Applicant or 7/2025 v Medical Board of Australia (Occupational Discipline)
[2025] ACAT 18
•19 March 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PATHAK v MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2025] ACAT 18
OR 7/2025
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner – where practitioner charged with sexual assault offences – where Medical Board took immediate action to suspend practitioner’s registration – whether Tribunal has power to grant a stay of the immediate action decision – Whether, if the Tribunal has power, a stay should be granted in the Tribunal’s discretion
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 53
Evidence (Miscellaneous Provisions) Act 1999 s 111
Health Practitioner Regulation National Law (ACT) ss 3, 3A, 5, 155, 156, 158, 159, 199, 203, 205
Health Practitioner Regulation National Law (ACT) Act 2010 s 8
Cases cited:Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Bernadt v Medical Board of Australia [2013] WASCA 259
Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 36
Hocking v Medical Board of Australia [2015] ACAT 22
John Morgan and Construction Occupations Registrar [2011] ACAT 18
Law Society of New South Wales v Weaver [1974] 1 NSWLR 271
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672
Maroondah City Council v Fletcher [2009] VSCA 250Shergold v Tanner [2002] HCA 19
Saraswati v R (1991) 172 CLR 1Veness v Medical Board of Australia [2011] ACAT 42
X v Sydney Children's Hospitals Network [2013] NSWCA 320
Tribunal:Presidential Member J Lucy
Date of Orders: 19 March 2025
Date of Reasons for Decision: 20 March 2025
Date of Publication: 27 March 2025
Date of Republication: 29 April 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 7/2025
BETWEEN:
RAJEEV PATHAK
Applicant
AND:
MEDICAL BOARD OF AUSTRALIA
Respondent
TRIBUNAL:Presidential Member J Lucy
DATE:19 March 2025
ORDER
The Tribunal orders that:
The applicant’s application for a stay of the decision of the respondent dated 25 February 2025 is dismissed.
.……………………………
Presidential Member J Lucy
REASONS FOR DECISION
The applicant is a specialist medical practitioner who has appealed against a decision of the respondent (the Medical Board) to take immediate action to suspend his registration. He has applied for a stay of the suspension decision, pending determination of his appeal.
I have decided that the Tribunal does not have power to stay a decision of the Medical Board to take immediate action. If I am wrong about that, I would nevertheless decide to refuse the stay. Accordingly, I have dismissed the applicant’s application for a stay.
Application for suppression orders
The applicant applied for pseudonym and non-publication orders and related orders. I made interim orders prohibiting the publication of evidence and prohibiting the publication of information that might enable the applicant to be identified, pending final determination of the applicant’s application for those orders at the final hearing.
Consistently with those orders, these reasons refer to the evidence in very general terms, so as not to identify the applicant.[1]
Background
[1] This decision was initially published as Applicant OR 7/2025 v Medical Board of Australia. The interim orders were vacated on 22 April 2025, and this version of the reasons was published, identifying the applicant by name.
The applicant has been charged with a number of sexual offences. The alleged victims are four former employees of the applicant. None of the alleged victims is a patient of the applicant.
The Magistrates Court made the following order at the first mention in the applicant’s criminal proceedings:
Pursuant to S111 of the Evidence (Miscellaneous Provisions) Act 1999, the name of the defendant and [his practice] is not to be published.
The applicant has been released on bail. His bail conditions include a condition that he remain at his home except when required to attend on a patient when an AVL consultation is not practicable, and that when travelling away from his home he must be in the company of nominated persons (the chaperone condition).
When the Medical Board became aware of the charges and allegations against the applicant, it gave the applicant an opportunity to make submissions about its proposed immediate action to suspend his registration under section 157 of the Health Practitioner Regulation National Law (ACT) (the National Law).
The applicant made submissions to the Board, opposing the proposed suspension.
Following receipt of those submissions, the Medical Board decided to take immediate action to suspend the applicant’s registration under section 156 of the National Law (the Decision).
The Decision is an appealable decision under section 199(1) of the National Law. The applicant appealed to the Tribunal from the Medical Board’s decision under that section.
The applicant applied for an urgent stay of the suspension decision pursuant to section 53(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). A hearing of the stay application was held on 18 March 2025. Both parties were represented by counsel.
Both parties relied upon evidence at the stay hearing. The applicant relied upon a number of affidavits, including his own with substantial annexures and affidavits by other medical practitioners. The respondent relied upon a bundle of documentary material.
At the end of the hearing, I reserved my decision. The following day I made an order dismissing the application for a stay. These are my reasons for making that order.
Parties’ submissions
The applicant’s submissions in support of the stay are, broadly, as follows. The applicant submits (and the Medical Board accepts) that, if an order staying the Decision were not made, the applicant would be disadvantaged or suffer harm, being the threshold requirement for the making of an order under section 53(1) of the ACAT Act.
The applicant submits that a stay should be granted because:
(a)the appeal has reasonable prospects of success;
(b)the health and safety of the public will not be negatively affected by a stay; and
(c)the balance of convenience favours a stay.
In support of his contention that the appeal has reasonable prospects of success, the applicant contends that the Medical Board failed correctly to apply the test for determining whether it was appropriate to take immediate action, it took into account irrelevant considerations and it failed to consider whether conditions upon the applicant’s registration could mitigate risks.
The applicant placed particular emphasis on the impact on patients if the stay were not granted. Evidence upon which the applicant relies indicates that other specialists in Canberra in the applicant’s field have long wait lists and are unable to take on all of his patients. Specialists in the applicant’s field in other parts of Australia are also very busy, with limited capacity to attend to the applicant’s patients. The applicant provides medical services which are, in some cases, life-saving. The applicant submits that, if he is not able to practise, some of his patients are at risk of death.
The Medical Board opposes the grant of a stay. It submits that, on proper analysis, the Tribunal does not have the power to stay an immediate action decision under section 156 of the National Law. It also submits that, if the Tribunal finds that it does have power to stay such a decision, a stay is not appropriate for the following reasons:
(a)The applicant’s submissions do not raise a serious issue to be tried that the Medical Board’s decision was infected by error;
(b)There would be a clear risk to public safety and the public interest if the stay were granted because the criminal charges against the applicant provide a reasonable basis to believe that, if he were permitted to continue to practise, he would pose a risk to colleagues and patients;
(c)Permitting the applicant to practise would undermine public confidence in the profession, given the serious allegations against him; and
(d)The substantive application would not be rendered pointless or nugatory if the stay were not granted, noting that the appeal hearing is listed for 3 April 2025.
The applicant’s counsel, Ms Mathur SC, responded to the Medical Board’s written submissions at the hearing. She made submissions, dealt with below, to the effect that there was no inconsistency between section 159(2) of the National Law (which provides for the period during which a decision to take immediate action has effect) and section 53(2) of the ACAT Act (which authorises the Tribunal to make any order it considers appropriate to protect the position of the party that applied for the order). Ms Mathur also made oral submissions in support of the application for the stay more generally.
Does the Tribunal have power to grant a stay of an immediate action decision?
Section 156(1) of the National Law confers on a National Board (such as the Medical Board) a power to take immediate action in relation to a registered health practitioner in certain circumstances. Those circumstances include that the National Board reasonably believes that:
(a)because of the registered health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons; and
(b)it is necessary to take immediate action to protect public health or safety.[2]
[2] National Law, s 156(1)(a)
That power is also available where the National Board reasonably believes the action is otherwise in the public interest.[3]
[3] National Law, s 156(1)(e)
The term “immediate action” is defined to include the suspension, or imposition of a condition on, a health practitioner’s registration.[4]
[4] National Law, s 155(a)
Section 159 of the National Law provides as follows:
159 Period of immediate action
(1)The decision by the National Board to take immediate action in relation to the registered health practitioner or student takes effect on—
(a)the day the notice is given to the practitioner or student; or
(b)the later day stated in the notice.
(2)The decision continues to have effect until the earlier of the following occurs—
(a)the decision is set aside on appeal;
(b)for the suspension of, or imposition of conditions on, the registered health practitioner’s or student’s registration, the suspension is revoked, or the conditions are removed, by the National Board; or
(c) for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.
Section 159(2) provides for the time for which a decision to take immediate action continues to have effect.
Subsections 53(1) to (3) of the ACAT Act provides:
53 Interim orders
(1) This section applies if, at any stage before an application is finalised in the tribunal—
(a)a party to an application applies to the tribunal for an order under this section; and
(b)the tribunal is satisfied that, if an order under this section were not made, the party applying for the order would be disadvantaged or suffer harm.
(2) The tribunal may make any order (an interim order) it considers appropriate to protect the position of the party that applied for the order.
Note The tribunal must observe natural justice and procedural fairness (see s 7).
(3) An interim order remains in force until—
(a)the tribunal orders otherwise; or
(b)the application is finalised in the tribunal.
Subsection 53(2) confers upon the Tribunal a broad power to make any interim order it considers appropriate to protect the party applying for it, including an order for a stay of a decision under review or the subject of an appeal.
The Medical Board submits that, on its natural and ordinary meaning, subsection 159(2) of the National law is exhaustive. That is, the Medical Board says that the provision requires that the immediate action decision continue in effect until one of the events in (a) to (c) occurs and does not contemplate such a decision ceasing to have effect for any other reason.
The Medical Board accepts that this Tribunal and other tribunals have ordered a stay of an immediate action decision in past proceedings.[5] However, it submits that the question of whether the Tribunal has power to grant such a stay has not been raised or determined in previous proceedings.
[5] Veness v Medical Board of Australia [2011] ACAT 42; Hocking v Medical Board of Australia [2015] ACAT 22 at [42]
On its face, subsection 159(2) provides for a decision to take immediate action to continue to have effect until the earliest of one of three specified events occurs. It is a specific provision, directed to defining the period of time during which an immediate action decision has effect. On its terms, it provides exhaustively for the circumstances which cause a decision to cease having effect. Subsection 53(2) of the ACAT Act is a general provision. Where there is conflict between general and specific provisions, the specific provisions generally prevail.[6] That is a strong consideration in favour of the construction contended for by the Medical Board.
[6] See, for example Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672.
The Medical Board relies, in support of its construction of subsection 159(2), upon the decision of the Western Australian Court of Appeal in Bernadt v Medical Board of Australia [2013] WASCA 259. In that case, a National Board decided to take immediate action to suspend a medical practitioner’s registration. The practitioner applied to the State Administrative Tribunal (SAT) to set aside the suspension order. The SAT affirmed the suspension decision. The practitioner appealed to the Court of Appeal, including on the ground that the SAT erred in not concluding that the power to take immediate action was interlocutory in nature. That is, the practitioner said that the SAT erred in failing to conclude that the power to take immediate action was only a power to take action pending final determination of the further action which the respondent was obliged to take against a registered health practitioner by section 158 of the National Law.[7]
[7] Bernadt v Medical Board of Australia [2013] WASCA 259 at [121]
At the time Bernadt was heard, section 159(2) of the version of the National Law then in force in Western Australia relevantly provided:[8]
(2) The decision continues to have effect until the earlier of the following occurs —
(a) the decision is set aside on appeal;
(b) for the suspension of, or imposition of conditions on, the registered health practitioner’s … registration, the suspension is revoked, or the conditions are removed, by the National Board;
(c) for an undertaking, the National Board and the registered health practitioner … agree to end the undertaking.
[8] Cited in Bernadt v Medical Board of Australia [2013] WASCA 259 at [19]
In the course of concluding that the power conferred by section 159 was not interlocutory, McLure P observed at [48]:
… s 159 is not in the terms one would expect if an order for immediate action is intended to be interlocutory in nature. Prima facie, the four different ways specified in s 159(2) in which an immediate action decision ceases to have effect are intended to be exhaustive. The decision can be set aside on appeal. The only other alternatives are that the Board can revoke a suspension, remove conditions or, if the Board and the practitioner agree, end an undertaking.
To like effect, Murphy JA commented at [298]:
It is unhelpful to label the Board’s powers under Div 7 as “interlocutory” in nature as contended for by the appellant. Even though they may be exercised from time to time, they are nevertheless final in that they take effect for the period referred to in s 159(2) of the Law as discussed in [283]–[285] above.
The Court of Appeal in Bernadt was not considering the question of whether the provision in section 159(2) of the National Law was inconsistent with a provision in the legislation establishing the SAT, giving it power to grant a stay. As Ms Mathur SC pointed out, for the applicant, the SAT had in fact granted a stay in the proceedings (a decision the validity of which was not considered upon appeal). Nevertheless, the remarks of the members of the court, reproduced above, broadly support the Medical Board’s contention that section 159(2) of the National Law provides exhaustively for the ways in which an immediate action decision ceases to have effect.
Ms Mathur SC submitted that there was no inconsistency between section 159(2) of the National Law and section 53 of the ACAT Act. She submitted that a “withdrawal of power” from the Tribunal requires express words. She also submitted that there was a general presumption that legislation has not withdrawn or limited stay powers. Ms Mathur did not provide any authority for either proposition.
It may be that Ms Mathur SC was referring to the principle of statutory construction that a superior court of law will not be deprived of jurisdiction except by express words or necessary implication[9] or that the jurisdiction of a court is not to be taken to have been abrogated except by clear words or necessary intendment.[10] Even if that principle extends to the jurisdiction of a tribunal, it is not of great assistance in this situation. On the Medical Board’s construction of section 159(2), the tribunal retains jurisdiction; it is simply that its powers are more limited. There are good reasons to conclude, in any event, that the words in section 159(2) of the National Law are clear words of necessary intendment.
[9] Law Society of New South Wales v Weaver [1974] 1 NSWLR 271
[10] X v Sydney Children's Hospitals Network [2013] NSWCA 320 at [50]
Ms Mathur SC relied upon section 203 of the National Law in support of her contention that section 159(2) of the National Law can operate harmoniously with section 53 of the ACAT Act. Section 203 is in Division 13 of Part 8 of the National Law. It provides:
This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.
Section 199, which authorises appeals from immediate action decisions to be made to the Tribunal, is also in Division 13. Ms Mathur submitted that the words “does not otherwise limit” in section 203 supported a finding as to the clear operation of section 53 of the ACAT Act. She pointed out that there was no express removal of the power to grant a stay in that provision.
I am not persuaded that section 203 supports the applicant’s construction of section 159(2) of the National Law. Section 203 concerns the application of Division 13 of Part 8 of the National Law. Section 159 is in Division 7 of Part 8. Thus, section 203 does not apply, on its terms, to the construction of section 159. Even if, contrary to my view, section 203 affects the construction of section 159 of the National Law because section 199 authorises the appeal to ACAT, the effect of section 203 would be that section 199 applies “despite any provision to the contrary of” the ACAT Act. That means that it prevails over a contrary provision in the ACAT Act.
Ms Mathur SC submitted that section 205 of the National Law supported the construction that an immediate action decision can be stayed. Section 205 provides:
205 Implementation of decisions
(1) A National Board must give effect to a decision of an adjudication body unless the decision is stayed on appeal.
(2) Without limiting subsection (1), the National Board must, if the notice given to the Board states that a health practitioner’s or student’s registration is cancelled, remove the practitioner’s or student’s name from the appropriate register kept by the Board.
Section 205 is in Division 14 (“Miscellaneous”) of Part 8. Ms Mathur did not suggest that it had any application to the present circumstances. Nevertheless, she submitted that the National Law had not by express words removed the Tribunal’s stay power. As I understood her submission, it was that section 205 contemplated that a decision may be stayed on appeal and thus supported the view that the legislature intended section 53 of the ACAT Act to operate concurrently with section 159(2) of the National Law.
Section 205 is not, in my view, of great assistance in construing section 159(2) of the National Law. It applies to an appeal from a decision of an adjudication body. An “adjudication body” is defined as a panel, a responsible tribunal, a Court or an entity of a co-regulatory jurisdiction that is declared in the Act applying the National Law to be an adjudication body for the purposes of the National Law.[11] Section 205(1) would apply, for example, in circumstances where a party had appealed from a decision of a responsible tribunal to a court. It does not have anything to say about an appeal from a National Board to a tribunal.
[11] National Law, section 5 (definition of “adjudication body”)
Ms Mathur SC also submitted that the construction of section 159(2) advanced by the Medical Board should not be accepted because it curtails the practitioner’s rights. She referred to the guiding principle of the national registration and accreditation scheme in section 3A(2)(a), being that “the scheme is to operate in a transparent, accountable, efficient, effective and fair way.” She submitted that the principle that the scheme should operate fairly supported the conclusion that the Tribunal retained power to grant a stay.
Similarly, Ms Mathur relied upon the objectives of the national registration and accreditation scheme in section 3(2)(c), (e) and (f), being “to facilitate the provision of high quality education and training of health practitioners,” “to facilitate access to services provided by health practitioners in accordance with the public interest” and “to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.” She said that those objectives supported the applicant’s construction of the provisions. Ms Mathur submitted that every day the practitioner was subject to the immediate action decision, each paragraph was arguably adversely affected.
The objectives in section 3 and the guiding principles in section 3A are relevant to the construction of the provisions of the National Law. One important guiding principle is contained in subsection 3A(1), as follows:
(1)The main guiding principle of the national registration and accreditation scheme is that the following are paramount—
(a) protection of the public;
(b) public confidence in the safety of services provided by registered health practitioners and students.
The construction of section 159(2) as providing, definitively, for the circumstances in which an immediate action decision ceases to have effect may be seen to be consistent with the protection of the public and public confidence in the safety of services provided by health practitioners. A stay is most likely to stay the operation of a measure taken to protect the public, before a tribunal may consider whether the decision should be confirmed, varied or set aside, with all relevant evidence before it. This might adversely affect public confidence in the safety of services provided by health practitioners.
It is also relevant to take into account clause 7 of Schedule 7 to the National Law. That clause provides that, “[i]n the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.” The Medical Board’s interpretation of section 159(2) best achieves the National Law’s purposes of protecting the public and maintaining public confidence in the safety of services provided by registered health practitioners and students. That is because a construction which permitted immediate action to cease to have effect earlier than the occurrence of any of the events specified in section 159(2) would diminish that protection and therefore potentially diminish public confidence in the safety of services.
I do not see the other objectives and principles relied upon by the applicant as pointing strongly towards the applicant’s preferred construction of section 159. Fairness to a practitioner may be achieved in other ways, including by listing an appeal relatively quickly. The power to grant a stay is not necessary for the scheme to operate in a fair way. In any event, the objectives and principles in sections 3 and 3A, being in very general terms, can provide only limited assistance in the construction of the provisions of section 159.
Where possible, the provisions of different statutes which potentially conflict, such as section 159(2) of the National Law and section 53(2) of the ACAT Act, should be given a harmonious construction.[12] In Shergold v Tanner [2002] HCA 19 at [34], Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ cited with approval the following passage from the judgment of Gaudron J in Saraswati v R (1991) 172 CLR 1 at 17:
It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other…
[12] See, for example, Firebird Global Master Fund II Ltd v Republic of Nauru [2014] NSWCA 360 at [259]-[260]
It is relevant to note that section 159 of the National Law was enacted later in time than section 53 of the ACAT Act.[13] The two provisions are, in my view, in direct conflict insofar as section 53(2) may authorise the making of a stay order. However, they may be given a harmonious construction if section 53 of the ACAT Act is read as subject to section 159(2) of the National Law. That is, where the Tribunal is hearing an appeal from a decision of a National Board to take immediate action against a practitioner, section 53 is to be read down such that it does not extend to giving the Tribunal power to stay the immediate action decision. However, section 53(2) would still operate to empower the Tribunal to make another order it considers appropriate to protect the position of the party that applied for the order.
[13] The National Law is given effect by the Health Practitioner Regulation National Law (ACT) Act 2010. It commenced on 1 July 2010. The ACAT Act commenced in full on 2 February 2009.
Such an approach was endorsed by Redlich JA in Maroondah City Council v Fletcher [2009] VSCA 250 at [203], where his Honour said:
Where the different Acts are cognate legislation, one should strive to give their provisions a harmonious construction that gives effect to the purposes and objects of the legislative regime. That may necessitate reading down the manner in which a general power in one Act should be exercised where the circumstances of its exercise are the subject of limitation in the other and where it is clear that the limitations relate to the circumstances in which the more generally expressed power should be exercised.
The National Law and the ACAT Act are “cognate legislation” in that the National Law assumes the existence of a “responsible tribunal” established by legislation. The Health Practitioner Regulation National Law (ACT) Act 2010 declares that tribunal to be the ACAT.[14]
[14] Health Practitioner Regulation National Law (ACT) Act 2010, s 8
The considerations discussed above support the conclusion that section 159(2) of the National Law provides definitively for the circumstances in which the decision to take immediate action continues to have effect. Accordingly, when considering an appeal from such a decision, the Tribunal has no power to grant a stay of the decision.
For these reasons, the applicant’s application for a stay is dismissed.
Merits of stay application
If I am wrong and the Tribunal does have power to grant a stay of the Decision, I would nevertheless dismiss the stay application for the following brief reasons.
The relevant jurisprudence when determining a stay application under section 53(2) of the ACT Act was set out in John Morgan and Construction Occupations Registrar [2011] ACAT 18, where the Tribunal said:
12. In a regulatory context, the jurisprudence can be summarised by reference to four factors, namely:
(i)whether the material before the tribunal indicates that there is a serious issue to be tried on the substantive application;
(ii)whether any prejudice would be suffered by any party if a stay was not granted;
(iii)whether public safety or the public interest would be imperilled if a stay is granted; and
(iv) whether the substantive application would be pointless or rendered nugatory if the stay is not granted.
First, the substantive application would not be rendered nugatory if the stay is not granted. That application is listed for hearing in a very short time. There is no evidence that the applicant would not be able to return to practice if a decision in his favour were made at the substantive hearing, in circumstances where a stay had not been granted.
Secondly, whilst there will be prejudice and “harm” to the applicant if a stay is not granted, the shortness of time between the stay hearing and the substantive hearing militates against the grant of a stay. The prejudice is not as great as it would be if there were a long time until the final hearing. Further, the applicant’s patients, who may currently be looking for other practitioners to treat them given that he has not been able to practise for some time, may be told the applicant is now available, and cancel other arrangements. If the applicant were unsuccessful at the final hearing, those patients would then need to be told that the applicant could no longer provide the services in question.
Thirdly, even if it is accepted that the applicant has an arguable case or that there is a serious question to be tried, the power to take immediate action may be exercised if the Medical Board “reasonably believes” that the applicant poses a serious risk to persons and it is necessary to take immediate action to protect health and safety, or if the Medical Board “reasonably believes” the action is otherwise in the public interest. This is, as the Medical Board submitted, a “low threshold.”[15] It is a discretionary decision. Having regard to the paramount considerations in section 3A(1) of the National Law, the Tribunal should be slow to disturb such a discretionary decision on an interlocutory basis, when it does not have all the evidence before it, at least in circumstances such as the present where four complainants have made serious allegations against the applicant. That is all the more so when the hearing of the appeal is less than three weeks away.
[15] Hocking v Medical Board of Australia [2015] ACAT 22 at [33]
Fourthly, I accept that the suspension of the applicant places patients at risk in that they may not be able to access medical services which they need, and that this may in some cases be life-threatening. Whilst that is a significant consideration, the applicant’s return to practice may also place female colleagues and female patients of the applicant at risk. I accept the respondent’s submission that, if the allegations against the applicant have substance, they tend to show that he is a person who will behave irresponsibly and with disinhibition and that he may, for this reason, also pose a risk to patients, even though no patient has complained about him. The risk to colleagues and patients is mitigated to some extent, but not entirely, by the chaperone condition.
I note that the applicant’s submissions that the applicant is entitled to the presumption of innocence refer to a presumption which applies in criminal proceedings. That presumption has little work to do when a tribunal is assessing risk under the National Law. I have, however, taken into account that the allegations against the applicant are unproven.
Fifthly, due to the suppression orders made by the Magistrates Court, it appears that the applicant may not (or at least that he considers that he may not) disclose to patients the nature of the allegations against him. It follows that patients who see him would not be able to give informed consent to him treating them in circumstances where he has been charged with serious offences. That is a strong reason not to grant the stay.
For these reasons, I conclude that the balance of convenience does not favour the grant of a stay.
………………………………..
Presidential Member J Lucy
| Date of hearing: | 18 March 2025 |
| Counsel for the Applicant: | Ms R Mathur SC |
| Solicitors for the Applicant: | Moray & Agnew Lawyers |
| Counsel for the Respondent: | Mr O Jones |
| Solicitors for the Respondent: | Minter Ellison |
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