A PRACTITIONER and MEDICAL BOARD OF AUSTRALIA - [2022] WASAT 38

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   A PRACTITIONER and MEDICAL BOARD OF AUSTRALIA [2022] WASAT 38
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   29 APRIL 2022
DELIVERED          :   10 MAY 2022
FILE NO/S:   VR 21 of 2022
BETWEEN:   A PRACTITIONER
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Vocational regulation Medical practitioner Where Board imposed conditions on registration by way of immediate action Where Board also imposed further action Where practitioner sought review of immediate action decision and further action Where practitioner sought stay of immediate action decision Scope of Tribunal’s jurisdiction Whether circumstances are such as to grant stay

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 3(2), s 3(3)(c), s 156, s 158, s 158(2), s 160(1)(a), s 169, s 196(1)(b), s 199(1)
State Administrative Tribunal Act 2004 (WA), s 25(2), s 25(4)

Result:

Application for stay of the respondent's decision to take immediate action granted

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr M Etherington

Solicitors:

Applicant	:	In Person
Respondent	:	Clayton Utz

Case(s) referred to in decision(s):

Arunkalaivanan and Medical Board of Australia [2020] WASAT 118; (2020) 101 SR (WA) 164
Bernadt v Medical Board of Australia [2013] WASCA 259
Cheema v Medical Board of Australia [2020] SACAT 40
Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617
Freeman and Medical Board of Australia [2020] WASAT 64
McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142
Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
[Redacted]
PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57
Pridgeon v Medical Council of New South Wales [2022] NSWCA 60
Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203

Soutorine and The Medical Board of Australia [2020] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and Overview

On 1 April 2022 the respondent (the Board) determined to take immediate action in relation to the applicant, [redacted], and imposed conditions on his medical registration. The power to take immediate action is contained in s 156 of the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law).
The Board's letter to the applicant of the same date, which notified him of the Board's decision to take immediate action, also notified him of its decision to investigate him and require him to undergo a health assessment pursuant to sections 160(1) and 169 of the National Law respectively.
The applicant seeks review of the Board's decisions: The decision to take immediate action; the decision to investigate him; and the decision to require him to undertake a health assessment. He also seeks a stay of those decisions whilst awaiting that review. These reasons are concerned only with the stay application.
For reasons that follow, I am satisfied that:
(a)a stay of the Board's decision to take immediate action should be granted, but only until a date shortly after completion of the health assessment process following which the issue should be revisited; and
(b)I have no power to stay the Board's decision to investigate the applicant or to require him to undergo a health assessment.

Background

These proceedings have their origin in other, longstanding, proceedings in this Tribunal.
By application filed 16 June 2020 the Board applied to the Tribunal seeking an order pursuant to s 196(1)(b)(iii) of the National Law that the applicant had behaved in a way that constitutes professional misconduct.[1] That matter is known as [redacted].
[1] The application also alleges, as alternatives, that the applicant has behaved in a way that constitutes unsatisfactory professional performance and that he has behaved in a way that constitutes unprofessional conduct.
It is not necessary to address the particulars of that allegation.
On or about 20 September 2021 the applicant commenced other proceedings ([redacted]) which, amongst other things, sought a stay of the listed hearing in [redacted]. Those proceedings were dismissed by President Pritchard on [redacted].[2]
[2] [Redacted].
On [redacted] the applicant lodged an appeal to the Court of Appeal from that dismissal.[3]
[3] Respondent's Submissions in Response to Interim Application for a Stay (Respondent's Submissions), Attachment 1, para 8.
In December 2021 the Tribunal listed [redacted] for mediation on 20 January 2022.[4]
[4] Respondent's Submissions, Attachment 1, para 18; Respondent's Bundle of Documents Supporting Submissions of Stay Application, dated 28 April 2022 (Respondent's Bundle), page 19.
On 21 December 2021 the Court of Appeal issued a notice to attend a hearing on 20 January 2022 in response to a letter received from [redacted], who is the applicant's treating psychiatrist. That letter stated that [redacted] believed at the time that the applicant was 'not capable of presenting his case'.[5]
[5] Respondent's Submissions, Attachment 1, para 19. A letter to the Tribunal dated 15 December 2021 was in the same terms: Respondent's Bundle, page 18.
On 18 January 2022 [redacted] again wrote to the Court of Appeal advising that the applicant suffered from a condition which made it 'impossible to present his case in the coming hearing' and 'recommend[ed]' (sic – advised?) that that incapacity 'should last for 3 months'.[6]
[6] Respondent's Submissions, Attachment 1, para 20; Respondent's Bundle, page 20.
A letter in similar terms was sent to the Tribunal on 18 January 2022.[7]
[7] Respondent's Submissions, Attachment 1, para 21.
The letters of [redacted] prompted the Board to act.

The Board's Actions Leading to the Decision of 1 April 2022

On several occasions in early February 2022 the Board sought, unsuccessfully, to make contact with the applicant by phone.[8]
[8] Respondent's Bundle, page 25.
On 23 February 2022, the Board's Notifications Committee: Assessment (Notifications Committee) met and:[9]
(a)determined that it was 'necessary and appropriate to investigate the applicant'[10] pursuant to s 160(1)(a) of the National Law; and
(b)directed that the matter be referred to the Immediate Action Committee.
[9] Respondent's Bundle, pages 2728.
[10] Respondent's Bundle, page 28.
In its Reasons, the Notifications Committee found that there was:
insufficient information to form a view about [the applicant's] professional performance/conduct/health … [and that f]urther investigation is necessary and appropriate to gather additional information to accurately assess any risk associated with [the applicant].[11]
[11] Respondent's Bundle, page 28.
Attempts to contact the applicant continued in early March 2022 but were, in effect, unsuccessful.[12]
[12] Respondent's Bundle, page 30.
On 11 March 2022 the Board wrote to [redacted] and, by Notice, required him to produce information to its investigator.[13] On 17 March 2022 [redacted] replied that he was unable to provide a comprehensive response at that time to the Notice and, amongst other things: [14]
(a)described the applicant as a 'popular and competent practitioner';
(b)stated that the applicant has 'suffered intermittently' from mental health issues 'which have been exacerbated recently by complicated legal matters'; and
(c)stated that he [i.e. [redacted]] has 'been aware that the more familiar situation of medical practice is not affected by his [i.e. the applicant's] symptoms'.
[13] Respondent's Bundle, page 33.
[14] Respondent's Bundle, page 40.
On 21 March 2022 the applicant wrote to Ms Tung of the Board regarding her attempt to speak to him on 9 March 2022.[15] Ms Tung made a further attempt to contact the applicant the following day, speaking with 'Mary-Ann' who described herself as 'off-site reception' and who said that she would 'arrange for the applicant to contact' Ms Tung as soon as possible.[16]
[15] Respondent's Bundle, page 41.
[16] Respondent's Bundle, page 42.
On 23 March 2022 the Board wrote to the applicant and gave notice of its 'proposed immediate action'.[17] It also, under the heading 'Further action' noted the previous decision to commence an investigation under s 160(1) of the National Law and that the Immediate Action Committee had decided to require the applicant to undergo a health assessment under s 169 of the National Law.[18]
[17] Respondent's Bundle, page 43-60.
[18] See to 'further action' see s 158(1)(b) and (2)(c) of the National Law and the discussion in Bernadt v Medical Board of Australia [2013] WASCA 259 at [69] [79] (per McLure P), at [150] [163] (per Newnes JA) and at [288] [297] (per Murphy JA).
In its letter of 23 March 2022, as reasons for its decision, the Board referred to the history of the matter going back to 2018 when [redacted] carried out a health assessment of the applicant, referred to the multiplicity of legal proceedings to which the applicant is a party, referred to [redacted's] letters of December 2021 and January 2022, noted the fact that staff had been 'unable to make telephone or email contact'[19] with the applicant, and noted that [redacted] had been unable to provide a fulsome response to the request to provide information. The reasons then go on to state as follows:[20]
6.The information available is somewhat unclear and contradictory. The information may indicate that because of your health, your mental health is not currently adequately managed and/or that because of your health you are not currently able to practise safely as a medical practitioner. That may pose a serious risk of harm to persons where your clinical reasoning, judgement and decision making may be compromised and may give rise to an increase likelihood of errors in your clinical practice.
7.… Where there is limited objective information available regarding your health and the impact on your capacity for practice at this time, it is necessary to take immediate action to protect public health or safety.
8.It is unclear at present whether you are currently practising as a medical practitioner and if so, whether your places of practice are aware of your ongoing mental health issues and any treatment you have received. Your registration is unrestricted. You may practise in circumstances where there are limited organisational risk controls in place or where any risk controls may be insufficient to mitigate the identified serious risk.
9.Where it appears your health may not currently be adequately managed so that you are able to practise safely and where the Board's paramount role is to protect the public, it is open to the Board to form a reasonable belief that it is necessary to take immediate action whilst further information is obtained.
10.It is open to the Board to consider that the necessary regulatory action is to impose conditions on your registration requiring that you only practise in an approved place of practice so that the Board can be reassured that sufficient organisational risk controls are in place to mitigate the risk arising from your health. …
[19] Respondent's Bundle, page 44.
[20] Respondent's Bundle, pages 4445 (underlining added).
I pause here in describing the events leading to the Board's decision to reiterate that the Board has purported to take immediate action under s 156(1)(a) of the National Law. That section relevantly provides that the Board can only take such action if it 'reasonably believes' that 'because of [the applicant's] … health, [he] poses a serious risk' to persons such that 'it is necessary to take immediate action to protect public health or safety'.
The underlined passages might be said to fall short of demonstrating satisfaction with those statutory requirements.
The underlined passages in paragraph 6 of the Board's reasons emphasise the lack of information before the Board and the associated uncertainty as to the risk, if any, posed by the applicant; the paragraph expresses any associated risk as a mere possibility - 'the information may indicate that … you are not currently able to practise safely as a medical practitioner. That may pose a serious risk of harm'.[21]
[21] Respondent's Bundle, page 44 (bold and italics added).
But in paragraph 7 of the Board's reasons that uncertainty and lack of information appears to be relied upon as a basis for action which does not seem contemplated by s 156, and in paragraph 9 of the Board's reasons there does not appear to be any lack of certainty at all, although there does not appear to be any basis for that apparent shift.
Returning to the history of the matter, the applicant did not respond to the Board's letter of 23 March 2022. However, his sister did make contact with the Board on 25 March 2022 and, amongst other things, asked that contact with the applicant be attempted by email.[22] I note that the Board's letter of 23 March 2022 says that it was sent both by post and email.
[22] Respondent's Bundle, page 69.
On 28 March 2022 [redacted] emailed the Board and advised that he had hoped to provide further information regarding the applicant but had been unable to do so.[23]
[23] Respondent's Bundle, page 71.
On the same day, the applicant wrote to the Board asking that an extension of time be given to [redacted] to provide his report so that he, the applicant, might seek legal advice.[24] That letter was provided to the Board by [redacted] under cover of an email which said that he would dictate a more comprehensive report but 'refrain from sending it until you have consicered (sic) the applicant's attached letter'.[25]
[24] Respondent's Bundle, page 73.
[25] Respondent's Bundle, page 72.
That is, indeed, what happened. [Redacted's] report is dated 28 March 2022 and comprises a letter of nearly two pages.[26] It is finished with a post script dated 5 April 2022 which states that [redacted]:
withheld this letter pending [the applicant's] correspondence to you about it and your instructions to hold my piece.. He now gives me permission to release it to you and I hope that it can only be helpful to your deliberations.[27]
[26] Respondent's Bundle, pages 7475.
[27] Respondent's Bundle, page 75.
The Board did not wait to receive [redacted's] correspondence before it made its decision on 1 April 2022 to take immediate action.
That is unfortunate. I will not set out [redacted's] correspondence in any great detail because it is sufficient to note that [redacted] again confirms his opinion that whatever mental illness is suffered by the applicant, it does not impact on his capacity to practise medicine safely and appropriately.
On 1 April 2022 the Board made its decision to take immediate action under s 156 of the National Law to impose conditions on the applicant's registration and informed him of that decision as well as to take the further action of investigation and requiring he undertake a medical assessment.[28]
[28] Respondent's Bundle, pages 147158.
The reasons for the Board's decision are effectively those that formed the basis for its decision on 23 March 2022, with the addition of matters that occurred between those dates - further (ineffective) attempts to contact the applicant and the fact that the applicant did not provide a response to the notification of 23 March 2022.
The Board's immediate action amounted to the imposition of seven conditions, three of which (conditions 4, 5 and 6) are not to be included on the public register due to privacy concerns. It is not necessary in these reasons to address those conditions. The conditions the subject of concern for the applicant are as follows:[29]
[29] Respondent's Bundle, pages 151152.
1.The Practitioner may practise only in place(s) of practice approved by the Board.
…
2.Within 7 days of the notice of imposition of these conditions, the Practitioner must provide to Ahpra, on the approved form …, acknowledgement that Ahpra may:
a.Seek reports from the Director of Medical Services/Senior Practice Manager/Senior Manager/other as appropriate (the senior person) at each place of practice on at least a monthly basis or 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.
3.Within 7 days of the notice of imposition of these conditions the Practitioner must provide to Ahpra, on the approved form …, acknowledgement from the senior person at each place of practice that they are aware Ahpra will seek reports from them.
…
7. All costs associated with compliance with the conditions on their registration are at the Practitioners own expense.
Effectively the conditions require that the applicant obtain approval from the Board for his place of practice and that he allow the Board to obtain reports about him from a senior person in that practice.
The Board's submissions stated that the applicant has not complied with any of conditions 1-3. The applicant did not contest that proposition.

Scope of the Tribunal's jurisdiction

The applicant's application for review[30] seeks both a 'dismissal' of the decision by the Board 'to impose conditions of registration' as well as a 'stay of immediate action and further action brought by the Board under the current notification'.[31]
[30] Application to State Administrative Tribunal dated 11 April 2022.
[31] Emphasis added. I have proceeded on the basis that by 'further action' the applicant refers to both the investigation and the requirement to undergo a health assessment.
In addition, the applicant filed a separate 'Interim Application',[32] which described the interim orders being sought as follows:
(a)Stay of Immediate Action by the [Board] to bring conditions of registration
(b)Stay of Immediate Action by the [Board] for (sic) bring 'further action' (health assess)[33]
…
[32] Interim Application to State Administrative Tribunal lodged 13 April 2022.
[33] I have proceeded on the basis that the absence of reference to the investigation is an oversight.
Mr Etherington, who appeared at the hearing for the Board, submitted that the investigation of the applicant under s 160 of the National Law and the requirement that he undergo a health assessment pursuant to s 169 of the National Law are matters that are beyond the jurisdiction of the Tribunal to review and, therefore, stay. I agree.
The Tribunal's jurisdiction is purely statutory. It can act only so far as legislation provides.
In this case, s 199 of the National Law allows certain decisions of the Board to be reviewed by the Tribunal. Such decisions of the Board are described as 'appellable decisions'.
Section 199(1)(e) includes as an 'appellable decision' a decision by the Board 'to impose or change a condition on a person's registration or endorsement of the person's registration' except for certain categories which do not apply in this case.
In my view, that condition covers the action taken by the Immediate Action Committee on 1 April 2022 to impose certain conditions on the applicant's registration.
It does not, however, extend to the investigation by the Board of the applicant or to the Board's decision to require the applicant to submit to a health assessment.
Indeed, in my view, none of the paragraphs to s 199(1) are sufficiently broad to encompass those decisions of the Board.
As Mr Etherington submitted at the hearing, instigating an investigation and requiring submission to a health assessment are steps taken for the purpose of obtaining information. At the end of that process a decision will be made which may, depending on its character, constitute an appellable decision. But the decisions made under sections 160 and 169 to investigate and require a health assessment are not appellable decisions and are therefore beyond the scope of the Tribunal's jurisdiction.

Accordingly, the Tribunal is unable to grant a stay of the Board's decisions to investigate the applicant or to require him to undertake a health assessment.

The power to stay the immediate action decision

Save for the matter set out above, there was no dispute about the Tribunal's jurisdiction either in the broad sense of the proceedings as a whole or as to the existence of the Tribunal's power to stay the Board's decision.
The power to stay the effect of a decision is conferred by s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SATAct) which provides:
The Tribunal, on the application of a party or on its own initiative, may make an order staying the operation of a decision that is the subject of a proceeding for review.
Section 25(4) of the SAT Act provides:
The Tribunal may make an order under subsection (2) only if it considers that it is desirable to do so after taking into account —
(a)the interests of any person whose interests may be affected by the order; and
(b)any submission made by or on behalf of the decisionmaker; and
(c)the public interest.
In Soutorine[34] the Tribunal said as follows:
25The analysis of the Tribunal's discretion to make an order staying the operation of a decision that is the subject of a proceeding for review must begin with the terms of the statute. The discretion to make a stay order is conditioned by the Tribunal forming the opinion that it is desirable to order a stay having regard to the matters specified in subparagraphs (a), (b) and (c) of s 25(4). The language used in the subsection makes it clear that the discretion conferred by s 25(4) is a wide statutory discretion to be exercised judicially. Its exercise is not confined by the principles stated in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd. Those principles do not displace the statutory considerations and nor should they be grafted on to the statutory provision.
26The matters specified in subparagraphs (a), (b), and (c) of s 25(4) do not constitute an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision. The considerations that guide the exercise of the discretion to grant a stay pending an appeal in curial proceedings may provide some guidance when determining whether to grant a stay pending the determination of a review application - the relevance of those principles will vary according to the nature of the decision giving rise to the order in respect of which a stay is sought.
[34] Soutorine and The Medical Board of Australia [2020] WASAT 5 at [25] [26].
Those principles have since been applied in Freeman[35] and Arunkalaivanan.[36] In all three cases the Tribunal was concerned with an application for a stay of the Board's decision to take immediate action under s 156 of the National Law to suspend a doctor's registration, pending a review of that decision.
[35] Freeman and Medical Board of Australia] [2020] WASAT 64 at [22] [26].
[36] Arunkalaivanan and Medical Board of Australia [2020] WASAT 118; (2020) 101 SR (WA) 164 at [28] [31].
In Soutorine a cosmetic surgeon was subject to immediate action which suspended his registration. The Tribunal identified the gravamen in that case as a serious risk to the safety of patients upon whom the applicant might perform certain surgical procedures. The Tribunal granted a stay on the basis of an undertaking provided by the applicant that he would not perform those procedures.
In Freeman the applicant was accused of repeated inappropriate sexual conduct towards a colleague. Again, the immediate action taken by the Board was the suspension of the applicant's registration. A stay was granted on the basis that the Board was unable to identify with any precision the nature of the risk which the practitioner in that case posed to the public.
By contrast, the application for a stay of the Board's decision to suspend registration in the case of Arunkalaivanan was dismissed in circumstances where Dr Arunkalaivanan was accused of serious sexual assaults on patients. The Tribunal was, therefore, able to identify a very clear risk to the public, being a risk of further serious and sexual misconduct visited upon his patients.
The Tribunal in each case proceeded on the basis that the principal issue of concern in an application such as this is the protection of the public.
So much necessarily arises from the fact that the Tribunal's discretion under s 25(2) must be exercised within the context of the relevant statutory scheme, which in this case is constituted by the SAT Act and the National Law. Section 3(2)(a) of the National Law provides that an objective of the national registration and accreditation scheme (scheme) for which the National Law provides is:
to provide for the protection of the public by ensuring that only health practitioners who are suitable trained and qualified to practise in a competent and ethical manner are registered…
That objective, however, must not be pursued at all costs. Section 3(3)(c) of the National Law provides that a guiding principle of the scheme is that:
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 consistent with best practice principles.
Those objectives and principles must be kept in mind when considering the matters for which s 25(4) of the SAT Act provides, but in any case there is a considerable symmetry between the two statutory regimes in that the applicant's interests (s 25(4)(a) of the SAT Act) coincide with ensuring that his practice is not unnecessarily restricted and the Board's submissions (s 25(4)(b) of the SAT Act) are concerned with what it considers appropriate for the protection of the public.
Section 25(4)(c) requires me to take into account the public interest. The 'public interest' in a particular case must be understood within its statutory context.[37] In Farshchi[38] the Victorian Civil and Administrative Tribunal was concerned with the 'public interest' in s 156(1)(e) of the Victorian legislation, which is in the same terms as s 156(1)(e) of the National Law. It said: [39]
The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.
There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.
…
There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.
There is a public interest in ensuring immediate action is only taken when it is necessary to do so. …
[37] McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142, at [9] - [11] (per Tamberlin J).
[38] Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617.
[39] Farshchi at [71] - [75], adopted in Cheema v Medical Board of Australia [2020] SACAT 40 at [47].
I see no reason why the public interest in this case ought not to include each of those matters.

The Location of the Applicant's Practice

The Board's decision to take immediate action appears to have been made on the understanding that the applicant was practising from a multidoctor practice in [redacted].
It was on that basis that the Board submitted that the conditions 'reflect the lowest end of the range of possible action' that the Board could take.[40]
[40] Respondent's Submissions, para 18.
That is, the Board resists the application for a stay on the basis that the conditions merely require the applicant to confirm his place of practice and allow AHPRA to engage with the 'senior person' in that practice so that the Board can, effectively, 'keep an eye on' the applicant by asking for reports.
But the applicant's written submissions state that he runs a 'solo GP medical practice'[41] and during the hearing said that he did not practise from [redacted]. Rather, he said, he practised entirely on his own from rooms immediately adjacent to [redacted]. He also said that he did not employ a practice manager of any kind. There is, therefore, no 'senior person' who might provide the information as required by conditions 2 and 3.
[41] Appellant's Submission Interim Application, dated 25 April 2022 (Appellant's Submission), page 6 of 8, line 144-145.
Although, the applicant's evidence is contrary to the Board's apparent understanding, and that discrepancy was raised in its written submissions,[42] it was not challenged by the Board during the hearing.
[42] Respondent's Submissions, para 22.
On that basis, and despite some misgivings[43], I accept the applicant's evidence in this regard, at least for the purposes of these reasons.

The applicant's Submissions

[43] As noted above, the evidence before me includes file notes of telephone calls between the Board and 'MaryAnn' and the applicant's sister, both of whom appear to have played some role in the management of his practice.

The applicant's principal focus in both his written and oral submissions was what he says is an absence of evidence to support the view that his mental health issues are such as to pose a serious risk to persons or make it necessary to impose the conditions to protect public health or safety.
He points, with some considerable justification, to the correspondence of [redacted] (including his letter of 28 March 2022, although it was not before the Board at the time of its decision on 1 April 2022) as well as to the previous report of [redacted],[44] who assessed the applicant for the Board in 2018. Both of those doctors confirm that it was their view that the applicant retained full capacity to perform his obligations as a medical practitioner in a competent and ethical manner.
[44] Respondent's Bundle, pages 95 100.
A second focus of the applicant's submissions were alleged failings by the Board to comply with what the applicant effectively says are necessary procedural steps that must be taken prior to the taking of any immediate action. The relevance of those matters in a merits review where the Tribunal performs a de novo function may be queried but it is not necessary to address them in any more detail at this stage.
The third focus of the applicant's submissions was the burden imposed on him and his practice by the conditions. He raised two issues in this regard:
(a)The absence of a senior person in his practice; and
(b)The scope of the reporting obligation.
Both arise from the nature of his practice. If there is no senior person at his place of practice he cannot comply with conditions 2 and 3 without employing such a person or moving to a practice with such a person. But the applicant complains that the conditions do not limit the type of information that may be required from the 'senior person' which thus raises questions as to the qualifications that such a person must have in order to be able to provide that information.
I have some sympathy for both concerns.
As noted above, the applicant's evidence at the hearing is that he practises alone without any other doctors in the practice or any administrative support.
Once I accept (as I have) that evidence, I must also accept that in order to comply with conditions 2 and 3 he will be required to either cease practise altogether, which is what he says he has done, employ a practice manager or, alternatively, commence employment with another practice that provides a 'senior person'.
Any of those options seem to me to amount to a not immaterial burden imposed on the applicant but there is no evidence before me that allows even a tentative view to be expressed as to the extent of that burden.
For example, the applicant was unable to answer my question whether he would be able to practise at [redacted] saying that he had not turned his mind to it. But in any event, I have nothing before me that indicates whether [redacted] would be open to the possibility.
Neither do I have anything before me as to the nature of the [redacted] practice so as to know whether there is a 'senior person' that would be able to provide the information sought under the conditions. And in any event 'the information sought' remains unclear so that the necessary characteristics of the 'senior person' is unclear.
In that regard Mr Etherington indicated that the Board has no intention of requiring clinical information or reports about the quality of the applicant's practice. That may be so but, with no disrespect to Mr Etherington, that doesn't appear to be reflected in the terms of the conditions.
Finally, the applicant's written submissions listed several authorities, the first three of which were Soutorine, Arunkalaivanan and Freeman (which were addressed above) and two more of which were cases referred to and relied upon by Soutorine.[45] The other two authorities referred to - Solomon[46] and A Medical Practitioner[47] - do not appear to me to assist in any way. Solomon concerned an application for judicial review and turned on the adequacy of the Psychology Board's reasons for its decision and the particular way in which it misconstrued its statutory function. A Medical Practitioner was concerned with non-publication orders. When asked to identify any particular passages to which I ought to have regard, the applicant took me to another, very recent, authority Pridgeon.[48] Again, I can find little to assist me in that case, which seems to me to turn on statutory provisions that are particular to NSW.

The Board's Submissions

[45] PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57; Bernadt v Medical Board of Australia [2013] WASCA 259.

[46] Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203.

[47] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151.

[48] Pridgeon v Medical Council of New South Wales [2022] NSWCA 60.

As noted above, the Board's written submissions were premised on the understanding that the applicant practises from [redacted] and that, therefore, the only 'burden' imposed by the condition is administrative to confirm that that is the case and to allow the senior person to provide reports to the Board. It was on that basis submitted that the conditions 'do not disrupt or preclude the continuation of [the applicant's] medical practice'[49] and that the conditions do 'not impose material prejudice' on him.[50] As indicated above, the reality of the applicant's practice undermines those submissions.
[49] Respondent's Submissions at para 5.
[50] Respondent's Submissions at para 20.
In response to the possibility that the applicant practised alone, the Board submitted that that potential 'goes to the heart of [its] reasonable belief of the potential serious risk to persons and the necessity for restrictive measures to protect public health and safety'.[51]
[51] Respondent's Submissions at para 22.
The Board also submitted that it was 'open' for the Board to form a reasonable belief that the applicant's health posed a serious risk to public health and safety.[52]
[52] Respondent's Submissions at para 26.
That submission essentially boils down to two propositions: That the (ongoing) condition which makes the applicant incapable of participating in his various legal proceedings also makes him incapable of safe medical practise and that the applicant has been provided with the opportunity to refute the first proposition and has failed to do so.[53]
[53] Respondent's Submissions at para 26.
As is set out in more detail below I am concerned that the material before me does not support the first proposition. In addition the second proposition appears to beg the question as to the accuracy of the first proposition and it also appears to create an onus on the practitioner for which there is no statutory basis.
I also note that the submissions sought to diminish the significance of [redacted]'s opinion in his letter of 28 March 2022 (sent 5 April 2022) by describing it as a 'bald statement that does not disclose the period to which it applies, the details of the assessment undertaken, his material reasoning … and what protective measures where (sic – were) considered'.[54]
[54] Respondent's Submissions at para 26(f).
That description is accurate in and of itself but it fails to acknowledge that [redacted's] opinion is consistent with both his previous assessments and the 2018 opinion of [redacted].
In his oral submissions, Mr Etherington sought to draw a sharp contrast between the present circumstances and those with which applications for a stay are usually concerned the suspension of the applicant's registration.
The submission is, effectively, that the impact of the Board's decision is very limited and particularly so when compared to the suspension of a practitioner's registration.
As noted above, however, the Board's position turns on its understanding that the applicant practises within a multi-doctor practice. If he does not, as I have accepted is the case, then the reality of the impact on the applicant and his practise appears to be, at least, material, although greater precision than that is not possible due to a lack of information.

Relevance of the Health Assessment

As noted above, in addition to the immediate action taken under s 156, the Board has also required that the applicant submit to a health assessment.
It seems to me (and in the hearing Mr Etherington agreed) that the result of that health assessment is very likely to determine the outcome of the review application as a whole; if the result of that health assessment is to the effect that the applicant does not suffer from a health condition that impacts on his capacity to safely practise medicine then the basis for any immediate action appears to be lacking. Equally, if the result of that health assessment is to find that he lacks the capacity to safely perform his medical obligations then it will be difficult for him to resist the Board's conditions (which the Board may alter or add to depending on the outcome).
Mr Etherington advised that the health assessment is scheduled for 12 May 2022. He also advised that following that assessment a report would be produced by the assessing practitioner, which would be provided to the Board (with a copy to the applicant) following which the Board would decide on the appropriate action to be taken. He advised that that process would likely be completed by midJune.
The applicant was unable to confirm to me during the hearing that he would attend the health assessment. It would be unfortunate if he did not. For reasons set out immediately above it seems to me to be in his interests to do so.

Determination

It is not appropriate for me at this stage of proceedings to make any findings of fact. I adopt the following statement of Tottle J in Soutorine:
On an application of this nature it is impossible to make any factual findings, … and it would be wrong to attempt to do so. In so far as I express views on the relative strength of the parties' positions on various issues they are no more than tentative impressions … [55]
[55] Soutorine at [58].
Having said that, in my view, the applicant has raised a serious question to be resolved as to whether his health is such that he poses a serious risk to persons and, therefore, a serious question must also arise whether there is a basis to reasonably believe that the immediate action taken by the Board is 'necessary … to protect public health or safety'.[56]
[56] See Soutorine at [59], referring to McLure P in Bernadt v Medical Board of Australia [2013] WASCA 259 at [65].
There seems to be no doubt that the applicant suffers from an anxiety condition that is exacerbated by his current multiplicity of legal proceedings. And there can be no doubt that the Board is concerned that that anxiety may impact on his capacity to practise medicine.
But the basis for the Board's concern isn't clear. Certainly the applicant has a diagnosis. And certainly he has taken some time away from practise for reasons that appear to be associated with that diagnosis. The Board has also found it difficult to contact the applicant to discuss its concerns, although it would be pure speculation to suggest possible reasons for that difficulty.

But the reports of [redacted] and [redacted] are consistent that the applicant's condition does not impact on his medical practice.
It is true that [redacted]'s report is now more than 3 years old, and that [redacted's] reports are not comprehensive. But they all appear to tell the same story and, while they might allow for the Board to retain a residual concern, that seems to me to fall well short of any 'reasonable belief' that because of his health, the applicant poses a serious risk to persons.
I turn next to the impact on the applicant caused by the conditions. I have set out above my concerns that the circumstances of the applicant's practice considerably undermine the Board's submissions that describe the conditions as at the 'lowest end of the range'[57] and that say that the operation of the imposed conditions 'does not impose material prejudice' on the applicant.[58] That is not to criticise the Board or Mr Etherington for those submissions, it simply reflects the misunderstanding that the Board has proceeded under.
[57] Respondent's Submissions, para 18.
[58] Respondent's Submissions, para 20.
Contrary to those submissions, it appears likely that there will be a material impact on the applicant if the conditions remain in place although the extent of that impact cannot be known. The applicant's submission is that the conditions require the closure of his practice which will cause 'irreparable harm'.[59] I am far from convinced that that is necessarily the case as alternatives such as practising in other ways within a larger practice for example do not appear to have been considered. But nonetheless, a material impact appears likely to be suffered by requiring changes to the way the applicant practises if a stay is not granted.
[59] Appellant's Submission, page 6 of 8, line 144.
Of course, any detriment must be balanced against any benefits associated with the protection of the public and I accept the Board's submission that 'the nature of immediate action means the impact of risk to the public will override the private impact on the practitioner'.[60] As noted above, that submission is consistent with the authorities.
[60] Respondent's Submissions at para 16.
But in this case the evidence before me as to the risk to the public is difficult to discern.
The health assessment scheduled for 12 May 2022 ought to shed considerable light in this regard as will, presumably, the s 160 investigation.
But until that health assessment (and investigation) is complete, it appears to me that there is insufficient evidence of a real and present risk to the public sufficient to override the personal impact of the conditions on the applicant and his practise such that the application for a stay should be refused.
I will grant a stay of the Board's decision under s 156 to take immediate action to impose conditions on the applicant's practising registration until a date shortly after that assessment.
The matter should be listed for directions on 21 June 2022 to allow the health assessment process to be completed with the result of that health assessment likely to be relevant to whether the stay should be extended or otherwise pending the review of the immediate action.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MC
Associate to Deputy President Judge Jackson

10 MAY 2022

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: A PRACTITIONER and MEDICAL BOARD OF AUSTRALIA [2022] WASAT 38 (S)
MEMBER:   JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD:   N/A
DELIVERED          :   16 JUNE 2022
FILE NO/S:   VR 21 of 2022
BETWEEN:   A PRACTITIONER
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Vocational Regulation Medical practitioners Immediate action Stay granted Application for nonpublication of reasons for stay Interests of justice

Legislation:

State Administrative Tribunal Act 2004 (WA), s 61(4), s 62, s 62(1)(c), 62(3)

Result:

The application for the nonpublication of the reasons in [2022] WASAT 38 as a whole is refused. The application for the nonpublication of information capable of identifying the applicant in the reasons in [2022] WASAT 38 is granted.

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr M Etherington

Solicitors:

Applicant	:	In Person
Respondent	:	Clayton Utz

Case(s) referred to in decision(s):

Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151

REASONS FOR DECISION OF THE TRIBUNAL:

Overview

On 10 May 2022 I delivered the reasons ([2022] WASAT 38) for my decision granting a stay of the respondent's decision made 1 April 2022 to take immediate action in relation to the applicant's medical registration (primary reasons).
The primary reasons delivered to the parties on 10 May 2022 were in a slightly different form to those which I now publish. The difference lies in the alteration or redaction of information which might identify the applicant.
For the reasons which follow, I have determined that it is in the public interest to not publish that information.

Procedural History

When I delivered the primary reasons on 10 May 2022, I invited the parties to indicate whether or not they wished to make submissions that some or all of the primary reasons ought not be published pursuant to an order made under s 62 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Upon the applicant indicating that he wished to do so, I then made orders for the filing and serving of submissions. The applicant filed submissions on 20 May 2022. The respondent's submissions were filed on 27 May 2022. The respondent indicated that it neither consents to nor opposes a nonpublication order, but it nevertheless provided submissions, which I have found useful, designed to assist the Tribunal in the exercise of its power.

The Power to Order Non-Publication

The applicant sought orders for the nonpublication in the primary reasons of such information which might identify him. Such information falls within s 62(1)(c) of the SAT Act.[61]
[61] Appellant's (sic) submissions Nonpublication SAT Reasons, 20 May 2022 (Appellant's submissions), page 3 of 7.
Section 62(3) of the SAT Act provides:
On the application of a party or on its own initiative the Tribunal may, in the circumstances described in s 61(4), order that anything, or any particular thing, to which this section applies is not to be published except in the manner and to the persons, if any, specified by the Tribunal.
Section 61(4) of the SAT Act is, on its face, concerned with the closing of hearings to the public but, by s 62(3), subparagraphs (a) (h) of s 61(4) provide eight grounds upon which the Tribunal may order certain things not to be published and subparagraph (h) provides such a ground if it is 'in the interests of justice'.
The result is that in combination, sections 62(1)(c), 62(3) and 61(4)(h) of the SAT Act provide that the Tribunal may order that any information which might enable a person to identify the applicant is not to be published if the Tribunal considers it necessary to make that order in the interests of justice.
The Court of Appeal has noted the statutory language of s 61(4) of the SAT Act requires that the [non-publication] order be 'necessary' and held that:
there must be a real and substantial connection between the … publication of material … and the relevant adverse consequence specified in the section or the detrimental effect upon the interests of justice.[62]

The Applicant's Submissions and Consideration
[62] Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [88].

Although the submissions of the applicant did not identify s 61(4)(h) of the SAT Act specifically as the relevant subparagraph on which he [principally] relied, I understand that to be the basis for the application. That is apparent from both the substance of his submissions and the heading used for the primary issue, which is expressed as: 'INTEREST OF JUSTICE'.[63]
[63] I note that the respondent agrees with that assessment - Respondent's Submissions on Non-Disclosure, dated 27 May 2022 (Respondent's submissions), para 11.
Under that heading the applicant's submissions note that the immediate action decision of the respondent provides for the publication of certain conditions imposed by the Board to be published on that part of the AHPRA website which is not accessible by the public.[64] I noted as much at [35] of the primary reasons.
[64] Appellant's Submission, page 3 of 7.
Those conditions concern the applicant's mental health, and the respondent has, plainly, taken the view that it is not appropriate for those conditions to be available to the public.
The applicant submits, in effect, that the publication of my reasons in an unredacted format would render null and void the protections afforded to the applicant by the Board by making his mental health condition public. That is, plainly, correct.
The Board's decision to take immediate action is based, in part, on a concern that the applicant's mental health is such as to render him a risk to the health and safety of the public.
If that is, indeed, the case, there would be a strong argument that it is in the public interest for that issue to be made known through the publication of unredacted reasons.
However, as is made clear in the primary reasons, I am satisfied that there is a real question to be tried in that regard at this stage.
Also relevant to the issue as to the question of interests of justice is my finding that there is insufficient evidence of a real and serious risk to the public to override the material impact that the immediate action decision will have on the applicant and his practice such that the immediate action ought to be stayed until the question of whether there is a real risk to public health and safety is finally determined.
The applicant also submits that the publication of information sufficient to allow him to be identified would cause him 'serious damage'. In support of that proposition, it is said (in my view quite correctly) that any suspicion felt by the public that a practitioner poses a risk to the public because of their mental illness would be 'likely to leave a lasting impression' that the practitioner concerned has been 'irresponsible'. [65]
[65] Appellant's Submission, pages 4 and 5 of 7.
The combination of those two factors persuades me that the interests of justice would not be served in identifying the practitioner at this stage.
Indeed, and to the contrary, in my view the interests of justice require (it is necessary) that I make an order for non-publication that precludes the identification of the applicant, at least at this stage of the proceedings.
That is because, in my view, the applicant's privacy concerning his mental health status ought to be protected unless there is a good reason, going to the protection of the public, not to do so. The interests of justice require the privacy of medical practitioners to be protected unless there is a good reason associated with the protection of the public to do otherwise. For the above reasons, there is no such other reason in this case.
There is a public interest in avoiding the risk of alarm in members of the public concerning competence of medical practitioners unless there is a proper basis to doubt whether the practitioner indeed lacks competence.
Accordingly, in my view, the primary reasons ought to be published, in a manner such that a member of the public cannot identify the applicant.
The applicant seeks, as his preferred outcome, the non-publication of the primary reasons in their entirety.[66] In my view, such an order is not necessary to protect the identity of the applicant.
[66] Appellant's submissions, page 6 of 7.
Rather, that protection can be achieved by making minor changes, including redaction, of the primary reasons in the following four ways:
(a)The name of the applicant ought to be deleted and replaced by the words 'A Practitioner' in the title page to the primary reasons and with the words 'the applicant' in the body of those reasons;
(b)The name of the applicant's place of practice and its neighbouring practice ought to be redacted;
(c)The name of the applicant's treating practitioner and that of the practitioner who assessed him in 2018 ought to both be redacted; and
(d)The identifying details of any associated court or tribunal decisions ought to be redacted.
As the non-publication of the primary reasons in their entirety is not 'necessary', it is not necessary for me to say more. However, it seems to me to be in the interests of justice to publish the primary reasons save for the above changes. The primary reasons explain my reasons for taking a different view to that of the respondent, which is charged, amongst other things, with the regulation of the medical profession for the protection of the public. It is in the interests of justice for such matters to be explained in a public fashion.

The Respondent's Submissions

As noted above, the respondent neither consents to nor opposes the non-publication orders and there are, therefore, only a couple of submissions which require specific attention.

Application for nonpublication of part

The first is that the respondent proceeded on the basis that, in addition to s 61(4)(h), the applicant relied upon s 61(4)(g) of the SAT Act as a basis on which non-disclosure orders ought to be made. That subparagraph allows for such orders to be made where the Tribunal considers it necessary 'to avoid the publication of confidential information or information the publication of which would be contrary to the public interest'.
It is true that the applicant's written submission contains a heading 'PUBLIC INTEREST QUESTION' but I am not convinced that that was intended to go to s 61(4)(g).
Further, it seems to me that if s 61(4)(g) were relied upon, the applicant would be on stronger ground in relying on the first limb of that subparagraph ('confidential information') which does not appear to require a consideration of the question of the public interest. Rather, it seems to me, the question of the public interest is limited to the second limb of that sub-paragraph - 'information the publication of which would be contrary to the public interest'.
But, in any event, given my conclusion and reasons as to the applicant's primary ground of 'interests of justice' it is not necessary to address the question of s 61(4)(g).
Secondly, the respondent submits that its decision to not publicly publish relevant conditions imposed by it as part of the immediate action decision was not made by 'applying criterion equivalent to or in the nature of s. 61(4)(h) of the SAT Act'.
Whether or not that is so, it seems reasonable to infer that the decision not to publish certain conditions which go to the applicant's mental health was due to concerns as to the applicant's privacy. In my view, that approach was appropriate in the circumstances.
As noted above, the point made by the applicant, and accepted by me, is that the respondent's decision to keep that information confidential would be rendered nugatory if the primary reasons were published in unredacted form. As such, the basis for the respondent's approach, while not determinative of my decision, is consistent with it.
Thirdly, and finally, the respondent submitted that any order for non-publication could not apply to the name of the applicant's treating psychiatrist because he 'was not a witness and therefore was not a person who appeared before the Tribunal', such that s 62(1)(c) did not apply to him.[67]
[67] Respondent's Submissions, para 14.
I agree that the non-publication order could not be made in order protect the identity of the psychiatrist in his own right. But the purpose of the redaction is to protect the identity of the applicant, not the psychiatrist. It is true that the applicant's submissions do not 'clearly articulate' the case that the interests of justice requires the nonpublication of the psychiatrist. But the name of the treating psychiatrist is mentioned in other, related, decisions in association with the applicant and in my view its publication may allow a member of the public to identify the applicant if the psychiatrist's name is published.

Determination

For these reasons, the version of the primary reasons delivered on 10 May 2022 will differ from those which are published in the following ways:
1.All references to the applicant's name will be replaced with either a reference to 'A Practitioner', which is the terminology used in the case citation or, alternatively, a reference to 'the applicant' which is the language used in the body of the reasons;
2.All references to the applicant's current treating psychiatrist and that of the psychiatrist who assessed him in 2018 will be redacted and replaced with the words '[redacted]';
3.All references to the applicant's place of practice and the neighbouring place of practice will be redacted and replaced with '[redacted]'; and
4.All references to State Administrative Tribunal and Court of Appeal case numbers (other than the current case number) and associated case names, will be redacted and replaced with '[redacted]'.
It appears to me that such changes are sufficient to ensure the applicant's anonymity and for these reasons I publish the primary reasons as so altered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

RM
Associate to Deputy President Judge Jackson

16 JUNE 2022