VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative division
Review and Regulation List	
vcat reference No. Z246/2020	
CATCHWORDS	
Review and Regulation List – medical practitioner – psychiatrist – applicant’s application for stay of a decision by the Immediate Action Committee to suspend his registration – prescribing scheduled medication to vulnerable patient with substance abuse history while in a personal relationship with her – misleading the Board in response to previous notification about same issue – patient suffered acute benzodiazepine overdose – whether undertakings or conditions sufficiently protective pending review hearing –  public interest considerations – relevance of impact of Covid-19 on ability to transfer other patients’ care – condition that applicant not treat and have no contact with patient – Health Practitioner Regulation Nation Law s 156 – Victorian Civil and Administrative Tribunal Act 1998 s 50(3).	

APPLICANT	Ian Katz	
RESPONDENT	Medical Board of Australia	
WHERE HELD	Melbourne	
BEFORE	Senior Member E Wentworth	
HEARING TYPE	Stay Hearing via videoconference	
DATE OF HEARING	28 April 2020	
DATE OF ORDER 	1 May 2020	
Date of Written Reasons	28 May 2020	
Citation	Katz v Medical Board of Australia (Review and Regulation) [2020] VCAT 589	

ORDER
For the reasons given orally at the hearing, the Tribunal orders as follows:
1	Under s 50(3) of the Victorian Civil and Administrative Tribunal Act 1998, subject to the conditions which follow, which are to be conditions on Dr Ian Katz’ registration, the decision of the Medical Board of Australia dated 23 March 2020 suspending Dr Katz’ registration as a medical practitioner under s 156(1)(a) of the Health Practitioner Regulation National Law (National Law) is stayed until the hearing of his application for review or further order.
Conditions
1.	Dr Ian Katz (the Practitioner) will not contact or communicate with the individual P.  This includes but is not limited to physical contact, communication by correspondence, communication by any electronic means including telephone communication, messaging, email or video communication.
2.	The practitioner will not treat the individual P and must not prescribe any medication for P.
3.	Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to AHPRA:
a.	Acknowledgement, on the approved form (HP15), that AHPRA may contact the Practice Manager (the senior person) at each place of practice and obtain reports from them as otherwise required by AHPRA or the Board.
b.	Acknowledgement, on the approved form (HPS15), from the senior person at each place of practice that they are aware AHPRA may contact them in order to obtain reports outlined in (a).
4.	Within 14 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA:
a.	Acknowledgement, on the approved form (HP1), that AHPRA may obtain reports from the Practice Manager (a senior person) at each and every place of practice as otherwise required by the Board or AHPRA.
b.	Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the condition AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories.
c.	Confirmation, on the approved form (HPS1), from the senior person at each place of practice that they are aware AHPRA will seek reports from them.
5.	The Practitioner must be mentored by another registered health practitioner in relation to the Medical Board’s concerns regarding boundary issues.  For the purposes of this condition, ‘mentoring’ is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.
a.	The mentoring must comprise a minimum of 4 sessions with each session being of 60 minutes duration occurring over a 6-week period.
b.	Within 28 days of the notice of the imposition of these conditions, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Medical Board of Australia to act as mentor.  The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
6.	Within 28 days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:
a.	at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring
b.	whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner’s conduct or professional performance, and
c.	when otherwise requested by AHPRA or the Board.
7.	In the event an approved mentor is no longer willing or able to provide the mentoring required the Practitioner is to provide a new nomination in the same terms as previous nominations.
a.	Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
b.	Within 14 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practise.
8.	The Practitioner must continue treatment with Ms Robyn Moore psychologist (the treating practitioner) and attend at a frequency determined by the treating practitioner(s).
9.	The Practitioner must continue treatment with Dr Naomi Harris, General Practitioner (the treating practitioner) and attend at a frequency determined by the treating practitioner(s).
10.	Within 14 days of the notice of the imposition of these conditions, the Practitioner must provide the following to AHPRA:
a.	The contact details, on the approved form (HPF3), of all treating practitioners.
b.	Acknowledgement, on the approved form (HPF3), from the Practitioner that AHPRA may seek reports from the treating practitioner(s).
c.	Confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner’s registration and are aware AHPRA may contact them to seek reports.
11.	From the date of notice of the imposition of these conditions, the Practitioner must not accept any new patients and must confine his practice to his current patient list.
12.	The Practitioner must not exceed 40 hours of practice a week.
13.	Within 14 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may:
a.	Seek reports from the Practice Manager (the senior person) at each place of practice as otherwise required.
b.	Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.
c.	Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
14.	Within 14 days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they are aware AHPRA will seek reports from them.
2	Liberty to apply, including, once the parties confirm with the Tribunal that they have exchanged all material to be relied on and three copies of the Tribunal Book are ready to be filed, liberty to apply for a hearing of the review application to be fixed.

E Wentworth
Senior Member			

APPEARANCES:		
For Applicant	Mr John Noonan QC	
For Respondent	Ms S Keating of Counsel	

Note: Orders under the Open Courts Act 2013 (the Act) are in force
On 23 April 2020, the Tribunal made the following orders under s17 of the Act: 
1.	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patients the subjects of these proceedings, the notifiers or the respondent’s witnesses to be identified must not be published or otherwise disclosed.
2.	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia.  The privacy of the patients, notifiers and witnesses would be breached if persons living outside Victoria know or come to know their identity.
3.	This order operates until the later of the death of all of the relevant patients, notifiers and the witnesses.

Reasons
1	On 28 April 2020 I heard Dr Ian Katz’ application to stay the operation of an immediate action decision the Medical Board of Australia (Board) made on 23 March 2020, to suspend his registration as a medical practitioner.  
2	Subject to receiving agreed wording on one of the conditions, I gave my decision at the hearing with brief outline reasons.  These are my detailed reasons in writing which also add the background, legal framework and a summary of the evidence and submissions.  
Background
3	Dr Ian Katz was first registered as a medical practitioner in December 1988 and since 2001 has been a fellow of the Royal Australian and New Zealand College of Psychiatrists.
4	On 23 March 2020, the Board’s Immediate Action Committee (IAC) suspended his registration.
5	He seeks a stay of the suspension until his application for review of the Board’s decision can be heard by the Tribunal.  He offers undertakings as to how he will practise in the meantime.
6	This is a decision under s 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).
7	I am not deciding whether the Board’s immediate action should be affirmed, set aside or varied.  That will be for a three-person panel, including two medical practitioners, as soon as a hearing is able to be convened.  
8	I am deciding whether, in the meantime, Dr Katz should remain suspended or be able to return to practice pending the final hearing, with or without restrictions in the form of undertakings or conditions.  
9	The Board made its decision under s 156 of the Health Practitioner Regulation National Law (National Law), having formed the belief that because of Dr Katz’ conduct he posed a serious risk to persons, and it was necessary to take immediate action to protect public health or safety.  In the Board’s view, suspension of Dr Katz’ registration was the necessary form of immediate action.
10	The Board took action after it received a confidential notification from a medical practitioner at the Royal Melbourne Hospital (RMH).  A young woman, P, had been admitted to the Emergency Department on 3 February 2020 unconscious, with what was diagnosed as an acute benzodiazepine overdose.  
11	She had collapsed at the airport while waiting for a flight to the US where she was due to attend a patient detox clinic.  
12	RMH staff found three patient medication bags in her luggage, and text messages on her phone from ‘Dr Ian’ with personal messages and pet names for her, including ‘this doctor is missing his patient’.  Once awake she said, and Dr Katz confirmed, that he had been treating her.
13	There is no dispute that Dr Katz has been in a personal relationship with P since late 2018.
14	In July 2019, in response to an earlier notification to the Board raising concerns that Dr Katz was treating P while being in a personal relationship, Dr Katz admitted the personal relationship but was adamant he was not treating her.  At the time, the Board accepted his denial of a doctor/patient relationship and decided to take no action.
15	It is now clear, and Dr Katz admits, that he misled the Board in July last year.  Since January 2019, he has been prescribing medication for P, including ‘scheduled medications’ such as benzodiazepines.  The prescribing continued through to February 2020.  As late as 26 January 2020, he applied for a permit to prescribe alprazolam to her.  
16	It is also clear that, despite the regulatory action last year, Dr Katz continued the dual relationship with P.
17	P has had a regular treating psychiatrist, Dr Stephen Xu, since 2017.  Dr Xu has advised the Board that P’s diagnoses include borderline personality disorder, substance abuse, and severe anxiety with panic attacks.  Dr Katz did not coordinate P’s medication with Dr Xu, who was also prescribing benzodiazepine.  Dr Katz did not make clinical records or prepare any treatment plan for his prescribing to P.
Summary of submissions
18	Dr Katz admits the conduct relied on by the IAC to make its decision.  He disputes, however, that it is necessary to suspend his registration and asks for the stay to prevent damage being caused while he is waiting for the review hearing.  He contends that:
•	if the stay is not granted, there will be a disproportionate impact on his large number of vulnerable patients who rely on him for psychiatric treatment including psychotropic medication, because of the difficulties in transferring them;
•	his practice will be seriously impacted as will his practice manager’s employment;
•	although he suffered a lapse in judgment in relation to P, he is not a risk to any other patients; 
•	he has a strong incentive to avoid any further misconduct; and
•	in any event has offered undertakings: 
o	not to prescribe to P; 
o	to be mentored; 
o	to continue in treatment with his psychologist and GP; 
o	to undertake education; and 
o	to limit his working hours.
19	The Board contends that the stay should be refused and says that Dr Katz presents a serious and immediate risk having:
•	demonstrated a significant deficiency in personal judgment which indicates a risk to all patients; 
•	committed a breach of trust in respect of a vulnerable patient, including by:
o	combining a personal relationship with a therapeutic relationship;
o	unsafe prescribing of dangerous drugs of dependence such as benzodiazepines; 
o	failing to coordinate her medication with her treating psychiatrist, who was also prescribing benzodiazepines; and
o	exposing her to risk;
•	mislead the Board about the coexistent therapeutic relationship; and 
•	continued the dual relationship despite the regulatory action last year and after assuring the Board it was a personal relationship only.  
20	The Board submitted that the range and seriousness of Dr Katz’ conduct lead to the conclusion that he is a risk, not only to P but to his patients generally.
21	The current Covid-19 pandemic is an issue in this case.  
22	Witness statements relied on by Dr Katz speak of the greater than usual difficulty in finding other psychiatrists to take on new patients.  
23	This is said to be in part because of the limitations of telehealth consultations in making a proper assessment of a new patient, meaning that other psychiatrists are reluctant to take on new patients in the current conditions.  Also, many existing patients are needing more frequent contact because of the higher than usual distress and anxiety being experienced by them.  And the increase in mental health issues experienced in the general population are adding to the pressure on the mental health system, already overstretched.

Stay applications: the legal framework
24	Section 50(3) of the VCAT Act states:
The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.
25	The power to grant a stay is discretionary.  
26	While the VCAT Act does not set out any criteria under which I should exercise the discretion, there are well-established principles which provide guidance, summarised in Ali v Taxi Services Commission (Review and Regulation) [2014] VCAT 1437 at [17]:
The guiding principles for the exercise of the discretion are to be found in Bell and Eager v Liquor Licensing Victoria and Swapnil [2000] VCAT 214:
(a)	The power to grant a stay is discretionary to be exercised after full consideration of the circumstances and facts of each particular case;
(b)	The dominant principle is whether or not the failure to grant a stay would render the application for review before the Tribunal nugatory (of no value);
(c)	Whether or not there is a serious question to be tried on review is a matter of some importance;
(d)	Whether or not it is in the community interest to grant a stay is properly to be taken into account.  This involves the balancing of private interests against the public interest; and
(e)	It is relevant for the Tribunal to take into account the period of time which will elapse before the hearing of the application for review.
27	Where appropriate, the Tribunal should consider whether any stay granted be subject to conditions or acceptance of an undertaking.  
28	The Tribunal will also consider whether or not a party will suffer prejudice if the application is granted or refused.
29	In considering whether there is a serious issue to be tried, it is proper to consider the likely outcome of the review application in light of what are fundamentally uncontested matters, but it is inappropriate to consider seriously contested matters with a view to trying to predict the outcome without the benefit of evidence.  The Tribunal should be mindful of the fact that the evidence may be at an early stage.
30	In Arulanantham v Medical Board of Australia (Occupational and Business Regulation) [2012] VCAT 124 (Arulanantham) at [17], Deputy President Macnamara, as he then was, made some helpful observations about what the Tribunal is doing when it is considering whether not granting the stay would render the review application nugatory:
[Whether it would do so] because 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 applicant succeeds. 
31	Referring to a statement in AZD v Secretary to the Department of Justice [2009] VCAT 977, the Deputy President also observed:
generally there should be a predilection in favour of not, if you will, putting people out of business until they have had the opportunity to prosecute their review applications…
32	At [18], Deputy President Macnamara said that the two considerations to be balanced are the desire not to inflict irreparable damage before a full and complete review can be completed, but on the other hand to preserve the public interest in safe treatment of patients.  
33	Observing that practitioners under investigation will have an incentive to conduct themselves properly, Deputy President Macnamara stated at [19] that:
Frequently in cases of this type the Tribunal can be comforted in the knowledge that the public interest in the meantime will be catered for by the thought that a practitioner who has been found at first instance to be guilty of some type of wrongdoing, some lack of attention, some error of judgment can be thought if given a stay to have the strongest possible motives to refrain from anything that might be inappropriate, to use extra care to ensure that there is no failure to meet proper standards and generally to adopt the most cautious approach in any crises to avoid anything that might be regarded as a breach of proper judgement.  
34	In the context of those observations, Deputy President Macnamara nevertheless refused the stay.
35	In stay cases to do with the conduct of a health practitioner, the public interest and the protection of the public from unsafe practitioners may well ‘trump the concern to avoid a review application being rendered nugatory’.
36	This is because the public interest in patient safety is of greater importance in a matter involving protection of the public from a health practitioner who poses a risk to public health and safety than in, for example, a liquor licensing matter.

37	As Senior Member Proctor, as he then was, observed in Chow v Medical Board of Australia (Chow): 
	Thus, it is clear that for many years, acknowledging Kellam J’s words in Bell, in this type of case, the risk of a nugatory decision sits with other criteria including community and public interest.
38	The decision of the Victorian Supreme Court of Appeal in Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 (Kozanoglu), concerned an appeal against a review decision by the Tribunal.  While it did not concern a stay application, the decision contains a relevant statement at [126] about the context in which the Health Profession Boards make immediate action decisions under the National Law:
The IAC [Immediate Action Committee] will generally be required to make quick decisions on the basis of limited information.  When full information is later obtained, a belief which, on the limited information was reasonably based, may be shown to have been in error.  Accordingly, the IAC and the Board must always be conscious of the possibility of error.  The consequences of that error may be serious.  Two safeguards against such consequences should therefore be kept to the forefront.  The first is the importance of a timely referral to a panel, or to VCAT.  The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
The hearing and evidence
39	I heard submissions from Counsel for the Board and for Dr Katz in relation to the factors relevant to a stay decision, set out above, as well as evidence from four witnesses called by Dr Katz:
•	Ms Robynne Moore, psychologist, who has been seeing Dr Katz since 2017;
•	Dr Alec Dempster, psychiatrist;
•	Dr Mathew Hiram Gelman, psychiatrist; and
•	Ms Belinda Campbell, Dr Katz’ practice manager.
40	Dr Katz filed Counsel’s notes of conference with the four witnesses above, as well as witness statements of four current patients of Dr Katz, who were not called.  Dr Katz also filed a report dated 13 April 2020 from Ms Moore.
41	Both parties sought to rely on additional evidence at the hearing.  Both objected to the other doing so.
42	In each case the evidence post-dated the IAC hearing.  Both Counsel made differing submissions on whether the documents would be admissible at the review hearing, referring to Kozanoglu and if not, whether they could be admitted into evidence at the stay hearing.
43	As Kozanoglu made clear, the hearing of an application for review of an immediate action decision is a ‘hybrid’ hearing, focussed on the material that was before the Board at the time it made its decision but with the opportunity to present additional evidence.  
44	The scope of the review hearing was described by the Court of Appeal at [119]:
In our respectful opinion, both the approach taken in South Australia, and that taken in Tasmania, are erroneous.  The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo.  It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken.  It is not ‘open slather’, but nor is it an appeal confined to error.  
45	I did not, in my view, need to determine whether the additional documents sought to be relied on by both parties would be admissible at the review hearing.  
46	The factors relevant to a stay application are not identical to those under consideration at a review hearing, although the Tribunal on a stay application may consider the likely outcome of the review application, if ascertainable.  
47	There may, for example, be evidence post-dating the IAC hearing, including evidence as to the practitioner’s current state of mind or recent actions, which is directly relevant to an assessment of patient safety in the short term or other risk should the stay be granted.  
48	I considered the evidence both parties sought to rely on to be relevant in this way to the exercise of my discretion under s 50(3) of the VCAT Act.  
49	After hearing submissions on admissibility and relevance, I allowed the Board to rely on further evidence P had provided, which was in my view relevant to assessing risk to patient safety if the stay were granted and whether undertakings given by Dr Katz could be relied on.  
50	At the IAC hearing, Dr Katz through his Counsel had made an unreserved apology for his conduct, expressed shame and remorse, recognised the harm to P of his conduct and emphasised he had the utmost concern for his patients.  
51	The evidence provided was, however, that, shortly after the IAC’s decision, Dr Katz had bombarded P with telephone calls, and sent her text messages in which he called her ‘disgraceful’, blamed her for the loss of his registration, asserted she would be responsible if he took his own life, and threatened to tell her university she had stolen a car which had been purchased for her.
52	After hearing submissions about admissibility and relevance, I allowed Dr Katz to rely on a recent report, also relevant to risk, of Dr Naomi Harris, who has been seeing Dr Katz since March this year as part of the Victorian Doctor’s Health Program.  
53	Dr Harris reported that Dr Katz had ceased practising when she first met him in early March.  At that time, he was mentally unwell and, in her view, unsafe to practise, which he himself recognised.  Dr Harris had, however, seen a considerable recent improvement as a result of Dr Katz starting on a particular anti-depressant.  In her view, he was now safe to practise.  
54	I ruled against admitting a further document the Board sought to rely on, on the grounds of relevance.
Summary of other evidence
55	Dr Katz’ patients wrote of the length of time they have been seeing Dr Katz, the nature of their psychiatric conditions and the medication they take, the impact on them if they were not able to continue seeing him, and for some, the difficulties they have had in the past in seeing other psychiatrists.  I accept the likely impact on those and other patients of refusing the stay and consider it relevant to my decision.
56	Dr Gelman and Dr Dempster spoke favourably of Dr Katz’s experience, reputation and competence as a psychiatrist.  Both spoke of the difficulties in arranging transfer of Dr Katz’ patients, including because of the limitations of the public system for such patients and the impact of the current pandemic on an already overstretched mental health system.  I accept that the impact of the pandemic is as they have described it and is a relevant consideration here.  
57	Ms Campbell has worked for Dr Katz for 16 years.  She considers that there are between 350 to 450 patients who present on a weekly, fortnightly or monthly basis.  There are also patients who attend less frequently such as quarterly, half yearly and yearly.  She would estimate the total patient base at approximately 700.  In excess of 70% of the patients have been long term patients of Dr Katz under his care for 10 years or more.
58	She spoke of the anxious reaction to Dr Katz’ unavailability of those patients she had called, the difficulties in arranging alternative psychiatric care, particularly for those taking Schedule 8 medication, and the likely longer-term effect of Dr Katz remaining unavailable to his patients.  By the date of hearing she had been able to arrange transfer back to their GP of those patients who could not wait for Dr Katz to return, but alternative care by a psychiatrist had been problematic.  I accept her evidence as to the consequences of the Board’s decision to date.
59	Ms Moore described the content and nature of Dr Katz’ therapy with her since 2017, which has included relationship counselling.  Part of the recent focus has been on his troubled relationship with P and the impact of the Board proceedings on Dr Katz, which she said has been severe.  She said that whilst Dr Katz has experienced no difficulty in treating young women in his psychiatric practice, and she would not hesitate to refer women patients to him, he is relatively naïve in personal relationships with women.  Other evidence relevant to this last aspect is that Dr Katz lived with his mother, very recently deceased, for years and that before his mother’s stroke two years ago, she had been the principal emotional relationship in his life.
60	Ms Moore expressed the opinion that there is no prospect that Dr Katz will again prescribe medication for P.  She said he is terrified of the loss of his registration and the loss of his identity as a psychiatrist; the practice of psychiatry is a huge part of his life; and he would be suicidal if his registration was again threatened.  She said he expressed suicidal ideation when his registration was suspended.
61	It was apparent from cross-examination, however, that Ms Moore’s opinion about the risk posed by Dr Katz was based on incomplete information from him.  Although she had treated Dr Katz throughout 2019, including detailed discussions of the issues in his relationship with P, he had not disclosed to her the extent or duration of his prescribing.  
62	Further, while she was aware that Dr Katz had tried to contact P, Ms Moore was not aware that the contact included 40 calls between 8am and 4pm on one day (25 March 2020).  She agreed that was problematic.  Ms Moore said it indicated to her a high level of anxiety.  
63	On being read Dr Katz’ text to P which included the statement that P was ‘disgraceful’ and asked what it indicated about Dr Katz’ insight and judgment, Ms Moore said there was still much to be done.
64	In my view, the text messages Dr Katz sent P after the IAC hearing indicate a dangerous loss of self-control, no insight, and a complete absence of concern for the harm involved in blaming P for the consequences of his own breach of professional obligations, let alone the harm in asserting that she would be responsible if he took his own life.  
Consideration of the relevant factors
65	I accept that refusal to grant the stay will have a serious impact on Dr Katz.  It is less clear that it would render the review application nugatory.  Ms Campbell’s evidence indicates that Dr Katz has many loyal patients who will return to him if his suspension is lifted at the review hearing.  
66	There is some uncertainty about when a review hearing can be listed but the Tribunal’s capacity to list remote hearings is increasing.  Once the parties confirm they are ready for hearing and all relevant documents are filed, the hearing may be able to proceed relatively soon.
67	My view is that refusing to grant the stay would not render the application nugatory but that there are public interest issues arising from the impact on patients that must be considered, discussed below.
68	As to whether there is a serious issue to be tried, Counsel for the Board submitted that the facts are agreed here and so, factually, there is unlikely to be an issue to be tried between the parties on review.
69	Counsel for Dr Katz submitted that while Dr Katz admits he prescribed medications to P while in a relationship with her, there are still serious questions to be tried, including:
•	the period of time between the commencement of the relationship and Dr Katz first prescribing medication for P;
•	the circumstances in which the medication was needed by P;
•	the relevance of the fact that the relationship came first; and
•	the extent of any role played by Dr Katz in the treatment of the patient.
70	In considering whether there is a serious issue to be tried, it is proper to consider the likely outcome of the review application in light of what are fundamentally uncontested matters, but not appropriate to consider seriously contested matters with a view to trying to predict the outcome. 
71	My own view is that, on the basis of the uncontroverted facts and objective evidence, there was a strong case for immediate action on the part of the Board at the time it made the decision.  
72	There was certainly sufficient basis to form the required reasonable belief that because of his conduct, Dr Katz posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety.  
73	There was also a strong case, in my view, for deciding that suspension was the necessary action, given the seriousness of the conduct established by the uncontroverted facts, and the admitted response of Dr Katz to the previous regulatory action, namely, to mislead the Board and continue in the prohibited dual relationship.  
74	On the basis of what is before me, there is, in my view, a real possibility that Dr Katz will find that his registration is suspended for a period of time, whether that is by the Tribunal on review confirming the immediate action decision, or the Tribunal making that determination if the Board refers allegations to the Tribunal based on facts agreed here.  
75	Of course, the case may appear quite different when the matter comes on for the review hearing, or at a later hearing.  There may be developments in the meantime or other evidence which give greater reassurance that any risk is in the past.  I am mindful that the evidence may be at an early stage in relation to insight, rehabilitative steps and other relevant matters.  There remains a question about the degree to which various stressors in Dr Katz’ life and his own mental health issues may have played a role.
76	Nevertheless, in this case the actions of Dr Katz appear to go well beyond a doctor who is in a relationship with a person and from necessity or as a ‘one off’ prescribes for them.  The prescribing continued for more than a year.  It was, viewed objectively, unsafe prescribing to a highly vulnerable patient.  The fact that Dr Katz continued in the personal relationship and in the doctor/patient relationship only came to light when P had an overdose.
77	The fact that Dr Katz has previously misled the Board is relevant to the immediate action decision and also to the stay decision, as is the fact that the previous regulatory action did not deter him from continuing the dual relationship.  
78	Unfortunately, it makes it more difficult to take his word on questions of what he will and will not do.  This in turn influenced my decision that, if the stay was to be granted, undertakings would not be sufficient, and conditions would be required.  
79	It was also relevant to the stay decision that Dr Katz engaged in serious conduct towards P after the IAC decision, because of the strong contrast between those actions and what was stated to the Board.  
80	At the hearing before the IAC, Dr Katz through his Counsel offered ‘his unbridled and unfettered apology for his conduct in relation to failing to maintain professional boundaries and his prescribing’.  It was stated that ‘even though [P]’s health condition had improved since he has known her, the potential impact on her has been deleterious.  He acknowledged that the risk to her is substantial and should not have occurred.  It has potentially sullied her psychiatric state and wellbeing.’
81	His conduct after the IAC hearing, and the associated risk to P, indicated that his understanding and concern for P was limited.  It influenced my decision that if the stay was to be granted, there needed to be an additional condition that Dr Katz not contact or communicate with P.  When I raised this issue, Dr Katz through his Counsel said he would agree to such a condition.  
82	I also raised with the parties the question of whether a health assessment was appropriate, given the report of Dr Harris, and Dr Katz’ conduct towards P.  I was told that had already been arranged and was to take place the day following the hearing.  As a result, I did not need to make the specific condition.
83	In summary, this was a finely balanced decision and a number of factors weighed against granting a stay.  
84	In this case, the public interest in not leaving Dr Katz’ hundreds of other patients without specialist care in these particularly difficult times tipped the balance in favour of a stay, although with rigorous conditions.  I accepted the evidence of the impact of the Covid-19 pandemic on the mental health system and the mental health of many in the community, the higher than usual difficulty in arranging for psychiatrists to take on new patients, and the potentially serious impact on many of Dr Katz’ other patients should they not be able to see him in the next few months.  
85	In other cases, depending on the circumstances, the current pandemic might not have the same weight, or might be outweighed by other considerations.  
86	This situation may, of course, become less acute as the impact of the pandemic lessens.  The balance may change, particularly if Dr Katz does not comply with the conditions.  He has a strong incentive to do so but if he does not, there is liberty to apply.

E Wentworth
Senior Member