the Tribunal file. 12Dr Barratt did not avail himself of any such opportunity. Rather, on 24 August 2012, he filed written submissions date 22 August 2012 in relation to the substantive appeal proper. The Board, in correspondence dated 7 September 2012, chose not to prepare any written submissions in reply. 13For the reasons which we set out below, the appeal and Dr Barratt's application for general registration are dismissed. 14In order to understand our ultimate conclusion it is necessary to refer to a series of events commencing as long ago as December 1974 when Dr Barratt was first registered as a medical practitioner in New South Wales. 15In the intervening years as the chronology will reveal, Dr Barratt has been before this Tribunal on three previous occasions; and has come before the various disciplinary committees and boards of the New South Wales Medical Board on many occasions. 16This detailed history is set out to show: first, why we have concluded that Dr Barratt is not competent to practise the profession of medicine; and secondly why, independently, we have concluded that whatever other deficiencies he may have as a practitioner, those deficiencies could not adequately be addressed by approving his application subject to conditions. Specifically, as the chronology will reveal, Dr Barratt has over and over again breached conditions attaching to his registration. And as recently as the present hearing he has unambiguously stated that even in 2012 he regards himself in effect as free to determine when and if he would adhere to any conditions which might be imposed. 17The Tribunal therefore has been satisfied that he is not a fit and proper person to be registered. Chronology: 18On 23 December 1974 Dr Barratt was first registered as a medical practitioner in New South Wales. 19Between 1976 and 1981 he was convicted of a number of offences directly related to his addiction to pethidine. His addiction to pethidine (as well as morphine), amongst other things, resulted in Dr Barratt contracting hepatitis C. 20These convictions brought him before the Medical Disciplinary Tribunal which on 16 September 1981 ordered that his name be removed from the Register of Medical Practitioners in New South Wales. Even in this very first disciplinary decision, two matters which have a recurrent theme in the material before this Tribunal were noted. First, that Dr Barratt had "... a personality of considerable frailty". Secondly, his reliability as a witness was called into question. In this context, that Tribunal noted that in submissions made to it Dr Barratt sought to explain his drug-taking because of pain "he was experiencing from his right leg injury". That Tribunal noted "... it may not be without significance that when interviewed on 16 October 1980 Dr Barratt made no mention of pain as being his reason for using pethidine". 21On 21 May 1986 the Medical Disciplinary Tribunal ordered that Dr Barratt be registered as a medical practitioner - subject to conditions relating to his practice of medicine, including restrictions on his right to prescribe drugs of addiction and limiting his right to practise medicine only whilst employed in a hospital or in a position approved by the Medical Board for a period of twelve months. 22On 14 April 1993 the Professional Standards Committee conducted an inquiry under section 32E of the then Medical Practitioners Act in relation to Dr Barratt. He had relapsed in relation to his addiction to pethidine. In its report the Committee, amongst other things, expressed particular concern about Dr Barratt's lack of insight. In the course of its report, the Committee made the following observations: "[Dr Barratt] denies and rationalises his drug dependence and depressive nature ... his return to drug abuse, when so much in his life was at stake, shows elements of risk-taking and self-destructive behaviour ... Dr Barratt displays a marked, continuing vulnerability and fragility which is likely to express itself in drug dependence, perhaps as a defence against depression. His impairment is significant and warrants ongoing psychiatric care ..." The Committee, after finding the complaints proven, did not prevent Dr Barratt from continuing to practise medicine but rather imposed further conditions (including extending the restrictions on his right to prescribe certain drugs). 23The Impaired Registrant's Panel conducted an inquiry under section 182 of the then Medical Practice Act in relation to Dr Barratt on 3 April 1998. By this time Dr Barratt had commenced to use alcohol as "his preferred drug of addiction" - notwithstanding that he had been diagnosed as being hepatitis C positive. At the conclusion of the inquiry conditions were again imposed on Dr Barratt's capacity to practise medicine. Those conditions again included restrictions on his prescription rights but also included restrictions on the amount of alcohol he could be permitted to consume. 24The Impaired Registrant's Panel conducted a further inquiry in relation to Dr Barratt on 17 December 1999. The panel was convened because four of Dr Barratt's random urine analyses since April 1999 contained traces of codeine, morphine or cannabis and the explanations provided by Dr Barratt were not considered sufficient. Given the issues with which the present Tribunal is concerned, it is significant that in the report of this inquiry it was noted: "Dr Barratt considers that 'chemical recreation' is part of normal human behaviour and that his current use of alcohol and Panadeine are not dangerous and in no way impact upon his ability to practise as a 'brilliant country GP'." The inquiry moreover noted his continued use of rationalisations to justify continuing to drink against medical advice and to deny that his current use of alcohol and/or Panadeine represented addictive behaviours or a threat to his own wellbeing or that of his patients. The inquiry re-imposed conditions on Dr Barratt's right to practice, including (continuing) limitations on prescription rights. 25On 27 June 2000 Dr Barratt was the subject of a Review Interview Report prepared by Drs Amos and Diamond. The background section of the report noted recurrent breaches by Dr Barratt of his conditions of practise in that his urine screens frequently showed small quantities of opium and non-opiate drugs. Significantly, during the course of the interview with those practitioners and when Dr Barratt's request for his conditions to be relaxed met with resistance, he retaliated and accused the interviewers of "bullying" and "threatening him". 26The Impaired Registrant's Panel conducted a further inquiry in relation to Dr Barratt on 28 September 2001. In the course of this inquiry he again expressed resentment about the conditions of his registration particularly that limited to his capacity to prescribe Panadeine. At the conclusion of that inquiry Dr Barratt's right to practise continued but, again, subject to conditions. 27On 14 June 2002 Dr Barratt's name was removed from the register for non-payment of the annual registration fee. 28On 23 October 2003 the Health Care Complaints Commission laid an amended complaint alleging that Dr Barratt was guilty of either unsatisfactory professional conduct or professional misconduct. The complaint alleged in general terms that in prescribing drugs to patients Dr Barratt failed to make a proper note of what drugs (including quantities and dosages) had been prescribed; and also alleged that when prescribing certain drugs he had not obtained prior authority to do so in breach of a condition of his right to practise. The complaint concerned 17 patients. 29The complaint came before the Medical Tribunal on 29 March 2004. At the conclusion of the hearing Dr Barratt conceded all the relevant parts of the complaint. The decision of the Medical Tribunal was delivered on 8 September 2004. The Tribunal was satisfied the breaches were serious but was not satisfied that a finding of professional misconduct was warranted. Rather, the Tribunal was satisfied that findings of unsatisfactory professional conduct should be made. Accordingly, Dr Barratt was reprimanded and he was permitted to continue practising medicine - again with conditions. 30It is significant to note that in that hearing before that Medical Tribunal, Dr Barratt, at the conclusion of the proceedings, conceded that all relevant parts of the complaint had been proved. The Commission had sought a finding of professional misconduct. One of the reasons why the Tribunal did not make such a finding but rather made a finding of unsatisfactory professional conduct was because of "Dr Barratt's ready acceptance of his shortcomings" (see In re Dr Geoffrey Ian Barratt and the Medical Practice Act 1992 [2004] NSWNT 7 at [83]. The genuineness of that "ready acceptance" is very much to be doubted because in the course of this present inquiry Dr Barratt referred to that earlier Tribunal as a "sham medical tribunal". 31On 22 November 2004 Dr Barratt applied for re-registration as a medical practitioner. His application was the subject of a Schedule 1 inquiry conducted on 9 June 2005. 32In the course of that hearing Dr Barratt gave evidence to the effect that the previously imposed conditions on him (which had been of an expanding nature) had been too onerous. In addition, there was discussion as to the possible side effects on Dr Barratt from the forthcoming course of interferon which he was to undergo in relation to his hepatitis C. In addition, there was evidence from Dr Robert Fisher, a psychiatrist, whose opinion was that any return to work by Dr Barratt should be the subject of very careful monitoring. 33In its conclusions, the inquiry expressed doubts about Dr Barratt's insight into his drinking and narcotics based problems. 34In the result, the inquiry determined that Dr Barratt could be permitted to resume practise provided it was hospital-based and subject to Level 1 supervision. Moreover, a strict regime of ongoing monitoring of his health was required. Subject to those substantial conditions, Dr Barratt's application for re-registration was granted. In doing so, however, the inquiry expressed doubts about Dr Barratt's insight into his level of drinking and his approach to narcotic based drugs. The inquiry also expressed concern that he had had difficulty in the past in accepting and abiding by his conditions of registration to practice. In coming to the conclusion that a limited right of practice should be permitted, the inquiry was of the view: "... that Mr Barratt should be able to practice medicine safely in New South Wales, his various health issues and prescribing restrictions notwithstanding, so long as there are appropriate conditions and monitoring arrangements in place, and these are adhered to. It is prepared to accept Mr Barratt's position that he is now willing and able to comply with practice and monitoring conditions imposed on his registration." (emphasis added) 35Shortly thereafter Dr Barratt commenced employment in the Emergency Department of the Tamworth Base Hospital. In order to do so, it was necessary for Dr Barratt to live separately from his family for most of the working week. They were living at Deepwater, some hours drive from Tamworth. 36Dr Barratt's first supervisor at that hospital was Dr Harradine, the Director of Rehabilitation and Aged Care at the Tamworth Base Hospital. 37Dr Harradine submitted monthly reports in respect of Dr Barratt for the period November 2005 to January 2006. Those reports were unremarkable. 38At about the end of January 2006 Dr Harradine ceased to be Dr Barratt's supervisor. That role was taken over by Dr Ryan, the Director of the Emergency Unit at the Tamworth Base Hospital who was assisted in that regard by Dr Trethewy and Dr Kennedy. 39In February 2006 Dr Barratt wrote a personal letter to a female pathology scientist within the hospital which Dr Barratt described as "a love letter". Dr Barratt himself at the time knew that such a letter was inappropriate because in it, he wrote: "... but in any case I beg you to keep this secret. If not all hell could break loose. It was part of my calculation that I could trust you not to allow this to become harmful ..." 40On 13 March 2006 Dr Ryan submitted a Supervision Report for the period 6 February to 13 March 2006. This report did not indicate that Dr Barratt was suffering any disabilities or difficulties with his work. 41A similar report was prepared by Dr Ryan on 6 June 2006 for the period 14 March to 7 June 2006. 42In the apparent absence of Dr Ryan, Dr Taliana completed a Supervision Report for Dr Barratt on 31 August 2006 covering the period 8 June to 7 September 2006 (sic). 43In September 2006 Dr Barratt sent a further personal letter to the female pathology scientist within the hospital. 44On 12 December 2006 Dr Ryan signed a Supervision Report for Dr Barratt for the period September to November 2006. The tone of the report is slightly different to the earlier reports. Those earlier reports noted that Dr Barratt was responding well to supervision and to working in the hospital generally. In this report, however, Dr Ryan although noting that Dr Barratt's work performance was "reasonable", wrote his "... level of function seems to have reached a plateau". 45In early December 2006 Dr Barratt sent a third personal letter to the female pathology scientist within the hospital. 46The receipt of this third letter seems to have stimulated that staff member to complain not only about that letter and the two preceding letters but also to certain phone calls which Dr Barratt had placed with her. The letters and the phone calls came to the attention of the Chief Executive of the Hunter New England Area Health Service who in turn wrote to the Medical Director of the New South Wales Medical Board. In that letter the Chief Executive raised the question as to whether the behaviour of the doctor and the content of his communications raised questions as to his mental health. 47On 17 January 2007 Dr Barratt treated patient K in the Emergency Department of the Tamworth Base Hospital. Patient K presented at the Emergency Department with her husband complaining of sunburn. The appropriate treatment was the application of hydrocortisone cream and the giving of intravenous fluids. Curiously, and notwithstanding the consultation took place in the Emergency Department (presumably a busy place), Dr Barratt embarked upon an extensive consultation with the patient going well beyond the situation at hand. Further, he immediately accepted an invitation to dinner at the home of patient K and her husband the following day. Within a short period an intimate relationship developed between patient K and Dr Barratt, which resulted in them cohabiting together between March and May 2007. 48On 23 January 2007 Dr Barratt treated Patient A in the Emergency Department. Patient A was a 75 year old man who presented to the Emergency Department with chest pains consistent with myocardial ischaemia. The hospital notes record that Dr Barratt performed only a inadequate assessment before discharging the patient home. No steps were taken for any planned review of that patient. 49Patient A returned to the hospital the following day complaining of further pain. He was seen by another doctor and immediately admitted to the hospital. Blood tests performed on that re-admission showed Patient A had had a myocardial infarction. The pattern of those blood tests suggested that that infarction had occurred the previous day - that is, the day on which the patient had been examined by Dr Barratt. 50Contrary to the Tamworth Base Hospital Emergency Departmental Guidelines, Dr Barratt did not perform any risk assessment for Patient A. If such an assessment had been carried out he would have been classified at the very least as an intermediate risk or, more likely than not, high risk. In either case, the guidelines would have required him to have been admitted immediately to hospital as a patient in the Coronary Care Unit and for further testing to be carried out. 51This incident revealed that not only did Dr Barratt not follow the relevant guidelines and made a poor clinical decision, he did not discuss the case with a senior doctor prior to discharge (contrary to his Level 1 status) and did not properly document his assessment of the patient. 52On 29 January 2007 Dr Barratt treated Patient B in the Emergency Department of the Tamworth Base Hospital. Patient B was a 9-week old baby who presented to the Emergency Department with a history of high fever. Dr Barratt performed what appeared to be a inadequate assessment and then discharged the baby. 53The following day the baby was brought back to hospital following a referral from a general practitioner. On this occasion the baby was found to be suffering from sepsis secondary to a urinary tract infection. This required admission to the hospital and intravenous antibiotics. 54Dr Barratt's decision to discharge the baby was contrary to New South Wales Health Guidelines for the assessment and treatment of children presenting with fever. It was indicative of poor clinical decision-making. Furthermore, it was a further example of a failure to discuss a patient's presentation with senior medical officers. 55When Dr Ryan raised these matters with Dr Barratt, Dr Ryan was told that, given Dr Barratt's lengthy experience as a general practitioner and solo practice, "his style of practice should not be constrained by guidelines and protocols". 56In addition to these two incidents in 2007 there were two other incidents in which Dr Barratt examined trauma patients with significant mechanisms of injury. In both of those cases Dr Barratt made a decision to discharge the relevant patient before performing a full assessment of that patient. In both cases, however, a senior nurse intervened and the patient was re-examined by a senior doctor - and both patients required X-rays which Dr Barratt had not sought. 57On 13 March 2007 Dr Barratt was again examined by Dr Fisher. It would appear that this examination had been arranged following the letter from the Chief Executive of the Hunter New England Area Health Service. 58In the course of the examination by Dr Fisher, Dr Barratt revealed (it would appear for the first time to anyone in authority) the relationship which had developed with patient K. By having regard to Dr Barratt's long-term problems with drug abuse and the inappropriate conduct concerning the pathology technician and Patient K, Dr Fisher concluded that Dr Barratt suffered from "poor impulse control, lack of appreciation of the propriety of behaviour in the professional context and the lack of a sense of appropriate boundaries". Dr Fisher questioned Dr Barratt's fitness to continue in clinical practice. 59In an apparent response to Dr Fisher's report, a section 166 inquiry was conducted on 1 May 2007 by the New South Wales Medical Board. 60Amongst other things, the report that was produced following that inquiry again raised concerns about Dr Barratt's capacity for insight. Nevertheless, the inquiry did not consider it necessary to suspend Dr Barratt. In part, that decision was informed by the fact that no concerns had then been expressed in relation to Dr Barratt's clinical performance which would warrant suspending him and by having regard to the fact that he practised under supervision and that the Board was regularly receiving reports from his supervisors which indicated that his work had been satisfactory. The Board determined that Dr Barratt ought to practise subject to continuing conditions, namely that he remained supervised in a public hospital; that he obtained the approval of the Board before changing the nature of place of his employment; and that a copy of the report and decision of the Board be provided to nominated persons. However, the Board did refer the matter to the Health Care Complaints Commission for investigation as a complaint. 61On 20 June 2007 Dr Ryan submitted a Supervision Report in respect of Dr Barratt for the period April to June 2007. This report is significantly different to earlier supervision reports. It notes that Dr Barratt had to be "spoken to" on a number of occasions in relation to failing to follow department clinical guidelines and failing to seek senior assistance or guidance. 62On 6 July 2007 Dr Barratt was again examined by Dr Fisher. By this stage Dr Barratt's relationship with Patient K had ended and Dr Barratt had returned to live with his wife. The complaint however to the HCCC concerning that relationship had not yet been completed. Dr Fisher expressed concerns about Dr Barratt being able to demonstrate clinical competence under supervision and also whether he could be trusted to comply with appropriate professional boundaries if he were to be unsupervised. 63On 19 July 2007 Dr Barratt was the subject of a further Review Interview Report. Amongst other things, there was discussion about Dr Ryan's latest report. Dr Barratt apparently acknowledged his need to improve in a number of areas "as indicated by Dr Ryan". There was no complaint by Dr Barratt at that stage concerning Dr Ryan. 64Also in the report it was noted that Dr Barratt had ceased seeing his psychiatrist. The reviewers encouraged Dr Barratt to find another treating psychiatrist "... as a matter of urgency". Notwithstanding that recommendation, the reviewers concluded that Dr Barratt's mental health and physical health appeared to be stable. 65On 10 December 2007 Dr Fisher again examined Dr Barratt. Amongst other things, the subsequent report addressed Dr Barratt's attitude to his previous relationship with Patient K and the outstanding resolution of the consequent complaint. Apart from recommending that Dr Barratt should remain on the Impaired Registrant's Program, Dr Fisher expressed concern about Dr Barratt's perspective as to what was ethical and appropriate behaviour. 66On 14 December 2007 a Supervision Report was submitted in relation to Dr Barratt for the period 1 March to 31 August 2007. This report was not completed by Dr Ryan because he was absent from the hospital for at least part of that period. The reports was completed by Dr Kennedy - one of the two doctors assisting Dr Ryan to supervise Dr Barratt. Dr Kennedy reported that Dr Barratt was "performing well clinically" and that "by and large he knows when to seek assistance". Dr Kennedy also noted that Dr Barratt "occasionally needs to be reminded to use protocols ..." but having said that he went on to say "... but so do all of the RMOs". 67On 13 December 2007 a Supervision Report was submitted concerning Dr Barratt for the period June to September 2007. To an extent therefore it overlapped the report referred to in the preceding paragraph. As with that report, this report was not prepared by Dr Ryan but rather by Dr Trethewy, the other doctor assisting Dr Ryan in that respect. Dr Trethewy noted that Dr Barratt performed "at an appropriate level" but "... needs to be reminded to use protocols". Otherwise the report was not adversely critical of Dr Barratt. 68Also on 13 December 2007 a Supervision Report was submitted by Dr Ryan in respect of Dr Barratt for the period September to December 2007. It was to similar effect to that of the two reports immediately referred to in these reasons. Dr Ryan noted that Dr Barratt's work performance was "reasonable"; although he did note that "frequent reminders" were needed so far as compliance with guidelines and consulting with supervisors was concerned. Dr Ryan noted that there were "no recent significant difficulties" (emphasis added). 69On 1 January 2008 Dr Barratt treated Patient C in the Emergency Department. Patient C had been transferred to the Tamworth Hospital from a smaller rural hospital with cellulitis and signs of sepsis. Dr Barratt examined Patient C, performed some tests and made a diagnosis of infection and venous thrombosis. He decided the patient should be returned to the small rural hospital. Contrary to hospital guidelines and the level 1 supervision restrictions, a senior doctor was not notified and the patient was returned to the smaller hospital. Two days later, because of a significant deterioration in Patient C's condition, the patient was transferred back to Tamworth Hospital. He was found on re-admission to have a dangerously high potassium level. 70On 2 January 2008 Dr Ryan telephoned a monitoring officer in the Medical Board following a meeting which he had with Dr Barratt. In that meeting Dr Barratt alleged that he felt intimidated by Dr Ryan and wanted to have a mediator present during the course of any of their further meetings. Dr Ryan informed the monitoring officer that that demand of Dr Barratt would make it difficult for him to continue as Dr Barratt's supervisor. 71On 3 January 2008 a review interview with Dr Barratt was conducted. It generally reviewed the various documents referred to above, including the file note of the telephone conversation between the monitoring officer and Dr Ryan the previous day. Amongst other things, it noted that Dr Barratt had a new treating psychiatrist, Dr Huntsman. In the result, the reviewers recommended no change to Dr Barratt's then current conditions of practice. 72In late January 2008 Dr Barratt placed a card in the mailbox of female locum SRMO. It was a highly offensive communication, not least because in it Dr Barratt offered to perform cunnilingus upon that staff member. 73On 30 January 2008 Dr Ryan wrote to the Medical Board informing it that he had terminated his supervisor relationship with Dr Barratt and that as no other senior clinician was willing to take on that role, and as that was a condition of his registration, Dr Barratt had ceased working at the Emergency Department of the Tamworth Base Hospital that day. 74In the letter Dr Ryan noted that for the first twelve months Dr Barratt functioned well at Junior Medical Officer Level within the Emergency Department. However, in the second twelve months, he recorded his concern about Dr Barratt's performance. Three particular matters were noted by Dr Ryan in his letter in that regard. First, there were three "significant clinical events" (they being the incidents involving patients A, B and C). Secondly, there were the allegations by Dr Barratt that Dr Ryan was "a bully and intimidator". Thirdly there was the card to the female locum SRMO to which reference is made in paragraph 72 above. 75Following his termination of employment at the Tamworth Base Hospital on 30 January 2008, Dr Barratt submitted an application to the Medical Board for a request to work in general practice. He apparently nominated two general practices where he could work part-time and would be supervised. 76Following the report of Dr Fisher of 13 December 2007, a counselling interview was conducted with Dr Barratt on 11 March 2008. In the report subsequently prepared, amongst other things, the panel noted Dr Barratt's limited insight into interpersonal relations. The panel concluded that it was not satisfied that he could work independently and without supervision. The panel made it clear to Dr Barratt that the purpose of the interview was not to consider his application for employment in general practice. However, the panel "strongly advised" Dr Barratt to reflect upon the issues raised in that counselling - namely the relationship he had formed with Patient K; the three clinical events raised by Dr Ryan; the deterioration in his relationship with Dr Ryan, including his tendency to not discuss clinical issues with supervisors; and the card that the had sent to the female locum doctor. 77Dr Barratt's application for part-time supervised employment in general practice was apparently approved by the Medical Board subject to conditions, including supervision by an approved supervisor. He commenced a position as a general practitioner at a bulk-billing general practice in Tamworth on 6 June 2008. His nominated supervisor in that practice was Dr Bumak. 78Shortly after Dr Barratt commenced employment in the Tamworth general practice, he was reviewed again by Dr Fisher on 10 June 2008. In this session, apart from discussing the new employment position which Dr Barratt had obtained, Dr Fisher discussed with him the circumstances in which he ceased employment at the Tamworth Base Hospital, including his relationship with Dr Ryan and the card that he had sent the female medical practitioner. In his subsequent report Dr Fisher expressed concern "again" as to Dr Barratt's "clear difficulty with recognising and respecting interpersonal boundaries in the professional context". He described Dr Barratt's behaviour as "recidivistic". Dr Fisher ultimately concluded his report with the following: "We are left then with a 61 year old doctor who, according to his supervising consultant at Tamworth Base Hospital, has displayed only marginally acceptable clinical skills and there have been at least 3 incidents described by Dr Ryan as 'near misses', where patients had serious illnesses which were not diagnosed by Dr Barratt and could have led to serious morbidity or mortality. This has been combined with at least 3 known episodes of sexually inappropriate behaviour by Dr Barratt in the professional context. Quite frankly I am not sure what Dr Barratt has to do before he is deemed not fit to practice medicine." 79We pause here to observe that although Dr Barratt in his opening address to the Tribunal accepted that the Commission had made out all of the matters in the complaint (including the three incidents involving patients A, B and C), in his written submissions he was keen to emphasise that his admitted "errors of judgment" with respect to those patients "caused no adverse outcomes". In this regard Dr Barratt even now totally fails to appreciate the seriousness of those errors. 80In this regard we have not overlooked the delay between the events and Dr Ryan's reporting of them. This delay does not cause us to doubt the seriousness of the incidents. We are of the opinion that Dr Ryan was in error in not earlier reporting those incidents. We are also of the opinion that the delay was caused by a misguided concern for Dr Barratt - a concern inconsistent with Dr Barratt's complaint about bullying from Dr Ryan. 81On 12 June 2008 Dr Bumak sent an e-mail to the Medical Board. In it he expressed disappointment that he had not been made fully aware of "real concerns" about Dr Barratt's ability to perform as a doctor. Further, he noted that following two sessions with Dr Barratt in which they had together gone over cases that Dr Barratt had seen he (Dr Bumak) was "... surprised at [Dr Barratt's] lack of medical knowledge". Additionally, Dr Bumak raised a matter already referred to in this judgment, namely Dr Barratt's lack of insight into his deficiencies. So concerned was Dr Bumak about these matters that he indicated in the e-mail that he would cease being Dr Barratt's supervisor (and necessarily employer) by close of business the following day 13 June 2008. 82A review interview was conducted with Dr Barratt on 8 July 2008. At that stage he was not working but was negotiating with a general practice in Glenn Innes to work there. Amongst other things, the panel considered the conclusions of Dr Fisher in his report to the Medical Board of 11 June 2008. Although the review panel recommended no change to Dr Barratt's registration condition, they did consider "... that the concerns identified by Dr Fisher are of profound significance and from the Board's perspective directly raise the issue of whether Dr Barratt should be practising medicine". 83On 11 August 2008 Dr Barratt wrote to the Medical Board in response to the e-mail which Dr Bumak had sent on 12 June 2008 (that e-mail apparently having been obtained by Dr Barratt following a Freedom of Information Act request). Dr Barratt disputed Dr Bumak's criticisms as to his (Dr Barratt's) lack of medical knowledge. Dr Barratt referred to Dr Bumak's "rudeness and arrogance" and "... dangerous level of clinical incompetence". Amongst other things, in that lengthy e-mail Dr Barratt said of Dr Bumak: "The criticisms he has made consist of lies, misrepresentations, or matters of clinical irrelevance that do not need to be dignified with a response. It appears that Dr Bumak has abused the position of trust and responsibility placed on him by the Board, to make malicious and destructive criticisms of me, 'because he can'." 84On 21 October 2008 the health committee of the Medical Board requested Dr Michael Diamond to review Dr Barratt's file held by the Board. 85The report which Dr Diamond prepared on 11 December 2008 following that review is an important document. In the report Dr Diamond clearly referred to the more important events involving Dr Barratt and which have been in a large part set out in these reasons. The following extracts from the report are important to note: "I note that over the years Dr Barratt has been assessed by 3 experienced Board-nominated psychiatrists. In each case he has been viewed sympathetically initially as an individual with substance abuse and addiction problems. There may well have been other significant psychological stressors in his life. The Board-nominated psychiatrists were all supportive and accepting of him. In each case however they became aware of his persistent breaching of conditions and a pattern of behaviour, related to his personality function that impeded a meaningful recovery and kept him in conflict with the Board. This repeated pattern of dysfunctional and disingenuous behaviour on the part of Dr Barratt is prima facie evidence for a personality disorder as identified by Dr Fisher. It goes directly to the issue of character and ultimately suitability to practise medicine competently and safely. The implications of this raise the need for public protection clearly in my opinion. Dr Barratt has not learned from his mistakes ..." 86Dr Diamond then referred to the "interaction" between Dr Barratt and Patient K. Amongst other things, Dr Diamond said: "It represents a startling level of insightlessness and ultimately recivitism since he has repeated this behaviour by inappropriately pursuing women in the workplace over the years. He has done this by failing to appreciate the impact of his conduct has on his patients and work colleagues whilst putting his own needs ahead of those he targets." 87The report continued: "The recent communications from his supervisors, Drs Ryan and Bumak are of particular significance. They identify the shortcomings in his clinical practice with the potential for severe consequences for patients. Their communication should be appreciated in detail since they clearly describe their concerns when dealing with Dr Barratt. The extent of their concerns goes beyond his clinical performance. In both cases they identify Dr Barratt's inability to comply with the supervisory comments, to not take sufficient notice of clinical guidelines and recommendations and to carry out medical practice in an idiocratic, individualistic way that does not meet peer expectations for patient care. ... Dr Barratt's response to this reality, which in effect relates to his personality function, his performance as a medical practitioner and his attitude, is to become litigious, blaming of his critics and of the registration body when it questions his capacity to function as a medical practitioner and to perform safely in the workplace. He has shown no propensity to examine his own shortcomings. His response is to blame others and to claim that he is being treated unfairly. The above represents the summary of a long established pattern of behaviour in an individual who has shown impairment and conduct difficulties in relation to his practise of medicine. My opinion is that Dr Barratt does not allow the Board to be confident that he is able to practise safely and in the interests of the public. This raises direct questions of public protection in the first instance. His current conditions make it difficult for him to practise at this point but they do not prohibit him to do so. It should not however be construed that this is sufficient constraint for Dr Barratt not to place the public wellbeing at risk. He lacks insight and remains insistent that he is being treated unfairly. His entitlement to practise ought to be addressed as a matter of urgency ... ... I note that in the past Dr Barratt has managed to avoid a full and comprehensive assessment of these issues and has shifted the focus from his own difficulties and conduct to allegations that he is being persecuted and treated unfairly. ..." 88Following the receipt of Dr Diamond's report, the Medical Board determined to conduct section 66 proceedings on 8 January 2009. Before those proceedings formally commenced, however, Dr Barratt requested that his name be removed from the Register. The section 66 proceedings therefore did not proceed to completion. However, it is significant to note that the delegates appointed to conduct that inquiry had identified three main categories of concern which they wished to investigate: health, conduct, and performance. Furthermore, although the members of the Board who were to conduct the inquiry had not had the benefit of hearing any submissions from Dr Barratt, they were unanimous in their conclusion that the matters warranted investigation and recommended that a formal complaint be made by the Medical Board to the Health Care Complaints Commission. 89On 28 March 2011 Dr Barratt made application for general registration as a medical practitioner. His application was supported by a letter from Dr Brownlie, Dr Barratt's general practitioner. In addition, Dr Barratt relied upon a report from Dr Huntsman dated 1 March 2011. Dr Huntsman's covering letter of 10 August 2011 made it clear that Dr Barratt was not currently under his care. Dr Huntsman's report provided a provisional diagnosis: "I do not feel that [Dr Barratt] had a psychotic illness or mood disorder. I also do not feel that there is any evidence to support cognitive impairment or frontal lobe dysfunction." 90Dr Barratt also relied upon a report of Dr Langluddecke, a clinical psychologist dated 2 September 2011. Amongst other things, Dr Langluddecke noted that as a result of her assessment "there were no behavioural signs of executive dysfunction during testing, and in particular, no deficiencies in insight/social judgment or impulse control"; "there were no overt signs of cognitive impairment, emotional disturbance, intoxication, or executive dysfunction". However she did conclude: "A psychological relevance regarding Dr Barratt's suitability for re-registration as a medical practitioner are: (1) his ongoing reliance on opioid analgesics given his previous history of opioid dependence/abuse, and (2) history of substance abuse and 'errors of judgment' in relation to female patients and staff suggestive of personality traits which predispose to poor impulse/self-control." Dr Langleddecke's report did not of course purport to make any assessment of Dr Barratt's competence as a medical practitioner. 91On 12 December 2011 (as indicated in the first paragraph of these reasons), the New South Wales Board of the Medical Board of Australia refused Dr Barratt's application for general registration. The Evidence on the Appeal: 92In addition to the written reports of his general practitioner, treating psychiatrist and Dr Langleddecke, Dr Barratt tendered a number of other documents in support of his appeal (exhibit A). Those documents included, but were not limited to, two undated submissions (being Tabs 10 and 13 of Exhibit A), a letter from Dr Barratt to the Department of Health dated 22 March 2000, the results of an MRI brain scan, a number of documents in the nature of references, correspondence from Dr Barratt to Ms Harvey of the Medical Council dated 4 February 2011 and to Dr Ryan dated 21 February 2011, and a report by Mr Parkhurst, a psychologist, dated 27 February 2012. 93In addition to the documentary material to which reference has just been made, Dr Barratt gave oral evidence and was cross-examined at length. 94Responding to the application the Medical Board tendered 38 documents (exhibit 1). 95Additionally, oral evidence was given by Dr Ryan, Dr Fisher and Dr Diamond. Dr Barratt cross-examined each of those witnesses. The Legislative Framework: 96Before considering the merits of the appeal it is necessary to say something about the nature of an appeal under section 175 of the National Law and the onus of proof in relation to any such appeal. It is important to note that the "paramount" consideration in any such appeal is "the protection of the health and safety of the public (cf s.3A of the National Law). 97The Tribunal can be relatively brief in relation to those matters because they were not the subject of any controversy (although bearing in mind Dr Barratt was not legally represented, the absence of controversy is not as significant as it might otherwise have been). 98It was submitted on behalf of the Board that an appeal under section 175 of the National Law should be conducted as a de novo hearing and that at the conclusion of that appeal it should determine for itself, after having regard to all of the evidence which is available to the Tribunal at the time of the hearing and the submissions made, whether the appellant applicant was suitable for registration. It was further submitted in this context that it was not necessary for an appellant in the position of Dr Barratt to establish error in the decision of the Board. 99The Tribunal accepts those submissions as a correct statement of the law. 100The Board also submitted that because this is Dr Barratt's appeal against a refusal to be registered, he bears the legal onus of proving that he is a suitable person to be registered. 101The Board did, however, submit that in relation to particular matters of fact raised by the Board against Dr Barratt's suitability or fitness to be registered, those particular matters placed an evidentiary onus on the Board. 102Again the Tribunal accepts those submissions as being correct statements of the law. 103However in the present case, to a very significant extent, questions of onus of proof do not arise because most of the factual material was admitted by Dr Barratt - although in some instances with qualifications. 104Part 7 Division 1 of the National Law is concerned with the registration of health practitioners, and in particular general registration. 105Section 52 of the National Law sets out statutory criteria for eligibility for registration in a health profession. Amongst other things, such an individual must be "a suitable person to hold general registration in the health profession" (cf section 52(1)(c)). 106Section 55 of the National Law sets out criteria for unsuitability to hold general registration. Relevantly, an individual is not a suitable person to hold general registration in a health profession if that individual "is not a fit and proper person for general registration in the profession; or is unable to practise the profession competently and safely" (cf section 55(1)(h)). 107In addition, an individual is not a suitable person to hold general registration in a health profession if that individual's nature, extent, period and recency of practice of the profession is not sufficient to meet the requirements specified in an approved registration standard relevant to the general registration in that profession (cf section 55(1)(f)). 108In the instant case the Board called in aid both of those specific criteria to contend that Dr Barratt's application for registration should be refused. Fit and Proper Person: 109The Board relies upon three specific "incidents" to support its submission that Dr Barratt is not "a fit and proper person". 110In addition to those three incidents, the Board submits that Dr Barratt's general character flaws are such that he is not a "fit and proper person". 111The first "incident" upon which the Board relies is in fact three separate but nevertheless related events, namely the three letters sent to a female employee of the Pathology Department of the New England Area Health Service in February, September and December 2006. 112The employee who received these letters was a scientist who worked in the pathology service which analysed the urine samples which Dr Barratt was required to submit as a condition of his earlier registration. There is no suggestion that the scientist welcomed these pieces of correspondence; and indeed in the third letter Dr Barratt appears to acknowledge that they were greatly resented. 113Dr Barratt accepted that in sending those letters he exercised "poor judgment". The Tribunal accepts that submission. 114The Board submitted that "these letters are not significant in and of themselves in terms of Dr Barratt's behaviour. Rather, their significances lies in the context that they provide in which later acts of impropriety occurred". 115The second incident relied upon by the Board concerns the affair which Dr Barratt had with patient K. It is to be recalled that at the time he treated that patient he was subject to level 1 supervisions. Although the condition which the patient presented was sunburn, the examination was excessive both in terms of time involved and the subject matters covered. Somewhat unusually, Dr Barratt accepted an invitation from the patient and her husband to visit them at their home. Dr Barratt did not think it was appropriate or necessary to seek the guidance of a supervisor before accepting that - and the subsequent invitations notwithstanding his level 1 supervision condition. 116After a period of about 3 or 4 weeks of such social interaction a physical affair began between Dr Barratt and that patient which continued until late May 2007. 117Dr Barratt accepts that it was inappropriate for him to enter into a relationship with that patient. He acknowledged that the inappropriateness arose because of the imbalance of power in the relationship. Further, he accepts that the relationship was contrary to the (then) New South Wales Medical Board Sexual Misconduct Policy. 118The third incident upon which the Board relies occurred in January 2008. It was on that date that Dr Barratt sent the sexually explicit card to a female locum doctor working at the Tamworth Emergency Department. It is significant to note that that incident occurred approximately 8 months after the section 66 Inquiry which referred Dr Barratt's affair with patient K to the HCCC for investigation. 119As we already noted, Dr Barratt accepts that he demonstrated "poor judgment" in relation to each of these three incidents. 120However, he sought to explain that "poor judgment" as being caused by "emotional instability" from which he was suffering at the time. Dr Barratt has asserted that that emotional instability resulted from a number of factors: (a) the course of interferon which he underwent for his hepatitis C; (b) bullying at his workplace; (c) being socially isolated from his family and lonely; (d) suffering from chronic pain; and (e) mourning the death of his mother. 121Dr Barratt nominated (a) and (b) above as being the most important factors so far as he was concerned in the creation of the relevant "emotional instability"; and indeed he identified the interferon as the "primary" cause of that instability. 122We accept that patients who undergo courses of interferon may suffer side effects such as mood swings and lethargy - at least during the administration of that course. So much was established in the evidence of Dr Fisher. 123In the present case, however, that course of interferon commenced in June 2005 and ceased in May 2006. Only the first of the three letters to the pathologist was sent in this period. 124There is no expert evidence that any side effects from interferon insofar as mood swings were concerned would still be effective in September 2006 and beyond. The only evidence in that regard is the self-serving evidence of Dr Barratt himself upon which the Tribunal does not place great weight. 125In part the Tribunal has come to that latter conclusion because Dr Barratt was seeing two psychiatrists in the period 2007 and 2008, namely Dr Evans and Dr Huntsman. Dr Barratt did not inform either of those psychiatrists about any mood swings that he may have been having. 126In his evidence before this Tribunal, Dr Barratt sought to explain his failure to inform Dr Huntsman about mood swings which he (retrospectively) said he was experiencing because he didn't want Dr Huntsman to be reporting that back to the Medical Board. Later in his evidence Dr Barratt said that he had been mistaken in that particular piece of evidence. He said that he would not have been concerned about Dr Huntsman reporting to the Board because Dr Huntsman did not report back to the Board. That evidence was factually not correct. The Schedule 1 Inquiry decision of 9 June 2005, pursuant to which Dr Barratt was permitted to practice at the Tamworth Base Hospital, produced a report which contained the following: "In respect of ongoing monitoring of Mr Barratt's heath and mental and physical capacity to practice medicine, the inquiry believes it is important for Mr Barratt to not only be regularly reviewed by the Board and the Board-nominated psychiatrist, but also to maintain regular contact with his own treating practitioners, who would be able to report any lapses by Mr Barratt in respect of compliance with treatment and/or conditions, or any other concerns about Mr Barratt's competency to practise to the Board." (see page 15 of the report) "Health Conditions ... (b) To attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating psychiatrist, and to notify the Board of the name of the psychiatrist. He is to authorise the treating psychiatrist to inform the Board of failure to attend for treatment, termination of treatment or of any significant change in health status. He is to consult the treating psychiatrist at least once in three months of the date of this decision." (see page 17) "Pursuant to clause 19(3) of Schedule 1 the inquiry requests that a copy of this decision be provided to: ... 3. Mr Barratt's treating psychiatrist, as advised by Mr Barratt." 127The Tribunal is not persuaded that Dr Barratt was suffering from any ongoing significant mood swings (except possibly when he sent the first letter). If he were, he deliberately concealed them from his psychiatrist contrary to the condition of his registration and practice. 128There is a further consideration and that is that while Dr Barratt consulted Dr Fisher on many occasions in the period 2005 to 2008, on none of those occasions did Dr Barratt provide any evidence of emotional instability. 129In the absence of independent expert evidence, the Tribunal does not accept that Dr Barratt has established any causal connection between his inappropriate communications and the course of interferon which he earlier underwent. 130Moreover, even if he had established any such causal connection it would have been a matter of considerable concern to the Tribunal that Dr Barratt withheld that information from both his treating psychiatrist and Dr Fisher. If that had occurred, the only conclusion the Tribunal could have reached in the circumstances was that was done for the deliberate purpose of deceiving the Board. 131The second substantial ground relied upon by Dr Barratt to explain his inappropriate behaviour was asserted bullying by his former supervisor, Dr Ryan. 132It will be recalled by reference to paragraph 25 above that this was not the first occasion that Dr Barratt has made allegations of bullying in circumstances where he has not achieved his desired results. There is no doubt that Dr Ryan raised with Dr Barratt Dr Ryan's concerns regarding the (at least) three serious instances of misdiagnosis - misdiagnoses which could have resulted in the death of the patient. 133It will be observed, however, that in the relevant supervisor's report prepared by Dr Ryan, at the time of the first two incidents, no adverse comments concerning Dr Barratt were made. This is, as we have already said, not consistent with allegations of bullying. 134Furthermore, the Tribunal notes that Dr Barratt did not call any other member of the hospital staff to support this allegation. 135The Tribunal is not persuaded that Dr Barratt has established, on the balance of probabilities, that there was any bullying by Dr Ryan. In fact the Tribunal is comfortably satisfied having heard the evidence of Dr Ryan that there was no such bullying. 136In summary, therefore, the Tribunal finds that the three broad incidents relied upon by the Board were not caused by interferon or by bullying. Rather, the Tribunal accepts that those three incidents arose because of Dr Barratt's personality. Dr Barratt, whilst partially accepting responsibility for his behaviour, appears to have a personality trait in which he does not accept full responsibility for his own actions but, rather, seeks to attribute blame externally - whether by reference to medications such as interferon or his relationship with his supervisor or the alleged unworkability of conditions placed upon him by the Board. 137Further examples of that failure to accept responsibility for his own conduct were revealed in the course of the present hearing. 138The first example is contained in Dr Barratt's written submissions of 22 August 2012. Whereas during the hearing and in the face of the Tribunal he accepted the matters alleged by the Board had in fact occurred, in his submissions he contended that "... the concerns of the medical board were based on false, exaggerated, or misrepresented evidence". 139A second example is contained in the correspondence from Dr Barratt to the Tribunal seeking a variation of the orders concerning the provision of written submissions (MFI-1). In those submissions Dr Barratt, inter alia, said: "At the adjournment of proceedings on July 25, I was confused because it appeared that the judge was saying that my appeal would fail, even before hearing my response ..." Reference to the transcript will reveal that nowhere did the Deputy Chairperson make any such comment (in passing it might be recorded that it was that contention which caused the Deputy Chairperson to decline to make any orders in chambers but to require any application to be made in open court/tribunal). 140A third example is given in the cross-examination by Dr Barratt of Dr Diamond. The cross-examination commenced at T158. It began with a very long statement/question. The Deputy Chairperson sought to assist Dr Barratt by breaking that long statement/question into two parts. 141In responding to the (restated) second part, Dr Diamond said (T160:24): "... What I understand Dr Barratt to be putting to me is that Dr Amos and myself were to blame for the failure of his practice. There is no mention of the reason why he needed to have his prescribing rights withdrawn. Those actions were not caused by Dr Amos or by myself, those were the problems that Dr Barratt had. But by putting it to me that as a result of the withdrawal of his prescribing rights his practice then failed, its an example of how Dr Barratt blames other people for things that are fundamentally and primarily of his doing, and today, as I am question (sic) by him, the implication is the action of Dr Amos and myself at a properly convened hearing, caused his practice to fail, but there is no mention of the reasons why his prescribing rights were withdrawn in the first place, and that causes me considerable concern to hear that, to have him propose that point to me as a blame for why his practice failed." Following that answer Dr Barratt did not pursue his cross-examination of Dr Diamond. 142In addition to these matters there is a further matter which the Tribunal regards as relevant as to whether Dr Barratt is a fit and proper person within the meaning of the National Law. 143For some time Dr Barratt has been permitted to practice subject to conditions. As the background material in this decision makes clear, Dr Barratt has frequently failed to adhere to those conditions. 144In the present hearing Dr Barratt gave some very disturbing evidence in this context. In cross-examination he was asked questions about his prior breaches of prescribing conditions which led to the finding of unsatisfactory professional conduct in 2004 by a differently constituted Tribunal. Before this present Tribunal, Dr Barratt sought to explain the conduct on that occasion as a consequence of "prioritising duty of care over my restrictions" (T79.25). The cross-examiner then asked Dr Barratt about his current attitude. It is appropriate to set out the precise evidence (T80.4-.12): "Q. Dr Barratt, do you continue to hold the view that you - that it would be an appropriate exercise of - I withdraw that. Do you continue to hold the view that the patient need to obtain medication over identic(?UNCLEAR) conditions that are placed on your registration? A. Absolutely. Duty of care comes first. I am a doctor. Q. And you say that that is more important than any conditions that might be placed on you? A. Absolutely." 145The Tribunal is satisfied in these circumstances that the Board has proved the factual matters upon which it relies in asserting that Dr Barratt is not a fit and proper person to be registered. Dr Barratt has failed to prove that he is a suitable person to be registered. Unable to practise the profession competently and safely: 146Earlier in this decision we referred to three instances relied upon by the Board as giving rise to concern about Dr Barratt's competence. It is appropriate to provide further details. 147In paragraph 48 reference was made to Patient A, the elderly gentleman who presented suffering from chest pains. 148As then noted, the patient presented with left anterior chest pains which were described as "constant, sharp, no radiation and no associated symptoms". Dr Barratt ordered an ECG which, although it did not show "acute changes of myocardial infarction" was, nevertheless, not a normal ECG. 149Dr Barratt accepted that that patient was at least of "intermediate risk" and that his discharge of the patient without performing further tests contravened the relevant guideline. Dr Barratt accepted that his decision to discharge the patient in those circumstances was a serious error of judgment. Even more disturbing was the fact that the decision to discharge had been made without Dr Barratt consulting a supervisor - notwithstanding his level 1 category. 150All that Dr Barratt could say in this regard was that the patient was "very persuasive". 151In seeking to explain why he had not spoken to a supervisor, Dr Barratt referred to a recurrent (and from the Tribunal's perspective, disturbing) theme, namely he "took it on [his] own shoulders as [he] had been always doing [his] years of general practice" (T52.35). 152At paragraph 52 above, the Tribunal referred to the incident involving the discharge of a baby with fever. The baby's mother had reported to Dr Barratt that the child had been suffering from a fever of 39.5 degrees Celsius. Dr Barratt did not record that history. Rather, he simply recorded that the baby had a "fever". Dr Barratt correctly accepted his failure to record the baby's previous temperature as a "serious omission". 153The triage reports recorded that the baby had had Panadol at 1900 hours and that, on examination by the triage nurse, the baby's temperature was 36.4oC. Significantly, the notes also recorded the baby's pulse at 187 beats per minute. Dr Barratt correctly accepted that this indicated tachycardia. 154Disturbingly, Dr Barratt's notes were that the baby was "stable". However, in evidence he admitted that he had not measured the baby's pulse, had not noticed the baby's pulse was 187 beats per minute, and was aware that the baby's current temperature was 36.4oC. In evidence before the Tribunal Dr Barratt admitted that it was wrong to describe the baby's condition as stable. 155Dr Barratt discharged the baby into the care of her mother without speaking to a more senior doctor. The discharge of the baby, having regard to the fever of 39.4oC was contrary to the relevant guideline. Furthermore, discharge without senior review was also contrary to the guideline. 156By having regard to the baby's temperature and the fact that the baby was tachycardic, the discharge of this child seriously jeopardised her health and safety. Any competent practitioner would know that fever in an infant can be particularly dangerous as infection rates spread rapidly in the very young. Indeed, in this case, the baby's mother returned to Emergency the following day and the child was found to be suffering from sepsis. 157Dr Barratt's only explanations for his conduct (apart from the emotional instability issue which the Tribunal has already discussed) was that he was misled by the triage category (it appears that the baby was wrongly given a triage category of 4) and that he was suffering from sleep deprivation. 158The Tribunal does not accept that either of those explanations excuses Dr Barratt's conduct. In cross-examination Dr Barratt properly conceded that any error of a triage nurse did not excuse errors by him. As to the alleged sleep deprivation, the Tribunal has reservations about Dr Barratt's evidence on this and all the topics unless independently corroborated. There is no evidence that Dr Barratt was working unusually long shifts. There is no evidence that Dr Barratt spoke to anybody about his difficulty in sleeping. However, if Dr Barratt were suffering from sleep deprivation, he ought to have been aware that that would make him less capable of making sound medical decisions and he ought to have brought it to the attention of his supervisors, which he did not. 159At paragraph 69 above reference was made to the discharge of an elderly patient who had been transferred from a smaller hospital. On admission to the Tamworth Base Hospital Dr Barratt arranged for blood tests to be taken. Those blood tests showed a high potassium level - high potassium is of itself potentially life-threatening, and may also indicate a serious level of renal impairment. 160Dr Barratt saw those blood tests but, nevertheless, he discharged the patient - and without reference to a supervisor. 161Each of these three matters constitute grave errors of judgment on the part of Dr Barratt which he admits (the error, not the gravity). Each of them had potentially life-threatening consequences which were not recognised at the time by Dr Barratt. In two of the situations Dr Barratt ignored relevant and applicable guidelines concerning the appropriate action to be taken. And in each case he failed to consult a supervisor prior to making the decision to discharge. 162Dr Barratt's only "explanation" for these events was that he had examined a large number of other patients with no apparent adverse outcomes. In the Tribunal's opinion this is rather beside the point. The three incidents were each very serious errors of judgment; and Dr Barratt's reaction to it calls into question (yet again) the seriousness of what occurred, particularly as they had occurred within a twelve month period. 163Dr Barratt has not satisfied the Tribunal that he can practise medicine competently and safely. Recency of practice: 164On 1 July 2010 the Medical Board of Australia issued a "Recency of Practice Registration Standard". The standard is concerned with the circumstance of a medical practitioner having been away from practice returning to practice. In the circumstance where the practitioner had at least two years experience prior to his absence from practice (which is the present case) then if the relevant absence is between 1 and 3 years, the practitioner "must have completed a minimum of one year's pro-rata CPD activities prior to recommencement designed to maintain and update knowledge and clinical judgment". If the practitioner's absence from practice is for more than 3 years, the practitioner "must provide a plan for professional development and for re-entry to practice" to the Board for its consideration. 165As the Board submitted, there is some ambiguity in the standard in determining the length of the relevant "period of absence". For example, is the start date to be when Dr Barratt last practised as a medical practitioner (June 2008) or when he relinquished his registration (in January 2009)? Is the end of the period the application for registration (28 March 2011) or the date of hearing (concluding 25 July 2012). 166The period of absence is important because of the different requirements (more onerous) if the absence is greater than three years. 167In Dr Barratt's case the period of time between his relinquishment of registration and his application for re-registration is 2 years and 10 months; whereas the period of time between his relinquishment of his registration and the date of hearing is approximately 3 1/2 years; and the period of time from when he last practised medicine to the date of hearing is approximately 4 years. 168In the circumstances of the present case, it is not strictly necessary for the Tribunal to resolve that issue of construction (a matter upon which Dr Barratt made no submission). This is because even if the relevant period of absence is 2 years and 10 months, Dr Barratt has not proved that he has undertaken a minimum of 1 year's pro-rata of CPD activities prior to recommencement. Specifically, he has not completed any formal CPD training since December 2007 when he completed some Emergency Life Support training. After that time, there was only informal CPD activities in the nature of clinical meetings and grand rounds in January 2008 and one-on-one supervision with Dr Bumak in 2008. Whether the application should be granted subject to conditions: 169As indicated earlier in our decision, Dr Barratt, with some equivocation during the course of the hearing, in substance conceded that the various matters relied upon by the Board had been made out. 170The main thrust of Dr Barratt's submissions, both at the commencement of the hearing, during the examination of the witnesses, and in his final written submissions was that the matters complained of were such that the protection and health and safety of the public, being the paramount consideration to the Tribunal, could be protected by the imposition of conditions. 171Dr Barratt has been on conditional registration for all but 2 of the 29 years that he has practised. He has breached his conditions on numerous occasions leading to Tribunal findings against him in 1981 and 2004 and numerous professional misconduct proceedings against him. 172In all of the many proceedings brought against Dr Barratt, he has ultimately not contested any of the adverse allegations made against him. He has consistently admitted wrongdoing or error and has repeatedly been granted the indulgence of practice upon condition (apart from the first decision of the Medical Tribunal in September 1981). 173This Tribunal is satisfied that on those previous occasions Dr Barratt has either accepted the imposition of conditions with a mental reservation as to his obligation to adhere to them; or he has been dishonest in indicating an intention to adhere. For the purposes of this Tribunal it is not necessary for the resolution for those alternatives to be made - either is sufficient to be of concern. 174Of pressing importance are the following two considerations. 175First, his reference to the Tribunal which last imposed conditions upon him as being a "sham Tribunal" is of considerable concern. 176Second, his admission even in the present proceedings that his perception of his duty of care to his patients would override any condition attending upon his right to practise is of even more concern. Conclusion: 177In the result, therefore, the Tribunal is of the opinion that Dr Geoffrey Barratt is not a suitable person to hold general registration in a health profession. 178The Tribunal accordingly confirms the decision of the Medical Board of Australia made on 12 December 2011 to refuse to grant an application for general registration to Dr Geoffrey Barratt. Costs: 179The Board has sought an order for costs. Dr Barratt's submissions do not address this issue, but the Tribunal has assumed he opposes any such order. 180The Board submitted that the usual rule that costs follow the event and that the impecuniosity of an unsuccessful party is not a relevant consideration for not applying that usual rule: see Ohn v Walton (1995) 36 NSWLR 77; Health Care Complaints Commission v Dr Perroux (No. 2) [2011] NSWMT 15. We accept that submission. Orders: 181The appeal is dismissed. 182The appellant, Dr Geoffrey Barratt, is to pay the respondent's costs, as agreed or in default of agreement, as assessed. ********** Amendments 19 November 2012 - corrected typographical error in Catchwords and added applicants details to Representation Amended paragraphs: coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2012