Ting v Health Ombudsman[2023] QCA 180

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Bradley J.
2. [2]
   BODDICE JA:  I agree with Bradley J.
3. [3]
   BRADLEY J:  The applicant, Dr Ting, was first registered as a medical practitioner in December 1990.  He holds a Bachelor of Medicine and Bachelor of Surgery degree awarded by the University of Queensland in 1989.  He has been a Fellow of the Royal Australian College of General Practitioners since 1994, and a fellow in advanced rural general practice since 2015.
4. [4]
   On 9 December 2022, the Queensland Civil and Administrative Tribunal decided that Dr Ting had behaved in a way that constituted professional misconduct.^[1]  The Tribunal cancelled his registration as a medical practitioner and disqualified him from applying for registration indefinitely.^[2]
5. [5]
   Dr Ting seeks leave to appeal the Tribunal’s decision.

Findings of the Tribunal

6. [6]
   The decision followed a hearing conducted over four days from 25 to 28 July 2022.  The Tribunal was constituted by judicial member Robertson, assisted by Dr Scott Phipps, Assoc Prof Gordon Senator, and Ms Margaret Ridley.  In the published reasons, the judicial member found five allegations against Dr Ting were proved.  In summary these were:

   1. On 19 March 2018, Dr Ting performed an iron injection on a patient which was not in accordance with accepted medical practice and was below the standard to be expected of a general practitioner (allegation 1);
   2. On 11 March 2018, Dr Ting’s professional performance was unsatisfactory (allegation 2);
   3. Dr Ting breached conditions imposed on his registration by not recording his contact with three patients on 12 February 2019 and by consulting with more than four patients per hour on 14, 15, 19, and 21 February 2019 (allegation 3);
   4. Between 14 and 26 February 2019, Dr Ting prescribed schedule 4 controlled drugs (S4 drugs) and schedule 8 restricted drugs (S8 drugs) without holding the requisite endorsement under the Health (Drugs and Poisons) Regulation 1996 (Qld) (HDPR) (allegation 4); and
   5. On 30 November 2017, Dr Ting’s clinical management of a patient was not consistent with accepted medical practice and fell below the standard to be expected of a general practitioner (allegation 5).
7. [7]
   These five findings were the foundation for the judicial member’s conclusion that Dr Ting had engaged in professional misconduct.^[3]  Together with evidence about Dr Ting’s prior and subsequent conduct, the evidence about these five allegations was the factual basis for the judicial member’s finding that Dr Ting was not a fit and proper person to practice medicine.^[4]  All the findings led to the orders cancelling his registration and disqualifying him from applying for registration indefinitely.

Relief sought by Dr Ting

8. [8]
   If granted leave, Dr Ting would ask this Court to set aside the Tribunal’s decision and, instead, make a decision that his registration be subject to conditions limiting him to practice in: anaesthesia and emergency medicine at a hospital; “non-traditional” general practitioner work in community care, respite care, aged care facilities, NDIS disability care, and aged care; work on patient assessments for home support packages, home care packages, respite care, and aged care homes for two Commonwealth entities;^[5] rural generalist relieving work; and general practitioner work with the Institute for Urban Indigenous Health.
9. [9]
   Dr Ting would also seek an order that the respondent, the Health Ombudsman, bear the costs of the proceeding in this Court.

The applicant’s case for leave to appeal

10. [10]
    On 11 July 2023, Dr Ting addressed the Court to make his case for leave to appeal.  He addressed four of the five allegations against him that were accepted by the Tribunal.  It is convenient to consider each allegation, together with Dr Ting’s relevant submissions about the Tribunal’s findings.

Allegation 1: Performing an iron injection on a patient below the expected standard for a general practitioner

11. [11]
    Dr Ting admitted that, in March 2019, he performed an iron injection on a patient which was not in accordance with accepted medical practice and was below the standard to be expected of a general practitioner.  Dr Ting confirmed he did not challenge this allegation.  He did not require the patient for cross-examination at the Tribunal hearing.
12. [12]
    The relevant facts may be briefly stated.  Dr Ting failed to inform the patient of the risks associated with the procedure and of alternative methods of treatment.  He performed the procedure in a manner which was inconsistent with accepted medical practice and at a time when it was unsafe to do so because no tourniquet was present and no normal saline solution ampules were available.  He performed the procedure in a way that resulted in the patient experiencing pain, discomfort, and skin discolouration for about five months.  Dr Ting failed to make any note of the consultation with the patient, the performance of the procedure, or the adverse outcome experienced by the patient.
13. [13]
    Dr Ting questioned Dr King about this allegation.  Dr King said there was “no indication whatsoever” for the injection.  It was Dr King’s view that the injection was not medically justified.  Dr King, who is an examiner for the Royal Australian College of General Practitioners, said he would have failed Dr Ting in a college exam had he proposed this course of treatment.
14. [14]
    The judicial member was satisfied the allegation was proved.  This finding was appropriate, given the evidence before the Tribunal, including Dr Ting’s admission.
15. [15]
    The judicial member’s finding that Dr Ting had engaged in professional misconduct was based on a consideration of the seriousness of all the conduct proved at the Tribunal hearing.
16. [16]
    The judicial member’s finding, in so far as it concerned allegation 1, was not affected by any error.  The procedure was not medically justified.  Dr Ting’s failure to inform the patient meant the patient could not give informed consent to the procedure.  Dr Ting performed the procedure in an unsafe and irregular manner.  He caused the patient actual harm.  He failed to record what had occurred.  His conduct was substantially below the standard reasonably expected of a registered medical practitioner with a level of training and experience equivalent to Dr Ting.

Allegation 2: Unsatisfactory professional performance

17. [17]
    On 11 March 2018, Dr Harold Jacobs observed Dr Ting consulting with 13 patients over two hours.  The same day, Dr David King observed Dr Ting consulting with 10 patients in just under two hours.  Their written report was before the Tribunal.  It included their personal observations of Dr Ting in practice consulting with patients and their review of his medical records.
18. [18]
    In their report and before the Tribunal, Dr Jacobs and Dr King gave evidence that, on 11 March 2018:

    1. Dr Ting did not review patient records prior to consultations to refresh his memory regarding the history of the patients he was seeing;
    2. Dr Ting failed to ask fundamental questions of patients to obtain necessary information (e.g., inquiring about the nature and severity of pain when a patient presented for pain relief);
    3. Dr Ting omitted to conduct physical examinations of patients;
    4. Dr Ting failed to follow up on abnormal findings, commonly in relation to abnormal blood pressure readings, in respect of patients he saw in consultations;
    5. Dr Ting had a chaotic and, at times, inappropriate method of communicating with patients by demonstrating indecision and uncertainty in his advice and treatment plans; and
    6. Dr Ting made inappropriate claims on Medicare, failed to comply with PBS guidelines, and had highly inappropriate booking practices.
19. [19]
    Dr Ting did not challenge the recollections of Dr King and Dr Jacob of what occurred during the patient consultations they observed.  He gave his own view about the consultations, which were not accepted by the witnesses.  He accepted he saw an excessive numbers of patients in a day, and was “overbooking” patient appointments.
20. [20]
    Dr Ting submitted to the Court that his cross-examination of Dr King and Dr Jacobs showed his “overall performance” was satisfactory.  This mischaracterises their evidence.
21. [21]
    Dr Ting cross-examined Dr King for about three hours.  He cross-examined Dr Jacobs for about two and a half hours.  He asked these witnesses very few questions.  He spent much of the time making statements of his own opinions.  The evidence he adduced from the witnesses was not to the effect he submits.  Dr Ting put to each of the witnesses that he would be safe to practice in a rural hospital setting.  Each rejected that proposition.
22. [22]
    Dr King said Dr Ting was not suitable for a rural hospital position because, for the reasons stated in the report, Dr Ting did not have the competence required to work in such a position.  Dr Jacobs told the Tribunal he had “grave concerns” that Dr Ting had not shown the insight to admit the mistakes he had made about cardiovascular risk management in diabetic patients, in giving intravenous drugs in the surgery, in PBS prescribing, and in Medicare billing.  Dr Jacobs said:

“What I’ve seen and heard is excuses as to why he’s done that, like there was all these drug-dependent people who needed scripts and a very heavy workload, so he had to see 74 people in a day.  I think that shows poor insight into what’s required and the fact that no amount of remediation, of education or mentoring or supervision will actually get you to be practising at the level of a competent GP.”

23. [23]
    When Dr Ting asked Dr King for an example of what he should have done differently, Dr King said he certainly would not have given a drug-dependent patient a sample of a narcotic to takeaway.  If the patient was in pain, Dr King would have told her to go back to hospital, rather than give her the narcotic.
24. [24]
    Dr King also criticised Dr Ting for prescribing narcotics and medical cannabis, for some of the ten patients whose records he examined, without recording each patient’s pain score.  Dr King said this prevented Dr Ting from knowing whether the medication was effective to reduce the patient’s pain over time.
25. [25]
    The judicial member accepted the evidence of Dr Jacobs and Dr King, including their evidence that, in an interview with them, they found Dr Ting “lacks insight into his deficiencies and appears to be unprepared to do anything to correct the issue.”^[6]  The judicial member also observed:

“What is remarkable is that [Dr Ting] well knew what the purpose of the performance assessment was, and yet he was unable or unwilling to adapt his practice to endeavour to perform to proper standards while the assessors were present.”^[7]

26. [26]
    Given the seriousness of allegation 2, the judicial member used the standard of proof applied in Briginshaw v Briginshaw.^[8]
27. [27]
    The judicial member was satisfied that Dr Ting overbooked patients, based on the evidence of Dr Jacobs, who reviewed Dr Ting’s records.  Dr Jacobs found that on each of 16 and 18 October 2018, and 4, 5, 10 and 18 December 2018, Dr Ting billed a patient for a consultation lasting at least 20 minutes (Medicare item 36) or 40 minutes (Medicare item 44) at a time when he had booked appointments for three, four, five, six, or seven other patients over the same 30-minute period.  Dr Jacobs told the Tribunal the booking practices were “highly inappropriate” and of a kind he had never observed in the many assessments he had conducted over a decade.  Dr Ting did not challenge Dr Jacob’s evidence in this respect at the hearing before the Tribunal.  The judicial member found that this evidence showed Dr Ting “made inappropriate claims on Medicare, and failed to comply with PBS guidelines.”^[9]
28. [28]
    In his address to the Court, Dr Ting said the owner of the medical practice was away during the periods covered by the assessment of Dr King and Dr Jacobs.  Dr Ting said he saw many more patients at this time because he was “looking after” his own and the owner’s patients.
29. [29]
    Dr Ting identified no legal or factual error by the judicial member.  There is no basis for this Court to set aside the Tribunal’s findings on allegation 2.

Allegation 3: Breach of registration conditions on patient appointments and logbook

30. [30]
    On 28 December 2018, the Board imposed conditions on Dr Ting’s registration as a medical practitioner.  Relevantly, the conditions required Dr Ting to limit the number of patients with whom he consulted to four per hour and to keep a log of details of his contact with each patient.  The Board had imposed the conditions after receiving the report of Dr Jacobs and Dr King.^[10]
31. [31]
    Dr Ting did not address the Court on this allegation.  It may be briefly considered by reference to his written outline and reply.
32. [32]
    In his outline, Dr Ting contended that the “excessive booked patients” – more than four per hour – did not “translate to excessive consultations”.  His explanation was that this “clearly indicates common-sense explanations such as patients cancelling their appointments or patients [who] did not turn up for their appointments”.
33. [33]
    The Board’s allegation was established by Dr Ting’s clinical notes of his consultations on 14, 15, 19, and 21 February 2019.  Dr Ting accepted these as correct in cross-examination.  In the face of the evidence and admission, I reject Dr Ting’s suggested explanation.
34. [34]
    Dr Ting also contended there were “extenuating circumstances or reasons” for consulting with more than four patients per hour.  He wrote that, for each patient with whom he consulted, he spent five minutes keeping the log required by another of the registration conditions.  This submission neither justifies nor explains Dr Ting’s failure to comply with the condition.
35. [35]
    Dr Ting appears to have accepted that he failed to record in his logbook three consultations with patients on 12 February 2019, at which he prescribed oxycodone, temazepam, and paracetamol and codeine, respectively.  In his written response, Dr Ting stated that any breaches were “unintentional”.  He told the Tribunal “these oversights were not intentional”.
36. [36]
    The judicial member rejected Dr Ting’s characterisation of the breaches as unintentional, finding:

“His attitude to the logbook condition is absolutely consistent with his past conduct.  He has difficulty in accepting fault.  He blames others.  In my opinion, his overall attitude is consistent with someone who does not understand or accept the significance of such conditions.”

37. [37]
    Nothing identified by Dr Ting shows the judicial member’s conclusion to be affected by error.

Allegation 4: Prescribing S4 and S8 drugs after authority cancelled

38. [38]
    Dr Ting did not challenge the evidence that the chief executive cancelled his endorsement to prescribe S4 drugs and S8 drugs pursuant to the Health (Drugs and Poisons) Regulation 1996 (Qld) (HDPR) and that he received the cancelation notice on 12 February 2019, at about 3.00 pm.^[11]
39. [39]
    Dr Ting admitted prescribing S8 drugs on 14,^[12] 15,^[13] and 19 February 2019^[14] and prescribing S4 drugs on 14,^[15] 19,^[16] and 26 February 2019.^[17]  It follows that on those dates Dr Ting prescribed these medications without holding an endorsement under the HDPR.
40. [40]
    The judicial member was satisfied that Dr Ting breached s 51 of the HDPR by prescribing S8 drugs and breached s 146 of the regulation by prescribing the S4 drugs on the relevant dates.  The evidence and admissions before the Tribunal were a proper basis for these findings.

41. [41]
    The judicial member also found that this conduct by Dr Ting amounted to professional misconduct.  I infer that he found the conduct to be substantially below the standard reasonably expected of a general practitioner.^[18]

42. [42]
    Nothing identified by Dr Ting shows the judicial member’s factual findings or legal conclusion to be erroneous.

Email dated 8 February 2019

43. [43]
    Dr Ting made many submissions to the Court about an email dated 8 February 2019, sent by a Queensland Health officer, Mr Clay Butler.  The address to which the email was sent differed from Dr Ting’s email address by one letter.  The email attached a copy of the notice to Dr Ting cancelling his authority to prescribe S4 and S8 drugs, without all of the attachments to the notice.  It is convenient to make some observations about the email at this point.
44. [44]
    In his reply, Dr Ting submitted that the judicial member’s “quick fire” comments, during Dr Ting’s cross-examination of Mr Butler, were “intimidating” and “thus not allowing judicial or procedural fairness”.  Dr Ting identified the part of the transcript when the judicial member, speaking of the 8 February 2019 email, said:

“Dr Ting, I’ve read all your material and there’s a lot of reference to this issue. Including making some quite serious allegations against Mr Butler.  … The bottom line is, you accept that you received one of the – presumably the one sent to the Woody Point Medical Centre.  And the case today is proceeding on the basis that you received notification of the cancelation of your credentials form 3 pm on the 12^th of February.  So whether it bounced or whatever Mr Butler received [as] a notification from postmaster and outlook.com is just irrelevant.”

45. [45]
    Apparently undaunted, Dr Ting continued to cross-examine Mr Butler about the email.  He did not put to Mr Butler any of the serious allegations he has made to this Court in his outline and his reply.^[19]  So, he did not give Mr Butler a fair opportunity to accept or reject those allegations.  In this respect, Dr Ting’s conduct was unfair.
46. [46]
    As noted at [38] above, Dr Ting admitted he received the cancelation notice on 12 February 2019.  The earlier email was not relevant to whether Dr Ting’s alleged conduct after 12 February 2019 constituted professional misconduct, unprofessional conduct, or unsatisfactory professional conduct, or whether he had no case to answer.^[20]  Nor was it relevant to whether the Tribunal should cancel his registration, suspend it for a period, require him to pay a fine, impose a condition on his registration, or caution or reprimand him.^[21]  With respect, the judicial member’s observation was correct.
47. [47]
    For the same reason, the email is not relevant to whether the Court should grant Dr Ting leave to appeal, set aside the Tribunal’s decision, and make some other decision.
48. [48]
    Apart from both the unfairness and the lack of relevance, there was no evidence before the Tribunal by which Dr Ting’s submissions about the email could be proved or from which they could be inferred.  The judicial member could not have accepted them.

Allegation 5: Clinical management of a patient prescribed 8mg Suboxone

49. [49]
    On 30 November 2017, Dr Ting gave a patient a prescription for 8mg of Suboxone^[22] and enrolled the patient in the Queensland Opioid Treatment Program (QOTP).  In the QOTP admission form, Dr Ting recorded the patient’s date of birth, height, and weight.  According to the form, the patient was in his mid-thirties, about 180cm tall and weighed about 95kg.  Dr Ting noted that the patient’s primary drug of dependence was morphine, taken by intravenous injection, and that the patient also used oxycodone, benzodiazepines, and nicotine.  He also recorded that the patient had been released from prison about four days earlier and was required by a parole condition to be on the QOTP.
50. [50]
    The same day, the patient took Dr Ting’s script to a pharmacy at Deception Bay, where he consumed the prescribed drug.  He arrived home at 5.00 pm, fell asleep on a couch and later was found unresponsive.  He could not be revived.
51. [51]
    The Coroner’s findings and an autopsy report were before the judicial member.  These showed the patient had a medical history including depression and anxiety, schizophrenia, and polysubstance abuse.  The patient had been released from prison in Rockhampton, nine days before he saw Dr Ting.  On release, the patient had been prescribed diazepam, Lyrica (pregabalin), and olanzapine. The Coroner concluded the patient died from the combined effects of several prescribed medications.  The Coroner made a finding of death by misadventure.
52. [52]
    Before the Tribunal, Assoc Prof Levy gave evidence based on a review of the Coroner’s findings, the autopsy report, and the submissions made by Dr Ting.
53. [53]
    In Assoc Prof Levy’s opinion, Dr Ting did not take a proper history from the patient, particularly about current drug use.  He criticised Dr Ting for not trying to ascertain the actual dosages of the prescribed medications the patient had told Dr Ting he was taking, including olanzapine, which was found in toxic quantities in the patient’s body post mortem.
54. [54]
    It was Assoc Prof Levy’s opinion that:

“Given the potential dangers of Suboxone use, a practitioner performing to the expected standard would seek to be as sure as possible that they are fully aware of the patient’s current drug use.

…

Dr Ting did not have a full appreciation of the drugs and medications that [the patient] was taking – whether prescribed medications, over-the-counter medications or street drugs.  I do not consider Dr Ting took adequate steps in his consultation with [the patient] to avoid danger to the patient.  The appropriate course should have been for Dr Ting to decline to prescribe anything to [the patient] until he had a full picture, and – if choosing to prescribe – certainly the very minimum dose of anything chosen, most especially medication that might deleteriously interact with opioids and benzodiazepines.^[23]

…

On balance, I consider that Dr Ting’s clinical management of [the patient] was substantially below the standard reasonably expected of a medical practitioner of [equivalent] level of training or experience …”

55. [55]
    Under cross-examination by Dr Ting, Assoc Prof Levy maintained that Dr Ting should have limited the dosage prescribed to the bare minimum because Dr Ting did not know what the patient was taking, and in what quantity, from other sources.
56. [56]
    Assoc Prof Levy also said Dr Ting should have done “a mental health assessment, and evaluation of the risk of deliberate self-harm/suicide” and at “the very least” Dr Ting “needed to effectively assess the risk versus benefits” of prescribing Suboxone to the patient “at that time.”  He said, “Dr Ting did not adequately do so.”
57. [57]
    The judicial member found that, in prescribing 8mg of Suboxone for the patient, Dr Ting had engaged in conduct substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.^[24]  The evidence of Assoc Prof Levy, which the judicial member accepted, established:

    1. The patient was highly vulnerable.
    2. Dr Ting did not take a proper history from the patient, particularly in relation to the patient’s then current drug use.
    3. Knowing the patient was a user of prescribed drugs (olanzapine and pregabalin) and illicit drugs (opioids), Dr Ting made no effort to ascertain the patient’s actual doses of the prescribed medications.  He did not seek or have access to any prison medical records.
    4. Dr Ting prescribed 8mg of Suboxone without a full appreciation of the drugs and medications the patient was taking.
    5. Dr Ting did not record any physical examination of the patient or any counselling with respect to drug use.
    6. He did not put a general treatment plan in place.
58. [58]
    In his address, Dr Ting told the Court the patient had no prison discharge summary.  He said a physical examination was “useless” because “the client does not want one” and a mental health assessment was not required because the patient was “alert”, “agitated”, and “not drowsy”.  Dr Ting told the Court he asked the pharmacy to enquire of the patient what medications he was on.  He said that his treatment plan was that he would give the patient a monthly script for Suboxone.  Dr Ting said he told the patient to come back the next day, for the monthly script.
59. [59]
    Dr Ting did not give evidence of these matters before the Tribunal.  However, his submissions to the Court about them are consistent with Assoc Prof Levy’s observations about Dr Ting’s engagement with the patient.  They confirm Dr Ting’s approach to treatment of the patient, which Assoc Prof Levy viewed as inappropriate, inadequate, and substantially below the standard reasonably expected of a medical practitioner with Dr Ting’s level of training or experience.
60. [60]
    The evidence before the Tribunal was a sound basis for the judicial member’s findings and conclusion.  In his written and oral submissions, Dr Ting identified no error.

Finding of professional misconduct

61. [61]
    The term “professional misconduct” is defined in s 5 of the National Law in this way:

“professional misconduct, of a registered health practitioner, includes—

1. (a)
   unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
2. (b)
   more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
3. (c)
   conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.”

62. [62]
    The relevant parts of the definition of “unprofessional conduct” are:

“unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers, and includes—

…

1. (b)
   a contravention by the practitioner of—

1. (i)
   a condition to which the practitioner’s registration was subject; or …

1. (d)
   providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person’s well-being; …”

63. [63]
    The judicial member summarised and characterised the conduct of Dr Ting proved in the Tribunal in this way.  In respect of allegations 1, 2, and 5, the conduct was evidence Dr Ting had acted in a way that was substantially below the standard reasonably expected and (in respect of allegations 1 and 5) in a way that was dangerous to patients.  Also, in respect of allegation 2, the conduct was evidence Dr Ting acted “unethically and unlawfully” by “engaging in Medicare fraud” and provided “a person with health services that were unnecessary or not reasonably required for the person’s well-being”.  In respect of allegation 3, his conduct was evidence Dr Ting deliberately contravened conditions imposed by the Board to protect patient health and safety.  In respect of allegation 4, the conduct was evidence Dr Ting breached the HDPR by prescribing S4 drugs and S8 drugs without an endorsement to do so.
64. [64]
    The Good Medical Practice: A Code of Practice for Doctors in Australia (the Code) is a code approved by the Board.  It was admissible in the Tribunal proceeding as “evidence of what constitutes appropriate professional conduct or practice”.^[25]  The judicial member found that Dr Ting’s conduct breached 28 clauses of the Code.^[26]
65. [65]
    The judicial member found that by this conduct Dr Ting had engaged in unprofessional conduct that was substantially below the standard reasonably expected of a registered medical practitioner by the public or his professional peers, on more than one occasion.  The evidence of Dr Jacobs, Dr King, and Assoc Prof Levy, Dr Ting’s logbook and clinical notes, and the admissions made by Dr Ting, were a sound basis for this conclusion.
66. [66]
    Dr Ting relied on evidence of his continuing medical education in the period from 2021 to 2023, some after the hearing before the Tribunal.  He also relied on references from a local pharmacist and a youth case worker, who was also a patient.  These had been tendered at an earlier Tribunal hearing in which Dr Ting unsuccessfully challenged the cancelation of his rights to prescribe S4 and S8 drugs.^[27]
67. [67]
    Dr Ting submitted that “overall” he committed “isolated unprofessional conduct” in giving an iron injection to a patient, and that he did not commit “widespread professional misconduct.”  This submission assumed Dr Ting’s only mistake was to give a patient an iron injection (allegation 1).  It overlooked the Tribunal’s findings about allegations 2 to 5, noted above.
68. [68]
    Dr Ting has not identified an error by the Tribunal in reaching its conclusion that he behaved in a way that constitutes professional misconduct.

Sanction

69. [69]
    Dr Ting submitted the judicial member “incorrectly and unjustifiably” referred to the decision of this Court in Medical Board of Australia v DAP [2008] QCA 44.  In DAP, the practitioner had an irreversible medical disorder for which there was “no reason to expect a spontaneous cure … or the implementation of a successful remedial strategy.”  Dr Ting submitted he had a “reversible health impairment”^[28] which was “successfully treated over 20 years ago by psychiatrist Dr Ian Curtis”.  On this basis, Dr Ting submitted he did not “deserve” indefinite deregistration.
70. [70]
    I reject Dr Ting’s submission that the judicial member based his decision “largely” on DAP.  The decision was cited at the end of the reasons, after all the material findings and conclusions were made.  The judicial member noted that the “factual scenario underpinning the finding [in DAP] is completely different to the facts here” and “the legislative and regulatory framework at that time was quite different to what applies” to Dr Ting.^[29]
71. [71]
    With respect, the limited analogy with DAP drawn by judicial member was not inapt.  There was no reason in Dr Ting’s case “to expect a spontaneous cure” or “the implementation of a successful remedial strategy” to protect the public from a continuation or repetition of the conduct that rendered Dr Ting not a fit and proper person to practice medicine.^[30]  Indeed, as the judicial member had found, the evidence suggested “that that position is unlikely to change”.^[31]
72. [72]
    Dr Ting did not explain how the successful treatment of a personality disorder in 1999 challenges the correctness of the Tribunal’s decision about the appropriate orders to be made in respect of his conduct in 2018 and 2019.
73. [73]
    As the law required, the judicial member considered the health and safety of the public, the nature and seriousness of Dr Ting’s conduct, any insight and remorse he had shown, the need for specific deterrence or general deterrence, any evidence of rehabilitation or steps to prevent a recurrence of the conduct, relevant context, relevant past disciplinary history, and his cooperation during the disciplinary proceeding.^[32]
74. [74]
    In deciding the case before the Tribunal, the main consideration for the judicial member was the health and safety of the public.^[33]  The judicial member was not to approach the decision^[34] by considering whether Dr Ting “deserved” it.
75. [75]
    The judicial member was satisfied that Dr Ting had very little insight into the seriousness of his conduct and little remorse.  Dr Ting’s written and oral submission to this Court confirm the correctness of this assessment.
76. [76]
    Dr Ting had a relevant disciplinary history.

    1. In September 1996, on his own guilty plea, Dr Ting was convicted in the District Court of defrauding the Commonwealth of $11,216.60.  He had made about 400 claims on the Health Insurance Commission on which he had forged the signatures of alleged patients.
    2. In June 1997, the Queensland Medical Assessment Tribunal found Dr Ting guilty of misconduct in a professional respect and ordered his name be erased from the register of medical practitioners.  This decision seems to have been based on Dr Ting’s fraud conviction.
    3. In May 1999, he obtained leave to be re-registered as a medical practitioner.  No relevant conduct was alleged or proved in the period from 1999 to 2015.
    4. On 30 November 2017, the Board cautioned him for unsatisfactory professional performance and imposed conditions on his registration.  The finding was for his unsatisfactory management of a 20-month-old child at the Charleville Hospital in February 2016.
    5. On 28 December 2018, the Board imposed additional conditions, noted at paragraph [30] above.
77. [77]
    Past disciplinary and criminal proceedings against Dr Ting had elicited acknowledgments of wrong-doing and that he was unsuited to the stresses of private practice.  Nonetheless, Dr Ting returned to a private practice with many complex drug dependent patients.  The judicial member found the need for specific deterrence to be very high.  General deterrence was less significant because “cases involving such extensive manifest professional misconduct across a very wide range of ethical and competency issues are very rare.”  There was no evidence that Dr Ting’s conduct was caused by any psychiatric condition or disorder.  By the time of the hearing, it does not appear he had taken any steps directed to prevent any recurrence of misconduct.  Dr Ting had “little or no understanding of his failures.”^[35]
78. [78]
    Dr Ting made some admissions in respect of three of the five allegations referred to the Tribunal.  He does not otherwise appear to have cooperated with the respondent during the proceeding.
79. [79]
    After considering these matters, the judicial member concluded that Dr Ting’s “character was completely unsuited to the practice of medicine.”^[36]  This conclusion was open on the evidence.  It was a sound basis for the Tribunal’s decision to cancel Dr Ting’s registration and disqualify him from applying for registration indefinitely.
80. [80]
    Dr Ting has not established any error in the judicial member’s reasoning to this conclusion or to the sanction imposed.

Other matters

81. [81]
    Dr Ting made submissions about several other matters.

Bias

82. [82]
    Dr Ting’s application for leave to appeal identified bias as the primary reason justifying a grant of leave.  He contended that the judicial member was biased and not impartial.  This contention was broadly expressed.  According to Dr Ting, the judicial member was in “frequent subtle collaboration” with the respondent’s counsel.  He also stated that the judicial member used “intimidating and inappropriate comments/tactics directed against” him.  No specific comment or tactic was identified.  Dr Ting repeated the same general contentions about bias in his outline of argument, submitting that the learned judicial member behaved unacceptably “in concert” with the legal representatives of the respondent.
83. [83]
    Dr Ting’s contention that the judicial member “was categorically acting as a biased and not impartial presiding judge” seemed to assert actual bias.  This requires Dr Ting to show that the judicial member was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.”^[37]  The lesser test for apprehended bias is whether “a fair-minded lay observer might reasonably apprehend that the [judicial member] might not bring an impartial mind to the resolution of the question the [judicial member] is required to decide.”^[38]
84. [84]
    From the transcript of the Tribunal hearing, the following things are apparent.

    1. At the commencement of the hearing, Dr Ting did not have a copy of the hearing book, having refused a copy offered by the respondent.  During the cross-examination of Dr King, Dr Ting accepted a copy of the hearing book from the respondent.  Until that time, Dr Ting was unable to refer the Tribunal to a page at which a relevant document or passage might be found.  Even after he received the hearing book, his lack of familiarity with it meant he was not readily able to identify the location of a document about which he wished to cross-examine.  In this circumstance, the judicial member asked the respondent’s counsel to provide the page for documents the subject of cross-examination.
    2. During cross-examination by Dr Ting, the judicial member told Dr Ting and then from time to time reminded him that cross-examination consisted of asking the witness questions and allowing the witness to answer those questions.  Dr Ting asked few questions of witnesses.  For most of the time, he stated his opinions while the witness, and the Tribunal, waited for a question.
    3. The judicial member questioned the relevance of some topics Dr Ting raised in cross-examination, asking him to identify the relevance of the evidence sought to be elicited. When Dr Ting could not identify the relevance, the judicial member asked Dr Ting to move to a relevant topic.
85. [85]
    Dr Ting suggested that the judicial member’s greeting of him at the commencement of the hearing indicated bias.  The transcript records the exchanges as follows:

“MEMBER: Yes.  Good morning, Ms Feeney, Dr Ting.

MS P. K. FEENEY: Yes.

MEMBER: My name’s Robertson – John Robertson.  I’m the judicial member comprising the Tribunal.  I’m assisted by three assessors who are appearing remotely, and they can be seen on the courtroom screen.  There’s Associate Professor Gordon Senator, who is a medical practitioner; Ms Margaret Ridley, who is representing the community; and Dr John Scott Phipps, known as Dr Scott Phipps, a general practitioner who’s – you can see on the screen. If you could announce your appearances, please.

MS FEENEY: Yes.  Thank you, your Honour.  My name is Feeney, spelt F-e-e-n-e-y, initials P.K., of counsel.  I’m instructed by MS LAUREN REIBELT – Reibelt, I’m sorry – principal of the Office of the Health Ombudsman.  I appear for the applicant.

MEMBER:  Yes.  Good morning, Ms Feeney.  Good morning, Ms Reibelt.  And Dr Ting, you’re representing yourself.

DR J.Y.C. TING: Yes.  Correct, your Honour.

MEMBER: And your name [indistinct] correct – I can do John.

DR TING: John will do, I think, and – make life easy.

MEMBER: Yuk Ching Ting.  Yes.

DR TING: Yes, but make it simple, John Ting.

MEMBER: Yes.  And just for simplicity - - -

DR TING: Yes.

MEMBER: - - - just call me Mr Robertson during the proceeding.  So you don’t call me “your Honour” or anything like that.

DR TING: Sorry, I’m not used to law.”

86. [86]
    With respect, the judicial member’s conduct was appropriate in each instance.
87. [87]
    A person representing themselves at a hearing may feel intimidated by the unfamiliar circumstances.  Such a person might feel more challenged by suggestions, questions, or directions made by the presiding member.  Dr Ting did not appear to be intimidated when he addressed this Court.  He appeared to understand questions posed by the Court members.  He accepted and rejected suggestions from the bench about the relevance of his submissions.  Although Dr Ting did not appear so, he may have had these feelings.  He may have felt so when appearing before the Tribunal.  However, after reading the transcript of the Tribunal hearing, I am unable to find any examples of intimidating or inappropriate comments by the judicial member.
88. [88]
    In his outline, Dr Ting also noted that on the first day of the hearing he observed the judicial member walking together with the respondent’s counsel towards the bathroom facilities outside the hearing room.  In his reply address to this Court, Dr Ting said he was “not taking that [or] carrying that a lot further.”  He told the Court:

“Look, it’s not a big issue but I bring it there because to me, it’s a bit of an awkward behaviour because, you know, if you are a presiding judge, you shouldn’t do that.”

89. [89]
    It was common ground at the hearing before this Court that those facilities at the Tribunal’s premises are in the common area for the use of members, individual parties, and their representatives.  This creates a possibility that a member and a legal representative (or an individual party) might find themselves walking to the same place at the same time.  Such a situation is, as Dr Ting put it, awkward.  It should be avoided, if possible.
90. [90]
    Dr Ting has not demonstrated any actual bias by the judicial member.  Neither the transcript of the hearing nor the published reasons indicate actual bias or prejudgment.
91. [91]
    None of the conduct identified by Dr Ting could lead any fair-minded observer to reasonably apprehend that the judicial member might not bring an impartial and unprejudiced mind to the resolution of the questions before the Tribunal.  Nor could the conduct, considered collectively, lead a fair-minded observer to such an apprehension.  I reject Dr Ting’s submissions about bias, to the extent that they were maintained.

Delay

92. [92]
    In his outline, Dr Ting submitted that his appeal was negatively affected by the “significant delay” between the end of the hearing on 28 July 2022 and the decision on 9 December 2022.  He submitted that he had not obtained the “earliest available” hearing of his application for leave to appeal because the Tribunal decision was not made sooner.
93. [93]
    In the circumstances set out below, it does not appear that the period of four months and nine days between the end of the hearing and the making of the decision and publication of the reasons should be characterised as a significant delay.
94. [94]
    The respondent’s referral seeking findings about Dr Ting’s conduct was filed on 18 June 2021.  The hearing commenced on 25 July 2022 and continued for four days.
95. [95]
    Dr Ting appeared at the hearing on his own behalf.  His oral submissions were unorganised.  At times they were rambling to the point of being confusing.  Some parts were incomprehensible.
96. [96]
    Some of the respondent’s allegations were grave.  The sanctions sought against Dr Ting were serious.  The circumstances called for careful scrutiny of the evidence.  If the evidence proved some allegations, the judicial member was to consider the precision with which it did so and examine whether the proven facts were susceptible of a not improbable explanation, other than that advanced by the respondent.
97. [97]
    When a transcript was prepared (for the hearing in this Court), it ran to 379 pages.  The judicial member did not have access to a transcript.  He was unable to search and identify relevant oral evidence and submissions using software tools.  The judicial member had to rely on notes made during the hearing and recollections of the evidence and submissions.
98. [98]
    The judicial member’s published reasons are 37 pages in length.  In the reasons, the judicial member dealt with the background, the allegations in general, the evidence on each separate allegation, the findings on each, the characterisation of the conduct proved by the respondent, the sanction to be imposed, and other matters raised by Dr Ting’s submissions to the Tribunal.  It was appropriate that the judicial member consider each of these matters, summarise the relevant evidence and submissions, and set out the findings made.
99. [99]
    At the conclusion of the hearing in the Tribunal, the judicial member said that he hoped to produce a decision “within a month.”  I reject Dr Ting’s submission that the judicial member “failed in his judicial duty” because this proved to be an overly ambitious hope.
100. [100]
     In his written reply, Dr Ting contended that the judicial member had “flawed long term memory retention”.  A review of the transcript, produced after the reasons were published, does not support this submission.  It appears as a mere assertion by Dr Ting, inappropriately framed as if it were a medical diagnosis.
101. [101]
     Dr Ting identified no actual prejudice flowing from the making of the decision and the publication of the reasons a little over four months after the Tribunal hearing.
102. [102]
     I reject Dr Ting’s contention that the Tribunal’s decision should be set aside because of any delay.

A “preliminary matter”

103. [103]
     Dr Ting raised a “preliminary matter” in his outline of argument, based on the written opinion of Dr Nigel Prior, a psychiatrist, dated 10 January 2019.
104. [104]
     The Board had sought Dr Prior’s opinion based on a recommendation in the report of Dr Jacobs and Dr King, referred to at paragraphs [17] to [18] above.
105. [105]
     Dr Prior could find “no evidence of any significant psychiatric condition, disorder or disability that would preclude [Dr Ting] from practice.”  Dr Prior expressed the view that the issues then before the Board appeared to be “related to professional conduct and clinical management deficits rather than health-related problems.”
106. [106]
     Dr Prior concurred with the views of Dr Jacobs and Dr King about “requirements for supervision and the reduced number of patients per hour.”  Dr Prior concluded that “the appropriate pathway to manage Dr Ting’s deficits was to require practice restrictions, clinical supervision and remediation of his clinical practice”.
107. [107]
     Dr Ting submitted that Dr Prior’s opinion meant that “in principle” he does not require supervision by a general practitioner.  Dr Prior’s written opinion does not support this submission.  I am unable to accept Dr Ting’s submission.

Lack of evidence and reasoning

108. [108]
     Dr Ting submitted that the judicial member’s published reasons lack written objective evidence and reasons to justify the decision.
109. [109]
     I am unable to accept this submission.  The judicial member’s reasons are replete with references to the evidence on each allegation.  The judicial member made factual findings based on that evidence and Dr Ting’s relevant admissions.  The judicial member set out the analysis of the facts that led to the conclusions drawn on each of the allegations.  Finally, the judicial member considered Dr Ting’s conduct, as established by the evidence, admissions, and factual findings, and reasoned to the ultimate finding that Dr Ting had engaged in professional misconduct.

Minor, peripheral, and irrelevant matters

110. [110]
     Dr Ting canvasses several other matters in his outline and reply that were not the subject of any finding the judicial member relied upon to reach the decisions of 9 December 2022.  Dr Ting’s contentions on these other matters do not upset any relevant findings of the judicial member.
111. [111]
     It is not necessary to deal with any of these for the purposes of his application to this Court.  There would be no utility in granting leave to advance any of these arguments.

Final disposition

112. [112]
     The Tribunal had jurisdiction to decide whether Dr Ting had behaved in a way that constitutes professional misconduct and, having so decided, to cancel Dr Ting’s registration and disqualify him from applying for registration indefinitely.^[39]  Dr Ting has not identified any error of law by the judicial member or any mistake in the relevant findings of fact made by the judicial member.
113. [113]
     I would dismiss the application for leave to appeal with costs.