VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No Z207/2024	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law (Victoria) Act 2009 section 178 – application for review of a decision made by the Medical  Board of Australia to impose conditions on the applicant’s registration – practitioner operates a solo practice and is one of few practitioners to bulk bill in the relevant region – conditions imposed in the context of communications with patients which were considered to be homophobic, racist and otherwise inappropriate and practitioner’s conduct was said to be unsatisfactory – conditions requiring on site supervision at all times and one-on-one education stayed having regard to cost and practicability.	

APPLICANT	William Crawford	
RESPONDENT	Medical Board of Australia 	
WHERE HELD	Melbourne	
HEARING TYPE	Zoom hearing 	
BEFORE	A. Dea, Senior Member 	
DATE OF HEARING	3 April 2024	
DATE OF ORDER 	3 April 2024	
date of reasons	17 April 2024	
CITATION	Crawford v Medical Board of Australia  (Review and Regulation) [2024] VCAT 338	

Orders
1	Under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), VCAT directs that no person other than a party to the proceeding or their legal representatives may inspect the VCAT file.
2	Until the hearing and determination of this proceeding or further order, under section 50 of the VCAT Act, VCAT stays the respondent’s decision made on 7 March 2024 in so far as it imposes the following conditions as contained in the Schedule of Conditions:
(a)	conditions 1 to 6 (undertake one on one education) and 
(b)	conditions 13 to 18 (supervised practice).
For the avoidance of doubt, conditions 7 to 12 and 19 remain in place.
3	The proceeding is listed for an administrative mention on 18 April 2024. By that date the parties must write to VCAT (preferably jointly) to state whether they intend to seek a compulsory conference or to commence preparations for a final hearing. In either case, they are invited to suggest a further administrative mention date which will allow sufficient time for preparatory steps to be taken so further orders may be made in chambers.

A Dea
Senior Member 	

APPEARANCES:		
For Applicant	Mr S Reid, counsel	
For Respondent	Mr J Stoller, counsel	

Reasons
1	Dr William Crawford is a sole medical practitioner based in Bendigo who was first registered in 1988.  In the last 40 years’ experience he has developed particular expertise in the treatment of skin cancer and other skin issues and concerns.  His solo practice bulk bills its patients and is one of the last remaining clinics in the region to do so.
2	In June and July 2023, two notifications were made about Crawford’s professional conduct.  They concerned how Crawford communicated  during two consultations with different patients.
3	On 7 March 2024, exercising powers under section 178 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (National Law), the Medical Board of Australia made a Decision to impose Conditions on Crawford’s registration.  Those Conditions required that he undertake one on one education, attend for mentoring and practise only when supervised by another medical practitioner.  I will come to the detail of the conditions shortly.
4	Crawford ceased practising on 8 March 2024, as he did not have a medical practitioner who could act as his supervisor as required by the Conditions.  
5	On 8 March 2024, Crawford made an application to the Tribunal for review of the Board’s decision to impose the Conditions.  He also applied for a stay of the Conditions.
6	At the hearing of the stay application, I announced orders staying two of the three Conditions.  I made some brief remarks on the basis I would later provide written reasons. 
The Decision
7	The Board made the Decision under section 178 of the National Law which says, relevantly, as follows:
(1)  	This section applies if – 
(a) 	a National Board reasonably believes, because of a notification or for any other reason – 
(i)  	the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner’s professional conduct, is or may be unsatisfactory; 
. . . 
(2) 	The National Board may decide to take one or more of the following actions (“relevant action”) in relation to the registered health practitioner or student –  
(c) 	impose conditions on the practitioner’s or student’s registration, including, for example, in relation to a practitioner –
(i) 	a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii) 	a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) 	a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; 
8	The Decision imposed the following Conditions.
9	First, a requirement for Crawford to undertake one on one education in relation to 
a. 	Understanding neurodiversity; and
b. 	[F]acilitating the provision of services to patients with intrinsic disadvantages
10	The Education Condition required Crawford to obtain the Board’s approval for the education.  The education was to consist of a minimum four hours over a three month period.  Crawford was to provide a reflective report and the educator was to provide evidence the education had been successfully completed.
11	Second, Crawford was required to attend for mentoring.  The Mentoring Condition required that he be mentored by another registered health practitioner in relation to:
a.	professional boundaries, including avoiding expressing your personal beliefs to patients in ways that exploit their vulnerability or are likely to cause them distress;
b.	non-judgmental and respectful clinical interactions;
c.	practising without bias and discrimination;
d.	providing care to patients with additional needs; and
e.	culturally safe practice and providing services to First Nations people.
12	For the purposes of the Mentoring Condition, ‘mentoring’ was defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.  The mentoring was to include a minimum of 12 sessions of one hour duration over an eight month period.  Crawford was required to obtain the Board’s approval of the proposed mentor.  The Board was entitled to seek reports from the mentor and Crawford is required to provide a reflective report within 21 days of the mentoring being completed. 
13	The third requirement was for Crawford to:
only practise as a medical practitioner when supervised by another registered health practitioner (the supervisor).
14	For the purposes of the Supervision Condition, ‘supervised’ was defined as follows:
The Practitioner must consult with the supervisor who is always physically present in the workplace and available to observe and discuss the management of patients and/or performance of the Practitioner when necessary and otherwise at daily intervals.
15	Crawford was required to obtain the Board’s approval of the intended supervisor.
16	The review period for the three Conditions was specified to be 10 months.  As a result, they would remain in place until early January 2025 and, on Crawford’s application, the Board would then consider whether the Conditions be changed or removed.
17	Relevant to my consideration was a condition imposed on Crawford’s registration in October 2023 in connection with separate matters (the 2023 Condition).  Relevantly, the 2023 Condition required him to undertake mentoring in relation to:
a. 		assessment and management of skin cancers,
b. 	invasive medical procedures and skin excisions,
c. 	communication with patients including those making complaints; and
d. 	clinical record keeping.
18	The 2023 Condition had the same definition of ‘mentoring’ as above.  Crawford was required to undertake 24 sessions of between one and two hours duration over a nine month period.  The Board is entitled to seek reports from the mentor and, within three weeks of completion of the mentoring, Crawford is required to provide a reflective report.
The Tribunal’s power to grant a stay
19	The Tribunal has power to stay a decision under review under section 50(3)(a) of the VCAT Act, which says:
The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.
20	The Tribunal’s power to order a stay is entirely discretionary.  Having said that, there are well established principles which assist in exercising the discretion.  
21	The usual considerations are:
(a)	Whether refusing the stay would render the application for review nugatory; 
(b)	Whether there is a serious question to be tried on the review; 
(c)	Whether the granting of the stay is in the public interest; and 
(d)	The period that will elapse before the final hearing of the review. 
22	It is understood that, where the decision under review is a decision under a professional regulatory regime, particular care may need to be exercised before a stay is granted.  There is a powerful public interest in protecting the public from unsafe practitioners, and a clear public interest in maintaining standards in regulated professions.  
23	The parties agreed that the public interest relevant to this matter was consistent with the guiding principles contained in section 3A of the National Law.  Relevantly that provision says:
(1)	The main guiding principle of the national registration and accreditation scheme is that the following are paramount – 
(a) 	protection of the public;
(b) 	public confidence in the safety of services provided by registered health practitioners and students.
(2) 	The other guiding principles of the national registration and accreditation scheme are as follows – 
(a) 	the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(aa) 	the scheme is to ensure the development of a culturally safe and respectful health workforce that – 
(i) 	is responsive to Aboriginal and Torres Strait Islander Peoples and their health; and
(ii) 	contributes to the elimination of racism in the provision of health services;
. . . 
(c) 	restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

24	The Board submitted that I ought to have regard to it’s expertise and statutory role as regulator.  While it was not submitted that the Board’s assessment was determinative, I was asked to give it ‘proper weight’.  It was submitted that the Board’s position was broadly analogous to that of the Supreme Court of Victoria when considering an application for leave to appeal a final determination of the Tribunal under the National Law.  In that context, I was referred to the following observations made by the Court in Myers v Medical Board of Australia: 
In Psychology Board of Australia v Mair, the Psychology Board of Australia sought leave to appeal a decision of the Tribunal imposing, amongst other determinations, a suspension of the health practitioner’s registration.  The Board also sought leave to appeal the Tribunal’s failure to find that the psychologist had engaged in infamous conduct.  The application for leave to appeal was refused. In the course of giving his reasons, Justice Osborn stated (at [12]): 
The Court will be reluctant to overturn the decision of an expert tribunal on questions of fact, in respect of which it has particular expertise. It is plainly the intention of Parliament that the expert tribunal decide the facts and not this Court.  In the present case, the Tribunal included two psychologists. Their understanding of the area of professional practice in issue must be given due deference. 
The same reasoning is applicable in this application as the Tribunal was constituted by a senior member of VCAT and two medical practitioners drawn from the expert sessional members.
25	While I have given some weight to the Board’s expertise as a regulator, the circumstances on a stay application are quite different to those referred to by the Supreme Court, including because my task is not to make findings of fact.
The notifications 
26	The Conditions were imposed on Crawford after the Australia Health Practitioner Regulation Agency (AHPRA) received two notifications concerning statements Crawford had made in separate consultations.
27	The first consultation was with Family A and their five year old son (Patient A).  The parents of Patient A are a same sex couple.  They are both women and their son was conceived with anonymous donor sperm.  Patient A had previously been diagnosed with Autism Spectrum Disorder (ASD).
28	Relevantly, their notification alleged that, in the presence of Patient A, Crawford: 
•	Asked the parents who ‘the natural mother was’; 
•	Asked if the parents ‘even knew the father’; 
•	When told the child was conceived with the assistance of anonymous donor sperm, said ‘those people aren’t even screened that well’; and 
•	When the parents were having difficulty gaining Patient A’s consent to pull his pants down for the examination, said ‘just pull down his clothes, I need to see his skin’ and ‘look, your GP might have time to waste like this, but I don’t, I need to see it’. 
29	In its Decision, the Board described the notification as raising concerns in relation to Crawford’s consultation with a minor patient with ASD and his parents (a same sex couple).  It alleged that Crawford’s behaviour was ‘homophobic and that he lacked disability awareness’.
30	The second notification related to a consultation Crawford had with Patient B, a person with Māori heritage.  
31	Relevantly, it was alleged that, during the consultation, Crawford:
•	In response to Patient B disclosing medication she was taking for type 1 diabetes, said ‘why do you take that shit?’; 
•	In response to Patient B disclosing that she was married, said ‘well, that’s enough to make anyone anxious’; 
•	Made comments (in the context of the patient being from New Zealand) about Māori people, including that: 
o	A Māori friend of Crawford’s had been taken captive in another country, and released because the captors thought he was native to that country; and 
o	New Zealanders with both Māori and European descent do not want to acknowledge European descent because they want to claim Māori descent for government benefits. 
32	In its Decision, the Board referred to the notification raising concerns that Crawford made ‘inappropriate comments during the consultation, including racist and offensive remarks’.
Crawford’s responses
Written responses 
33	Through his legal representative’s written submissions in support of the stay application (Applicant’s Submissions), in respect of Family A, he:
(a)	Rejected any suggestion of homophobia by either himself or his staff towards Patient A’s parents; 
(b)	Stated that, for a young patient who had not previously attended the clinic, questions of biological parentage were relevant to obtaining an appropriate history of the patient, his condition and living arrangements generally; 
(c)	Acknowledged that his use of the words ‘mother’ and ‘father’ may have ‘possibly caused confusion but that any offence or confusion was unintended’;
(d)	Stated that his priority during the consultation was Patient A and his condition and that ‘he always recognises the importance of parents – whether they be same sex or otherwise’; and 
(e)	Submitted that it ‘was possible that the parents had been offended by an unintended slight and at no stage was any concern raised with him or as to the course of the consultation generally’.
34	As to the notification concerning Patient B, through the Applicant’s Submissions, Crawford:
(a)	Disputed any suggestion of making racist remarks;
(b)	Asserted the discussions were had ‘in an attempt to build rapport with the patient’; 
(c)	Explained that, upon learning of Patient B’s heritage ‘he relayed an anecdote of one of his relatives who is also of Māori background’; 
(d)	Stated that he ‘has an acute understanding of first nations people from Australia and New Zealand and believes he is culturally sensitive when he provides care to all patients’; and 
(e)	In terms of medication, informed Patient B that she may need a review by a psychiatrist.
35	Crawford had also provided earlier responses to the Board.  I accept his counsel’s suggestion that they were prepared without legal advice and that they may have been written in circumstances where he felt frustrated.    Relevantly for now, those earlier responses suggested that Crawford did not deny making each of the alleged statements but rather that he disputed whether the specific statements could be described as being homophobic, racist or otherwise inappropriate.  
36	In respect of Family A, Crawford made some of the observations summarised in [33] above.
37	As to Patient B, Crawford described his intention when telling Patient B the ‘anecdote’ about his Māori family member’s experiences in Columbia.  He suggested that Patient B was analysing the interaction in political terms and suggested she may have been influenced by public discourse regarding the Voice referendum.  He said he was ‘disappointed’ with Patient B’s attitude to the ‘casual discussion’ which was a means by which he acquired knowledge of the person.  He later suggested that the matter involved a matter of perceptions and opinions of the interaction between the patient and himself.
Crawford’s references 
38	Crawford relied on two professional references.  
39	The first was dated 27 March 2024 and was written by Dr Shaker Issa.  Issa explained he has referred numerous patients to Crawford over the last 18 years.  He stated that patients had reported that they had been happy with the treatments they received and ‘his inclusive and caring nature’.  He said:
I have spoken to [Crawford] on a several occasions regarding mutual patients and I must say, I have found Tom to be very supportive and helpful.
Over the years, I have had patients specifically ask to be referred to [Crawford] as they have heard good things about him or have been very happy with his treatment in the past.
40	The second reference was dated 31 March 2024 and was written by nurse practitioner Balga Alhassan.  The letter explained that Alhassan supports a 120 bed aged care facility in Bendigo.  The reference said that Crawford was:
one of the three main practitioners I refer skin cancer problems to in Bendigo.  I have seen the [Board’s] correspondence and must admit that the outcome of my referrals has been satisfactory.  My patients and their families have been happy with their treatments.
Recently, I referred a frail patient who and her daughter (sic), previously decided not to do anything about a nasty looking lesion under left ear.  [Crawford] reassured the patient and her daughter and removed the lesion; both patient and her daughter are extremely satisfied.  This was the last patient I referred to the practice.
41	I now turn to the usual considerations for a stay.
Will the review be rendered nugatory if no stay is granted?
42	In Arulanantham v Medical Board of Australia, (Arulanantham) the Tribunal stated that a refusal to grant a stay will render an application nugatory where: 
irreparable damage has been done by the operation of the first instance decision before the review can be completed and that damage cannot be undone even if the application succeeds. 
43	Crawford relied on an affidavit sworn by his solicitor, Mr Russell Ball, on 27 March 2024.  The affidavit stated that he was authorised to swear the affidavit on Crawford’s behalf and it was based on his own knowledge unless stated otherwise.  
44	At the hearing, the Board’s counsel suggested that the evidence ought to have been given by Crawford himself, as he was present, and so Ball’s evidence ought to be given lesser weight.  In circumstances where the Board did not wish to cross-examine Ball and where he has duties to the Tribunal, I accepted weight could be given to his affidavit.
45	In respect of Crawford’s practise, Ball:
•	Described Crawford as a sole practitioner conducting one of the few remaining bulk billing clinics in the Bendigo region.  He said that Crawford works five days a week between around 8:45am to 5pm;
•	Stated that Crawford estimated that he saw 75-80 patients per week.  The affidavit referred to six of Crawford’s current long-term patients and the impact on them if he was unable to practise;
•	Stated that Crawford owns the clinic premises subject to a mortgage; and 
•	Described Crawford’s belief that, because he is a sole practitioner, there would be no one-on-one supervisor available in the region.
46	As to the financial implications of the Supervision Condition, Ball estimated that, if a supervisor could be sourced, the costs would be as follows:
•	For 40 to 42.5 hours per week at a cost of $150 per hour, the weekly cost would be between $6,000 to $6,375; and
•	Assuming accommodation and travel costs from metropolitan Melbourne would arise, the additional cost would be around $1,000 per week.
47	The total estimated cost of supervision for the 10 month period during which the Supervision Condition would be in place (plus a further eight weeks for the Board to review an application for the Condition to be removed) was $364,000 to $383,500.  
48	That cost was contrasted with Crawford’s expected income (based on income of $250,000 in the 2022/20023 financial year) and expenses (estimated as $3,400 per week including mortgage repayments).  Ball’s view was that the impact of the Supervision Condition was that the practice would not be viable. 
49	As to Crawford’s personal expenses (estimated to be around $1,000 per week), reference was made to financial support he provides to two of his adult children from time to time plus his own transport costs of attending the clinic estimates at $8,000 to $10,000 per year.
50	At the hearing, the Board’s counsel suggested that a supervisor could work in the practice seeing patients as well as undertaking the responsibilities in the Supervision Condition.  In that way, the costs would be offset by income the supervisor would bring to the practice.
51	Crawford’s counsel stated that was not feasible in circumstances where the practice building only had Crawford’s consulting room and a treatment room.  
52	I asked questions about how the Supervision Condition would be met if the supervisor was also seeing patients and more generally.  I asked if it was envisaged that, where Crawford saw a new patient and, during the consultation he realised the interaction may become challenging and within the Board’s area of concern, he would step out or ask the supervisor to join him.  I also asked if it was envisaged that he would take those steps when he realised he might be about to say something the Board would consider to be inappropriate to a patient.  Those questions (particularly the last) were asked somewhat rhetorically but with the intention of better understanding the intended practical implementation of the Supervision Condition and the day to day role of the Supervisor.
53	The suggestion was that, when the supervisor was not seeing patients, they could be present in the consulting room with Crawford.  Otherwise, Crawford could ask the supervisor to step out of their own consultation to discuss concerns about communication with a specific patient or they could discuss interactions during or at the end of the day.  As the supervisor was to be present at all times, the necessary discussions could be held in real time.
54	As to the Education Condition, Ball estimates that the proposed one-on-one education would cost in the order of $5,000.  
55	Ball referred to media reporting about the imposition of the Conditions and asserted that Crawford had already suffered reputational damage as a result.  Crawford’s counsel suggested that media coverage was the result of AHPRA’s communications as his client had no communications with media.  I have not given particular attention to either aspect of the submissions due to a lack of evidence in support.
56	Even if there might be some doubt about the accuracy of the estimates given, I accepted the evidence was sufficient to show that the Supervision Condition, and to a lesser extent, the Education Condition, would represent a significant financial imposition on Crawford.  Further, given he is a sole practitioner and would have had to make special (and potentially somewhat impracticable) changes to his practice, I accepted it would be so difficult for Crawford to comply with the Supervision Condition that it may be regarded as the equivalent of a suspension.
57	This factor weighed in favour of the grant of a stay of the Supervision and Education Conditions.
Is there a serious question to be tried? 
58	There was no significant dispute between the parties as to whether there is a serious question to be tried.
59	Crawford’s counsel stated that his client denied the claim that what he said was homophobic, racist or otherwise inappropriate.  Consistent with the submissions summarised above, Crawford contended that there had been misunderstandings in both conversations and the Board’s characterisation of them was incorrect.
60	Further, Crawford’s counsel submitted that there was a significant dispute about whether the imposition of the Conditions was an appropriate form of regulatory action.  In support of that position, reference was made to the fact that the Board had not used its powers to take immediate action or to refer Crawford to a Professional Standards Panel.  Crawford’s counsel submitted that:
A proper construction of the operation of [section 178 of the National Law] and the fact that no immediate action was taken, is that action taken pursuant to section 178(2) is reserved for relatively low level, minor factual departures from appropriate standards.  In these circumstances outcomes imposed by the Board, pursuant to section 178(2) should be informed by this statutory construction and the facts (contested or otherwise) of the matter itself. 
61	The Board’s counsel submitted that there were two questions to be tried.
62	First, whether the statements described above were made by Crawford to Family A and Patient B respectively and, if so, whether they could support a reasonable belief that the way Crawford practiced or his professional conduct, was or may be unsatisfactory.  
63	If that question was answered yes, the second question was whether the imposition of the Conditions was appropriate.  
64	On the first matter, it was not my task when deciding the stay application to make findings of fact about the precise words used by Crawford or how they were understood by Family A and Patient B.  Having said that, the factual background to the review application was relevant to the exercise of my discretion on the stay application, including the basis on which the Conditions were imposed by the Board.  
65	As I understood it, while Crawford may take issue with some of the words or phrases he was said to have used at the final hearing, it was accepted that the heart of the dispute is whether what he said demonstrated he was homophobic, racist offensive and/or insensitive in circumstances where he says he did not intend to cause offence and upset.
66	On the basis of the responses available at the time of the stay hearing, it appeared that, while Crawford maintains he had a proper purpose in enquiring into Patient A’s parentage, he accepted that his language may have had unintended consequences and caused hurt to the parents of Family A.
67	At the hearing, the Board submitted that there was no need for those enquiries to be made in order to undertake an examination of Patient A and provide a diagnosis.  It submitted that, even if there was a proper purpose in asking about Patient A’s biological parents, the manner in which the questions were asked and comments were made, was entirely inappropriate.  
68	The clinical necessity of whether the questions needed to be asked is a matter which might be considered at the final hearing.  For now, it is sufficient to say that, at a minimum, the phrasing of the questions appeared to be insensitive.  Had an explanation been given about the relevance of the request for information in connection with the reason why Family A attended on Crawford, it seems less likely that offence would have been caused.  
69	As to the commentary about the efficacy of the screening of sperm donors, on its face and if made as alleged, I accepted the Board’s description of it as being both offensive and disparaging.  
70	If it is correct that Crawford demanded Patient A’s parents pull down Patient A’s pants and created a sense of urgency by reference to the time their (presumably usual) general practitioner allowed for examinations, I would regard that as not only insensitive in light of Patient A’s ASD diagnosis but also an inappropriate way to communicate with any patient or accompanying person.
71	As to Patient B, Crawford appeared to blame her for how she heard and reacted to his ‘anecdote’.  Crawford’s description of what occurred suggested he and Patient B were involved in a ‘discussion’, when in fact it seemed he was speaking to her about matters relating to her heritage in a way he perceived would put her at ease without regard to whether that was appropriate for her (or for that matter, any non-Anglo Saxon person).  
72	If the description of what was said is accurate, Crawford appeared not to understand that the identification of a culturally safe and appropriate form of communication is not about the anecdotes he thinks are relevant or interesting or what he thinks will put someone at ease based on his apprehension of their background.  As the person with the authority in the consulting room, it was for Crawford to use neutral language and facilitate respectful discussion generally and as required to obtain necessary clinical information.  
73	Thus far, Crawford seems not to have appreciated that the suggestion that some New Zealanders minimise their European background to obtain welfare payments is objectively inherently racist and that making those comments to a person with Māori heritage would likely cause them to feel concerned, offended or disrespected.  
74	I agreed with the Board’s submission that Crawford seemed to consider it was up to Patient B to manage their communications in the consultation rather than him doing so as the registered health professional.
75	I noted both the content of Crawford’s personal references and information about his long-standing patients as contained in Ball’s affidavit.  The fact that the patients known to the referees and Crawford’s other patients have not raised concerns about his communication style does not demonstrate Crawford’s mode of communicating with Family A and Patient B was appropriate.
76	Whether the precise words alleged were used and how they ought to be understood (that is, homophobic, racist or otherwise inappropriate) will be a matter to be determined at the final hearing.  
77	On the question of whether the Conditions were an appropriate response to the alleged conduct, I accepted the submission that, on the scale of options available to the Board, the action taken suggested the conduct was regarded as somewhat less serious that the range of conduct which comes to the Board’s attention.  
78	On the preliminary basis at the stay hearing, it seemed to me that mentoring and some education were appropriate in light of the principles in section 3A of the National Law.  Given the impact of the Supervision Condition on the viability of Crawford’s practice and the uncertainty about how that Condition would operate day to day, I was satisfied there was a serious question to be tried about whether the Conditions were necessary and appropriate, even if Crawford was found to have made all of the alleged statements.
79	The particular requirements of the Education Condition will be a matter to be considered at the final hearing. 
80	This factor weighs in favour of the grant of a stay of the Supervision and Education Conditions. 
Is the granting of the stay in the public interest?
81	It is well understood that, in disciplinary matters, there are three matters which may be relevant to the public interest.
82	First, the interest in avoiding ‘irreparable’ damage to a person’s career.
83	Second, the public interest in protecting the public from unsafe practitioners.
84	Third, the public interest in maintaining standards in regulated professions.  
85	It is accepted that, where the practitioner poses a risk to the public, the second and third matters may trump the practitioner’s personal interests in being able to continue to practise. 
86	As mentioned above, Crawford is one of the few remaining bulk billing practices in the region.  Ball’s affidavit referred to a number of long term patients who currently depend on Crawford for the management of their serious medical conditions.  I accepted that evidence showed Crawford’s inability to practise (due to the challenge of finding and paying a supervisor as required by the Supervision Condition) may jeopardise the timely and well-informed treatment of those patients for many months and render the practice unviable. 
87	Crawford’s interactions with Family A and Patient B as relevant to the Board’s Decision point to the possibility of Crawford causing harm by insulting patients in serious ways, interfering with the provision of appropriate medical care to them and adversely affecting patients’ broader confidence in the profession.  Those possibilities may be distinguished from risks relating to Crawford’s diagnoses and  treatments.  
88	As indicated by the preliminary comments set out above, the available material suggests there are significant shortcomings in Crawford’s communication skills and capacity to understand his patients’ personal circumstances.  That is the case despite Crawford having been made subject to the 2023 Conditions last October, which required mentoring on topics including communication with patients.  
89	Without minimising the harmful effects of inappropriate and insulting communications directed at patients by medical practitioners, I concluded that the greater public interest for now was in Crawford being able to continue to practise and so it was appropriate to stay the Supervision and Education Conditions.  
90	I reached that view with an expectation that Crawford would reflect carefully on the matters raised by the notifications, including with his mentor, and ensure his communications hereafter were consistent with what is expected of a practitioner with his experience and training.  I encouraged Crawford to consider undertaking education on the matters listed at [9] above between now and the final hearing.  Finally, in circumstances where there has already been some media discussion about Crawford and these reasons are to be published, Crawford will no doubt see the sense in taking particular care in his communications in the period until the final hearing.
The period that will elapse before the final hearing of the review
91	As a result of member shortages at the Tribunal (and particularly in the Review and Regulation List), even if the parties are able to rapidly prepare for a final hearing, it is not likely to be listed until well into the second half of 2024.
92	That, together with the financial burden and practical consequences of the Supervision and Education Conditions, weighed in favour of granting a stay of those two Conditions.
The Mentoring Condition 
93	As is apparent, I did not stay the Mentoring Condition and so Crawford is required to comply with those requirements until the application for review is heard and determined.
Next steps 
94	I have listed the proceeding for an administrative mention on 18 April 2024 so the parties may discuss the next steps to be taken in the proceeding and report back to the Tribunal.

A Dea
Senior Member