Asinas v Medical Board of Australia

Adrian Cruz Asinas applied for a stay of a decision of the Medical Board of Australia not to renew his registration as a medical practitioner, which was to take effect on 15 December 2020. The decision was based on the conclusion that the applicant was not a fit and proper person to be registered as a medical practitioner, owing to his conviction of offences of using a carriage service to access child pornography and being in possession of child exploitation material. The applicant was currently employed in a position where he was providing general practitioner services on a full-time basis to a number of aged care homes. There was no reason to doubt the applicant would be an appropriate person to be concerned for the caring of these people in a medical sense at the relevant time. The Tribunal stayed the decision of the Board to refuse to renew the registration of the applicant, until the hearing and determination of the applicant’s application to review that decision. The Tribunal also gave directions for the filing of materials.

The Tribunal considered that the current structure of the legislation assumed that if there was a disciplinary referral by the Health Ombudsman to the Tribunal, the determination of the issue raised by that referral was a matter for the Tribunal. The Tribunal was of the view that the action that the Board had adopted, of abrogating to itself a decision as to whether the applicant was a fit and proper person to be registered, in circumstances where a matter where potentially that would be the outcome of a decision by the Tribunal had already been commenced, involved a step which cut across the scheme of the legislation. The Tribunal considered that it was inherently unsatisfactory for that process to be intercepted in this way and, indeed, it was inconsistent with the scheme of the legislation. The Tribunal was of the view that the appropriate course, in a situation such as this, was that the decision of the Board should not stand, at least pending the outcome of the disciplinary referral. The Tribunal also found that the balance of convenience favoured the decision being stayed until the disciplinary referral had been determined. In these circumstances, the Tribunal stayed the decision of the Board to refuse to renew the registration of the applicant, until the hearing and determination of the applicant’s application to review that decision. The Tribunal also gave directions for the filing of materials.