VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z656/2022
	
CATCHWORDS	
Paramedic – disciplinary proceeding – (1) act of domestic violence in January 2020 – (2) practitioner’s failure to report to the Board that a criminal charge had been brought against him – agreement as to facts – characterisation of conduct – determinations – Health Practitioner National Law s 196(2).	

APPLICANT	Paramedicine Board of Australia	
RESPONDENT	WYS	
WHERE HELD	Melbourne	
BEFORE	Senior Member J Smithers
Member N Sidiropoulos
Member B Williams	
HEARING TYPE	Hearing	
DATE OF HEARING	14 October 2024	
DATE OF ORDER	18 October 2024	
CITATION	Paramedicine Board of Australia v WYS (Review and Regulation) [2024] VCAT 1012	

findingS
1	The Tribunal finds proved allegations 1 and 2 brought against WYS in the Amended Notice of Allegations of 3 July 2024, respectively concerning (1) an assault of his spouse on 5 January 2020, and (2) failing to notify the Board of criminal charges having been laid against him.
2	WYS is found to have engaged in professional misconduct within the meaning of (a) and (c) of the definition of that term in the Health Practitioner National Law (Victoria) Act 2009 (National Law) in relation to allegation 1.
3	WYS is found to have engaged in unprofessional conduct in relation to allegation 2.
Orders
1	WYS is reprimanded under s 196(2)(a) of the National Law.
STATEMENT OF REASONS AND ORDERS UNDER THE OPEN COURTS ACT 2013 (VIC) and the VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 (VIC)
The Tribunal finds:
1	Having regard to the primacy of the principle of open justice and the free communication and disclosure of information referred to in s 4(a) of the Open Courts Act 2013 (Vic) (OC Act), the Tribunal is satisfied that the specific circumstances of this case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information by making a proceeding suppression order under s 17 of the Act.
2	The purpose of the Tribunal’s order is to avoid the unreasonable invasion of the privacy of the respondent’s wife and children.
The Tribunal orders:
1	Under s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the respondent in this proceeding must be referred to as WYS.
2	Under s 17 of the OC Act that, any report of the whole or part of this proceeding or information derived from this proceeding to the extent that it would disclose the name or address of WYS’ wife or children must not be published or otherwise disclosed.
3	These orders apply throughout Australia. The Tribunal’s reasons for decisions are published on the AustLII website, which is accessible throughout Australia. The above persons’ privacy would be breached if persons living outside Victoria know or come to know their identity.
4	This order operates for a period of 15 years.

J Smithers
Senior Member
Presiding Member	N Sidiropoulos
Health Practitioner Member	B Williams
Health Practitioner Member	

APPEARANCES:		
For the Applicant 	Mr Imre of counsel	
For the Respondent	Ms Price of counsel	

Reasons
1	This case concerns an act of domestic violence perpetrated by an experienced registered paramedic on his spouse on 5 January 2020. Domestic violence is a major societal issue, and where registered health practitioners engage in such conduct, this will be scrutinised by the applicable registration Board. Acts of domestic violence are inconsistent with the qualities expected to be displayed by a paramedic. Quite separately from any criminal sentence imposed, they will usually attract an order in professional disciplinary proceedings suspending or cancelling a practitioner’s registration.
2	This is one of those less common cases, however, where the mitigating factors are of such significance that it is not necessary to interfere with the practitioner’s registration.
3	In this case, the practitioner, referred to as WYS, immediately recognised he had done the wrong thing. At the time, and since, he has conducted himself in a manner which was contrite and cooperative. He made full admissions in a police interview on 5 January 2020. He has been fully cooperative with the applicant (Board).
4	Criminal charges were laid against him on 5 March 2020, but following the onset of the Covid-19 pandemic, they were not dealt with until June 2021 – by way of Diversion. In September 2022, the Board commenced this disciplinary proceeding at VCAT under the Health Practitioner Regulation National Law (National Law). Unfortunately, the matter has taken two years to come to final hearing, in particular as a result of a delay in the appointment of the required VCAT sessional members holding paramedical qualifications.
5	In this hearing, the factual components of the two allegations brought against WYS were agreed and found proved. The first relates to the assault on 5 January 2020. The second relates to WYS’ failure to advise the Board within seven days that that a serious criminal charge had been laid against him.
6	There is agreement between the parties on all matters save for two things:
•	The characterisation of the conduct comprising the assault.
•	Whether a suspension of WYS’ registration should be imposed.
7	In the hearing, we determined that the assault should be characterised as professional misconduct with the meaning of (a) and (c) of the definition of that term in the National Law. We further determined that WYS should receive a reprimand but no suspension.
8	We announced our findings in hearing. Written reasons were requested. These are those reasons.
The allegations
9	Following discussions between the parties an Amended Notice of Allegations was filed on 3 July 2024. This states as follows:
Criminal offences
1.	On 5 January 2020, [WYS] engaged in … professional misconduct within the meaning of paragraphs (a) and/or (c) of the definition of professional misconduct in s 5 of the National Law… in that he assaulted [his wife].
Particulars
The particulars include, but are not limited to:
1.1	On 1 December 2018, [WYS] was first registered with the Board…
1.2	At all material times [WYS] was:
(a)	a registered paramedic within the meaning of the National Law; and
(b)	employed by Ambulance Victoria.
1.3	At approximately 1:00 pm on 5 January 2020, [WYS] completed a night shift with Ambulance Victoria and returned home to his residence in [location], Victoria where he resided with his wife, …, and their … young children. During an argument between [WYS] and [his wife] regarding household duties, [WYS] punched [his wife] in her face and throat area with his right fist. [WYS] then wrapped his arm around [his wife] and held her in a headlock.
1.4	[His wife] sustained a sore jaw, swelling to the cheek and a small cut to the inside of her lip. [His wife] contacted Victoria Police shortly after, while [WYS] remained at the property until police arrived. [WYS] was arrested and conveyed to … Police Station where he was interviewed by police.
1.5 	A Family Violence Safety Notice was issued to [WYS].
1.6	On 10 January 2020, both [WYS] and [his wife] attended the … Magistrates’ Court and a Final Intervention Order with limited conditions was issued and served on [WYS].
1.7	On or about 4 March 2020, [WYS] was charged by Victoria Police with two offences, namely recklessly cause injury under section 18 of the Crimes Act and unlawful assault under section 23 of the Summary Offences Act (Offences).
1.8	On 29 June 2021, the matter proceeded in the … Magistrates Court. The charge of recklessly causing injury was withdrawn and marked as struck out. The charge of unlawful assault was dealt with by way of Diversion after [WYS] accepted responsibility for that charge.
1.9	The conditions of the Diversion Plan required [WYS] to:
(c)	be of good behaviour for a period of 2-months until 27 August 2021; and
(d)	write a letter of apology/gratitude to the informant and provide a copy to the Court by 27 August 2021.
1.10	On 27 August 2021 [WYS] completed the Diversion Plan and the charge of unlawful assault was dismissed. 
1.11	The Board refers to, as set out in the attached Schedule principles 1.1, 1.2, 8.1 and 8.3 of the Code of Conduct, [WYS’s] conduct in unlawfully assaulting [his wife] was inconsistent with those principles and contrary to the Summary Offences Act.
Failure to give notice of an event
2.	On or about 12 March 2020, [WYS] engaged in… unprofessional conduct within the meaning of the definition of unprofessional conduct in s 5 of the National Law; in that he failed to notify the Board of a relevant event under section 130 of the National Law.
Particulars
The particulars include, but are not limited to:
2.1	The Board refers to and repeats paragraphs 1.1 to 1.10.
2.2	On 11 November 2020, [WYS] made an online application to renew his registration with the Board. Part of the formal registration process requires applicants to disclose any criminal history in Australia.
2.3	[WYS] disclosed that he was charged with recklessly causing injury and unlawful assault in a family violence matter and that he was awaiting a mention hearing which was delayed as a result of COVID-19.
2.4	Pursuant to section 130 of the National Law, a practitioner must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner, give the National Board established for the practitioner's health profession written notice of the event. A relevant event includes when a practitioner is charged with a criminal offence that is punishable by 12 months [imprisonment].
2.5	[WYS] was required to notify the Board within seven days of being charged with recklessly causing injury.
2.6	[WYS] failed to notify the Board that he had been charged with recklessly causing injury until 11 November 2020.
2.7	The Board refers to, as set out in the attached Schedule, principles 1.1, 1.2, 8.1 and 8.3 of the Code of Conduct.
2.8	[WYS’s] conduct was inconsistent with the principles and standard at paragraph 2.7.
10	From 1 December 2018, WYS was obliged to comply with Code of Conduct (interim) (in effect for paramedics 15 June 2018 – 28 June 2022) (Code of Conduct).
11	The provisions of the Code of Conduct referred to in the allegations are as follows:
Principle 1.1 - Paramedics must always act in accordance with the law. The code is not a substitute for the provisions of the National Law, other relevant legislation and case law. If there is any conflict between the code and the law, the law takes precedence. Practitioners need to be aware of and comply with, the standards, guidelines and policies of their National Board.
Principle 1.2 - There are professional values on which all paramedics are expected to base their practice. These professional values apply to the practitioner’s conduct regardless of the setting, including in person and electronically, e.g. social media, e-health etc. Paramedics must be ethical and trustworthy. They have a responsibility to protect and promote the health of individuals and the community and will display qualities such as integrity, truthfulness, dependability and compassion. 
Principle 8.1 - Paramedics in professional life must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.
Principle 8.3 - Paramedics have statutory responsibility under the National Law to report matters to the National Boards: please refer to the Board’s guidelines on mandatory reporting and sections 130 and 141 of the National Law. They also have professional obligations to report to the Boards and their employer/s if they have had any limitations placed on their practice. Good practice involves:
(a)	being aware of these reporting obligations;
(b)	complying with any reporting obligations that apply to practice; and
(c)	seeking advice from the Boards, professional indemnity insurer or other relevant bodies if practitioners are unsure about their obligations.
Characterisation
12	We turn first to the characterisation of allegation 1. While Ms Price, counsel for WYS, requested the Tribunal to consider making a finding of professional misconduct under (a) the (inclusive) definition of that term in the National Law, but not (c), she acknowledged that it is open for it to make a finding under (c).
13	We find that both (a) and (c) apply. The assault was contrary to the provisions of the Code of Conduct set out above. Concerning (a), the conduct comprised unprofessional conduct which was substantially below the standard reasonably expected of a registered health practitioner holding the high level of training and experience held by WYS.
14	More significantly, concerning (c), the assault comprised conduct of the practitioner that was inconsistent with being a fit and proper person to hold registration in the profession.
15	As has been recognised in a number of recent cases, the definition at (c) focuses on the nature of the conduct engaged in, rather than the present fitness or otherwise of the practitioner. While we are satisfied WYS is currently a fit and proper person to be registered as a paramedic, we find the assault on 5 January 2020 was inconsistent with the qualities required to be fit and proper person to hold registration.
16	With regard to domestic violence, as stated in Nursing and Midwifery Board of Australia v GMR: 
While it may not have been so in the past, it has been rightly accepted in a number of recent cases (in other jurisdictions) that acts of domestic and family violence committed by health practitioners can give rise to professional misconduct or unprofessional conduct under the National Law.
17	The following statement in Medical Board of Australia v PYPconcerned medical practitioners, but applies equally to paramedics:
For a medical practitioner, this kind of conduct is inconsistent, in our view, with the qualities required to be a fit and proper person to hold registration. We highlight the following.
Our community rightly expects that medical practitioners will not commit a crime of this nature. Conduct of this kind impacts on the standing of and the trust that the community holds in the medical profession.
Medical practitioners are and need to be seen by the community as people who are law abiding, trustworthy, safe to be in proximity to, and respectful, including of women.
An offence of this kind has particular resonance for medical practitioners who may be the first point of contact for a person who is themselves a victim of an act of family violence. This is because the public expects that they will be able to provide good medical care for those who are experiencing abuse and violence, as well as to identify and respond appropriately to the perpetrators of same.
18	Concerning allegation 2, as WYS acknowledged in giving his evidence, in carrying out their task of protecting the community, Boards are dependent on practitioners notifying them when they are charged with, or found guilty of specified serious offences.
19	Hence, the obligation to report such criminal charges properly is an important aspect of paramedics’ professional responsibilities. WYS’ delay in notifying the Board was contrary to Principle 8.3 Code of Conduct.
20	Breach of this obligation to report within seven days will therefore often lead to a finding of professional misconduct.
21	Here, however, we accept the position jointly put by the parties that a finding of unprofessional conduct is appropriate. We are satisfied that WYS was unaware of his obligation. While ignorance is no excuse, he did promptly report the fact that he had been charged to his employer, Ambulance Victoria (AV). It was his responsibility to report to the Board by 12 March 2020, but it is unfortunate that he was not advised by AV, or by his union, of his obligation to report to do so.
22	Further, WYS properly disclosed that the criminal charges had been laid against him, when he completed his application for renewal of his registration on 11 November 2020. So he was not deliberately hiding this from the Board. 
23	As Mr Imre, for the Board, acknowledged during the hearing:
•	The Board did not act on this until March 2021.
•	The offence which triggered the obligation to report, recklessly causing injury, was ultimately withdrawn. The offence for which WYS ultimately accepted responsibility, unlawful assault, was not one which would have triggered the reporting obligation. 
•	The Board ultimately determined not to suspend WYS’ registration. On 16 April 2021, it advised WYS that it was proposing to suspend him by way of immediate action under the National Law. But on 4 May 2021, after it received written submissions prepared by WYS’ solicitor, the Board determined not to do so (with WYS having given an undertaking not to practise for a period, perhaps several weeks, pending that determination by the Board).
Determinations
24	WYS should receive a reprimand. This is a formal statement of denunciation which will appear as a negative mark on his professional registration record, reflecting the gravity of his conduct. 
25	As stated above, given that acts of domestic violence are so inconsistent with the qualities of care, respect and control expected of registered paramedics, that they will frequently lead to a period out of practice being imposed. This is for the purpose of general deterrence – to send a message to the profession and to the community as to the gravity of such conduct.
26	The Board’s submission was that WYS’ registration should be suspended, and that the appropriate period is six months. Here, however, there are multiple mitigating factors which in our view, entail that, in accordance with the submission on behalf of WYS, it is not necessary to suspend his registration at all. 
27	The most significant of these is WYS’ clear insight into the causes of his conduct, the implications of it and the protective steps he has taken to avoid it happening in the future.
28	This springs from his immediate contrition and remorse after he had punched his wife and put her in a headlock on 5 January 2020. From that moment he cooperated fully with the police. After his wife called the police, he waited for them to arrive. He then went to the police station and immediately made full admissions in a police interview. He elaborated on the circumstances, but made a number of statements to the effect that it was his fault, he should not have done it, he was in the wrong, and there is no excuse for what he did. He was then charged with recklessly causing injury and unlawful assault.
29	The surrounding circumstances support the proposition that this was an isolated incident. WYS had just come off 14 hours of nightshift. He had worked substantial periods of night shift overtime in the days immediately prior to the assault. While WYS’ work frequently involves dealing with serious trauma, these shifts had included one particularly distressing incident involving a child. WYS was working extra shifts due to pressure on family finances, with his wife not earning an income at the time, as she was studying. There was pressure on the relationship and family life for a number of reasons. He had arrived home after those shifts sleep-deprived. There was an argument over a relatively small issue, he went upstairs to get his jacket, preparatory to going out to buy groceries for the family, there was contact between them and this triggered the assault.
30	It was apparent the incident revealed to WYS that he was capable of violence, even though this had not manifested itself before (or since). It was clear from his evidence that he has reflected on that.
31	The assault caused WYS to take concrete steps to address the situation. He and his wife made adjustments to reduce their immediate financial obligations. Also, she is now employed, having finished her studies. This has enabled him to stop working such ‘exorbitant overtime’. He has taken other steps to manage his fatigue, and improve communication with his wife in relation to the stresses he experiences at work. He now has a chance to debrief with her after work, albeit ‘without going into the gory details’.
32	WYS also commenced seeing a psychologist, Patricia Boyhan, a week after the assault. In a report of 20 September 2020, she said:
When [WYS] first consulted me it was within days of the incident which lead to the police intervention. He appeared to be in a state of shock and was deeply remorseful for his actions. He identified it was the first time there had been physical violence in the relationship and there were no contributing factors such as drugs or alcohol. He said he had apologized to his wife and both their extended families. He accepted full responsibility for the actions and in no way tried to minimize or blame his wife for the circumstances surrounding the incident. He had enquired about Men’s Behaviour Change Programs which he intended attending, and said he was seeking counselling to deal with any stressors which may have impacted on his ability to manage his responses and behaviour, and to guard against any reoccurrence in the future.
Since then [WYS] has attended on five other occasions when we have discussed his marital relationship, family life, extended family issues, life and work stressors. We examined the different types of family violence and agreed ‘Situational Violence’ was the most suitable category for what had occurred.
33	Ms Boyhan went on to describe the multiple potential triggers for conflict in WYS’ family relationship which she and WYS had examined together. These included the matters described above. Ms Boyhan said WYS continued to accept full responsibility for his actions and at no time used these stressors as an excuse for his behaviour.
34	Ms Boyhan continued:
I believe [WYS] would like to continue attending counselling and I will remain available to him.  I feel confident it is extremely unlikely he will re-offend and the strength of his remorse and his understanding of the impact of conflict on his small children will be an incentive for him to address the stressors in his life and to make appropriate changes. He has already stopped working night shifts; has reflected on his contribution to conflict and is committed to be less reactive; and has discussed with his wife how he can make a greater contribution in the home and in the couple relationship. Future counselling will concentrate on core values both he and his wife share; an emphasis on acceptance of, and respect for, ‘different views’ rather than ‘disagreements’; management of potential conflict, for example taking time out from discussions if either he or his wife feel irritated, and agreeing to discuss at another set time, so as to avoid feelings of ‘abandonment or dismissal’ by either party; focus on couple relationship and intimacy, which will be supported with child minding by his wife’s parents.
35	WYS attended a weekly men’s behaviour change program for at least six months over 2020 – 2021, and continued to see his psychologist.
36	The police were initially not inclined to agree to a Diversion. A key factor which influenced them to change their mind was the statement of 27 April 2021 by WYS’ wife. She described the incident as an isolated one, and as having been a turning point in their relationship for the better. Statements of this type by victims of domestic violence can often be treated with scepticism. However in this instance, the police, and the magistrate accepted it as a genuine and truthful statement, made of her own free will. 
37	The magistrate who ordered the Diversion on 29 June 2021 said, ‘…as bad as what’s happened, there’s no doubt it’s been a very positive thing for you as a father, partner, as a man.’ The conditions imposed together with the Diversion (which were satisfied) required WYS to be of good behaviour for two months and to write a letter of gratitude/apology to the informant. The trust vested in WYS by those persons has been vindicated. There have been no further incidents.
38	The parties referred to a series of cases involving domestic violence engaged in by registered health professionals, where the determinations imposed included suspensions for six months, three months, one month and no suspension.
39	We are satisfied that our decision sits comfortably amongst these. In each case, we regard the conduct is more serious, and accompanied by fewer mitigating factors than in the case of WYS. Some of those decisions involve multiple assaults, violence or coercion over extended periods, use of a weapon, the presence of children, stalking and delayed or incomplete insight. With the exception of Koulouris, in those cases where a period of suspension was imposed, there was a criminal finding against the practitioner.
40	Another very significant factor in our consideration is the extent of the delays in this matter coming on for a final hearing. The unfortunate circumstances in which these delays occurred are described above. WYS did not contribute to any of them. The matter has been hanging over his head for four years and 10 months.
41	This extended delay, without any further issues arising has, however, served to solidify our view that specific deterrence has no role to play here.
42	In our view, to impose a suspension in all the circumstances, would be punitive. From hearing and observing WYS give evidence, it is clear that the assault he committed on 5 January 2020 has had a major impact on his mindset. It is clear WYS has been on a profound and consequential journey of rehabilitation. 
43	There is no need to deprive the community of the services of WYS as a paramedic, especially where, in the circumstances alluded to in the hearing, he is in a position to make a particularly valuable contribution.
Conclusion
44	WYS will receive a reprimand under s 196(2)(a) of the National Law.

J Smithers
Senior Member
Presiding Member	N Sidiropoulos
Health Practitioner Member	B Williams
Health Practitioner Member