ARUNKALAIVANAN and MEDICAL BOARD OF AUSTRALIA - [2020] WASAT 118

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION:   ARUNKALAIVANAN and MEDICAL BOARD OF AUSTRALIA [2020] WASAT 118
MEMBER:   JUDGE D PARRY, DEPUTY PRESIDENT
HEARD:   8 SEPTEMBER 2020
DELIVERED          :   8 SEPTEMBER 2020
PUBLISHED           :   29 SEPTEMBER 2020
FILE NO/S:   VR 48 of 2020
BETWEEN:   ANGAMUTHU ARUNKALAIVANAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Vocational regulation - Medical practitioner - Appeal against immediate action decision suspending practitioner's registration - Practice and procedure - Application for stay of immediate action decision

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), Sch
Health Practitioner Regulation National Law, s 3(1), s 3(2), s 3(2)(a), s 155, 156, s 156(1), s 156(1)(a), s 157, s 159(1), s 159(2), s 199, s 199(1)(f), s199(1)(h), s 202(1)
State Administrative Tribunal Act 2004 (WA), s 17(1), s 25(2), s 25(4)
State Administrative Tribunal Rules 2004 (WA), r 10

Result:

Application for a stay of the immediate action decision to suspend the applicant's registration as a medical practitioner dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr JM Healy and Ms M Lalli
Respondent	:	Ms H Millar and Ms J McKenzie

Solicitors:

Applicant	:	Panetta McGrath Lawyers
Respondent	:	Minter Ellison

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

Bernadt and Medical Board of Australia [2012] WASAT 185
Bernadt v Medical Board of Australia [2013] WASCA 259
Fero Group Pty Ltd and City of Nedlands [2018] WASAT 78
Freeman and Medical Board of Australia [2020] WASAT 64
Kozanoglu v Pharmacy Board of Australia [2011] VCAT 2085
Soutorine and The Medical Board of Australia [2020] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

By an application filed on 19 May 2020, Dr Angamuthu Arunkalaivanan (practitioner or applicant) initially appealed under s 199(1)(f) of the Health Practitioner Regulation National Law, being the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA), (National Law) against the decision made by the Medical Board of Australia (Board or respondent) on 11 May 2020 to refuse to revoke the applicant's suspension as a medical practitioner and to affirm its decision made on 9 December 2019 to suspend the applicant's registration under s 156 of the National Law.
The decision made on 11 May 2020 to refuse to revoke the applicant's suspension and to affirm the Board's decision made on 9 December 2019 was conveyed to the applicant in a letter from the Board dated 13 May 2020.
On 22 June 2020, the Tribunal granted leave to amend the application to appeal under s 199(1)(h) of the National Law against the respondent's decision made on 9 December 2019 to suspend the applicant's registration under s 156 of the National Law.
In the proceedings as amended, the applicant seeks an order under s 202(1) of the National Law that the decision made by the respondent on 9 December 2019 to suspend the applicant's registration be set aside and a decision be substituted not to suspend the applicant's registration.
By an interim application made on 27 July 2020 (interim application), the applicant seeks the following order:[1]
… [A]n order for a stay of the [r]espondent's decision dated [9] December 2019 to take immediate action and suspend the [a]pplicant's registration, pending the determination of an appeal from the decision.
[1] Applicant's Interim Application dated 27 July 2020.
The interim application states that the application is 'urgent as the [a]pplicant has not been able to work and earn any income for 8 months'. It also states that '[h]is skills are vital to the practice and its patients and it is in the public interest generally to grant a stay'. The grounds on which the interim application for a stay are made include that '[t]he applicant strongly denies the allegations made against him' and '[t]he appeal has reasonable prospects of success'. The grounds also refer to issues of public interest and the balance of convenience favouring the grant of a stay. The interim application also states that:
The [a]pplicant's conduct does not create a serious risk to persons such that suspension is necessary to protect public health or safety.
and that:
The material before the [r]espondent is not sufficient to form the basis of a reasonable belief about the [r]espondent's [sic] conduct for the purpose of s 156 of the National Law.

Background

The practitioner is a specialist obstetrician and gynaecologist and until the immediate action decision was made on 9 December 2019, or more particularly, until it came into effect on the next day, the practitioner practised as a specialist obstetrician and gynaecologist from his own private practice.
In November 2018, a patient (patient 1) had a consultation with the applicant. Patient 1 alleges that during that consultation, the applicant inappropriately touched her exposed breasts, became visibly aroused and rubbed his erect penis against her knee.
In January 2019, patient 1 made a complaint to the Western Australia Police, who subsequently notified the Board in May 2019. That notification led to the Board taking immediate action under s 156(1) of the National Law in June 2019, requiring a practice monitor to be present and observe whenever the applicant had contact with female patients. The Board approved Ms JT, a registered nurse, to be the applicant's practice monitor.
On 25 October 2019, a second patient (patient 2) had a consultation with the practitioner in his rooms. Patient 2 alleges that during the consultation, and at a time when the practice monitor briefly stepped out of the examination area, the practitioner forcefully and without consent inserted his fingers into the patient's vagina.
Patient 2 made a complaint to the Western Australia Police on the day of her consultation with the practitioner. On the same day, patient 2 was referred to the Sexual Assault Resource Centre (SARC). Following a complaint by patient 2 to the Board, on 9 December 2019 the Board made the immediate action decision to suspend the applicant's registration, which is now the subject of these review proceedings.

The immediate action decision

The immediate action decision, which is the subject of these proceedings, was conveyed to the practitioner by letter dated 10 December 2019. The letter firstly sets out, or at least summarises, the applicant's submissions to the Board, which were made by his solicitors following a 'show cause' notice under s 157 of the National Law on 3 December 2019. The practitioner provided written submissions on 6 December 2019 in which he said that he opposes the Board's proposed further immediate action to suspend his registration and that he categorically denies the allegations contained in the notification to him. Among other things, the letter from the Board to the practitioner refers to the practitioner's submission that:[2]
The weight of the evidence suggests that each examination was clinically indicated, carried out with consent, performed in a professional and respectful manner and in the presence of RN [Ms JT].
[2] Respondent's Book of Documents dated 26 June 2020 (Exhibit 4), page 207.
The practitioner also provided a statement from Ms JT in which she said that while she cannot specifically recall the consultation with patient 2, she has never left the practitioner unattended with a patient since she commenced her role as the practice monitor and that she did not leave the practitioner unattended on this occasion.
The Board considered the practitioner's submissions and decided to take immediate action under s 156 of the National Law. Specifically, the Board decided to suspend the practitioner's registration, but with effect from 10 December 2019. The Board's reasons for decision as conveyed in its letter state that the Board:[3]
… reasonably believes that because of [the practitioner's] conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.
[3] Exhibit 4, page 210.
In relation to 'conduct and serious risk', the Board stated that, based on the information before it, it:[4]
… continued to form a reasonable belief that, because of [the practitioner's] conduct, he poses a serious risk to persons because there are objective circumstances that support a reasonable belief that [the practitioner] has:
(a)[b]reached the current immediate action conditions on his registration by conducting an internal examination of a patient, without the presence of a practice monitor[; and]
(b)[e]ngaged in serious boundary violations by conducting an internal examination of a patient:
(i)without informed consent, and
(ii)in a rough manner.
[4] Exhibit 4, page 211.
The Board also considered that the identified serious risk arising from the practitioner's conduct is:[5]
… to all female patients of physical, emotional and/or psychological harm and/or jeopardising the safe and effective provision of care [to] patients.
[5] Exhibit 4, page 211.
In relation to 'assessment of serious risk', the Board noted that the then current restrictions were imposed on the practitioner's registration 'to mitigate the risk of him breaching boundaries with patients'[6] and that although the practitioner submitted that that condition was sufficient to mitigate any risks, he was 'on notice of the importance of maintaining boundaries with patients'[7] and, nevertheless:[8]
… the Board has credible information to show that [the practitioner] has conducted an intimate examination of a patient, without the presence of his practice monitor, which is a clear breach of his current restrictions.

Legal framework and principles

[6] Exhibit 4, page 213.

[7] Exhibit 4, page 213.

[8] Exhibit 4, page 213.

Section 3(1) of the National Law provides that the object of the National Law is to 'establish a national registration and accreditation scheme' for, among other things, 'the regulation of health practitioners'. Section 3(2) of the National Law provides that the 'objectives of the national registration and accreditation scheme' include:
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered[.]
Section 156(1) of the National Law provides, in part, as follows:
A National Board may take immediate action in relation to a registered health practitioner … for which the Board is established if —
(a)the National Board reasonably believes that —
(i)because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety[.]
…
The term 'immediate action' is defined in s 155 of the National Law to include:
… the suspension, or imposition of a condition on, the health practitioner's … registration[.]
Section 159(1) of the National Law provides that a decision by a National Board to take immediate action in relation to a registered health practitioner takes effect on 'the day the notice is given to the practitioner' or 'the later day stated in the notice'. Section 159(2) of the National Law provides that the decision continues to have effect until the earlier of, relevantly, 'the decision is set aside on appeal' or 'the suspension is revoked … by the National Board'.
Under s 199 of the National Law, a person who is the subject of, among other things, a decision of a National Board 'to suspend the person's registration' may appeal the decision to the appropriate responsible tribunal for the appellable decision.[9] This Tribunal is the relevant appropriate responsible tribunal in relation to the decision made on 9 December 2019 to suspend the practitioner's registration.
[9] Section 199(1)(h).
Section 202 of the National Law provides as follows:
(1)After hearing the matter, the responsible tribunal may —
(a)confirm the appellable decision; or
(b)amend the appellable decision; or
(c)substitute another decision for the appellable decision.
(2)In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
It is common ground that pursuant to s 155 and s 156 of the National Law, the Board may take immediate action in relation to a medical practitioner, including suspending the practitioner's registration, for reasons including that the Board reasonably believes that the practitioner's conduct or performance poses a serious risk and it is necessary to take immediate action to protect public health or safety. It is common ground that the existence of the Board's reasonable belief is a jurisdictional fact that enlivens the power under s 156(1)(a) to take immediate action: see Bernadt v Medical Board of Australia [2013] WASCA 259 at [64].[10] It is also common ground that at the final hearing in these proceedings, the facts in issue concerning the practitioner's conduct or performance do not have to be proven on a balance of probabilities. However, there must be objective circumstances sufficient to justify the belief: Bernadt v Medical Board of Australia at [66].
[10] McLure P.
The Tribunal has power to stay the Board's immediate action decision conferred by s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Under s 17(1) of the SAT Act, these proceedings, which are styled under s 199 of the National Law as being an 'appeal', fall within the Tribunal's review jurisdiction as the enabling Act that gives the Tribunal jurisdiction to deal with this matter 'expressly or necessarily involves a review of a decision'.
Section 25 of the SAT Act states, in part, as follows:
…
(2)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.
(3)The Tribunal's power to make an order under subsection (2) is exercisable by —
(a)a legally qualified member; or
(b)the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member.
(4)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 persons 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.
…
The principles to be applied in relation to an application for a stay under s 25(2) of the SAT Act are not in dispute and were recently referred to by the Tribunal in two decisions, namely Soutorine and The Medical Board of Australia [2020] WASAT 5 at [12]-[28][11] and Freeman and Medical Board of Australia [2020] WASAT 64 at [22][29],[12] both of which involved an appeal against (or review of) immediate action decisions under the National Law, and in Fero Group Pty Ltd and City of Nedlands [2018] WASAT 78,[13] involving an application for review of a decision to refuse to extend the term of a building permit.
[11] Supplementary President Justice Tottle.
[12] Deputy President Judge Sharp.
[13] Deputy President Judge Parry.
In Soutorine and The Medical Board of Australia, Tottle J said the following at [25]-[26]:
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.
In Fero Group Pty Ltd and City of Nedlands at [24], the Tribunal observed that the matters required to be taken into consideration in determining whether it is desirable to make a stay order set out in s 25(4) of the SAT Act are 'prescribe[d] in a non-exhaustive manner'. The range of considerations in relation to an application for a stay is not closed. At [25] in Fero Group Pty Ltd and City of Nedlands, the Tribunal observed that:
… two significant considerations which apply in relation to an exercise of discretion under s 25(2) of the SAT Act are 'the balance of convenience' and whether there is an arguable case for review.
The parties proceeded in relation to the stay application today on the basis of those two significant considerations.
At [27] in Fero Group Pty Ltd and City of Nedlands, the Tribunal observed that 'there is overlap' between the various matters that are required to be taken into consideration under s 25(4) of the SAT Act and matters that fall within the considerations of the balance of convenience and whether there is an arguable case for review.

Evidence

The applicant relies on two affidavits filed for the purposes of the stay application, being an affidavit sworn by himself on 24 August 2020[14] and an affidavit of Ms Manuela Lalli, who is the practitioner's solicitor, also sworn on 24 August 2020.[15]
[14] Affidavit of Angamuthu Shenbagavalli Arunkalaivanan dated 24 August 2020 (Exhibit 1).
[15] Affidavit of Manuela Lalli dated 24 August 2020 (Exhibit 2).
In his affidavit, the practitioner strongly denies the allegations made against him which led to the immediate action decision. He also refers to the impact of the suspension on him to date, which he describes, understandably, as a 'devastating impact on me, both personally and professionally'.[16] He states that he has been deprived of his ability to earn any income for eight months[17] and it has not been possible for him to seek alternative employment given the state of the job market in consequence of the COVID-19 pandemic.[18] He estimates that since he has been suspended from practice, he has lost approximately $200,000 to $250,000 in income. He describes the circumstances as an 'incredibly stressful experience for me personally'.[19] Again, that is hardly surprising.
[16] Exhibit 1 [5].
[17] Exhibit 1 [7].
[18] Exhibit 1 [8].
[19] Exhibit 1 [11].
The practitioner states that he is married and has two young daughters who attend a private school with annual school fees of approximately $80,000. The practitioner and his wife and family have a mortgage both over their home and over the practice. The practitioner states that his wife is a gynaecologist herself and started working at his private practice in November 2019. She currently works part time and earns approximately $10,000 to $15,000 per month. The practitioner states that his wife's income 'is just enough to meet the mortgage repayments and personal family expenses'.[20]
[20] Exhibit 1 [16].

The practitioner also refers to the significant impact that the decision made in December 2019 by the Board has had on his wife and their general relationship. He has noticed that his wife has become increasingly stressed and unhappy and that he finds it difficult to comfort her. Although the practitioner's wife currently works part time in the practice, she has been advised by a treating orthopaedic surgeon, the practitioner states in his affidavit, that she is required to undergo knee replacement surgery on both knees, which means that she will be unable to work for approximately six months in total.[21] However, due to the suspension of the practitioner's registration and the uncertainty surrounding his return to practice, he states that his wife has postponed the surgery.
[21] Exhibit 1 [18].
The practitioner also refers to the significant social impact of the immediate action decision to suspend his registration. This has led to the practitioner and his wife not having any further contact with certain friends who are medical practitioners, and also neighbours are no longer talking to him or allowing their children to see his children. He also refers to openly derogatory comments made to him, both personally and online, and he has found these comments to be 'immensely humiliating and distressing'.[22]
[22] Exhibit 1 [27].
He also states in his affidavit that the suspension has been 'disruptive to my patients who require ongoing specialist treatment and care'[23] and he notes that he has received requests from patients to transfer their care to other practitioners because of the ongoing uncertainty about the date of his return to practice. He also states that he has 'now lost all of my patients due to the suspension of my registration'.[24]
[23] Exhibit 1 [30].
[24] Exhibit 1 [31].
In terms of the consequences if a stay is not granted in this matter, the practitioner states in his affidavit that there would be 'substantial and irreparable financial consequences for me as I am continuing to be deprived of a monthly income stream of between $25,000 and $30,000'.[25] He states that his young family is 'financially dependent on me'.[26] However, as stated earlier, the practitioner's wife is currently working part time and earning just enough to meet the mortgage and the personal expenses of the family.
[25] Exhibit 1 [34].
[26] Exhibit 1 [35].
The practitioner also refers in his affidavit to the ongoing suspension of his registration 'directly affecting the viability of my private practice, which will face certain closure'.[27] He indicates that it is nearly impossible for him to sell or lease out the practice in the current economic climate due to COVID-19 and that the longer the suspension of his registration continues 'the harder it will be for me to return to practice, regain patients and pay back debts'.[28]
[27] Exhibit 1 [37].
[28] Exhibit 1 [38].
He also states that if the stay is not granted, he will have no choice but to terminate the employment of two staff members employed at his private practice. He states that one of the staff members has only remained employed because of financial assistance received under the JobKeeper payment scheme, but once that scheme ends at the end of September 2020, he will not be able to continue to employ her. Thus, he says, the decision in relation to whether a stay is granted affects not only him, but also the two staff members and their dependants. However, as indicated earlier, the practice appears to be currently functioning with the practitioner's wife working part time. There is no evidence as to why she is unable to work more hours, but in any case, the practice appears to be functioning with her part time employment there.
Finally, the practitioner expresses concerns about the impact of the suspension remaining in place in terms of his own mental health and wellbeing and that it will continue to deteriorate.
The practitioner states that he is prepared to offer the respondent an undertaking that his practice be monitored and that the monitoring be undertaken by Ms JT who, as I have said, was approved by the respondent as the practice monitor. At the hearing, a form of undertaking was provided to the Tribunal.[29] I will refer to that later.
[29] Applicant's minute of proposed orders dated 8 September 2020 (Exhibit 6).
The second affidavit relied on by the applicant annexes documents, particularly concerning a report provided by Dr Jennifer Mitchell, who is a specialist obstetrician and gynaecologist practising in the Northern Territory, to the respondent, dated 12 March 2020. I will refer to that report later, but briefly, in that report, Dr Mitchell expresses opinions that 'all of the examinations performed by [the practitioner] were reasonable and expected from the history obtained'[30] and that:[31]
I am very satisfied that overall [the practitioner's] knowledge, skill, care and expertise is entirely appropriate, and well demonstrated by his notes and correspondence, and statements made by Ms [JT] as Practice Monitor, for a specialist in Obstetrics and Gynaecology in Australia.
[30] Exhibit 2, page 6.
[31] Exhibit 2, page 7.
She expresses the opinion that the practitioner's:[32]
… conduct was at least comparable if not above that expected of a similar health practitioner of his level of training and experience in Australia.
[32] Exhibit 2, page 7.
The affidavit of Ms Lalli then annexes correspondence between the practitioner's solicitors and the Board in which the practitioner sought the lifting of the suspension of his registration principally on the basis of the report by Dr Mitchell. The affidavit also annexes the decision that I referred to made on 11 May 2020 and conveyed on 13 May 2020 by the Board to refuse to lift the suspension.
The parties have also referred the Tribunal at the hearing today to aspects of the evidence in their bundles of documents filed in the proceedings, Exhibits 3[33] and 4,[34] and in the respondent's bundle of witness statements, Exhibit 5.[35]
[33] Applicant's Book of Documents dated 8 July 2020 (Exhibit 3).
[34] Respondent's Book of Documents dated 26 June 2020 (Exhibit 4).
[35] Respondent's Book of Witness Statements dated 2 September 2020 (Exhibit 5).
The applicant submits that further to his denial of the allegations made by patients 1 and 2, the 'overwhelming evidence' and, in particular, evidence obtained since the immediate action decision was made on 9 December 2019, demonstrates that he does not pose a risk to the public and that it is not necessary to take immediate action to protect the health or safety of the public by suspending his registration, but rather that the practice monitoring by Ms JT should continue until the final hearing in these proceedings.
I will briefly review the evidence the parties referred to. Although I find below that there is an arguable case on appeal as to whether the Tribunal would reasonably believe on the whole of the evidence that it accepts at the final hearing that because of the practitioner's conduct, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety by suspending his registration, there is not 'overwhelming evidence' in the evidence obtained since 9 December 2019, or generally in the evidence referred to on behalf of the applicant, demonstrating that the practitioner does not pose a risk to the public or that it is not necessary to take immediate action to protect public health or safety by suspending his registration.
Rather, there is strong evidence in the complaint and statements of patient 2, particularly when viewed in the context of the complaint and statements of patient 1 and the immediate action decision made in light of patient 1's complaint, which, if accepted by the Tribunal at the final hearing, could found the relevant reasonable belief under s 156(1)(a) of the National Law and a decision to suspend the practitioner's registration, rather than continue the condition requiring that he be monitored at all times with female patients by a practice monitor.
However, if the Tribunal accepts the practitioner's denials of the allegations against him, which has support in some of the evidence referred to on his behalf today, then the Tribunal would set aside the immediate action decision and substitute a decision not to take immediate action. I am unable, on the hearing of the stay application, to determine how the matter would be decided at the final hearing. Indeed, the parties did not contend otherwise.
The first aspect of the evidence referred to in the submissions today relates to the practice monitor and her statements, in particular her statements made since the decision was made on 9 December 2019. In particular the applicant relies on a statement made by the practice monitor on 6 January 2020 in which Ms JT categorically denies patient 2's statement that Ms JT walked away from the curtained area, leaving her unattended with the practitioner, and stating that 'I would never walk away from the curtained area, leaving [the practitioner] to conduct the remainder of the examination without me'. She states that 'I continue to monitor him at all times'.[36]
[36] Exhibit 3, page 469, [4].
Ms JT also states in the same statement that after the practitioner has finished examining the patient, and indeed during the examinations:[37]
It is not necessary to walk outside of the curtained area to use the bin, as the bin has a foot lever or pedal so all that is needed is to step on the lever or pedal for the bin lid to open, reach over and discard of the speculum.
[37] Exhibit 3, page 471, [12].
However, as the respondent submits, the practice monitor, Ms JT, has said in a number of statements or reports to the Board that she has no specific recollection of the circumstances or of the examination of patient 2, and that her evidence is based on the general practice adopted by her and the practitioner.
Secondly, the parties referred to, and the practitioner emphasised, his notes which were made contemporaneously with both consultations. It is not in dispute that these notes were made contemporaneously, or relatively contemporaneously. In his notes concerning the examination of patient 1, the practitioner said:[38]
…
Examined with consent and chaperone
Declined vaginal examination
Breasts - Rt breast sore Lt breast normal
…
[38] Exhibit 4, page 4.
In relation to the examination of patient 2, the notes state that the patient was 'examined with consent and chaperone'.[39]
[39] Exhibit 4, page 119.
However, as the respondent submits, it is hardly surprising that there would not be an admission against interest in such a note and that 'the absence of anything in the notes cannot be exculpatory about sexual conduct'. I accept that the applicant is unlikely to have recorded any inappropriate sexual conduct in his notes.
The respondent also submits that aspects of the notes, in fact, cause concern and, in particular, the references to 'Breasts - Rt breast sore Lt breast normal', given that patient 1, about whom that note was made, states in her various statements that she did not complain about sore breasts to the applicant or to any other doctor.
In addition, the respondent submits that the reference to 'Declined vaginal examination' is significant, because patient 1 attended the practitioner in order to undergo a pelvic examination in the context of obtaining a second opinion. The respondent submits that 'something in the course of the treatment changed her mind'. Without making any findings, as I am of course unable to make any findings of fact and I do not in the context of a stay application, given the nature of the hearing, there is logic in the respondent's submission.
Thirdly, in terms of the evidence, the applicant points to Dr Mitchell's reports and, in particular, to the report I have referred to, dated 12 March 2020, where she considers that the practitioner has acted appropriately. The applicant submits that the report fundamentally changes the situation and it is for that reason the practitioner sought the lifting of the suspension of his registration by the Board.
However, as the respondent noted in response, the report by Dr Mitchell was based, in part at least, on statements of the practice monitor. Dr Mitchell states that 'Ms [JT]'s independent observations should therefore carry weight in this matter'.[40] However, as I have said, Ms JT has no independent recollection of the consultation with patient 2.
[40] Exhibit 4, page 247.
Furthermore, the respondent submits that the report of Dr Mitchell is irrelevant because the subject matter of the immediate action decision is not a matter involving professional clinical competency, but rather a matter involving professional misconduct by breach of the condition imposed by the first immediate action decision and by sexual conduct between a medical practitioner and a patient.
In her report dated 12 March 2020, Dr Mitchell states, among other things, that from reviewing all statements, notes and data entries, patient 2's statements 'are the only statements alleging a rough examination was performed' and that:[41]
It would be normal for some women to find a deep vaginal examination uncomfortable at times, particularly bimanually palpating the uterus and the deep posterior part of the pelvis.
[41] Exhibit 4, page 247.
While the applicant submits in reply that the reference to 'rough manner' in the immediate action decision or reasons goes to clinical competency issues and therefore the report of Dr Mitchell is significant, clearly patient 2's complaint and the immediate action decision made on 9 December 2019 does not concern, at least primarily, clinical competency issues, but rather professional misconduct by breach of, or at least alleged breach of the condition imposed on the practitioner's registration to be monitored in his consultations with female patients and by sexual misconduct.
The fourth area of evidence referred to in the submissions by the applicant relates to evidence obtained or provided by the practitioner to the Board and now proposed to be provided to the Tribunal, that was not available when the Board made the reviewable decision on 9 December 2019, that he suffers from erectile dysfunction. The practitioner states this in his own submissions and it is supported by a statement from his wife provided to the Tribunal in the documents. In that statement, the practitioner's wife states that the practitioner has 'erectile dysfunction' and that he 'takes a tablet to attain an erection when necessary'.[42] The applicant submits that this evidence casts doubt on the evidence of patient 1, where she says in her complaint that the practitioner rubbed his erect penis on her knee while examining her breasts.
[42] Exhibit 4, page 96.
The applicant also refers to evidence he submitted after the decision on 9 December 2019 about the nature of the bed on which patient 1 was examined, and contends that because of his erectile dysfunction and the nature of the bed, it would have been 'physiologically impossible' for him to have done what patient 1 says he did.
The respondent submits that there is no formal diagnosis by anyone other than the applicant or his wife, who are gynaecologists and obstetricians, that he has erectile dysfunction, and submits that as the evidence currently stands, it cannot be established that it was physiologically impossible for the practitioner to have rubbed his erect penis on patient 1's knee as patient 1 alleges. I accept this submission.
In reply, the applicant also pointed to the evidence of Dr Mitchell in her report dated 18 September 2019 in relation to patient 1, which was considered by the respondent when it made its decision on 9 December 2019, that in her opinion and experience as a practicing obstetrician and gynaecologist:[43]
I feel a breast examination would be appropriate as part of a general gynaecological examination if issues of concern had been raised regarding the breasts in a consultation.
[43] Exhibit 3, page 475.
However, according to patient 1's statement, dated 21 October 2019 '[a]t no point did I report having a sore breast or sore breast(s) to any doctor that has been involved in my care' and 'I did not have a sore breast or breast(s)' when she saw the applicant.[44] Patient 1 also said in a statement to the Western Australia Police dated 11 March 2019 that her primary gynaecologist, she having seen the practitioner for a second opinion, 'has not once in four years touched or had reasons to touch my breasts'.[45]
[44] Exhibit 5, page 25.
[45] Exhibit 5, page 8.
The respondent also points to other aspects of the evidence to be presented at the final hearing as supporting the immediate action decision. In particular, as to patient 1, the respondent notes that patient 1 has now given some six statements over the course of 18 months which the respondent submits are consistent and that she texted her partner shortly after her appointment with the practitioner, saying words to the effect that the practitioner squeezed her breasts and put his penis on her legs while he was doing so. She stated in those text messages that she felt 'horrible' and 'sexually sick' as a consequence.[46]
[46] Exhibit 4, page 15.
As to patient 2, the respondent notes that she also texted her partner within an hour after the appointment in which she said 'I am thinking of putting in a complaint'[47] about the practitioner and she went that very day, as I have said, to the police to make that complaint and was referred on that day to SARC, where she was examined. Patient 2 made consistent complaints to the police and when she was examined by SARC on the day of the alleged incident that the practitioner conducted a rough internal examination of her while the practice monitor stepped away.

Should the immediate action decision to suspend the practitioner's registration be stayed until further order or until the final hearing of the appeal?

[47] Exhibit 4, page 127.

The Tribunal is required by s 25(4) of the SAT Act to consider the interests of any persons who may be affected by the stay, which I accept include not only patients of the practitioner, but also his employees and his personal circumstances, including that of his wife, the submissions of the Board, and the public interest. As I have also said, the matters are somewhat overlapping in terms of considerations under s 25(4) and the balance of convenience and whether there is an arguable case on appeal.
I am satisfied that there is an arguable case on appeal (or review) of the Board's decision to suspend the practitioner's registration as an immediate action as to whether it is reasonable to believe that because of the practitioner's conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety. Although the underlying facts of the complaint against the practitioner do not have to be proven in the appeal on the balance of probabilities, there must be, as I have said earlier, objective circumstances sufficient to justify the belief that, by reason of the practitioner's conduct, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety: see Bernadt v Medical Board of Australia at [66].
Now, the practitioner denies and has consistently denied the allegations of both patients and, in certain respects, his evidence will be supported at the hearing by evidence presented, or evidence to be given by the practice monitor, Ms JT, in relation to patient 2 and by the practice receptionist in relation to patient 1. As I have said, also, the applicant relies on the reports of Dr Mitchell, particularly insofar as the allegations involve, or might be said to involve, issues of clinical practice or inappropriate clinical practice.

Given the practitioner's denials and consistent denials of the allegations and the support provided by some of the evidence in some respects for those denials, there is an arguable case on appeal as to whether the Tribunal would reasonably believe, on the whole of the evidence that it accepts at the final hearing, that because of the practitioner's conduct, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety by suspending his registration.
There are a range of possible outcomes in these proceedings depending on what evidence the Tribunal ultimately prefers and accepts at the final hearing.
I note in passing that in the written submissions of the Board, although not in the submissions presented orally today, there is a misconstruction of the consideration of whether there is an arguable case on appeal. Contrary to the Board's submission in its written submissions, the consideration is not whether there is an arguable case that the Tribunal will, at the final hearing, form a reasonable belief that because of the practitioner's conduct, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety by suspending his registration. Rather, the relevant consideration for present purposes is the converse - that is, whether there is an arguable case to the contrary. I accept that there is an arguable case to the contrary, although as I have said earlier, there is also a strong case on the evidence presented by or proposed to be presented by the Board in support of the Tribunal forming the same view on review as the Board formed on 9 December 2019.
However, the consideration of whether there is an arguable case on review, while relevant and generally a positive determination in that regard being an important factor in the exercise of the discretion, is not the only consideration. There is, in this case, the question of where does the balance of convenience, or as sometimes expressed, the balance of the risk of doing an injustice, lie as to whether a stay should be granted, and there are also interrelated issues and significant issues in this case to do with the public interest in terms of protection of patients and in terms also of the maintenance of confidence in members of the medical profession, that confidence being essential to public health and safety.
In my view, for the following reasons, the balance of justice or the balance of convenience in the circumstances of this case does not favour the granting of a stay, and indeed favours and leads to the refusal of a stay, notwithstanding that there is an arguable case on appeal, in the exercise of the Tribunal's discretion.
As to the issue of financial hardship, as I have said, the applicant has provided evidence in relation to financial hardship that I have referred to. It is submitted on behalf of the applicant that the continued suspension of his registration will continue to cause substantial hardship to the applicant and his dependants and will mean that his practice 'will almost inevitably close'. It is also submitted that there would be significant financial consequences for the two staff members.
I accept that the applicant has not been able to earn a living since December 2019 and that there has consequently been significant financial hardship to him as a result of the decision made by the respondent at that time. However, on his own evidence, his wife is a qualified gynaecologist and obstetrician and is able to work in the practice and does so part time. While she only works part time, as I have said, on the applicant's evidence, her income generated by part time work 'is just enough to meet the mortgage repayments and personal family expenses'.[48] Also, there is no evidence as to why the practitioner's wife can only work part time.
[48] Exhibit 1 [16].
It is also unclear why the practice would have to close, given that it appears the practitioner's wife is working in the practice, although part time, and why, therefore, employees would need to be terminated.
Furthermore and in any case, in my view, for the reasons that I will give shortly, I accept the Board's submission that:
The potential risk which the practitioner's return to work [and] with it - the risk he may commit serious and sexual misconduct and the risk of damaging public trust in medical practitioners - outweighs any short term hardship experienced by the practitioner or those employed by him.
While it is submitted on his behalf that the 'practitioner continuing to practise better serves the public interest and members of the health profession at this time', there is no evidence before me that the applicant possesses any particular skills that are not otherwise available either locally or generally and that his continuation of practice is therefore in the public interest.
Furthermore, while there is an arguable case on appeal, the allegations which found the immediate action decision are, as the respondent submits and the applicant did not contest, very serious. They are all the more serious, as the respondent submits, because of a previous allegation of inappropriate conduct towards a patient, which was accepted by a tribunal in the United Kingdom, and the Board's imposition of the immediate action decision in June 2019, which required the applicant to be monitored and, on the patient 2's allegation at least, that monitoring failed and, at the time that it failed, on patient 2's statement, the practitioner engaged in serious misconduct.
There is evidence and it is not contested that in 2014 the Medical Practitioners' Tribunal in the UK found that the practitioner departed from good medical practice by carrying out an inappropriate breast examination and failing to discuss with the patient the need for a chaperone, although it also determined that because of the isolated incident, public interest did not require a warning to be made in relation to the practitioner. Nevertheless, that was a finding of misconduct of a sexual nature involving the practitioner approximately four to five years before the conduct alleged by patients 1 and 2.
Furthermore, as the respondent submits, it is significant in this case that there are two complainants who made complaints independently of one another, about a year apart, both of a sexual nature and indeed of a serious sexual nature.
I accept that the practitioner's mental health and general wellbeing has suffered and that is likely to continue to suffer until his registration is restored. I also accept that the circumstances of this case have given rise to significant personal issues for the practitioner and his family. Those considerations and the financial hardship for the applicant, however, as the respondent submits, must, in the public interest, be weighed against the seriousness of the allegation by patient 2 in this case, and when the seriousness of that allegation is viewed in the context of the previous allegation and finding of professional misconduct in the UK and the previous allegation of patient 1.
Moreover, as I said earlier, the objectives of the national regulation and accreditation scheme established by the National Law include, under s 3(2)(a):[49]
to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered[.]
[49] Emphasis added.
Furthermore, as the Tribunal recognised in Bernadt and Medical Board of Australia [2012] WASAT 185 at [31], following the decision of the Victorian Civil and Administrative Tribunal in Kozanoglu v Pharmacy Board of Australia [2011] VCAT 2085 at [26], protection of the public is at the cornerstone of the immediate action jurisdiction, or as was expressed in the decision, s 156 of the National Law provides 'a power entirely protective of the public'.
As the respondent submits, a medical practitioner who is an obstetrician and gynaecologist in private practice and who therefore necessarily and routinely conducts intimate and internal examinations of women in his medical rooms, rather than in a hospital setting where there is more likely to be more people, including other health practitioners, around, raises particular concerns in terms of protection and a heightened need for protection of the public and, in particular, patients who seek and require medical services of such a specialist.
Patients of a gynaecologist, or an obstetrician and gynaecologist, in private practice are perhaps or arguably amongst the most potentially vulnerable of all patients seeking medical services. In the case of the two patients who have made complaints to which I have referred, they attended the practitioner's rooms on their own and were intimately examined by him. There is, in my view, a heightened need to ensure ethical practice by medical practitioners and to protect the public who require the services of a medical practitioner in this context.
Given the seriousness of the alleged conduct in relation to patient 2, particularly when viewed in the context of the alleged conduct in relation to patient 1 and the immediate action decision made in consequence of the alleged conduct in relation to patient 1, requiring a practice monitor to be present during all examinations of women patients, and given the heightened need to ensure ethical practice and the protection of the public, as I said earlier, the risk that the practitioner may commit serious sexual misconduct and the risk of damaging public trust in medical practitioners generally, which itself is inimical to public health and safety, outweighs, in my view, any financial or personal hardship, which I accept the practitioner has experienced and continues to experience, in the exercise of the Tribunal's discretion as to whether to grant a stay in all of the circumstances of this case.
Penultimately, a further factor which militates against the grant of a stay in the circumstances of this case is, as the respondent submits, delay.
The practitioner handed up a chronology of events, which is not contested, as to what occurred between 10 December 2019 and 8 September 2020 in relation to this matter.[50] It shows that although the practitioner did not appeal the immediate action decision made on 9 December 2019, as he was entitled to, to the Tribunal, his solicitors sought to engage with the Board by letters and submissions during the period January to April 2020. In particular, when Dr Mitchell's report of 12 March 2020 was obtained, the practitioner's solicitors submitted that the Board should lift the suspension on his registration.
[50] Exhibit 7.
Although I accept that the applicant or his solicitors engaged with the respondent during the period January to April 2020, or January to March particularly of 2020, prior to the report of Dr Mitchell of 12 March 2020, the letter conveying the decision that is the subject of this proceeding expressly brought to the applicant's attention that he has a right of review. Indeed, the letter stated that the decision to suspend the practitioner's registration is an 'appellable decision' and advised the applicant that, if he wishes to appeal, 'he must apply to the State Administrative Tribunal (WA) no more than 28 days after being given notice of the decision'.[51] However, the practitioner did not seek review of the decision until approximately five months and 10 days after it was made. Once he sought review, he did not seek a stay for a further two months, until late July 2020.
[51] Exhibit 4, page 217.
It was submitted on the practitioner's behalf that once the report of Dr Mitchell was obtained on 12 March 2020, 'it was hoped' that the Board would change its mind and when the Board did not change its mind on 11 May 2020, as conveyed on 13 May 2020, the practitioner then promptly applied for review six days later on 19 May 2020. However, that does not provide any explanation as to why the practitioner did not appeal the decision between 10 December 2019 and 11 March 2020, particularly when advised in the decision that he had that right.
The practitioner could certainly have continued to seek to persuade the Board to change its mind. However, he was advised of his right of appeal and of the period within which an appeal could be brought, although the Tribunal has a discretion to extend that period and, in fact, did so in this case under r 10 of the State Administrative Tribunal Rules 2004 (WA). Nevertheless, the applicant did not seek review when he could and, as the respondent submits, the hardship that the applicant faces has been compounded by his decision not to seek review and not to seek a stay within the review earlier.
I also note that even when the applicant did commence these proceedings on 19 May 2020, he was seeking a review of the decision of the respondent not to lift the suspension of his registration, not of the substantive decision to impose the immediate action by suspending his registration.
I accept the respondent's submission that the applicant's delay in commencing the proceedings is relevant to the exercise of discretion as to whether to grant a stay, because the hardship that the applicant sustains as a result of the suspension of his registration has been compounded by his own decision not to seek review earlier and, ultimately, only to seek review five months and 10 days after the decision was made and to seek a stay some seven-and-a-half months after the decision was made.
The delay in the circumstances of this case also distinguishes this case from two recent decisions referred to by the applicant in which stays of immediate action decisions were granted by the Tribunal, namely Soutorine and The Medical Board of Australia and Freeman and Medical Board of Australia. In Soutorine and The Medical Board of Australia, the applicant in that case sought review within 12 days of the immediate action decision, or at least when the immediate action decision was conveyed to him, and two weeks later sought a stay that was ultimately granted: see [1] and [3]. In Freeman and Medical Board of Australia, the immediate action decision was conveyed on 24 February 2020 and the applicant commenced the appeal in that proceeding on 18 March 2020: see [14] and [13]. The applicant sought a stay on 7 April 2020: see [12].
Finally, I have had regard to the applicant's proposal that rather than suspension of his registration or continuation of that, there should be a condition imposed on his registration in terms similar to the condition imposed by the respondent in June 2019. The minute of proposed orders provided by the applicant, Exhibit 6, states that the applicant is willing to provide the following undertaking:
The [a]pplicant provide the [r]espondent with an undertaking that his practice be monitored by Ms [JT], who was previously approved by the [r]espondent to act as the [a]pplicant's practice monitor, or such other person as agreed to between the [a]pplicant and the [r]espondent.
However, I am not satisfied that the proposed undertaking would be sufficient to protect the public or to protect the public health and safety from the risk contended by the Board, in part because part of the allegation founding the immediate action decision in this case is that the practice monitoring condition failed for a period. While that remains an allegation and is contested and strongly denied by the applicant, it is a significant consideration in my view. As I have said, I cannot decide in this application whether the version of patient 2 or the denial of the practitioner is preferred and therefore I cannot and do not decide whether, in fact, a breach of the condition occurred. However, given patient 2's allegation, given that that allegation was made contemporaneously, that is, within hours of the alleged conduct, and given that there is a contemporaneous or relatively contemporaneous text message from patient 2 to her partner stating 'I am thinking of putting in a complaint', I am not satisfied that the proposed undertaking is adequate to protect the public in the circumstances.
More broadly, in my view, for the reasons I have given, in the exercise of discretion under s 25(2) of the SAT Act, I am not satisfied that it is desirable to make an order under subsection (2) of s 25 staying the immediate action decision to suspend the practitioner's registration in all of the circumstances of this case.
Consequently, I make the following orders:
1.The interim application dated and filed on 27 July 2020 seeking a stay of the respondent's decision made on 9 December 2019 to take immediate action and suspend the applicant's registration pending the determination of the appeal is dismissed.
2.The proceeding is listed for a directions hearing before the President concurrently with related proceedings between the parties at 9.30 am on 15 September 2020.
3.The costs of the stay application are reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D PARRY, DEPUTY PRESIDENT
29 SEPTEMBER 2020