Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bours (No2) [2015] NSWCATOD 80 Hearing dates: 19-20 February 2015 Decision date: 05 August 2015 Jurisdiction: Occupational Division Before: J Hughes, Principal Member V du Toit, Professional Member L Taylor, Professional Member M Turner, Lay Member Decision: 1. Reprimand: On 13 October, 2014 the Tribunal in HCCC v Bours (No.1) [2014] NSWCATOD 113 made a finding that the Practitioner has engaged in unsatisfactory professional conduct and professional misconduct, and consequent upon those findings the Practitioner is reprimanded as a mark of the Tribunal's strong disapproval of the offending conduct. 2. Pursuant to s149C(a)(b) the Practitioner's registration as a podiatrist is suspended for a period of one year, to commence one week from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, such that the suspension period commences on 12 August 2015. During the one week period before the commencement of the suspension the Practitioner is only to consult patients for the purpose of providing referrals to other practitioners, and to attend to patients with appointments or surgeries that were already booked as at the date of these orders for that week 3. The Practitioner is ordered to pay the costs of the HCCC as agreed or assessed. If agreement cannot be reached between the parties then the parties have leave to apply to the Tribunal for assessment unless some other assessment mechanism is provided for at the relevant time. 4. After the expiration of the suspension in accordance with Order 2 of HCCC v Bours (No.2) [2015] NSWCATOD 80 the Practitioner's registration is to be subject to the following conditions: (a) the Practitioner may not perform or assist with or in any other way practice podiatric surgery for a period of two years from the date upon which the initial one-year suspension of registration made in Order 2 of HCCC v Bours (No.2) [2015] NSWCATOD 80 expires until 11 August, 2018. This condition does not preclude the respondent from practising as a general podiatrist after the period of suspension has expired including performing minor toenail surgery, but only if it is in the course of general podiatry; (b) the Practitioner shall not for a minimum period of four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August 2019, obtain, possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW); (c) the Practitioner shall not for a minimum period of four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August 2019, obtain, possess, supply, administer or prescribe any Schedule 4 or Schedule 4 Appendix D drugs as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW), except where permitted in the routine practice of general podiatry for minor toenail surgery; (d) Orders 4(b) and (c) are critical compliance conditions within the meaning of s.149A(4) and (5) of the National Law, such that a contravention of either order will result in the Practitioner's registration being cancelled. (5) The Practitioner is not to apply for a review of Orders 4(b) and (c) for a minimum period of four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August 2019. After four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August 2019, the Practitioner may apply to the Podiatry Council of NSW (if his principal place of practice is NSW) or the Podiatry Board of Australia (if he resides in any other jurisdiction) to have orders 4(b) and (c) reviewed. (6) The Tribunal made a non-publication order pursuant to Schedule 5D, clause 7 of the National Law, preventing the publication of the names of the four patients referred to in the schedule to the Complaint before the Tribunal, who are referred to as Patients A, B, C and D in these reasons for decision. The non-publication order extends to publication of the names of the mother and daughter of Patient B, referred to as Mother B and Daughter B. (7) The Registrar, Occupational Division, NSW Civil and Administrative Tribunal is requested to forward a copy of this decision and these orders together with details of the practitioner's name to AHPRA with a request that it note Orders 1, 2 and 4 of these Orders on the Register. (8) The Registrar, Occupational Division, NSW Civil and Administrative Tribunal is requested to forward a copy of this decision (HCCC v Bours (No.2) [2015] NSWCATOD 80, and the stage one reasons for decision (HCCC v Bours (No.1) [2014] NSWCATOD 113) to the Australasian College of Podiatric Surgeons and to the Pharmaceutical Services Unit of the NSW Department of Health. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW); where practitioner has been found guilty of unsatisfactory professional conduct and professional misconduct; where HCCC seeks orders that the practitioner's registration be cancelled; suspension or cancellation of registration; whether there may be punitive effects through exercise of protective jurisdiction; professed change of insight and contrition between first and second stage hearings; evidence of insight and contrition; breaches of Poisons and Therapeutic Goods Act 1966 (NSW); harassment of expert witness interfering with quasi-judicial process; critical compliance conditions; general deterrence; costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW); Health Practitioner Regulation National Law 2009 (NSW); Poisons and Therapeutic Goods Act 1966 (NSW); Cases Cited: A Solicitor v The Council of the Law Society of NSW (2004) 78 ALJR 310 Clyne v. New South Wales Bar Association (1960) 104 CLR 186 Director-General, Department of Ageing, Disability and Home Care v. Lambert (2009) 74 NSWLR 523 Donnelly v. HCCC [2010] NSWSC 70 Dr Tan Thanh Le and the Medical Practice Act 1992, unreported, Medical Tribunal, 20 September, 2001 HCCC v Bours (No.1) [2014] NSWCATOD 113 HCCC v. Cieslak [2013] NSWNMT 23 HCCC v Fraser (No 2) NSWCATOD 84 HCCC v Jane Waddell (No 2) [2013] NSWNMT 2 HCCC v Karalasingham [2007] NSWCA 267 HCCC v King [2011] NSWCA 353 HCCC v. Litchfield (1997) NSWSC 297; 41 NSWLR 630 HCCC v. O'Hagan [2010] NSWNMT 37 HCCC v. Philipiah [2013] NSWCA 342 HCCC v. Rolleston [2013] NSWMT 12 Law Society of NSW v. Foreman (1994) 34 NSWLR 408 Lee v HCCC [2012] NSWCA 80 Lucire v HCCC [2011] NSWSC 99 NSW Bar Association v Meakes [2006] NSWCA 340 Oshlack v Richond River Council (1998) 193 CLR 72 Re Dr Parajuli [2010] NSWMT 3 Re Wendy Anne Wright [2011] QSC 34 Rich v ASIC [2004] HCA 42; [2004] 220 CLR 129 Zaidi v. HCCC (1998) 44 NSWLR 82 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Paul Bours (Respondent) Representation: Counsel: S McNaughton SC (Complainant) P Strickland SC and N Broadbent (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Beilby Poulden Costello (Respondent) File Number(s): 1420021 Publication restriction: Non publication order in respect of patients named in the complaint and their family members who gave evidence. rEASONS FOR DECISION What the Tribunal Decided 1. Consequent upon findings on 13 October, 2014 (HCCC v. Bours (No.1) NSWCATOD 113) of unsatisfactory professional conduct and professional misconduct, the Tribunal reprimands the practitioner as a mark of its strong disapproval of the offending conduct. The nature and detail of this reprimand is contained at [161] of these reasons, and the fact of the reprimand will be recorded on AHPRA's register of practitioner's. 2. Pursuant to s149C(a)(b) the practitioner's registration as a podiatrist is suspended for a period of one year, to commence one week from the date of these orders. 3. After the expiration of the one-year suspension the practitioner's registration is to be subject to conditions. These conditions include that the practitioner may not perform or assist in the practice of podiatric surgery for a period of a further two years. This means that the practitioner may return to general podiatry, but may not perform or assist in podiatric surgery in any way, with the exception that the practitioner may perform routine toenail surgery, but only as it occurs in the course of general podiatry. 4. The Tribunal made critical compliance conditions (within the meaning of s.149(4) and (5) of the National Law) preventing the practitioner from obtaining, possessing, supplying, administering or prescribing any Schedule 4 or 4D drug (except where permitted in the practice of routine toenail surgery in the course of general podiatry), or drug of addiction (Schedule 8 drug), as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW). These conditions are to operate for a minimum of four years. The designated review body is the Podiatry Council of NSW (or the Podiatry Board of Australia if the practitioner resides outside NSW), and review may not take place for four years from the date of this decision. Contravention of the critical compliance conditions will result in the cancellation of the practitioner's registration. 5. The respondent shall pay the complainant's costs of and incidental to the proceedings as agreed and, failing agreement, liberty to restore before the Tribunal. 6. The Tribunal made a non-publication order pursuant to Schedule 5D, clause 7 of the National Law. This order precludes publication of the names of the four patients referred to in the schedule to the Complaint before the Tribunal, who are referred to as Patients A, B, C and D in these reasons for decision. The non-publication order extends to publication of the names of the mother and daughter of Patient B, referred to as Mother B and Daughter B. 7. The actual orders and conditions are to be found at the end of these reasons for decision. Introduction 1. On 13 October, 2014 the Tribunal published its reasons for decision with respect to a Complaint (containing four complaints) by the Health Care Complaints Commission in relation to the Dr Paul Bours, a podiatric surgeon ("the practitioner"). 2. The Tribunal was satisfied to the requisite civil standard, and made findings of unsatisfactory professional conduct with respect to Complaints 1, 2, and 3, and an overall finding of professional misconduct with respect to Complaint 4. Orders and costs were reserved. The findings trigger the Tribunal's powers under Part 8, Division 3, Subdivision 6 of the Health Practitioner Regulation National Law 2009 (NSW) ("the National Law"). 3. It had been acknowledged at the outset by both of the parties that, in accordance with the principles laid down in HCCC v. King [2011] NSWCA 353, it would be necessary to conduct a second stage hearing to take evidence and submissions as to the appropriate consequential orders. This position was adopted due to the complexity of the issues and the evidence before the Tribunal. The matter was set down for a second stage hearing on 23 October 2014. That hearing date was vacated at the request of the respondent, who had recently engaged Counsel. Time was needed to allow Counsel to prepare and accommodate the schedules of the legal representatives and the Tribunal. Directions were made concerning the filing of evidence and the second stage hearing was set down for, and took place on, 19-20 February, 2015. 4. At the second stage hearing further oral and written evidence was taken and the parties gave oral submissions as well as written submissions in relation to consequential orders. 5. In its written and oral submissions the Ms McNaughton (SC), on behalf of the Complainant, sought the that Tribunal make orders cancelling the practitioner's registration, and that a period of two years elapse before the practitioner may again apply under s.163A of the National law for reinstatement to the register of practitioners maintained by the Australian Health Practitioner Regulation Agency ("AHPRA"). The Health Care Complaints Commission ("HCCC") did not proffer any alternative order. The Complainant further asked that the Respondent pay its costs. 6. While the practitioner now accepts the findings of the Tribunal, it is submitted on his behalf by Mr Strickland (SC) that an order of deregistration for a minimum period of two years is not required to fulfil the Tribunal's protective jurisdiction. Oral submissions were made that the Tribunal should make a reprimand and that the practitioner's registration should be subject to conditions, as it has been for some time. 7. In support of this submission it was put on behalf of the respondent that maintaining registration with conditions would satisfy the Tribunal's protective responsibilities. Alternately, should the Tribunal deem that it was proper for the practitioner to experience a period of time without the privilege of registration, this could be achieved by way of suspension rather than cancellation of registration. The practical consequence of such an order would be that the practitioner's registration would revive after the expiration of the stipulated period, and would not require returning to the Tribunal for a review of the order as part of the procedural pathway to returning to registered status. Following such time, it was submitted, registration could remain conditional. 8. Further, Mr Strickland submitted that an alternative order would be to prohibit the practitioner from performing any podiatric surgery, allowing him to remain in practice as a general podiatrist. The Tribunal could, it was submitted make any conditions critical compliance conditions, such that breach would sound in cancellation of registration. Critical compliance conditions could operate either immediately, if registration were to be maintained, or after the expiration of any period of registration suspension. 9. The submissions of the parties will be considered in more detail later in these reasons. 10. The Tribunal determined that the practitioner's privileges of registration be suspended for a period of one year, commencing one week from the date of these orders. This week's grace is to allow the practitioner to refer patients to another practitioner and attend to appointments for existing patients in that time. Following the expiration of the suspension period the practitioner may resume practice in general podiatry, but his registration is to be subject to conditions. Chief among these is the condition that should the practitioner return to podiatry after the expiration of the suspension, he may not perform or assist in the area of podiatric surgery in any way for a further period of two years. That is, he would be confined to practice in general podiatry. Further, conditions are imposed such that the practitioner shall not obtain, possess, supply, administer or prescribe any Schedule 4 or 4D drugs, or any drug of addiction (Schedule 8 drug), as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW). These conditions are critical compliance conditions which may not be reviewed for a minimum of four years, such review being the function of the Podiatry Council. The Tribunal also ordered that the practitioner pay costs of and incidental to the proceedings. 11. The following is an account of our reasons for the protective and costs orders made. They should be read in conjunction with our stage one reasons published on 13 October, 2014 (HCCC v. Bours (No 1) [2014] NSWCATOD 113). Protective Orders – Relevant Law 1. These proceedings were instituted in the Podiatry Tribunal of NSW prior to the commencement of the New South Wales Civil and Administrative Tribunal ("NCAT"). The Podiatry Tribunal was abolished effective 31 December, 2013, and the Tribunal's functions were taken over by NCAT. In accordance with Schedule 1, Part 2, Division 3, Clause 6 of the Civil and Administrative Tribunal Act (NSW) 2013 the proceedings were "unheard proceedings", with Clause 7(3)(b) of the Act effectively providing that the relevant law remains the Health Practitioner Regulation National Law (NSW) 2009 (the "National Law"). 2. In light of the submissions of the parties concerning the appropriate orders, and the views of the Tribunal, the following provisions of the National Law are relevant: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if- (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal. 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … … (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a "critical compliance order or condition" . 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or … (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 1. The objectives and guiding principles of the National Law registration and accreditation scheme are set out in section 3 of the Act. The protective function of a tribunal fashioning orders is clear under section 3: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration." 2. The jurisdiction of the Tribunal is protective rather than punitive. The nuances of the Tribunal's protective role in making orders have been considered extensively in the case law. In HCCC v Do [2014] NSWCA 307 the Court of Appeal opined: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It included protecting the public from the similar misconduct or incompetence of other practitioner and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining the standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operated both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." (at [35]). 1. HCCC v Jane Waddell (No 2) [2013] NSWNMT 2 observes: "[106] The common thread throughout reasons for decisions and judgments concerning consequential orders make in this area of law is that the purpose of such orders is centred on protection, not punishment. The primary focus of protection is the public – protection from actual harm caused by health practitioners who do not meet the standards required by law and codes of conduct, and protection from a culture of sub-standard practice or lacking in professional ethics from which harm may flow. The objective is that the public might actually be protected, and might have confidence in the prudent and competent practice and the ethical conduct of health practitioners, and in the profession generally. The secondary focus is the protection of the integrity of the relevant profession. Indeed, this may reach to the protection of other members of the profession – that they may not be tainted by lack of sanction of colleagues who have failed to meet the considered legal, practice, and ethical standards. [107] There is no place for a punitive objective in making orders consequent on findings of unsatisfactory professional conduct or professional misconduct. It is undeniable, however, that the fashion of appropriate protective consequential orders made by a disciplinary Tribunal may have the 'felt effect' of punishment. That is, the health practitioner who is the subject of orders may feel that they have been penalised, punished, or even sentenced, in the traditional sense understood in many aspects of law. In that way, an order fashioned for protection may subjectively be construed by the health practitioner as being punitive. Indeed, in Lee v HCCC [2012] NSWCA 80 the possibility of a punitive effect (rather than a punitive object) was considered as a possibility in making an order to protect the community (at [20], per Barratt JA, MacFarlane JA concurring). [108] The High Court's decision in Rich v ASIC [2004] HCA 42; [2004] 220 CLR 129 informs on this point: "Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears 'each of these characters.'" (at [35]). 1. The Tribunal has discretion as to whether a practitioner's registration should be cancelled or suspended under s.149C of the National Law. A finding of professional misconduct opens the door to the possibility of the cancellation of registration, although it must be noted that such order is not the automatic consequence of such finding. As outlined in HCCC v. Karalasingham [2007] NSWCA 267 (at [67]), in clarifying that the Tribunal is not bound to order deregistration in the face of a professional misconduct finding and in the absence of mitigating factors, "the discretion of the Tribunal is at large and will depend on the circumstances of the individual case". 2. HCCC v. Litchfield (1997) NSWSC 297; 41 NSWLR 630 at [638C] informs the Tribunal's consequential orders: "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal." 1. The matters for a tribunal's consideration (when exercising its functions under the Act) are neatly summarised in Re Dr Parajuli [2010] NSWMT 3 (at [32]): 1. Any need to protect the public against further misconduct by the practitioner 2. The need to protect the public through general deterrence (of other practitioners); 3. The need to protect the public by reinforcing high professional standard and denouncing transgressions; 4. The maintenance of public confidence in the profession; 5. The desirability of making available to the public any special skills possessed by the practitioner. 1. In determining the question of fitness to practice (or otherwise) the Tribunal must consider the question as at the date of the hearing (HCCC v King [2013] NSWMT 9). Mere lapse of time from the offending conduct to the hearing is insufficient to assume insight or reform. The Tribunal must consider the evidence at hearing, in light of the objectives of the Act and the offending conduct, in making a real assessment as to the question of fitness to practice. Background 1. At the time of the stage one hearing the practitioner stood before the Tribunal as a highly trained podiatric surgeon with a successful private practice. 2. Dr Bours qualified as a podiatrist in 1985. He had begun his career in general podiatry, having obtained a Bachelor or Applied Sciences (Podiatry) in 1985 at La Trobe University, followed by a Graduate Diploma of Podiatry at the same university in 1996. In 2003 he completed a Masters of Podiatry at Curtin University. 3. After training in the United States of America the practitioner obtained in 2006 a temporary license to practise podiatric surgery in North Carolina. In 2007 he met the requirements for fellowship to the Australasian College of Podiatric Surgeons. 4. The Complaint before the Tribunal was broad in scope and complex in particulars. It spanned matters relating to four patients, as well as complaints concerning breaching of the Therapeutic Goods Act 1966 (NSW) and of harassing an expert witness. 5. Complaint One was of unsatisfactory professional conduct within the meaning of the National Law. The four patients concerned were referred to as Patients A, B, C and D. Essentially, the issues traversed matters of consent, provision of information about risks and complications of surgery, clinical concerns, post-operative care and advice. The Tribunal found three of the seven particulars concerning patient A to be proved to its comfortable satisfaction. Nine of the nineteen particulars relating to patient B were proved. Four of the seven particulars regarding Patient C were proved, and five of the six pleaded relating to Patient D. 6. The Tribunal found Complaint One of unsatisfactory professional conduct, that is, that the practitioner's conduct fell below the standard reasonably expected of a practitioner of equivalent training and experience, proved to the requisite standard: "482. The Tribunal has found that a little over half of the particulars concerning Patients A, B, C and D have been proved to its comfortable satisfaction. The matters proved include serious matters, such as failure to warn of potential risks and complications of podiatric surgery, inappropriate recommendation of surgery, and failure to obtain informed consent. 483. Dr Bours is an experienced and credentialed practitioner. The matters which have been proved are not matters of complexity in medical practice. They are fundamental matters that are basic to safe, ethical, wise and professional practice. 484. The Tribunal appreciates that there are different schools of thought concerning methodology for foot surgery. There are podiatric surgeons who hold disparate views, and there are differences, too, between some orthopaedic surgeons and podiatric surgeons. We can see that the practitioner's zeal for what he viewed as ground-breaking surgical methods may have caused him to inflate expectations and fail to communicate the extent of the surgery proposed, and the potential for complications and real and long-term difficulties as a result." (HCCC v Bours (No.1) [2014] NSWCATOD 113 at [482-4]). 1. Complaint Two was also of unsatisfactory professional conduct, agitating that the practitioner had ordered, received, possessed and prescribed Schedule 4 restricted substances within the meaning of the Poisons and Therapeutic Goods Act 1966 ("the PTGA") in circumstances where he was not legally entitled to do so, and in breach of the PTGA. 2. The Tribunal was, once again, comfortably satisfied that the finding of unsatisfactory professional conduct was established on the evidence. During the hearing the practitioner made various illogical assertions that he either believed he was authorised to engage in such conduct, or that he would have been authorised to do so in another state and believed that under the new National Law he would be so authorised in New South Wales. The Tribunal did not accept the practitioner's evidence on these matters, particularly as he was, at the relevant time, engaged in education to acquire the necessary endorsement / qualification for legal authorisation to engage in the conduct which was the subject of the complaint. If the practitioner did not know he wasn't legally authorised to deal with such medications in the manner described, he should have known. Even obtaining and supplying scheduled medicines without certain knowledge of one's entitlement to do so, the Tribunal found, amounted to improper conduct relating to the practice of his profession, demonstrating a level of judgment and care that is significantly below the standard reasonably expected of a practitioner of equivalent training or experience. 3. Complaint Three of unsatisfactory professional conduct within the meaning of s139B of the National Law, that is, "that the practitioner has engaged in improper and unethical conduct relating to the practice of the practitioner's profession", was also found to be proved on the evidence. Complaint Three concerned the conduct of the practitioner in harassing and threatening of one of the Complainant's expert witnesses, Mr van Essen, by way of frequent and abusive text messages and phone calls. 4. The Tribunal easily determined that the conduct amounted to improper and unethical conduct relating to the practice of the practitioner's profession, and made the finding of unsatisfactory professional conduct. The Tribunal was critical of the practitioner's failure to acknowledge the seriousness of the matter and the lack of contrition evident at the first stage hearing. 5. Complaint Four was that the practitioner was guilty of professional misconduct under s.139E of the National Law, pleading the particulars of Complaints One, Two and Three individually and cumulatively. The Tribunal made the finding of professional misconduct, finding that the conduct of the practitioner in the practice of his profession would invite "strong criticism" within the meaning found in the case law (Lucire v. HCCC [2011] NSWSC 99 at [84]; Donnelly v HCCC [2011] NSWSC 70 at [106-7]), and amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 6. The Tribunal effectively saw two different pictures of the practitioner from the initial ten day hearing to the stage two hearing. 7. It must be said that the practitioner was highly adversarial in the initial hearing, bordering on contemptuous. He made it clear from the outset of the hearing that he believed that he had been the victim of a witch hunt by orthopaedic surgeons, and that the complaint was a thinly veiled attempt by the orthopaedic surgical community to run down the reputation of podiatric surgeons. There were no admissions (apart from one conditional admission) to any of the forty-eight particulars. Attempts at the directions stages to come to a statement of agreed facts / matters in dispute were fruitless. 8. The practitioner elected to discharge his legal representation three months prior to the hearing, and was thus self-represented at the first stage hearing. At the conclusion of the primary hearing the practitioner, in response to a question from the Tribunal about the conduct that was the subject of the complaints, responded that he wouldn't have done anything differently. 9. The matter had been set down for the second stage hearing on 23 October 2014, but was deferred at the request of the practitioner the day before the first scheduled hearing day. The reason given was that he had just acquired legal representation and his barrister could not be available for the hearing on the given dates. A directions hearing was conducted on 23 October, 2014, and the practitioner presented (without a legal advocate) with an entirely different persona. He presented as contrite, telling the Tribunal, "I get it. I finally get it." 10. The Tribunal was met with this very different version of Dr Bours at the second stage hearing on February 19-20. In that hearing and in submissions explanations were given for Dr Bours' earlier presentation. Such explanations, which will be considered further below, included a number of personal health concerns present at the time of the harassment of the expert witness, and leading up to and during the hearing. It was further put that Dr Bours, without the benefit of legal representation, was labouring under the belief that he must be highly adversarial in order to defend himself. It is noted by the Tribunal that Dr Bours' contempt for the proceedings was evident before he discharged his legal team. Thirdly, evidence was adduced as to the role of Dr Bours' wife, a fellow health professional, in latterly opening his eyes as to the errors of his past conduct. Evidence 1. The Complainant did not adduce additional evidence for the stage two hearing. The Respondent relied on the following items of evidence: 1. Statement of Paul Bours, dated 28 January, 2015 2. Statement of Helen Gibson (Dr Bours' wife), dated 6 February, 2015 3. Oral evidence of Dr Bours 4. References (1) Statement of the Practitioner 1. The practitioner's statement admits his highly defensive and adversarial conduct in the first hearing, and he describes himself as arrogant in his belief that he could justify his conduct with respect to Schedule 4 medications (Complaint Two) and his clinical practice. He then describes a passage of time of reading and re-reading the decision which brought him to an epiphany about some aspects of his conduct, seeing them more from the perspective of the patients. He admits that he possessed a defective understanding of informed consent. The practitioner also describes the huge impact of the proceedings on his family, personally and financially. 2. Dr Bours offered evidence of his medical history as an explanation of the way he reacted to criticism and how he conducted his case. He described a time from May 2011 when an ECG revealed a heart irregularity, at first thought to be aberrant, but discovered in early June 2011 to be the result of significant heart disease. These matters are verified by copies of medical reports annexed to the statement. The timing of these investigations is around the timing of the incidents concerning harassment of the HCCC's expert witness, Mr van Essen. 3. He further reports a serious skiing accident in Japan in January 2013, where he fractured his right tibia and fibia, and five resultant surgeries between January and December 2013. During that time, he reports, there was a real possibility his leg would be amputated. This strain combined with the stressors of preparing the case against him by the HCCC, as well as the civil suits brought by Patients A, B and D. 4. It was the decision of the professional insurer that it would not expend further funds to defend the professional conduct complaint. The cost of private representation caused Dr Bours to opt for self-representation: "… I wrongly thought I could 'go it alone' with the result that my approach to the conduct of the hearing was uncharacteristically aggressive. In hindsight, I felt persecuted and wronged and lacked insight into the intricacy of the complaints and the legal nuances concerning the conduct of the trial. I regret the manner in which I conducted myself at the Tribunal hearing…" (page 3). 1. The statement proceeds to indicate Dr Bours' current views about the complaint. Dr Bours essentially accepts the Tribunal's findings and makes numerous admissions concerning his conduct. Such admissions include personal failings in obtaining informed consent: "…I believe that I concentrated on the merits of surgery at the expense of the risks and considerations which were undoubtedly equally as important to the patients…" (page 7). "…I accept that a person cannot consent to submitting themselves to a range of risks of which they are ignorant…" (page 9) "…I now recognise I was blinded to some extent by my belief in the nature of the work I was performing…" (page 10) 1. With respect to Patient A the key admissions are around acknowledgment of failure to provide adequate preoperative information and information as to potential complications of surgery, recovery time, post-surgical pain, disability and the level of post-operative discomfort. He also acknowledged failure to recognise that the patient may have considered the definite surgical outcome of a shorter toe a matter for discussion. Consequently, failure to obtain informed consent is acknowledged. 2. With respect to Patient B, the practitioner acknowledges failures in liaising with the general practitioner and obtaining relevant pathology results. He admits failure to obtain informed consent, having taken "the easy way out with a person who was a difficult patient" (page 9). The practitioner further admitted matters that were contentious at hearing – that the surgery should not have been performed in a day surgery with an auto-immune compromised patient, that the scheduling of the surgery just prior to the Easter break was unwise, and, indeed, that Dr Bours should not have performed the surgery himself. Dr Bours vehemently denied at the first stage hearing the proposition that he had failed to make appropriate care arrangements while he was away over Easter. This proposition was latterly admitted in the statement. "…I was sloppy with my after care and failed to provide information to her by not including the contact details of any other surgeon…" (page 12) 1. Similarly, the practitioner admits inappropriate scheduling of surgery, given Patient C was looking to be well and in fashion shoes for her daughter's wedding some six weeks after the surgery. Similar admissions are made as to failure to give adequate pre-operative and post-operative information, and overstating the benefits of surgery while underplaying the risks and possible complications. Consequent upon this is an admission of failure to obtain informed consent. 2. With respect to Patient D the practitioner admits inappropriate recommendation of surgery, and failure to give adequate information about risks and complications in post-operative matters, leading to a resultant admission of failure to obtain informed consent. Further, there is a qualified admission of use of inappropriate procedures - qualified inasmuch as the admission extends in part to the fact that parts of the surgery were "in the view of others" entirely unmerited. "…I admit that the foot surgery that I recommended involving the second, third and fourth toes was, in the view of others, entirely unmerited. I did not properly consider conservative management. Indeed, on reflection, a more conservative approach was warranted. I am sorry for the problems that my surgery caused to the patient D. My belief in the quality of the procedures I was adopting clouded a proper assessment of patient D's risks." (page 14) Failure to provide adequate post-operative advice, unrealistic expectations of the surgery, and dismissiveness of the patients concerns, are also accepted. RE COMPLAINT TWO – ordering, receiving, possessing, and prescribing restricted substances; unlawful supply of restricted substances 1. The practitioner admits that his conduct during the hearing of attempting to justify these occurrences was "arrogance in the extreme". "…Upon reflection I cannot believe I did this. There is no excuse for my actions. I had constructed reasons in my head, including the fact that if I was in another state in Australia before 2010, I could prescribe under the National Law…" (page 15) Re COMPLAINT THREE – harassing an expert witness 1. The statement again describes the conduct as "arrogance in the extreme", citing the pressure of self-representation, depression, anger, and worries around his heart condition, as contributing factors. The Tribunal notes that at the time of the offending conduct the practitioner was actually legally represented, and remained so for some five or so months after the event. "I recognised that this approach was completely unprofessional and inappropriate. I apologise unreservedly to Mr van Essen. I recognise that on a professional level, as well as a social level, I have destroyed our relationship and seriously jeopardised my professional reputation." (page 15) Re COMPLAINT FOUR – professional misconduct 1. The findings of unsatisfactory professional conduct and professional misconduct are accepted. Practice Changes 1. After describing the significantly reduced size of his business after the adverse publicity from the first hearing, the practitioner's statement continues to detail changes that have been made to improve the structure, certainty, efficiency and systems in his practice. 2. As a result of the deficiencies found in the handling patient care, the practitioner claims to have commitment to 'world's best practice'. Some of the improvements to practice cited are: * Patients are given diagrams of photos of a likely post-surgical outcome. * A full explanation is given of what was proposed and the relevant risks associated with the surgery. * Full disclosure is given of potential side effects that might arise. * Realistic advice is given about recovery time. * There is more thorough written and oral communication with general practitioners, pre and post operatively. Advice is sought from the general practitioner as to suitability for surgery. For patients with comorbidities written surgical clearance is sought from the general practitioner / specialist (sample annexed to Statement). * Explanations of risks are based on the patient's medical profile and occupational / social / sporting considerations. * Both lay terms and medical terms are used with patients. * Patients are provided with a thorough written account of the surgical plan (sample annexed to Statement). * Patients sign off on that they have understood the information given (sample annexed to Statement). * Surgery is conditional upon a signed agreement to abstain from smoking for a period. Smokers are required to sign off that they are not smoking for three weeks prior to and after surgery (sample annexed to Statement). * Patients are given information as to appropriate alternatives. * Patients are given names of back up podiatric surgeons who are contactable if the practitioner is not. * Complicated surgery is not booked prior to leave. * It is explained to parties that the surgery performed is novel and a second opinion is encouraged. * The risks of minimally invasive surgery (MIS) are explained, and a full summary of the proposed surgery is provided to the general practitioner. * Patient records, including photographs, are available to them and other practitioners via a computer program called "Podio". 1. Samples of new forms and standard letters are annexed to the practitioner's statement as evidence of new procedures. 2. In an annexure to the statement it is evidenced that he latest available audit (2013) from the President of the Australasian College of Podiatric Surgeons confirmed there were no cases requiring readmission to hospital after surgical discharge to manage infection or thromboembolic events. Nor were there any outlying cases or outcomes requiring further investigation. (2) Statement of Helen Gibson 1. Ms Gibson is the wife of Dr Bours. She was available for cross-examination at hearing, but was not required by the Complainant. 2. During his oral evidence Dr Bours described the supportive and instructive role his wife had played, particularly after the findings of unsatisfactory professional conduct and professional misconduct. He described how she had plainly told him that he had behaved poorly - in matters concerning the patients, the medication breaches, in relation to the expert witness, and in his conduct at the hearing. He described listening to, and being affected by, her reproach. 3. The evidence before the Tribunal indicated that Ms Gibson, a physiotherapist with her own private practice, was a positive influence on Dr Bours and that she had given him a great deal of assistance in improving procedures in his practice. 4. Ms Gibson's statement corroborated what had been patently obvious to the Tribunal in the first hearing – that Dr Bours had felt very much victimised by the complaints against him, and that he had built up a conspiracy theory around that. She also reports that he was "seriously stressed". 5. Ms Gibson also corroborates the evidence of Dr Bours that around May 2011 her husband was very worried about his heart condition and was not coping well. She also reports that he was drinking more than usual and his temperament changed, and that he was "flying off the handle at home in a way that he never usually did." She states that he was moody and required medication to sleep, becoming obsessive about saving his career, such that she could not have a sensible conversation with him about the case. 6. Her statement extends to the perceived impact of the practitioner's self-representation at hearing, both on his demeanour and actions before and during the hearing. "Paul did not have the benefit of full insurance cover to meet the costs of dealing with the complaints…He managed to satisfy himself that he would be able to defend himself. I attempted to change his mind but he remained firm. Paul became more stressed when word got out into the community about his legal case. Lots of his patients cancelled their surgery. His income fell substantially…The financial stress became overwhelming for Paul. …Sometime after the hearing, I discussed with Paul that his decision to appear for himself was a bad one. He said "I know". He had compassion for the patients the subject of the complaints but he said something to the effect of "I can't allow my compassion to come across while trying to defend myself". He felt he was being persecuted. …He was completely out of his depth. He said to me "I know I came across as aggressive and without insight" and "I regret my decision to represent myself and the impression it created…" 1. Ms Gibson describes her anger with her husband for his practice failings and the matters that were the subject of the complaints, including the harassment of the expert witness and the unlawful practices around restricted medications. 2. Ms Gibson reports that since the Complaint her husband has been much more receptive to her assistance in improving his practice procedures, describing herself as a health professional of some twenty-seven years who is very professional – "I cross every 't' and dot every 'i'." 3. In terms of practice improvements, Ms Gibson's statement says: "…He has a better understanding of the importance of shared management of a patient with other medical professionals. I have assisted him in setting up a better computer program to manage his record keeping with all of the conditions imposed upon him. He has been audited and has complied in all respects with requirements. Paul's notes and record keeping are now more complete and accurate than any practitioner I know. He photographs every detail about every patient and enters these photos into the patient's file. He has been photographing patients before and after surgery and at every dressing change for many years as it is the most accurate way to record progress, but he now ensures he speaks at length to patients about every possible complication and risk. Patients are given the opportunity to ask questions, the consent form is explained to them and they sign the forms with a witness of their choice. Every patient that wants to have surgery must revisit their general practitioner to outline the proposed surgery and ask specifically if there is any reason why the patient should not have the surgery. This has been a condition that was imposed on Paul and operates to the benefit of Paul's patients. Paul also asks the general practitioner if they will co-manage the patient if the need arises. This has been very helpful for the patient, as they get to ask more questions about surgery if they need, but also for Paul, as he then knows that the GP is happy to assist if any complications arise…" 1. Ms Gibson describes her husband as a committed and compassionate practitioner, and reports from their conversations that he is very sorry about the unfortunate outcomes considered by this Tribunal. She also reports that he has conducted thousands of procedures and has many happy patients. 2. Finally, the impact of the complaints and extensive publicity is considered the statement. Ms Gibson reports dramatic damage to Dr Bours' practice, and the resultant financial hardship has forced them to put their house up for auction. She also reports a flow on negative impact on her independent physiotherapy practice, due to the association, particularly as her rooms are in the same Bridge Street practice suite. An inability to practice would require sale of the Bridge Street practice rooms, which will force her to relocate also. 3. Finally, the statement concludes with a mother's concern for their two young sons, and the impact of the adverse publicity upon them. (3) Oral evidence of Dr Bours 1. In evidence in chief the practitioner told of the disastrous evaporation of his practice since the publication of the Tribunal's findings of unsatisfactory professional conduct and professional misconduct. The decision made its way into media in the United Kingdom and United States of America as well as domestically. Patients on surgical lists cancelled and referring practitioners ceased referring. 2. The practitioner stated that, at the time of hearing he was seeing old patients for review, but new patients were very few. When his name is googled the first thing that is seen is "professional misconduct". 3. In response to the question as to whether he would practice if the Tribunal saw fit to allow him to retain registration, the practitioner stated he intended to practice, although it would be hard to rebuild the practice. Additionally, he wanted to retain his roles in education and mentoring. 4. If allowed to practice, Dr Bours would, he stated, completely and wholeheartedly comply with any conditions. "I want to stay in the industry. I love it. I want to stay in whatever way I can." 1. In cross examination Ms McNaughton addressed a number of key matters with the practitioner. 2. An overarching issue submitted at the first hearing (but not a matter particularised) was that, due to inconsistencies and irregularities in the notes that were unearthed during the hearing, the Tribunal should not prefer the practitioner's version of events where such is supported by his notes and correspondence. 3. With regard to the accuracy or otherwise of the practitioner's records, the Tribunal had proceeded on the following basis: "50. …the Tribunal was convinced that there were many inconsistencies in the clinical notes that were only explicable on the evidence before it that the notes had, indeed, been altered to protect the practitioner's position. While the practitioner, by his own admission, is not diligent with paper work, there are entries in the notes concerning a number of the particularised alleged departures which have a level of detail that is inconsistent with the balance of the notes, appearing to give a cosmetic blush to his version of the facts. Further, on several occasions, dates notes and correspondence contain information which, at the time of writing, was not available to the practitioner. 51. The Tribunal regards the practitioner's records with caution, and weighed this when considering which version of events was to be preferred." (HCCC v. Bours (No.1)). 1. The reasons continue with respect to Patient A: "80. …The Tribunal regards the practitioner's file notes for Patient A as being of dubious integrity and replete with inconsistencies / improbable entries…. 94. The Tribunal deems that there is a strong possibility that the practitioner wrote letters to cover his position in this matter… The letters date 6 April and 13 April appear unusually detailed given the surrounding circumstances, and happen to hit directly on matters particularised in this Complaint with respect to disputed information… 100. …the Tribunal is not confident that the notes were written contemporaneously. 103. The Tribunal does not accept this version of events. The curiously detailed file notes which were said to have been completed contemporaneously contain the incorrect surgery location…the Tribunal does not accept the clinical records as proof of information given to Patient A at the relevant time." HCCC v. Bours (No. 1) 1. In cross examination at the second stage hearing the practitioner admitted, contrary to the evidence in the first hearing, that the notes were not contemporaneous notes, although he refuted the proposition that additions were later made to the notes to improve his position before the Tribunal. He admitted that alterations could have been made to notes weeks or months after a consultation. 2. Regarding Patient B, the practitioner maintained that notes were not altered with the purpose of improving his position before the Tribunal. 3. At hearing it had been a matter of vigorous contention by the practitioner that he had given Patient B the details of a back-up surgeon to cover him while he was away over Easter, which was the time when serious medical complications occurred. This matter was patently disproved on the evidence before the Tribunal but only after long and protracted argument, and strident insistence by the practitioner that the information had been given to Patient B in writing on a particular form. It was only at the eleventh hour when Patient B was able to find and produce the document in question that the practitioner's evidence was unequivocally refuted. On cross-examination at the second stage hearing the practitioner admitted that he didn't give Patient B those surgeon details, but denied that he had been untruthful in his testimony, saying instead that he "made an error". 4. With respect to Patient D, the practitioner said in cross examination that he had never denied giving a cortisone injection to Patient D, that he had just been unsure about the date. This does not accurately reflect the evidence at the first hearing. 5. The practitioner was asked in cross examination what he had to say about the Tribunal's earlier comments that, with respect to Patient D, there was "a high likelihood that they were added to… at some time after the complaints were made … we find the notes unreliable" (at [445]). He replied that he disagreed. 6. In cross-examination on the question of the medication breaches in Complaint Two, the practitioner admitted that he knew he wasn't qualified to so act at the relevant time. This was a contradiction of his evidence at the first hearing, during which the practitioner made "strenuous attempts ... to argue illogical permeations of the relevant legislation", deeming himself "above the law" in the matter. (HCCC v. Bours (No. 1) at [445]). 7. Ms McNaughton asked the practitioner how the Tribunal could be satisfied that he had genuine changes to attitude, rather than acting out of a desperate attempt to stay on the register. The response that he was still actively involved in voluntary service in the industry through the Sports Medicine Association, supervising University of Western Sydney students, and other unpaid work. He stated that he still had something to give, and that he had instigated changes in his practice that the problems would never happen again. In oral evidence he attributed much to the influence of his wife after the publishing of the findings of unsatisfactory professional conduct and professional misconduct. The practitioner stated that it was reading and re-reading the judgment, as well as the reprobation of his wife, that caused him to see the matter differently. 8. Concerning Complaint Three involving the harassment of an HCCC expert witness, Mr van Essen, the practitioner stated that his conduct was inexcusable, unprofessional, out of character, and that he couldn't believe he had done it. When asked why he didn't come to this revelation a year ago the practitioner responded that he felt he had to justify his actions, believing his role in the hearing to be adversarial and necessitating an opposing view. 9. Ms McNaughton: "Do you understand that the Tribunal may be cynical about your change of heart? Dr. Bours: I said before we met in October 2014, before I had legal counsel, that "I got it." I wanted to prove myself. Be a good practitioner. Ms McNaughton: You said it after the Tribunal said it was of a sufficiently serious nature to justify suspension of registration. 1. Enquiries by Ms McNaughton revealed that in January 2015 the practitioner had started appointments with a therapist for psychological counselling. The aim of the therapy was to deal with professional loss, social displacement, material loss, loss of reputation, and dealing with changes in the provider functions within the family unit. The practitioner did not tender any sort of report from a psychologist. 2. The practitioner told in cross examination that he had apologised to his family. In response to Ms McNaughton's question on the matter he advised that he had not apologised to Patients A, B, C and D, Ms McNaughton: What's your attitude to your patients? To what extent do you feel you owe them an apology? Dr Bours: I feel I've let them down. I feel I could have done better. I feel I should have had in place a different set of systems to help them. I apologise for that." 1. When asked if he recognised that in his cross examination of the patients there were suggestions that the patients weren't being honest, the practitioner replied: "I regret the way I conducted myself. I was in an invidious situation I couldn't afford legal representation. I regret putting the patients under undue duress." 1. A strong feature of the initial hearing was the practitioner's belief, oft expressed, that he was the subject of prejudice, and indeed, persecution, from the orthopaedic surgical community. Another was the practitioner's belief, the veracity of which it is not necessary to test, that a podiatric surgeon was actually more skilled in foot surgery and management than an orthopaedic surgeon, by virtue of the degree of specialisation of the former. In cross-examination Dr Bours reported his attitude to the orthopaedic surgical community: "I'd love to discuss and collaborate on treating patients. … There are some philosophical differences. I'm happy to refer to them the cases where I don't feel I can provide service myself." Ms McNaughton: How can the Tribunal have confidence on behalf of the community that your previous "arrogance" won't return? Dr Bours: Through my actions… Words are easy. Through action. I have provided in my material information showing I've given my time … mentoring. I was brought up that 'your word is your bond'. I give you my word. 1. It was apparent from the information gleaned in cross-examination that Dr Bours only had a couple of senior colleagues that could fit anything like a mentoring role – Dr Cichorelli (?) from America, and Dr Gilheaney in Melbourne. It would seem that they would mainly confer on matters of patient care. Dr Bours stated that he was the most senior of the four podiatric surgeons in Sydney. It appeared that there was no formal mentoring in place, but that Dr Bours did have two senior colleagues with whom he could confer concerning his patients. The practitioner did acknowledge, though, that a mentor would be advantageous. He also stated he needed to complete his endorsement to prescribe Schedule 4 medications. (4) References 1. The practitioner supplied ten written references which were admitted into evidence without objection. 2. The reference from Mr Andrew Bull, Podiatrist, was written having seen the Tribunal's findings, and was dated 6 February, 2015. The letters speaks glowingly of the practitioner, whom the referee has known for over twenty-two years. He reports he has received only positive feedback from the approximate one hundred and fifty patients he has referred to Dr Bours. He describes the practitioner as 'knowledgeable, communicative and effective in his treatment", being a person who uses surgery as a last resort, and who offers a wide range of surgical treatments. Of note, Mr Bull says that the practitioner's diagnostic instrumentation is of great benefit to patients in that it allows real time ultrasound and x-ray evaluation. He also states that the practitioner has pioneered new techniques from USA and Europe, which have been followed by other Australian podiatric and orthopaedic surgeons. 3. The reference of Mr Paul Bowles (undated), another referring podiatrist attests to the practitioner's extreme thoroughness, particularly in informing patients of risks and complications of surgery. The reference states that he is aware of the decision of NCAT dated 13 October, 2014 concerning the practitioner. In many cases, he states, the practitioner has recommended further conservative measures before considering surgery. He reports that he has habitually received detailed reports and emails containing photographs from Dr Bours concerning their mutual patients. The referee, apart from having referred many patients to Dr Bours in the past, has involved him in guest lecturing at the University of Western Sydney. 4. Mr Terry Godworth (patient) testifies to Dr Bours having increased his quality of life through surgical means, with great thoroughness and care. This testimony speaks of Dr Bours' initial recommendations of conservative treatment for all conditions, until need justified surgical intervention. The testimony, dated 6 February, 2015, is given with the benefit of having read the findings of the Tribunal. 5. Mr Matthew Jones, Podiatrist, speaks highly of Dr Bours in his letter of 23 January, 2015. His letter is written with the benefit of having read the Tribunal's findings. Dr Bours attended Mr Jones' Newcastle podiatry practice as a consultant for the past eight years. He stands as a referee who has read and understood the findings made by the Tribunal against the practitioner. 6. Mr Jones speaks in glowing terms of Dr Bours, and notes that he is very qualified to review the practitioner's modus operandi as a foot surgeon, as well as his personal ethos and surgical expertise. "…In many instances he has provided to patients surgical expertise, clarification, definitive diagnosis and treatment to those who have had no other treatment options available to them when they have been reviewed by other practitioners, be they by surgical and / or non-surgical practitioners. …I believe he has consistently demonstrated a professional tendency for conservative management. He is not 'knife-happy'… It is especially noteworthy that Paul Bours has demonstrated a passion and commitment for helping and assisting people with significant foot complaints which are complex and complicated by nature. I can sight multiple cases where he has undertaken review 'salvage procedures' for patients who have been unsatisfied with their surgical outcome by other practising surgeons… The results of many of such salvage procedures were truly remarkable and allowed these patients a quality of life that was otherwise lost. After 8 years of observation and in review of his professional practice I will still welcome Paul Bours to consult at my clinic. Paul has always taken the time to assess, diagnose, advise and suggest suitable treatment options to patients regarding their foot problems or concerns. His communication and manner has always been clear, well-intentioned, considered, balanced in technical and lay terminology, and without any form of coercion or practitioner pressure towards the patient. I would not allow him to continue to practice in my rooms if he had shown a tendency otherwise…" 1. Among other matters that the Tribunal has considered, the letter continues to report of having repeatedly heard the practitioner thoroughly explaining risks, complications, and other pertinent matters to patients. 2. Further supplied are references from five surgical patients (one being the mother of children who underwent surgeries). Each of the references notes knowledge of the finding of professional misconduct. Common themes of these references are satisfaction, thoroughness, ample provision of information, and surgical resolution of a physical problem that appeared to have no other solution. One might describe the references as supportive and commending. 3. The final reference is from a podiatry student of the University of Western Sydney, dated 6 July, 2015. This is also a very supportive reference: "… I can confidently say that during this week with Dr Bours I gained more knowledge from him than I did from several external 4 week placements … I strongly believe that deregistering Dr Bours would not only do the profession an injustice, but it would also affect future podiatry students who would miss out on a unique placement experience where they are exposed to exclusive equipment such as the Fluoroscope or having the opportunity to attend theatre at the Sydney Day Surgery to observe various foot and ankle surgeries…" The Complainant's submissions 1. The parties made oral submissions at the second stage hearing, but also assisted the Tribunal with their written submissions shortly thereafter. 2. As stated earlier, the submission of the Complainant as to consequential orders is that the practitioner is deregistered for a minimum period of two years, and costs. 3. When questioned on the matter at hearing the Complainant was clear that there were no alternative orders it considered appropriate. 4. The Complainant minded the Tribunal of the relevant principles of maintenance of professional standards, protection of the public, and protection of the profession in HCCC v Litchfield (1997) 41 NSWLR 603 at [637], which have been considered earlier in these reasons. It also referred to the principle in that case that the gravity of the conduct is measured by the degree of departure from proper standards, not by reference to the worst possible cases. 5. The protective nature of the jurisdictions (Clyne v. New South Wales Bar Association (1960) 104 CLR 186 at [201-2] was cited, before considering the question of whether a practitioner's lack of recognition of guilt indicates an unfitness to practice. As much of the law in this area has been developed in the context of applications for re-registration, the Complainant turns to such cases for analysis. While HCCC v. O'Hagan [2010] NSWNMT 37 indicates that mere non-admission of guilt is neither an indication of unfitness to practice, nor a bar to re-registration per se, the Complainant directs the Tribunal to a decision in the Supreme Court of Queensland, of persuasive value but not binding, in the matter of Re Wendy Anne Wright [2011] QSC 34 at [21]. 6. That case affirmed that although a practitioner's failure to acknowledge personal guilt may be evidence of a lack of insight, a confession is not a necessary precondition to readmission. The case recognises that a practitioner may accept the authority and binding character of the decision by the disciplinary tribunal, but genuinely believe the findings are wrong. The Supreme Court went on to note the observation of Mason P in Zaidi v. HCCC (1998) 44 NSWLR 82, at [100]: "…there is no error in concluding in a particular context that continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness on one or other of the grounds indicated in the sentence underlined." 1. That is to say, although the law does not require a full confession and acknowledgement of personal guilt as a prerequisite to registration, a persistent refusal to do so in cases of clearly established guilt may evidence unfitness to practice due to lack of insight into the problematic nature of the offending conduct. 2. The Tribunal interjects into this summary of the submissions to note that the relevance of this in relation to the present case is that we have a practitioner who has, since the time of hearing, made a number of admissions in relation to the complaints, and who has stated that he accepts the findings of the Tribunal, but who, perhaps, is not entirely in accord with the position of the Complainant in relation to the evidence. That is, there are probably some areas where he disagrees – for example, in relation to the veracity of some the notes and correspondence, and the facts surrounding the giving of a cortisone injection, to name two. The case law does little to assist except in as much as it indicates failure to wholeheartedly acknowledge guilt on all matters does not, of itself, indicate unfitness to practice. Alternately, failure to be utterly persuaded of personal guilt may, in some instances, indicate lack of insight into the gravity or truth of the contravening conduct. This leaves us in the position where the evidence must, in reality, be tested in its context in drawing case-by-case conclusions, tempered on either side by these observations from the case law. 3. Ms McNaughton directs the Tribunal to the principles set out by Barratt JA in Lee v. HCCC [2012] NSWCA 89, who adopted the summary of Basten JA in Director-General, Department of Ageing, Disability and Home Care v. Lambert (2009) 74 NSWLR 523 at [83]. That summary considers, as has been noted earlier in these reasons, the that the purpose of orders is protective rather than punitive, but that it cannot be denied that orders may be punitive in effect. Protection extends to the public as well as professional standards. In considering punitive effects Baston JA opined: "The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist." (at [83]). 1. The Tribunal is also reminded by the Complainant of the general deterrent object of consequential orders, such that other practitioners might be alerted to the serious consequences of improper actions. Such deterrence, it is submitted is an assurance to the public that serious lapses of conduct of practitioners will not be passed over or lightly put aside, but will be appropriately handled. (Law Society of NSW v. Foreman (1994) 34 NSWLR 408 at [471B], and Dr Tan Thanh Le and the Medical Practice Act 1992, unreported, Medical Tribunal, 20 September, 2001, at [100]). 2. The matters already cited from HCCC v Do [2014] NSWCA 307 were noted as of relevance in the Complainant's submissions. 3. The Complainant accordingly submits that the Tribunal should order that the Respondent not remain on the Register, given the utmost seriousness of the findings, which the Tribunal noted at [531] "go to the heart of safe, ethical and wise professional practice". The Complainant draws the Tribunal's attention to its own description of Complaint Two (in relation to medication prescribing and related breaches) as "flagrant", noting the practitioner's failure to acknowledge wrong-doing or show contrition, but of "justify(ing) his conduct with spurious interpretations of the legislation to back up his position." (at [532]). Finally, Ms McNaughton reminds the Tribunal of its comment in relation to Complaint Three, that it was "appalled by, not only the harassment and intimidation of an expert witness, but the practitioner's attempts to justify his conduct." (at [533]. 4. After the seriousness of the findings, the first matter postulated to support the Complainant's request for deregistration is the inconsistencies found in the practitioner's medical notes and correspondence. 5. The Respondent, it is submitted, must satisfy the Tribunal that he has sufficient insight into the conduct which formed the basis of the findings, and further that there is objective evidence of change. The patient testimonials post-date the conduct particularised in Complaint 1, and do provide some indication that the practices in relation to informed consent and the like may have improved as a result of the complaints made to the HCCC. 6. The Complainant submits, however, that the Respondent was less than frank with the Tribunal. The Tribunal found the Respondent to be untruthful in relation to Dr Ozcan's role as a backup over Easter for Patient B (at [292]). The Tribunal found him to be untruthful in relation to his understanding about his ability to lawfully possess, use or supply medications (at [492]-[498]). Further, the Tribunal found the practitioner to be untruthful in his evidence about the making of the phone calls to the expert witness (at [510]). 7. Further, Ms McNaughton puts, the Tribunal accepted that the Respondent's notes in relation to the four patients were "unreliable". The Tribunal interjects in this submission, for the purpose of clarity, that the unreliability of the notes was not a matter particularised, and, although the Tribunal did assess the notes as being unreliable, and weighted them accordingly, there were no findings made on this matter. 8. Flowing from this observation of the Tribunal as to the unreliability of the practitioner's notes, Ms McNaughton submitted that the lack of frankness of a professional person in the context of the disciplinary proceedings is a matter of profound concern. It was further submitted that the community could have no confidence in the Respondent given his lack of honesty in this important context. 9. The second matter proffered in support of the orders requested by the Complainant is the practitioner's "worrying lack of insight", citing again the Tribunal's comments in the stage one reasons that "his failure to acknowledge the seriousness of the mater, together with his utter lack of contrition, to be a matter of great concern" (at [518]). The authorities, it is submitted, make it clear that an insight into wrongdoing is an important factor in determining appropriate protective orders. 10. Finally, Ms McNaughton submits, the Tribunal must give appropriate weight to the seriousness of the findings against the practitioner, the Tribunal's role in protecting the public, maintaining public confidence in the profession, maintaining the reputation of the profession and providing a general deterrent for other members of the profession. 11. Accordingly, the Complainant submits that in all the circumstances, the Respondent's name should be removed from the Register. 12. Costs: The Complainant seeks its costs on the basis that in the normal course of events cost should follow the event. 13. Support for this contention is offered in HCCC v Fraser (No 2) [2014] NSWCATOD 84, in which the principles from HCCC v. Cieslak [2013] NSWNMT 23 are summarised as follows: The principles to be applied in determining whether to award costs pursuant to a statutory power such as found in the National Law are well established. They are set out in a number of leading cases and are summarised comprehensively in the judgment of Kirby J in Oshlack v Richond River Council (1998) 193 CLR 72 at [134]. In summary: 1. Normally in disciplinary proceedings, as in other civil litigation, costs should follow the event unless the circumstances of the case require, in the exercise of discretion, not to do so (see Ohn v. Walton (1995) 36 NSWLR 77). This position is frequently referred to as "the usual rule"; 2. an award of costs is to compensate, in the form of a partial indemnity, the person in whose favour it is made not to punish the person ordered to pay costs; 3. the onus is normally on the "losing" or unsuccessful party to establish any departure from the "usual" rule; 4. generally the presumption the "usual" rule applies will only be displaced where there has been some sort of disentitling conduct on the part of the successful party (see Oshlack; Arian v Nguyen [2001] NSWCA 5 at 36). 1. The Complainant draws the Tribunal's attention to HCCC v. Philipiah [2013] NSWCA 342 at [41-45] where the NSW Court of Appeal stated: The discretion to be exercised in the award of costs is one to be exercised judicially… As noted in the HCCC's submissions, unlike earlier legislation, the statutory provision in respect of costs in the National Law does not include a restriction on making a costs order unless there are special circumstances. Rather, the authorities now direct the Tribunal to generally order that costs should "follow the event" unless there are disqualifying circumstances from making an order in favour of the party seeking costs. Hardship of the losing party is not a relevant consideration. However, disqualifying factors may include matters such as the failure of the HCCC to establish professional misconduct if alleged in a complaint, to establish all the particulars of the complaint, or if the HCCC conducts proceedings in an oppressive manner, including taking procedural steps which unnecessarily increase the expense of the hearing. An early admission of a complaint may invoke the discretion (see HCCC v. Rolleston [2013] NSWMT 12). 1. The Complainant submits that, notwithstanding the fact that some particulars were not made out, the Applicant should receive the bulk of its cost. Not only is it the case that approximately two-thirds of the particulars were made out, but it is also clear than in almost all instances, the most important particulars were made out. As noted above, the Tribunal found that many "go to the heart of safe, ethical and wise professional practice". Further, a finding of professional misconduct was made on the basis of particulars that were made out. The Respondent's submissions 1. Mr Strickland seeks to bring the focus to the state of mind of the practitioner at the stage two hearing, as he minds the Tribunal that the Respondent's fitness to practice must be assessed at the time of that hearing rather than the time of the misconduct (A Solicitor v The Council of the Law Society of NSW (2004) 78 ALJR 310 at [21]). 2. As has been acknowledged elsewhere in these reasons, deregistration is not an automatic outcome upon a finding of professional misconduct (A Solicitor v The Council of the Law Society of New South Wales (2003) 216 CLR 253 at 268). 3. The Respondent accepts that he should be reprimanded and his registration should be subject to conditions. The conditions imposed on the practitioner in March 2012, as amended in October 2014, have been successful. An order for deregistration is not required, it is submitted, for the following reasons: 1. The Respondent has complied with all conditions imposed upon his practice by the Tribunal pursuant to the conditions imposed on him by the Tribunal; 2. The respondent has co-operated fully and openly with patient records audits, which concluded with confirmation that all of his practice had been complied with; 3. The respondent has gained insight and an understanding of his actions which resulted in the complaints, as set out fully in his statement dated 28 January 2015. Evidence of insight and contrition can be seen in the transcript of proceedings before the Tribunal on 23 October 2014; 4. The respondent has implemented a regime of practice management, with the assistance of Ms Gibson, which provides for improved provision of information and greater accountability through shared care. The respondent has maintained this regime since imposition of the conditions in March 2012. Submissions Re: Respondent's approach to Tribunal proceedings 1. Mr Strickland submits that the motivation of the Respondent's conduct is relevant. It was not motivated by turpitude or greed. Further, he practitioner has performed hundreds of surgical procedures on patients successfully. He is, it is put, "a committed practitioner who has realised the errors in his practice." The Podiatry Council audit confirms that he has implemented procedures to remove the risk of further unsatisfactory conduct. 2. The Respondent agrees that his approach to the Tribunal was misguided and reflected poorly on his insight, acknowledging that his decision to represent himself was foolish. Mr Strickland asks the Tribunal to accept that during the first hearing the Respondent found himself "playing a role" in an adversarial context that was unfamiliar to him. The Respondent recognises that he placed himself in this position. Feelings of persecution and indignation, as well as external stressors upon his health and finances, are offered as explanations of why it was difficult for him to display or communicate contrition. 3. The Respondent acknowledges that his contact with the expert witness (Complaint Three) was inexcusable, and financial and emotional pressure are proffered as motivating the behaviour. Regardless of the action taken by the Tribunal, the Respondent will suffer serious personal and professional repercussions. 4. The respondent's poor health, litigious and financial stressors, all contributed to this approach to the Tribunal. Submissions Re: Rehabilitation and Insight 1. It is submitted that rehabilitation is a relevant factor to be considered in determining whether a practitioner should be considered as being fit to practice. The Tribunal is directed to A Solicitor v The Council of the Law Society of NSW (2004) 78 ALJR 301 at [37], a case wherein the High Court, determined that the Court of Appeal of NSW had failed to give sufficient weight to the appellant's subjective evidence of rehabilitation, among other matters (at [37]). Mr Strickland submitted that insight is an important component of rehabilitation, and that the Respondent had demonstrated insight. 2. As evidence of this Mr Strickland points to evidence of the Respondent that he does "get it", and his statement that "there is no excuse". His evidence, it is put, is consistent with this understanding. 3. Evidence is before the Tribunal from Ms Gibson and the Respondent concerning significant changes to practice to prevent further transgressions, with a commitment to "world's best practice". Such measures, it is submitted, have succeeded in improving the respondent's practice on matters of consent, shared care, provisions of information and consistency of record-keeping, better communication with treating practitioner's referrals for further opinion. 4. The identified shortcomings have, according to the Respondent, been remedied. He has practised under conditional registration since March 2012. The Tribunal should take into effect the time period which has elapsed between the offending conduct and the hearing (NSW Bar Association v Meakes [2006] NSWCA 340 at [93], a case in which one of the countervailing factors considered in making orders was that it had been some six and a half years from the time of the offending conduct to the time of making the orders, during which time there had been no suggestion that the conduct had been repeated. It is noted that similar timeframes have played out in the present case. 5. In referring to the practitioner's evidence of ongoing professional development contained in his statement (at [78]), it is submitted that this is evidence of his willingness to learn and to improve his general practice skills. Consideration 1. The Tribunal was presented with an unusual change in the expressed attitude of the practitioner between time of the so-called first and second stages of the hearing process in this matter. 2. At the first stage hearing the practitioner stridently protested his lack of culpability in all matters. No real admissions were made to any of the particulars. Dr Bours' final written submissions were framed around the notion that he had not been treated 'equally' or fairly, and that he was the injured party, deserving of reimbursement of his costs. If the attitude demonstrated by the practitioner at the time the first hearing is to be the yardstick, his registration should most likely be cancelled, in large part due to the manifest lack of insight and contrition revealed at hearing. 3. At the second stage hearing, indeed, at the directions hearing some months before the rescheduled second stage hearing, the practitioner, who had recently engaged legal counsel, presented as a man who had undergone a profound epiphany of the unacceptable nature of much of the particularised conduct. He was contrite and stated, "I get it". The question becomes, to some extent, the truthfulness of this stance, and the measure of any supporting evidence. 4. The Tribunal accepts that the practitioner was under considerable strain due to health and professional woes. Such cannot excuse any of the conduct. The Tribunal is less convinced that lack of legal representation caused Dr Bours to put on an uncomfortable adversarial mantle. A contemptuous attitude to the Complaints and the tribunal process had been clearly observed throughout the preliminary stages and directions hearings, at which time the practitioner was legally represented. 5. The question of fitness to practice is to be determined at the time of the second stage hearing, naturally in the context of the hearing content, the gravity of the infringing conduct, and the findings. Mere lapse of time, of course, is not sufficient to infer ethical and behavioural transformation. Nor, might it be said, is a practitioner merely saying that they have seen the error of their ways and have repented. The critical factor is the evidence presented of the alleged wholesale change of heart, to be weighed against the key elements concerning fitness to practice, as found in the legislation and the case law. 6. Therefore, if the Tribunal is asked to consider the veracity of the changed attitudes presented at the second stage hearing, then it must turn to consider the evidence upon which that change of heart purportedly stands. 7. The practitioner did not offer a lot in the way of actual evidence of such transformation, apart from his word. There was no psychology or other counselling report, or evidence of engagement in formal mentoring. Granted, while these items are helpful in determining such matters, they are not a threshold requirement. 8. The statement of Dr Bours' wife, Ms Helen Gibson, was a convincing and weighty piece of evidence. Although a tribunal must always consider the possibility of natural bias in a statement from a spouse, it was thought that the evidence was probative, balanced, helpful and genuine. The evidence was not challenged. Dr Bours, in his oral evidence, spoke of the positive influence of his wife after the publication of the initial findings, and credited her influence as a key factor in his radical change of perspective about the Complaints. He reported that she was harsh in her criticism of him, and did not hide her inability to condone the conduct in question, particularly as a fellow health practitioner. 9. The references supplied all, as might be expected, speak very highly of Dr Bours, his surgical prowess, and his general handling of pre-operative information and post-operative care. What was noted by the Tribunal was the opinions expressed, particularly by Mr Matthew Jones, Podiatrist, that the practitioner fulfils a niche function in the area of foot surgery, and has regularly offered solutions where other practitioners could not. What is not found in any of the references is any indication that the practitioner has spoken of his contrition or remorse over the events that have unfolded concerning the four patients, the medication breaches, and the intimidation of the expert witness. 10. The statement and oral evidence of the practitioner, was, for the most part, framed in admissions to the particulars and acceptance of the Tribunal's findings. As was highlighted in the cross examination of Dr Bours at second stage, the admissions in relation to the authenticity of his client medical notes were limited. While he admitted that they were not contemporaneous notes, and could have made weeks or months after the event concerned, he denied that such was done to improve his position before the Tribunal. The Tribunal considers that this claim is unlikely, given the evidence of both curious inconsistencies and unusually detailed parallels in the notes on matters particularised, as was discussed in the first stage reasons for decision. 11. The Complainant, in submissions, raised concerns around the lack of frankness of a practitioner in a professional disciplinary matter before the Tribunal, and the Tribunal has taken this into account. 12. Ms McNaughton, in oral submissions, reminded the Tribunal that there is little evidence that the practitioner has addressed the precipitating causes of the infringing conduct (referred to at [531] – [533] in HCCC v Bours (No. 1)). That is, the inflated sense of ability, lack of caution, high level of arrogance, spurious attempts to justify behaviour, and so on. The evidence that we have that such matters have been addressed is really limited to the word of the practitioner and that of his wife. This, it was submitted, should trouble the Tribunal. Mr Strickland asks that the Tribunal give the practitioner's rehabilitation the appropriate weight when crafting the orders, and the Tribunal believes that this has been duly taken into account. It must be acknowledged, however, that the evidence of such rehabilitation is thin. 13. The orders made reflect the Tribunal's concern, while acknowledging other relevant features. 14. The Respondent proffered evidence of improved procedures and protocols for clinical practice, and compliance with the already imposed registration conditions. This has been taken into account. 15. A wider point is whether the manifest clinical issues have been resolved. It is likely that a great many of the clinical issues have been recognised and addressed by the practitioner, and processes have been put in place to ensure, for example, that proper informed consent is obtained, and that there is clear evidence of communication of compromising surgery risks, such as smoking. A great deal of problem was caused to Patient B, admittedly a difficult patient, by the scheduling of surgery prior to Easter and lack of provision of details for a suitably qualified and informed podiatric surgeon. These matters have been addressed, and, in reality, it is unlikely that Dr Bours would again be as cavalier. 16. The argument could be made that much of the risk of reoccurrence of the type of patient-related deficiencies revealed in Dr Bours' practice that were the subject of the Complaints can be swept aside by simply ordering a period wherein he might only practice in general podiatry, not surgery. Indeed, Mr Strickland made such submission on behalf of the practitioner. 17. However, the Tribunal, in its protective function, is not only concerned with the protection of the public against further occurrence of actual clinical harm. The Tribunal must consider the matter of general deterrence. 18. General deterrence is significant to the matters around patient information and care inasmuch as it is important to send a resounding message to other practitioners that, for example, informed consent matters. Surgery without informed consent, strictly, may amount to a battery at law. Sadly, many might report having been utterly befuddled after a surgical consultation. Unfamiliar technical words, cursory explanations, and haughty assurances are not the foundation upon which informed consent is easily grounded. That is not to say that a surgeon is required to explain the depth and direction of every incision, and the number and thickness of every stitch. But a legally competent person going into surgery should be armed with an understanding of the nature of the surgery, whether or not it is considered mainstream or novel, the possible risks and complications and their likelihood (or otherwise), and a reasonable 'ball park' expectation of the nature and length of recovery times (albeit understanding that there can be differences between individuals due to age or comorbidities or simply the vagaries of nature). However, for example, to draw and give a technical wording around the planned removal of a piece of bone, and then expect that the patient would infer from that that their toe would be noticeably shorter, is not obtaining informed consent. Similarly, if a patient expecting a simple surgery is told by their surgeon that their post-surgery foot will be like one that has been run over by a car, this conversation should occur before the surgery, not after. As was stated in the reasons for the findings, a person cannot consent to a range of risks of which they are unaware. 19. The public is entitled to confidence in the profession, and the profession must be warned. Further, other members of the podiatric surgery fraternity should not suffer the taint of findings of professional misconduct being lightly dismissed by a tribunal when it comes to making orders. The podiatric surgical community is very small in Australia, there being something in the order of twenty to thirty such surgeons nationwide. Dr Bours gave no shortage of evidence as to his contribution to the development of novel surgical techniques in podiatry, and the potential for such techniques to afford results he described as 'remarkable'. Indeed, he and his references describe him as something of a pioneer. The reputation of the podiatric surgery profession should be protected by the Tribunal carefully making orders that reflect the measure of seriousness of the findings. 20. Additionally, the findings concerning the unauthorised breaches of the legislation in obtaining and supplying restricted substances call for the highest reproach. The serious view taken by the Tribunal of this conduct is to be found in the making of critical compliance conditions, such that, should the practitioner flout the law again and engage in such unlawful conduct with restricted substances, the effect would be cancellation of registration. The fact that there cannot be review of such conditions for at least four years from the date of this decision is a measure of the gravity of the practitioner's breaches in this regard, and the need to send a clear message to health professionals that wilful breach of (or reckless disregard for) legislation governing medications is completely unacceptable. 21. Finally, the intimidation and harassment by a health professional of an expert witness in disciplinary proceedings is utterly disgraceful, and must have no safe passage whereby it could be considered a minor matter. 22. The Tribunal reprimands the practitioner in the strongest terms. A reprimand is issued to reflect that there were within the four complaints findings of conduct so grievous and disgraceful that they warranted the extra voice of formal reprimand. Apart from the clinical matters which were most serious, the practitioner's elevation of self above bothering to adhere to legislative requirements concerning restrictive drug privileges was a matter of grave concern. Further, the matter of harassment of an expert witness goes beyond deplorable and brutish behaviour from one professional to another. It is interference with a quasi-judicial process. 23. The Tribunal has ordered that the practitioner be suspended from practice as a podiatrist (general and surgical) for a period of one year. The effect of suspension, as opposed to cancellation of registration, has already been outlined. The consequence of suspension is that the registration is effectively revived at the conclusion of the nominated period. The practitioner is spared having to jump the not insignificant hurdle of applying for a review of the original order under the National Law, and presenting evidence at a fresh tribunal hearing as to fitness to resume registration. The Tribunal has opted for this course of action as it is thought that it recognises, in the context of the fullness of the other orders and conditions, the seriousness of the conduct that has occurred and fulfils the spectrum of protective objectives. The Tribunal is sufficiently satisfied by the improvements to clinical practices and procedures to feel confident that it is unlikely that similar departures would occur in the future. 24. The Tribunal has allowed a period of one week from the date of these orders before the commencement of the period of suspension. This is to allow a short period of time for referral of patients and to attend to patients who already have appointments or surgeries booked in that week. This period of grace is afforded in order that inconvenience to existing patients might be minimised and managed. 25. There is no doubt that a period of suspension from practice will deal a painful blow to the practitioner, who has already encountered substantial financial, professional, and social loss. The object of the orders is not for punitive purpose, but, rather protective. It is inescapable, however, as expressed variously in the case law and outlined above, that a protective order may have the felt effect of punishment to the practitioner. 26. After the practitioner resumes registration status, the orders dictate that for the following two years he may not practice podiatric surgery, but only general podiatry. The exception to the restriction of podiatric surgery is to allow the practitioner to perform minor toenail surgery within the routine general practice of podiatry. It is acknowledged that toenail surgery is a routine part of general podiatry and should be permissible if the Dr Bours is so practising during the given two year period. There should be no doubt that this exception is limited to minor toenail surgery, and should not be viewed as a loophole by which more significant surgeries may be performed. On balance, the Tribunal is of the view that the fashioning of the orders in this manner is appropriate for a few reasons. 27. Chief among these is the recognition that Dr Bours does have highly specialised surgical skills. It is a matter for consideration in making orders of the effect of removing an otherwise skilled practitioner from the market of health services. As mentioned, there are very few podiatric surgeons in Australia, and Dr Bours has gained a reputation as being one of the leaders in the field. True, an inflated enthusiasm for novel techniques insufficiently tempered with mindfulness of potential risks, complications and limitations of the techniques, has led to some of the infringing conduct found as the substance of the complaints. But, given the demonstrated ability to improve practices and adhere to strict practice conditions, the Tribunal would seek to make orders that do not result in the utter wastage of Dr Bours' skills. The period of suspension from all practice, followed by the limitation of practice in general podiatry only for the next two years, would seem to strike the balance of protecting the public, fulfilling the objectives of both specific and general deterrence, and preventing the removal for all time of a skilled podiatric surgeon from the profession. 28. It would often be in such cases that the Tribunal would make an order for mentoring. We consider that this is not a viable order in this case. Dr Bours is, on his evidence, the most senior of his colleagues in Sydney, and has trained and mentored the other Sydney-based surgeons. He does have professional relationships with surgeons overseas, but, on balance, it was thought to be a fairly cumbersome matter to manage if ordered. 29. Similarly, the Tribunal has not made any order for psychological counselling, it being thought to be of limited usefulness in terms of the practice matters before the Tribunal. Counselling may be of great personal benefit, but, on balance, it was not considered to be an appropriate order. 30. Each of the parties made submissions as to costs. Despite the fact that not all of the particulars were proved, all four of the complaints were proved, and the substantial elements of each complaint were made out. As has been stated, costs typically follow the event, inasmuch as the successful party can reasonably expect compensation for their costs in absence of any disentitling conduct. It is further noted that, given the admissions that were made in the Respondent's second stage statement, we can see that much time and expense could have been spared had he reasonably met the complaint and made appropriate admissions. Prior to the initial hearing the respondent refused to give a written statement in response to the Complaint. Towards the end of the hearing the practitioner adopted the recording of the HCCC's initial interviews as his statement when it became necessary to facilitate him giving evidence in chief as a self-represented person. In short, the practitioner cannot point to any conduct of his that has saved time and expense. Nor can he point to any conduct in the Complainant that would justify disturbing the usual compensatory regime surrounding costs in such matters. In the balance of all these matters, the Tribunal finds that the Complainant is entitled to the award of costs and has so ordered. 31. The respondent shall pay the complainant's costs of and incidental to the proceedings as agreed and, failing agreement, liberty to restore before the Tribunal. ORDERS 1. Reprimand: On 13 October, 2014 the Tribunal in HCCC v Bours (No.1) [2014] NSWCATOD 113 made a finding that the Practitioner has engaged in unsatisfactory professional conduct and professional misconduct, and consequent upon those findings the Practitioner is reprimanded as a mark of the Tribunal's strong disapproval of the offending conduct. 2. Pursuant to s149C(a)(b) the Practitioner's registration as a podiatrist is suspended for a period of one year, to commence one week from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, such that the suspension period commences on 12 August 2015. During the one week period before the commencement of the suspension the Practitioner is only to consult patients for the purpose of providing referrals to other practitioners, and to attend to patients with appointments or surgeries that were already booked as at the date of these orders for that week 3. The Practitioner is ordered to pay the costs of the HCCC as agreed or assessed. If agreement cannot be reached between the parties then the parties have leave to apply to the Tribunal for assessment unless some other assessment mechanism is provided for at the relevant time. 4. After the expiration of the suspension in accordance with Order 2 of HCCC v Bours (No.2) [2015] NSWCATOD 80 the Practitioner's registration is to be subject to the following conditions: 1. the Practitioner may not perform or assist with or in any other way practice podiatric surgery for a period of two years from the date upon which the initial one-year suspension of registration made in Order 2 of HCCC v Bours (No.2) [2015] NSWCATOD 80 expire, until 11 August, 2018. This condition does not preclude the respondent from practising as a general podiatrist after the period of suspension has expired including performing minor toenail surgery, but only if it is in the course of general podiatry; 2. the Practitioner shall not for a minimum period of four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August 2019, obtain, possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW); 3. the Practitioner shall not for a minimum period of four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August, 2019, obtain, possess, supply, administer or prescribe any Schedule 4 or Schedule 4 Appendix D drugs as defined by the Poisons and Therapeutic Goods Regulation 2008 (NSW), except where permitted in the routine practice of general podiatry for minor toenail surgery; 4. Orders 4(b) and (c) are critical compliance conditions within the meaning of s.149A(4) and (5) of the National Law, such that a contravention of either order will result in the Practitioner's registration being cancelled. 1. The Practitioner is not to apply for a review of Orders 4(b) and (c) for a minimum period of four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August 2019. After four years from the date of HCCC v Bours (No.2) [2015] NSWCATOD 80, being 4 August 2019, the Practitioner may apply to the Podiatry Council of NSW (if his principal place of practice is NSW) or the Podiatry Board of Australia (if he resides in any other jurisdiction) to have orders 4(b) and (c) reviewed. 2. The Tribunal made a non-publication order pursuant to Schedule 5D, clause 7 of the National Law, preventing the publication of the names of the four patients referred to in the schedule to the Complaint before the Tribunal, who are referred to as Patients A, B, C and D in these reasons for decision. The non-publication order extends to publication of the names of the mother and daughter of Patient B, referred to as Mother B and Daughter B. 3. The Registrar, Occupational Division, NSW Civil and Administrative Tribunal is requested to forward a copy of this decision and these orders together with details of the practitioner's name to AHPRA with a request that it note Orders 1, 2 and 4 of these Orders on the Register. 4. The Registrar, Occupational Division, NSW Civil and Administrative Tribunal is requested to forward a copy of this decision (HCCC v Bours (No.2) [2015] NSWCATOD 80 and the stage one reasons for decision (HCCC v Bours (No.1) [2014] NSWCATOD113) to the Australasian College of Podiatric Surgeons and to the Pharmaceutical Services Unit of the NSW Department of Health. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 05 August 2015