The recent State Administrative Tribunal decision of Medical Board of Australia v Mullaley [2025] WASAT 99 (S) provides important guidance for regulators navigating one of the most serious categories of professional misconduct. While sexual boundary breaches will almost always warrant significant sanction, this case highlights that cancellation is not inevitable. Instead, the Tribunal reaffirmed that the central question remains protection of the public, not punishment of the practitioner.
In Medical Board of Australia v Mullaley [2025] WASAT 99 (S), the Tribunal considered the appropriate penalty following a finding that an emergency department doctor engaged in professional misconduct by inappropriately touching a patient without clinical justification. The patient was vulnerable, and the conduct represented a clear breach of trust in a clinical setting.
Despite the seriousness of the conduct, the Tribunal imposed a reprimand and a 3 year suspension, rather than cancellation of registration. The practitioner was also ordered to pay $175,000 in costs.
The Tribunal reaffirmed that disciplinary proceedings under the Health Practitioner Regulation National Law (WA) are protective in nature. The objective is to safeguard the public, maintain professional standards, and preserve confidence in the profession.
This includes several overlapping considerations:
Why suspension, not cancellation?
A key issue was whether the practitioner should be suspended or have their registration cancelled with a period of disqualification.
The Tribunal accepted that cancellation is generally appropriate where a practitioner is permanently or indefinitely unfit to practise. However, it found that this threshold was not met in this case.
Several factors were critical:
The Tribunal determined that the conduct was an isolated incident.
Insight v remorse
A notable aspect of the Tribunal’s reasoning is its careful distinction between insight and remorse, and the different roles each plays in assessing risk and determining penalty.
The Tribunal reaffirmed that insight involves a practitioner’s understanding that their conduct was wrong, including an appreciation of its seriousness and its consequences. Remorse, by contrast, is a genuine expression of regret or contrition. While the two concepts often overlap in practice, the decision makes clear they are not interchangeable and should be assessed separately.
In this case, the practitioner did not express remorse, maintaining that the conduct did not occur. However, the Tribunal accepted that some level of insight had been demonstrated. This was based on factors such as the practitioner’s acceptance that a period of non-practice was inevitable, his withdrawal from certain roles involving vulnerable persons, and his voluntary cessation of practice following the primary decision.
Importantly, the Tribunal rejected the proposition that a lack of remorse necessarily indicates an ongoing risk to the public. It accepted that where a practitioner disputes the underlying conduct, an absence of remorse may be logically consistent and should not automatically be treated as an aggravating factor. The absence of remorse was not determined to increase the perceived risk of reoffending.
For regulators, this distinction has practical significance. A lack of insight may point to an ongoing risk and support stronger protective orders. However, a lack of remorse alone, particularly in contested matters, may carry less weight than is sometimes assumed. The focus remains on whether the practitioner understands the seriousness of the findings and whether there is a continuing risk to patient safety.
Non-practicing period and the role of general deterrence
The Tribunal reviewed a range of comparable cases involving sexual misconduct, but only from the last 10 years, in order to reflect contemporary community standards. While outcomes varied significantly, one consistent theme emerged - conduct involving non-consensual touching warrants a period of non-practice, ordinarily for more than a couple of years.
The Tribunal assessed the period of non-practice by balancing several key factors, all directed towards protecting the public including:
By contrast, there was less emphasis on personal deterrence. The Tribunal accepted the conduct was an isolated incident, with no prior history and no further complaints over approximately 9.5 years. The practitioner provided character references which all state that the individual was aware of the Tribunal’s findings and that the conduct of the practitioner was ‘out of character’.
The practitioner’s insight and the absence of ongoing risk also supported a finite period of suspension rather than cancellation.
Re-entry to practice burden
The practitioner relied on policy material from the Australasian College for Emergency Medicine (ACEM), which distinguishes between absences of less than 36 months and those of 36 months or more. Where a practitioner has been out of clinical practice for 36 months or longer, they are required to complete a formal re-entry program. This typically involves structured supervision and formal approval processes before returning to independent practice. By contrast, absences of between 12 and 36 months generally require only continuing professional development activities.
The practitioner submitted that a suspension of 3 years or more would therefore have a disproportionate practical impact. In effect, crossing the 36 month threshold would trigger additional regulatory and professional hurdles not faced by practitioners in other disciplines, and would make returning to practice significantly more complex.
The Tribunal acknowledged this submission and accepted that the ACEM framework likely imposes a higher re-entry burden than comparable regimes. However, it ultimately gave this factor limited weight in determining the appropriate penalty.
The Tribunal rejected the idea that the length of suspension should be calibrated to avoid triggering the re-entry program. It held that the protective purpose of disciplinary proceedings must remain the primary consideration. While the downstream consequences of a suspension are relevant, they cannot justify reducing a penalty below what is otherwise necessary to reflect the seriousness of the conduct and to protect the public.
As a result, the Tribunal imposed a 3 year suspension, fully aware that this would engage the more onerous re-entry requirements.
Senior Sessional Member Dr Winterton largely agreed with the majority’s reasoning, including the decision to impose a suspension rather than cancellation, and the refusal to make a prohibition order, however, the point of divergence was the length of the suspension. While accepting the majority’s analysis, Dr Winterton considered that a 2 year suspension was more appropriate.
This conclusion was driven primarily by the significant passage of time since the misconduct. Dr Winterton placed greater weight on the fact that the practitioner had continued to practise for many years without further complaint.
Of note, the re-entry requirements were not a consideration to a lesser suspension period Dr Winterton preferred.
The Tribunal also clarified a technical point regarding prohibition orders under section 196(4) of the National Law.
It found that such orders are not available where a practitioner’s registration is suspended (as opposed to cancelled). A suspended practitioner is still considered to “hold registration” for the purposes of the legislation – prohibition orders were not made.
The substantial costs order reflects the Tribunal’s recognition that regulators should be able to recover reasonable costs in disciplinary proceedings. The plaintiff was ordered to pay $175,000 in costs.
This decision provides a clear reminder that while sexual misconduct cases will attract strong sanctions, cancellation is not automatic. The Tribunal will continue to assess each case through the lens of risk, insight, and public protection.
For AHPRA and regulatory bodies, the case highlights the importance of:
If you would like to discuss how this decision may impact your approach to regulatory processes, please contact Erica Thuijs or Narika Wicks.
This article was written by , Hayley French Solicitor Insurance.