Bernadt v Medical Board of Australia - [2013] WASCA 259

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BERNADT -v- MEDICAL BOARD OF AUSTRALIA [2013] WASCA 259

CORAM: McLURE P
NEWNES JA
MURPHY JA

HEARD: 15 MAY 2013

DELIVERED : 18 NOVEMBER 2013

FILE NO/S: CACV 118 of 2012

BETWEEN: IAN BERNADT
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :JUDGE D R PARRY (DEPUTY PRESIDENT)

MR J MANSVELD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

Citation :BERNADT and MEDICAL BOARD OF AUSTRALIA [2012] WASAT 185
File No :VR 205 of 2011

Catchwords:

Administrative law - Health Practitioner Regulation National Law (Western Australia) - Suspension by Medical Board of appellant's registration as ENT specialist by immediate action under s 156 - Appeal by appellant to State Administrative Tribunal dismissed - Whether appellant posed serious risk to persons - Whether necessary to take immediate action to protect public health or safety

Administrative law - Nature of immediate action under s 156 of Health Practitioner Regulation National Law - Whether Board required to take further action under s 158 - Effect of failure to take further action under s 158

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1), s 6, s 11, s 14, s 17(2)(b)

Health Practitioner Regulation National Law, s 3, s 5, s 6, pt 4, s 31, s 35(1), pt 5, s 52(2), s 55(1), s 56, s 57(2), s 60, s 61(1), s 81, s 82, s 83, s 107, s 112(2)(a), s 125, s 126, s 127, s 130, s 137, pt 7, s 138, s 140, s 141, s 142, s 144, s 145, s 146, s 148, s 149, s 150, s 151, s 152, s 154, s 155, s 156, s 157, s 158, s 159, s 160, s 161, s 163, s 166, s 167, s 169, s 170, s 171, s 172, s 173, s 175, s 176, s 177, s 178, s 179, s 181, s 182, s 186, s 187, s 189, s 190, s 191, s 193, s 194, s 195, s 196, s 199, s 200, s 202, s 205, s 207, pt 8, sch 7

Interpretation Act 1984 (WA), s 5

Medical Practice Act 1992 (NSW), s 66, s 66B, s 66C

Medical Practitioners Act 2008 (WA), s 87, s 88, s 120

State Administrative Tribunal Act 2004 (WA), pt 3 div 3, s 27, s 29(3)(c), s 90, pt 4

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr J R B Ley
Respondent: Ms P J Giles

Solicitors:

Appellant: Tottle Partners
Respondent: Moray & Agnew

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

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
I v Medical Board of Australia [2011] SAHPT 18
Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
Liddell and Medical Board of Australia [2012] WASAT 120
Lindsay v New South Wales Medical Board [2008] NSWSC 40
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319
Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Russell v The State of Western Australia [2011] WASCA 246
Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132

McLURE P: I agree with Newnes JA that the appeal should be dismissed. I agree that grounds of appeal 1, 2, 3, 4 and 6 should be dismissed for the reasons given by Newnes JA. I propose to state my own reasons on a number of issues of statutory construction that arise for determination in this appeal.

Background

Dr Ian Bernadt (practitioner) has been an ear, nose and throat specialist since 1974, conducting both consultations and surgery.
On 6 April 2010 South Perth hospital made a complaint to the Medical Board of Western Australia (MBWA) (the Hospital complaint) pursuant to the now repealed Medical Practitioners Act 2008 (MPA). The complaint related to two patients who suffered adverse outcomes following surgery performed by the practitioner.
The MBWA appointed Dr Michael Silverstein to provide an expert opinion on the matters the subject of the complaint. After considering Dr Silverstein's report, the MBWA at its meeting on 12 October 2010 made an order pursuant to s 87 of the MPA that the practitioner be suspended from all operative surgical practice for 30 days. Under s 87, the MBWA was, within 14 days of making the s 87 order, required to either revoke the order or make an allegation about the matter to the State Administrative Tribunal (SAT). However, on 13 October 2010 the practitioner applied to SAT to set aside the s 87 order.
Western Australia, through the Council of Australian Governments, is a party to an Intergovernmental Agreement (IGA) to enact a single national registration and accreditation system for health professionals. Consistently with the IGA the Health Practitioner Regulation National Law (WA) Act 2010 (National Law Act) was enacted. It came into operation on 18 October 2010. The Health Practitioner Regulation National Law (Western Australia) (National Law), contained in the Schedule to the National Law Act, applies as the law of Western Australia. The respondent, the Medical Board of Australia (Board), is a National Board established under s 31 of the National Law.
Section 14 of the National Law Act repealed the MPA. Under the transitional provisions, complaints received pursuant to the MPA continue to be heard under that Act: National Law Act, s 17(2)(b).
On 19 October 2010 SAT, exercising its power under s 88 and s 120 of the MPA, ordered that the s 87 order be set aside and that the practitioner submit to an assessment of his clinical competence. The assessment was carried out by Dr Michael Jay.
Dr Jay's report was received after the MPA had been repealed and the National Law had commenced. After the report was provided to and considered by the Board, it proposed to take immediate action against the practitioner under s 156 of the National Law to suspend his registration as a medical practitioner. The Board gave the practitioner notice of the proposed immediate action and invited him to make submissions, which he did. After considering those submissions, the Board at its meeting on 8 November 2011 decided to take the immediate action it had proposed, namely to suspend the practitioner's registration.
The Board considered that no further action under Pt 8 of the National Law was appropriate because Dr Jay's report arose from the Hospital complaint which had been investigated under the MPA and the Board had resolved on 8 November 2011 to refer that complaint to SAT under the MPA.
On 11 November 2011 the practitioner applied to SAT to set aside the suspension order. The practitioner had a right of 'appeal' under s 199(1)(h) of the National Law to the appropriate responsible tribunal. Section 11 of the National Law Act provides that in this jurisdiction, SAT is the responsible tribunal and 'appeal' is a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 (WA) (SAT Act), Pt 3 Div 3. A relevant review under the SAT Act is a hearing de novo and is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made (s 27).
At a SAT hearing on 1 December 2011 the suspension order was stayed and the matter adjourned to a substantive hearing. SAT conducted a five day hearing following which it affirmed the decision of the Board to suspend the practitioner's registration. It made factual findings which are challenged in this appeal. The matter was approached as if it was in the nature of a hearing of an allegation of professional misconduct.

SAT's construction of the National Law

After a consideration of relevant authorities, including Liddell and Medical Board of Australia [2012] WASAT 120, SAT held that:
1.the power to take immediate action under s 156 of the National Law is interim or interlocutory in nature;
2.because a practitioner's reputation or capacity to earn a livelihood in their registered vocation was at stake, SAT must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach, in order to form a reasonable belief under s 156 of the National Law [27];
3.after a decision to take immediate action in relation to a practitioner, s 158 of the National Law imposes an obligation on the Board to take further action in relation to that practitioner [115];
4.based on s 159(2) of the National Law, immediate action should not be expressed as having effect until the final determination of the further action taken by the Board [120];
Associated issues raised during the hearing of this appeal were whether the failure to take further action under s 158 invalidated the decision to suspend registration, or alternatively, whether the failure to identify the proposed further action in the statutory notice invalidated the notice which prevented the suspension coming into effect. These issues involve questions of statutory construction which cannot be determined in isolation. It is necessary to consider and rule on the correctness of SAT's construction of the immediate action provisions of the National Law.

The statutory framework

Central to the determination of this appeal is the proper construction of s 155 to s 159 which comprise Div 7 of Pt 8 of the National Law.
Section 156 relevantly provides:
(1)A National Board may take immediate action in relation to a registered health practitioner ... registered by the Board 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;
or
(b) … ; or
(c)the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or
(d)the registered health practitioner's ... registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.
(2)However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's … registration only if the Board has complied with section 157.
The term 'immediate action' is defined in s 155 to mean, in relation to a registered health practitioner:
(a)the suspension, or imposition of a condition on, the health practitioner's ... registration; or
(b)accepting an undertaking from the health practitioner ...; or
(c)accepting the surrender of the health practitioner's ... registration.
Section 157 provides for a 'show cause' process in which the Board is required to notify the practitioner of the proposed immediate action and invite the practitioner to make a submission to the Board to which the Board must have regard in deciding whether to take immediate action.
Section 158 is central in the construction exercise. It relevantly provides:
(1)Immediately after deciding to take immediate action in relation to a registered health practitioner ..., the National Board must -
(a)give written notice of the Board's decision to the health practitioner ...; and
(b)take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner ... or requiring the practitioner ... to undergo a health or performance assessment.
(2)The notice must state -
(a)the immediate action the National Board has decided to take; and
(b)the reasons for the decision to take the immediate action; and
(c)the further action the National Board proposes to take under this Part in relation to the health practitioner ...; and
(d)that the registered health practitioner ... may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's ... registration; and
(e)how an application for appeal may be made and the period within which the application must be made.
Section 159 relates to the period in which the immediate action is to take effect. Section 159 relevantly provides:
(1)The decision by the National Board to take immediate action in relation to the registered health practitioner ... takes effect on -
(a)the day the notice is given to the practitioner ...; 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 … 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.
The appellant has a right of appeal to SAT against a decision of the Board to:
-impose or change a condition on the person's registration (s 199(1)(e));
-refuse to change or remove a condition (s 199(1)(f));
-refuse to change or revoke an undertaking (s 199(1)(g));
-suspend the person's registration (s 199(1)(h)).
As noted, in this jurisdiction the appeal is a review by way of a rehearing de novo in its widest sense. The review procedures are contained in Pt 4 of the SAT Act and provide for a hearing.
The proper construction of the central provisions in Div 7 is informed by the context provided by Pt 8 in particular and the National Law as a whole.
In broad terms, Pt 8 deals with matters relating to the health, performance and conduct of registered practitioners. Relevant defined terms are 'impairment' (a physical or mental impairment that detrimentally affects or is likely to detrimentally affect the person's capacity to practice the profession), 'unprofessional conduct' (professional conduct that is of a lesser standard than that which might reasonably be expected), 'unsatisfactory professional performance' (the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of the health profession is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience), and 'professional misconduct'. Professional misconduct has both a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience) and a conduct component (conduct whether occurring in connection with the practice of the practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession).
Divisions 1 to 6 inclusive of Pt 8 primarily relate to mandatory and voluntary notifications of impairment and other notifiable conduct which the Board is required to assess. The Board is also required to notify any relevant health complaints entity of a notification that would also ground a complaint to that entity, and reach agreement about how that notification is to be dealt with (s 150).
Division 8 relates to investigations. The source of the power to conduct investigations is s 160 which provides that the Board may investigate a registered health practitioner if it decides it is 'necessary or appropriate':
(a)because the Board has received a notification about the practitioner … ; or
(b)because the Board for any other reason believes -
(i)the practitioner ... has or may have an impairment; or
(ii)for a practitioner ‑
(I)the way the practitioner practises the profession is or may be unsatisfactory; or
(II)the practitioner's conduct is or may be unsatisfactory;
or
(c)to ensure the practitioner ... -
(i)is complying with conditions imposed on the practitioner's ... registration; or
(ii)is complying with an undertaking given by the practitioner ... to the Board.
The Board has the power to appoint investigators (s 163); the investigator must give a written report to the Board (s 166); and after considering the report, the Board must decide (s 167):
(a)to take no further action in relation to the matter; or
(b)to do either or both of the following -
(i)take the action the Board considers necessary or appropriate under another Division;
(ii)refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
Under Div 9, the Board can compel a registered practitioner to undergo a health assessment 'if the Board reasonably believes, because of a notification or for any other reason, that the practitioner ... has, or may have, an impairment' (s 169).
The Board may also require a registered practitioner to undergo a performance assessment 'if the Board reasonably believes, because of a notification or for any other reason, that the way the practitioner practices the profession is or may be unsatisfactory' (s 170).
The Board must appoint an assessor to carry out the relevant assessments (s 171) and the assessor must report to the Board (s 175). The Board must consider the assessor's report and may take one of the same three options it has following an investigation under Div 8.
Unlike Div 8 and Div 9, Div 10 gives the Board the power to impose a penalty. It can caution a practitioner, accept an undertaking from a practitioner or impose conditions on the practitioner's registration. It can also refer the matter to another entity for investigation or other action (s 178(2)). If the Board decides to impose a condition, it must also decide a review period for the condition (s 178(3)).
The Board's power to make orders under Div 10 is only enlivened if the Board 'reasonably believes, because of a notification or for any other reason' that the way a practitioner practices the health profession, or the practitioner's professional conduct, is or may be unsatisfactory or the practitioner has or may have an impairment, the matter is not required to be referred to SAT under s 193 and the Board decides it is not necessary or appropriate to refer the matter to a panel under Div 11 (s 178(1)). The Board is required to undertake a Div 7 type 'show cause' process before it can take action under Div 10.
There are two types of panels under Div 11, a health panel and a performance and professional standards panel. The Board has the power to establish a health panel if the Board 'reasonably believes, because of a notification or for any other reason' that a practitioner has or may have an impairment and the Board decides that it is 'necessary or appropriate' for the matter to be referred to a health panel (s 181).
The Board also has the power to establish a performance and professional standards panel if it 'reasonably believes, because of a notification or for any other reason', that the way a practitioner practices the health profession is or may be unsatisfactory or the practitioner's professional conduct is or may be unsatisfactory (s 182).
If a panel decides that a practitioner has an impairment or that a practitioner has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct (s 191(1)), the panel may decide to do one or more of the following (s 191(3)):
(a)impose conditions;
(b)for a health panel only, suspend the practitioner's registration;
(c)for a performance and professional standards panel only, caution or reprimand the practitioner.

If the panel decides to impose a condition, it must also decide a review period for the condition (s 191(4)). As with Div 7, there is no requirement that the suspension be for a specific period nor is there an appeal from a refusal to revoke the suspension.
However, under s 190 a panel must stop hearing a matter and require the Board to refer the matter to SAT if at any time the practitioner asks the panel for the matter to be referred to SAT or if the panel reasonably believes the evidence demonstrates:
(i)the practitioner may have behaved in a way that constitutes professional misconduct; or
(ii)the practitioner's registration may have been improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular.
Division 12 of the National Law concerns the referral of matters to SAT (in its original jurisdiction). Under s 193(1), a Board must refer a matter about a registered health practitioner to SAT if:
(a)the Board reasonably believes, based on a notification or for any other reason -
(i)the practitioner has behaved in a way that constitutes professional misconduct; or
(ii)the practitioner's registration was improperly obtained because the Board was given information or a document that was false or misleading in a material particular; or
(b)a panel established by the Board requires the Board to refer the matter to a responsible tribunal.
If SAT decides that the practitioner has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct, professional misconduct, has an impairment or the practitioner's registration was improperly obtained because material provided to the Board was false or misleading in a material particular (s 196(1)), it may do one or more of the following (s 196(2)):
(a)caution or reprimand the practitioner;
(b)impose a condition;
(c)require the practitioner to pay a fine;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
If SAT decides to impose a condition, it must also decide a review period for the condition (s 196(3)).
In summary, the further action under Pt 8 referred to in s 158(1)(b) could at its widest, be:
1.Board appointment of an investigator or assessor to do work of an investigatory nature under Div 8 or Div 9;
2.Disciplinary action by the Board under Div 10 which includes the power to impose conditions and accept an undertaking but does not include suspension;
3.Board appointment of a health panel or a performance and professional standards panel under Div 11. If the health panel decides the practitioner has an impairment, it can impose conditions or suspend registration for an unspecified period. A performance and professional standards panel who has concluded that the practitioner engaged in unsatisfactory professional performance or unprofessional conduct may impose conditions or caution or reprimand the practitioner, but not suspend; or
4.Board referral of a matter to SAT under Div 12. SAT has a full panoply of penalties available to it, save that suspension must be for a specified period.

Preliminary observations

Division 7 of the National Law lacks the clarity of its predecessor, the MPA. Section 87 of the MPA relevantly provided that 'If the [MBWA] is of the opinion that an activity of a medical practitioner involves or will involve a risk of imminent injury or harm to the physical or mental health of any person, the Board may, without further inquiry', prohibit the practitioner from carrying on the activity, impose conditions and/or suspend the practitioner from the practice of medicine. Any such order could have effect for a period of not more than 30 days. Within 14 days of giving the order, if it was not revoked, the MBWA had to make an allegation about the matter in respect of which the order was made to SAT and order that any other proceedings under Pt 6 (relating to disciplinary, competency and impairment matters) in respect of the matter, commenced before the making of the order, be discontinued (s 88(1)). SAT had the power to revoke or extend the order made under s 87(1) (s 88(2)).
Before going to the authorities, I propose to make some preliminary observations on the proper construction of Div 7 based on the text, context and purpose of the National Law.
First, the source of the power to take immediate action is s 156, not s 158 of the National Law.
Second, the power to 'take further action' under Pt 8 referred to in s 158(1)(b) must be a reference to the power of the Board. The source of that power is not s 158. It is in the empowering provisions in Div 8 to Div 12 inclusive (s 160, s 169, s 170, s 178, s 181, s 182 and s 193).
Third, the obligations in s 158 apply to all types of immediate action and all of the grounds that enliven the power in s 156.
Fourth, only the grounds in pars (a) and (b) of s 156(1) depend on the requirement that the Board 'reasonably believes' the specified matters. The grounds in pars (c) and (d) of s 156(1) depend upon the objective existence of specified facts.
Fifth, a number of the matters within the scope of 'immediate action' leave little or no room for further action under Pt 8. The most obvious example is accepting the surrender of registration. The same will often be the case where there is acceptance of an undertaking.
Sixth, 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.
Seventh, the fact that the Board can take immediate action if it 'reasonably believes' that the practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety does not necessarily indicate that all decisions under s 156(1)(a) are intended to be interim or interlocutory. The Board is permitted to exercise disciplinary powers under Div 10 if it reasonably believes the practitioner's performance or conduct is unsatisfactory.
Eighth, an important objective of the National Law is to provide for the protection of the public (s 3(2)(a)).
Ninth, a practitioner the subject of an immediate action decision has a right to a hearing de novo, in its widest sense, before SAT.

Relevant cases

Notwithstanding that the National Law applies in most Australian States, the proper construction of Div 7 has attracted little attention. As noted above, in this case SAT followed its earlier decision in Liddell. Relying on Lindsay v New South Wales Medical Board [2008] NSWSC 40 and I v Medical Board of Australia [2011] SAHPT 18, it was concluded in Liddell that (1) the taking of immediate action is in the nature of an 'interim' procedure; (2) it is not open to the Board simply to take immediate action and then do nothing further in regard to the underlying issues that provided the basis for the immediate action; (3) the process did not require a detailed inquiry by the Board and did not involve the making of findings of fact or the determination of the merits of any complaint [24] ‑ [25].
The legislative scheme considered by the court in Lindsay is materially different to the National Law. The court in that case was construing the Medical Practice Act 1992 (NSW). Section 66 of the NSW Act provided:
(1)The Board must, if at any time it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons ... or if satisfied that the action is otherwise in the public interest:
(a)by order, suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or
(b)impose on a registered medical practitioner's registration such conditions relating to the practitioner's practising medicine as the Board considers appropriate.
Section 66B of the NSW Act relevantly provided:
(1)The Board must, as soon as practicable after taking any action under section 66 and, in any event, within 7 days after taking that action, refer the matter to the Commission for investigation.
(2)The matter is to be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned.
That section does not apply if the Board takes action under s 66 because it was of the opinion that the practitioner suffered from an impairment. In that event, the Board is required to notify the Commission of its action and consult the Commission to see whether agreement could be reached as to whether the matter should be dealt with as a complaint or referred to an Impaired Registrants Panel (s 66C).
Against that statutory framework the court in Lindsay held, unsurprisingly, that an inquiry, hearing or interview process for determining matters under s 66(1) could be considered to be preliminary, interim or interlocutory in nature and did not involve the making of findings of fact or the determination of the merits of any complaint [79]. The court also observed that the material relied upon for the purpose of determining whether action should be taken under s 66 may include material that would not conventionally be considered as strictly evidentiary in nature, such as complaints and allegations [77].
In I v MBA, the Health Practitioner's Tribunal of South Australia (the responsible tribunal under the National Law) also adopted the approach taken in Lindsay. In the South Australian case the practitioner had been charged with two counts of indecent assault upon a female patient. He denied the allegations. Following the laying of the first charge, the practitioner gave undertakings to the Board that he would not treat or consult female patients over the age of 10 and those under 10 were to be accompanied by a parent or guardian. The undertakings were breached on a number of occasions. In an appeal from the Board, the tribunal rejected the practitioner's submission that s 156 necessitated proven conduct before a reasonable belief of a risk to persons could be reached sufficient to take immediate action. The tribunal, relying on Lindsay, concluded that it could rely on material that would not conventionally be considered as evidentiary in nature (the laying of charges) and that it was not required to undertake a fact finding exercise in relation to the conduct the subject of the criminal charges. The tribunal dismissed the appeal and confirmed the decision of the Board to suspend the practitioner from practice pending the determination of the criminal charges against him. There was no suggestion in I v MBA that the Board had taken or was required to take further action under Pt 8 of the National Law pending the outcome of the criminal proceedings.
Division 7 of the National Law was also considered by the Victorian Court of Appeal in Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295. In that case there was evidence before a delegate (identified as the IAC) of the Pharmacy Board (the Board) that police had seized from the practitioner's pharmacy approximately 25 kg of DXM (a drug known to be used in the manufacture of ecstasy), a sawn‑off shot gun with ammunition, two hand guns with ammunition, two flick knives and $16,900 in cash. The practitioner was the subject of an ongoing police investigation and had not been charged. After the show cause process and consideration of submissions put on behalf of the practitioner, the Board imposed a condition on the practitioner's registration that he not work as a pharmacist, not hold the keys to any pharmacy and not attend the premises of his own pharmacy.
The practitioner appealed to VCAT pursuant to s 199(1)(e) of the National Law. At the VCAT hearing, the Board adduced expert evidence as to the role of a compounding pharmacist (one who makes drugs from raw material) and the uses of DXM. The practitioner adduced no evidence at the VCAT hearing. The Tribunal set aside the conditions imposed by the Board and imposed its own, less restrictive, conditions on the practitioner's registration which were stated to apply unless permitted otherwise by the Board or until further order. The practitioner appealed to the Victorian Court of Appeal. That court observed that:
In the normal course, it [the condition] would have operated only temporarily, pending a reference by the Board to either a panel, or the responsible tribunal, under the National Law, depending upon the seriousness with which his conduct was viewed. Either body would then conduct a full hearing into the allegations made against him, at which he would be accorded full procedural fairness [28].
It also described s 156 as providing only interim protection [107]. An issue before the court was the nature of an appeal under s 199 of the National Law. Its conclusions on that score (that an appeal under s 199 is not a hearing de novo [118] ‑ [119]) are of no relevance in this jurisdiction. The court rejected the practitioner's contention that there was no evidence to support the finding that immediate action was necessary to protect public safety, concluding that the evidence before VCAT, as well as that before the Board, amply justified a reasonable belief that that was so [122]. The court also made some final observations. After noting that the Board will generally be required to make quick decisions on the basis of limited information, it said two safeguards against the possibility of error should be kept to the forefront:
The first is the importance of a timely referral to a panel, or to VCAT. The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
It is arguable that neither of the two precepts mentioned above were fully observed in this case. Indeed, the real problem here lies in the fact that the Board did not, immediately after the IAC finding, refer the appellant's matter to a panel, or to VCAT as the responsible tribunal. Instead, it elected to await the completion of a police investigation. That investigation could well have been extremely protracted. In our opinion, there was no justification for the Board to have delayed referring this matter. Its failure to act in a timely fashion was unfairly prejudicial to the appellant and meant that he had little choice but to appeal against the immediate action decision. That in turn meant that he had to argue his case in a somewhat constrained manner, and did not confront the real issues of substance. It should be clearly understood that the entire scheme, under the National Law, contemplates that once it has been determined to take immediate action, the matter should ordinarily proceed, forthwith, to a panel or tribunal. The entire legislative scheme breaks down if there is a lengthy delay between an IAC decision and a complete hearing on the merits [126] ‑ [127] (footnotes omitted).
I doubt the appellant regarded the delay in the full hearing on the merits as unduly prejudicial. I infer he was constrained in the way he defended himself before the Board and VCAT because of his desire to protect his right to silence in relation to the police investigation. It is unnecessary for the purpose of this appeal to resolve the conflicting approaches in Kozanoglu and I v MBA. In any event, the court in Kozanoglu states its conclusions as to at the meaning and effect of Div 7 of the National Law without identifying its reasoning. I now return to the text, context and purpose of Div 7 of the National Law.

Construction of Div 7

The starting point for determining what is required in order to make an immediate action order under s 156(1)(a) is the statutory text. The starting point is not the question whether power can be characterised as interim, interlocutory or otherwise.
The Board (and SAT in the exercise of its review function) must believe, and have reasonable grounds for believing, the matters specified in s 156(1)(a)(i) and (ii): Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [130] ‑ [145].
The existence of a reasonable belief is a jurisdictional 'fact' that enlivens the power in s 156(1)(a) to take immediate action: Eshetu [130]; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 [57]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [183].
It is necessary to identify with precision what it is that must be the subject of the reasonable belief. There are three components in subpars (i) and (ii) of s 156(1)(a), one factual and two evaluative. They are:
(i)(1) because of (that is, by reason of) the practitioner's conduct, performance or health
(2)the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety.
The 'reasonable belief' requirement applies, in my view, to the three components, including the factual substratum ((i)(1)) on which the evaluative assessments (in (i)(2) and (ii)) are to be made. That being so, the fact or facts directly in issue concerning a practitioner's conduct, performance or health do not have to be proven on the balance of probabilities: George v Rockett (1990) 170 CLR 104. However, there must be proven objective circumstances sufficient to justify the belief.
The High Court in Rockett discussed the meaning of the statutory expression 'reasonable grounds for believing' in a provision relating to the issue of a search warrant. The provision relevantly provided 'If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house ... or place ... Anything ... as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of any offence'. In that case the decision‑maker did not have to entertain the relevant suspicion or belief. The question was whether the complaint and statutory declaration which supported it contained sufficient facts to found the reasonable suspicion and the reasonable belief. In that context, the majority said:
Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture (116).
For present purposes I will assume (it not having been the subject of any submissions) that this meaning of belief is of general application rather than context driven.
The next question of statutory construction is whether, after deciding to take immediate action, the Board is obliged to take further action under Pt 8 in relation to that practitioner. The source of that obligation is said to be s 158. In my view the Board is not required to take further action in all cases in which it has made an immediate action order, for the following reasons.
Section 158 applies to all types of 'immediate action' and to all four grounds that enliven the power in s 156 to take immediate action. Accepting an undertaking and accepting the surrender of registration will not in many, if not most, cases call for any further action under Pt 8.
Further, although it is not necessary in these proceedings to determine the issue, I should note that I remain to be persuaded that further action under Pt 8 is a requirement when immediate action is taken under s 156(1)(c) or (d). The grounds in pars (c) and (d) of s 156(1) that enliven the power to take immediate action are jurisdictional facts that must objectively exist and be proven to exist. That being the case, when par (c) of s 156(1) is relied on there is no obvious justification for further action under Pt 8 if a penalty short of cancellation of registration is appropriate. The real issue is whether the Board's obligation under s 193(1)(a)(ii) in Div 12 to refer a matter to SAT only arises if the Board reasonably believes the matters in par (c) of s 156(1). If there is no such obligation when that ground is proven to exist, the Board may retain the discretion to refer the matter to SAT under Div 12.

There is also a question mark as to the appropriateness of further action under Pt 8 when the ground enlivening the power in s 156 is that the practitioner's registration has been cancelled or suspended under the law of a non‑participating jurisdiction. Short of having to litigate the merits of the underlying grounds for the foreign action, there is nothing in Pt 8 that addresses that ground. However, other provisions of the National Law do deal with it. The scheme of the National Law is that registration is for 12 months (s 56) and can be renewed (s 107). The Board may refuse to renew registration on any ground on which it could refuse to grant registration under s 82 (s 112(2)(a)). Section 82 provides that the Board must refuse to grant registration if the applicant is ineligible because he or she is not a suitable person to hold registration (s 82(1)(c)(i)(III)). The Board may decide an individual is not a suitable person to hold general registration if the individual's registration in the health profession in a jurisdiction that is not a participating jurisdiction, whether in Australia or elsewhere, is currently suspended or cancelled on a ground for which an adjudication body could suspend or cancel a health practitioner's registration in Australia (s 55(1)(e)). That ground of unsuitability is in addition to the Board's power to decide an individual is not suitable if, in the Board's opinion, the individual is not a fit and proper person or is unable to practice the profession competently and safely (s 55(1)(h)). Moreover, a registered practitioner is under an obligation to advise the Board within seven days if his or her registration under the law of another country that provides for the registration of health practitioners is suspended or cancelled or made subject to a condition or another restriction (s 130(3)(viii)). When immediate action is taken under s 156(1)(d), suspension may be appropriate until the matter is dealt with at the time of renewal rather than under Pt 8.
Moreover, the Board's power to take immediate action may be exercised at any stage before or after action is taken under Div 8, Div 9 or Div 11. It is unnecessary to determine whether that is so if SAT is seized of a matter under Div 12 (see SAT Act, s 90). If additional information relating to a practitioner's impairment the subject of an existing referral to a health panel came into the Board's possession, it may need to act under s 156 (the panel having no such power) yet there would be no further appropriate action available under Pt 8.
Finally, although the Board's power in s 156(1)(a) is enlivened if it reasonably believes the statutory matters, there may be occasions in which the relevant facts as to conduct, performance or health are admitted, not contested or are otherwise incontrovertible. Further action under Pt 8 may not be necessary or appropriate.
Against that context and background, the text of s 158 does not mandate a conclusion that immediate action must always be followed by further action under Pt 8. Section 158(1) relevantly provides that:
Immediately after deciding to take immediate action ... the [Board] must … take the further action under this Part the Board considers appropriate …
The use of the word 'appropriate' is significant. It connotes an evaluative judgment on which reasonable minds may differ. Elsewhere in Pt 8, the expression 'necessary or appropriate' is used: s 160(1), s 177(a), s 178(1)(c), s 181(1)(b), s 182(1)(b).
The question is whether the word 'appropriate' in s 158(1) is confined to the type of further action (the narrow construction) or extends to both whether any, and if so what type of, further action is appropriate (the wider construction). The use of the definite article in the expression 'take the further action' tends to support the narrower construction. However, that is inconsistent with the scope of the statutory expression 'immediate action' and the times at which it may be exercised. There will be many situations in which further action under Pt 8 is appropriate but clearly not in all. That in my view also explains the odd drafting of s 159(2) as to when and how a decision to take immediate action ceases to have effect. It is intended to cover a variety of situations not all of which can or must be the subject of disciplinary or other action under Div 8 to Div 12 of Pt 8. For these reasons, the wider construction of s 158(1)(b) is correct.
However, this is a case in which the only reasonable conclusion in the circumstances was that it was appropriate to take immediate further action under Pt 8 by referring the matters going beyond the Hospital complaint (which could not be dealt with under the MPA) to SAT under Div 12, as the Board eventually did. Fairness required that the practitioner have a full opportunity to contest the factual matters that informed the basis for the Board's immediate action.
If the Board decides that it is appropriate to take further action, s 158(1)(b) requires that the further action must be taken immediately after the immediate action decision. I agree with Newnes JA for the reasons he gives that a failure to comply with s 158(2)(c) does not invalidate the decision to take immediate action. Moreover, for the same reasons, it would not invalidate the notice.
The remaining question is whether the failure to take further action immediately after deciding to take immediate action invalidates either the immediate action decision or the notice which triggers its commencement. It is clear from the statutory scheme in s 156 to s 158 that the decision to take immediate action must precede the decision as to what, if any, further action is appropriate, both of which decisions must precede the giving of the notice. Having regard to the failure to take any further action under Pt 8 before or until well after the issue of the notice, it is unnecessary for the purpose of these proceedings to determine whether the relevant further action must actually have commenced prior to giving the notice. On that subject there appears to be textual tension between s 158(1)(b) and s 158(2)(c). My preliminary view is that 'the further action' referred to in s 158(1)(b) is the Board decision which is required in order to trigger

action under Div 8 ‑ Div 12, which decision will identify the proposed course of action under another division for the purposes of s 158(2)(c).

The relevant legal principles relating to the effect of a failure to comply with a statutory requirement are well known: see Yarri Mining Pty Ltd v Eaglefield Holdings Pty Ltd [2010] WASCA 132 [36] ‑ [40]; Russell v The State of Western Australia [2011] WASCA 246 [24] ‑ [25]. The requirement in s 158(1)(b) is clearly not a jurisdictional fact affecting either the immediate action decision or the notice. Further, a breach of the duty in s 158(1)(b) in relation to further action under Pt 8 is not, in my view, intended to invalidate either the preceding immediate action decision or the subsequent notice. There are powerful indicators against invalidity. First, the purpose of Div 7 is to protect public health and safety. That purpose is not advanced by erecting multiple hurdles to the validity of the Board's action. Second, the intention is that prompt, effective action be taken where there is a risk to public health or safety. Third, the obligation in s 158(1)(b) depends on an evaluative judgment by the Board as to what is 'appropriate'.
NEWNES JA: This is an appeal against a decision of the State Administrative Tribunal (the Tribunal) dismissing an application for review of the decision of the Western Australia Board of the Medical Board (the Board) of Australia to suspend the registration of the appellant as a health practitioner, pursuant to s 156 of the Health Practitioner Regulation National Law (National Law).
The Tribunal confirmed the Board's decision. The appellant appeals against the Tribunal's decision.

Background

The appellant has been a specialist otolaryngologist (ENT specialist) since 1974.
On 12 October 2010, the Medical Board, constituted under the Medical Practitioners Act 2008 (WA), formed the opinion that the appellant presented a risk of imminent harm or injury to patients on whom he operated and gave him notice under s 87 of prohibiting him from carrying out any operative surgical practice for a period of 30 days. The order of the Medical Board was served on the appellant on 13 October 2010.
The appellant filed an application in the Tribunal for review of the Medical Board's order.

On 18 October 2010, the Medical Practitioners Act was repealed and the National Law came into force, pursuant to s 4(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the Act). The National Law was part of a scheme to establish a national registration and accreditation scheme for health practitioners and students studying to become health practitioners. The National Law, among other things, set up boards in each participating state for the regulation of various categories of health practitioners. The National Law also established a national agency to represent the State and to assist and support the boards in the exercise of its functions: see pt 4 of the National Law. In respect of medical practitioners in Western Australia, the National Law established the Board.
On 19 October 2010, the Tribunal ordered that the order of the Medical Board be set aside and the appellant submit to an assessment of his clinical competence. The nature of the assessment was to be determined by the Board. Dr Michael Jay, an ENT specialist and president of the Australian Society of Otolaryngology Head & Neck Surgery, was subsequently appointed as the assessor.
In August 2011, Dr Jay undertook a clinical assessment of the appellant on behalf of the Board. His assessment involved considering a number of the appellant's patient files which were selected at random, a tour of the appellant's rooms, some discussions with the appellant, and observation of the appellant performing surgery.
On 9 September 2011, Dr Jay provided a report, dated 7 September 2011, to the Board in which he was highly critical of the appellant's competence as an ENT specialist. He said that the appellant's practice was 'in no way consistent with contemporary specialist otolaryngology and surgical practice in general' and that the appellant required 'extensive re‑skilling and training'.
On 2 November 2011, the Board gave the appellant written notice that it proposed to take 'immediate action' against him pursuant to s 156 of the National Law. The appellant was overseas at the time but, following his return, on 7 November 2011 the appellant wrote to the Board saying that he was not in a position to make submissions in response to the notice. He proposed, however, that he cease surgical practice forthwith and not resume it without first giving the Board 14 days' notice.
On 8 November 2011, the Board considered the appellant's letter and decided to take 'immediate action' by suspending the appellant's registration as a health practitioner. The Board gave the appellant notice of its decision by a letter dated 9 November 2011.
On 11 November 2011, pursuant to s 199(1)(h) of the National Law, the appellant sought review by the Tribunal of the Board's decision to suspend his registration. The effect of the National Law is that an appeal under s 199(1)(h) is an application for review of the decision by the Tribunal under the State Administrative Tribunal Act 2004 (WA) (SAT Act): see s 6, s 11 of the Act.
The appellant initially sought a final order setting aside the decision. In the alternative, he sought an order setting aside the decision to suspend his registration upon his undertaking to submit to quarterly reviews of his notes and to refrain from performing surgery. The appellant subsequently filed an amended application in which he sought a final order setting aside the Board's decision to suspend his registration and in its place an order that conditions be imposed on his registration. The proposed conditions were that he be prohibited from performing surgery, that he submit to quarterly audits of his clinical notes, and that he perform audiometry in a soundproof booth at all times.
The hearing before the Tribunal occupied five hearing days. Both sides were represented by counsel, and the appellant and Dr Jay both gave evidence and were cross‑examined. Dr Jay was the only expert witness. None of the appellant's patients gave evidence.

The statutory provisions

Before turning to the Tribunal's decision it is convenient to set out the relevant statutory provisions, which are contained in pt 8 of the National Law. They are as follows:
Division 7 ‑ Immediate action
155.     Term used: immediate action
In this Division -
immediate action, in relation to a registered health practitioner or student, means -
(a)the suspension, or imposition of a condition on, the health practitioner's or student's registration; or
(b)accepting an undertaking from the health practitioner or student; or
(c)accepting the surrender of the health practitioner's or student's registration.
156.     Power to take immediate action
(1)A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board 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;
…
(2)However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.
157.     Show cause process
(1)If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156, the Board must -
(a)give the practitioner or student notice of the proposed immediate action; and
(b)invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
(2)A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.
(3)The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.
158.     Notice to be given to registered health practitioner or student about immediate action
(1)Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must -
(a)give written notice of the Board's decision to the health practitioner or student; and
(b)take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.
(2)The notice must state -
(a)the immediate action the National Board has decided to take; and
(b)the reasons for the decision to take the immediate action; and
(c)the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
(d)that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's or student's registration; and
(e)how an application for appeal may be made and the period within which the application must be made.
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)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.

The Tribunal's findings

The Tribunal noted at the outset that the review of the Board's decision was by way of a hearing de novo. The Tribunal was not therefore confined to matters which were before the Board but may consider new material: SAT Act, s 27(1).
The Tribunal noted that, notwithstanding earlier comments by the Tribunal in Liddell and Medical Board of Australia [2012] WASAT 120 [27] to the effect that it can be expected in most cases that an application for review of a decision to take immediate action under s 156 of the National Law will proceed more as an interlocutory or interim matter pending determination of the substantive complaints about the practitioner, this application had not proceeded in that way but more in the nature of a hearing of an allegation of professional misconduct [22]. It went on to observe that the form the hearing took appears to have arisen as a result of the parties' uncertainty about the nature of the proceeding.
On the substance of the review, the Tribunal found that the appellant's amended application amounted to a concession that because of his conduct or performance the appellant posed a serious risk to persons as an ENT surgeon and that it was necessary to take immediate action to protect public health or safety by placing a condition on his registration that he be prohibited from performing surgery [16].
The Tribunal then turned to the appellant's performance and conduct in his practice as an ENT consultant. It identified the first substantive question before it to be whether it reasonably believed that, because of the appellant's conduct or performance, he posed a serious risk to persons as an ENT consultant and it was necessary to take immediate action under the National Law by suspending his registration.
The Tribunal considered there were four areas of serious deficiency on the part of the appellant which individually and collectively caused it to form the reasonable belief that he posed a serious risk to persons as an ENT consultant [34]. Those areas were the appellant's:
(a)failure to take or record an adequate medical history from patients;
(b)failure to conduct adequate audiometry on patients, including using inadequate audiological equipment;
(c)lack of up‑to‑date medical knowledge; and
(d)failure to follow up patients and to have a system in place to follow up patients.
On the first of those grounds, the Tribunal noted that Dr Jay had examined the appellant's case notes in relation to 36 patients. In a report to the Board, Dr Jay had described the case notes as 'skeletally brief' and lacking in detail. The Tribunal referred to Dr Jay's oral evidence as to the vital importance of taking a proper history, and the importance of an ENT specialist considering whether nasal obstruction and other symptoms may be due to an allergy, the treatment for allergies being generally a medical, not a surgical, problem.
The Tribunal rejected the appellant's evidence that he always took a complete medical history at the initial consultation with a patient. It did not accept the appellant's explanation that omissions identified by Dr Jay in the appellant's case notes in relation to matters such as the patient's previous medical history, current medication and allergies came about simply because the appellant did not record matters where the patient gave a negative answer to his enquiry or because the matters were contained in the general practitioner's referral letter. The Tribunal pointed out that the appellant's explanation was not supported by the documentary evidence. It noted that in a number of cases the patient concerned had completed a hospital admission form immediately prior to surgery by the appellant in which they had identified allergies or past and current medical problems which the appellant had failed to record in his notes and which were not mentioned in the general practitioner's referral.

The Tribunal concluded that the appellant had either failed to take, or failed to record, an adequate patient history in relation to 13 of the 36 cases examined by Dr Jay [39]. It found that the appellant's failure to take or record an adequate medical history posed a serious risk of medical conditions being missed or patients receiving inadequate or wrong treatment [58]. In doing so, it noted the appellant's acknowledgment in cross‑examination that an inadequate medical history could lead to errors and was a risk to patients.
The Tribunal further concluded that the appellant had failed to conduct adequate audiometry on patients, based on two shortcomings it considered existed in the appellant's practice. The first was the appellant's admitted practice of conducting audiometry at his desk and making a subjective estimate for background noise, rather than conducting it in a soundproof room. Dr Jay told the Tribunal that he had never heard of audiometry being conducted at a desk instead of in a soundproof room, and he described the making of a subjective estimate for background noise as involving 'guesswork'. He also dismissed the appellant's claim that testing of air conduction over five frequencies was standard practice, saying that he had never heard of only five frequencies being used and that such testing would miss some hearing impairment. Dr Jay described the appellant's audiometry as not being 'in any way satisfactory'. The Tribunal also noted the appellant's concession that he had not attended any courses of study in audiometry in the last 20 years. It considered that the appellant's approach to audiometry might well lead to misdiagnosis, resulting in unnecessary surgery or incorrect or inadequate treatment.
The second shortcoming was the appellant's failure to have his audiometers regularly calibrated. The Tribunal noted that, notwithstanding Dr Jay's evidence that audiometers needed to be calibrated annually, the appellant's audiometers had been calibrated for the first time in 2012. It referred to the appellant's evidence in cross‑examination that he had 'just assumed' the audiometers were being calibrated because they were checked periodically for electrical safety [72] ‑ [74]. The Tribunal concluded that the appellant's failure to have the audiometers calibrated had exposed his patients to the risk of misdiagnosis and reflected a careless approach to the practice of medicine that was 'most alarming'.
The Tribunal further concluded that on the evidence before it the appellant lacked up‑to‑date medical knowledge. That conclusion was based primarily upon Dr Jay's evidence that a surgical procedure known as inferior meatal antrostomy, which the appellant had continued to perform in every case in which he carried out nasal surgery, had been used 30 years or more ago but has been discredited for many years as having no scientific or physiological basis.
The Tribunal noted that the appellant had provided no expert medical evidence in support of the procedure and his persistence with it was simply based upon his own experience that it was, as he put it, 'extremely effective in preventing post‑sinus headaches'. The Tribunal observed that whilst in the course of the hearing the appellant had produced two journal articles he said supported his use of the procedure, neither article appeared to have been published in a peer‑reviewed journal and the author of one of the articles (relied upon in the second article) had acknowledged that the number of patients involved in the study referred to in the article was very small. That author had subsequently commented that the procedure was 'now regarded as old‑fashioned and unphysiological'.
The Tribunal considered that the appellant's persistence with the procedure reflected the appellant's lack of up‑to‑date medical knowledge. It also considered that the appellant's lack of up‑to‑date knowledge was reflected by his audiometry practices.
Finally, the Tribunal noted that, in respect of patients whom the appellant considered should be seen again, he did not have a system in place to follow them up if they did not contact him and he did not in fact follow them up if they failed to make or keep a follow‑up appointment [94]. Based on Dr Jay's evidence, the Tribunal considered that, in light of the serious harm that could be suffered by a patient if they did not return when they should do so, a specialist should have such a system in place. The absence of such a system in the appellant's case posed a serious risk to patients [96].
The Tribunal formed the belief that it was necessary in order to protect public health or safety to take immediate action by suspending the appellant's registration because of the serious risk that those four failings by the appellant posed to patients, a risk compounded by the appellant's lack of insight into his own deficiencies [97]. The Tribunal rejected the possibility of imposing conditions on the appellant's registration in light of the extensive further training it considered he would require. It noted that the appellant was 70 years of age and concluded that such a condition was impractical. It also rejected the conditions the appellant had proposed. It considered that a periodic audit of his clinical notes would be too late to prevent possible harm to patients and a requirement that he conduct audiometry in a soundproof booth would not overcome the appellant's lack of up‑to‑date medical knowledge and lack of insight into the shortcomings in his skills [99] ‑ [103].
The Tribunal then turned to whether, having taken immediate action, there was a 'mandatory obligation' on the Board under s 158 to take further action against the appellant under pt 8 of the National Law. It accepted the appellant's submission that there was.
In support of that conclusion, the Tribunal referred with approval to what had earlier been said by the Tribunal in Liddell:
The proposition that the taking of immediate action is in the nature of an 'interim' procedure is reinforced by the obligation under s 158 to take further action. It is not open to the Board simply to take immediate action by way of imposing conditions or a suspension and then do nothing further in regard to the underlying issues that have provided the basis for the immediate action [25].
The Tribunal considered that there were three textual indications which strongly supported that view, namely, the use of 'must' in s 158(1), the use of the definite article 'the' in s 158(1)(b), and the requirement in s 158(2) that the notice to the practitioner 'must state … the further action the National Board proposes to take under this part'. It also referred to the observation of the Tribunal in Liddell [27], that it was important the notice of immediate action identify the further action the Board proposed to take, as that information 'may well inform decisions as to the nature of the hearing of the review application and the evidence to be heard on that application'.
The Tribunal rejected the respondent's submission that 'the further action ... the Board considers appropriate' in s 158(1)(b) was a reference to such further action, if any, that the Board considered appropriate. The Tribunal concluded it was clear that the issue for the Board was what further action it would take, not whether it would take any further action.
The Tribunal found that in not taking further action in relation to the appellant, the Board had failed to comply with its obligation under s 158 [115].
The Tribunal rejected, however, the appellant's contention that immediate action taken by the Board under s 156 must be expressed as having effect only until the determination of the further action the Board was required to take under s 158. The Tribunal concluded that the appellant's contention was inconsistent with s 159(2) of the National Law, which provides that a decision by the Board to take immediate action has effect until the decision is set aside on review or the immediate action is revoked or removed by the Board [119]. The Tribunal also did not accept the appellant's underlying proposition that any further action by the Board under s 158 would necessarily supersede the immediate action. The Tribunal pointed out that the nature of the further action was in the discretion of the Board and in some cases the determination of the further action, such as further action directed to the investigation of health or performance issues, may not supersede the immediate action [120].
The Tribunal also rejected a submission by the appellant that it had jurisdiction to review the failure of the Board to make a decision to take further action as required by s 158. The appellant argued that both the decision to take immediate action under s 156 and the failure by the Board to decide what further action it proposed to take under s 158, were reviewable by the Tribunal. The appellant therefore sought an order, in effect, that the matter be sent back to the Board with a direction first, that by way of further action the Board decide to refer the matter to the Tribunal under s 193 of the National Law; secondly, that it take that further action forthwith; and thirdly, that it serve a notice on the appellant informing him of the immediate action and the further action it is taking.
The Tribunal found it had no jurisdiction to review the failure of the Board to make a decision in relation to further action under s 158, its jurisdiction being limited to the decision of the Board to suspend the appellant's registration by way of immediate action under s 156. The Tribunal considered that the Board's obligation under s 158(1) to take further action arose, not in making the decision to suspend the appellant's registration, but after it had made that decision. It was not, therefore, capable of being reviewed by the Tribunal on the appellant's application for review of the decision to take immediate action [129]. The Tribunal accepted the respondent's submission that any challenge by the appellant to the Board's failure to take further action under s 158 could only be by way of proceedings for judicial review [132].
The Tribunal concluded that because of the appellant's conduct and performance in respect of the four deficiencies it had identified, it reasonably believed he posed a serious risk to persons and that it was necessary, in order to protect public health, to take immediate action by suspending his registration [135]. It accordingly dismissed the application for review of the Board's decision and affirmed the decision.

Grounds of appeal

It is unnecessary to set out the (lengthy) grounds of appeal in full. They can be sufficiently summarised as follows:
1.The Tribunal erred in fact by forming the belief that the appellant posed a serious risk to persons and that his suspension from practice was necessary to protect public health on the ground that he:
(a)failed to take or record adequate medical histories from patients (ground 1);
(b)failed to conduct adequate audiometry on patients (ground 2);
(c)lacked up‑to‑date medical knowledge (ground 3); and
(d)failed to follow up patients and did not have a system in place to follow up patients (ground 4).
2.The Tribunal erred in law in failing to conclude that the power of the respondent under s 156 of the National Law 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 s 158 (ground 5).
3.Having found that s 158 of the National Law imposed an obligation on the respondent to take further action against the appellant and that the respondent had failed to take further action, the Tribunal erred in law and fact by failing to refer the matter back to the respondent pursuant to s 29(3)(c) of the SAT Act (ground 6).

Disposition of the appeal

It is convenient to start with grounds 5 and 6, which raise questions of construction of the National Law and can conveniently be dealt with at the outset.

Ground 5

In his written submissions, counsel for the appellant contended that the obligation of the Board under s 158 to take further action immediately after taking immediate action indicated that the legislature intended the immediate action to have effect only pending the final determination of the further action. The Board was therefore obliged in taking immediate action both to decide what further action it would take and to express the immediate action as having effect only until final determination of the further action.
In the course of oral argument on the appeal, however, counsel for the appellant advanced a rather more far‑reaching contention. He submitted, in effect, that the obligation of the Board to decide, and to state in the notice under s 158, what further action the Board proposed to take was an integral part of the decision to take immediate action, and the failure of the Board in this case to do so had the result that the immediate action was invalid (appeal ts 12 ‑ 13). That does not appear to have been a contention advanced below and it is not raised in the grounds of appeal. However, as it was argued on the appeal and as it is limited to a matter of statutory construction it is appropriate that this court decide it. It necessarily raises the correctness of the Tribunal's finding that s 158 imposed an obligation on the Board to take further action in respect of the appellant. It is convenient to turn immediately to those issues.
Schedule 7 of the National Law prescribes certain principles which, subject to any contrary intention, are to be applied in its interpretation. Relevantly, cl 7 provides that the interpretation that will best achieve the purpose or object of the National Law is to be preferred to any other interpretation. Clause 10 provides that if the National Law includes an example of the operation of a provision, the example is not exhaustive and does not limit, but may extend, the meaning of the provision. It further provides that if, when read in the context of each other and the other provisions of the National Law, the provision and example are inconsistent, the provision prevails.
The object of the National Law is to establish, among other things, a national registration and accreditation scheme for the regulation of health practitioners: s 3. The objectives of the national registration and accreditation scheme under s 3(2) 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.
The relevant provisions of the National Law for present purposes are contained in pt 8, dealing with matters relating to the 'health, performance and conduct' of registered health practitioners.
Division 1 of pt 8 is simply concerned with the application of pt 8 to persons who were registered under corresponding prior legislation but are not registered under the National Law. Divisions 2 and 3 of pt 8 provide for notification to the National Agency of, among other things, 'notifiable conduct' by a practitioner. 'Notifiable conduct' includes practising in a way which places the public at risk of harm by a significant departure from accepted professional standards. Notification may be either mandatory or voluntary.
Mandatory notification is dealt with under div 2. Any practitioner who forms a reasonable belief that another practitioner has behaved in a way which constitutes 'notifiable conduct' (s 141), or an employer who forms such a belief in relation to an employee who is a practitioner (s 142), is required to notify the National Agency of that conduct.
Voluntary notification is dealt with under div 3. Any entity may make a voluntary notification to the National Agency about a practitioner on a number of grounds, including that the practitioner's professional conduct, knowledge, skill, judgment or care is or may be below the standard to be reasonably expected: s 144.
The form in which notification may be made is dealt with in div 4. In substance, notification may be verbal or in writing but it must include particulars of the basis upon which it is made: s 146.
Under div 5, the National Agency must (subject to certain exceptions relating to co‑regulatory jurisdiction) as soon as practicable after receiving a notification, refer it to the Board: s 148(1). The Board must conduct a preliminary assessment of the notification within 60 days of its receipt: s 149.
As soon as practicable after receiving a notification, the Board must give written notice of it to the practitioner to whom it relates, unless to do so would prejudice an investigation of it or place the health or safety of some other person at risk or expose them to the risk of intimidation or harassment: s 152.
A Board may decide to take no action in relation to a notification if, among other things, the notification is frivolous or without substance; it is no longer practicable to deal with it because of the lapse of time since the subject‑matter occurred; the person to whom it relates is no longer registered; or the matter has already been adequately dealt with by the Board or some other entity: s 151(1). Where a Board decides to take no further action, it must give written notice of that to the notifier, stating why it is taking no further action: s 151(3), s 151(4).
Division 6 enables a Board to deal with notifications about the same person together (s 153), and in conjunction with any other Board (s 154).
'Immediate action' is the subject of div 7. As set out above, immediate action enables the Board to suspend, or to impose a condition on, a practitioner's registration if the Board reasonably believes that because of the practitioner's conduct, performance or health, he or she poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety: s 155, s 156. Such action can only be taken when the Board has given the practitioner notice of its intention to do so and has invited, and then considered, any submissions from the practitioner: s 157. The notice and submissions may be written or oral: s 157(2). Immediately after taking immediate action the Board must give written notice of its decision to the practitioner and 'take the further action under [pt 8] the Board considers appropriate': s 158(1). The notice must state, among other things, the immediate action the Board has decided to take and the reasons for its decision, and the further action the Board proposes to take in relation to the practitioner: s 158(2).
The immediate action takes effect on the day the notice is given to the practitioner or any later day stated in the notice and continues to have effect until the decision is set aside on appeal, any suspension is revoked or condition removed, or the Board and the practitioner agree to end any undertaking: s 159. I note in passing that where a practitioner's registration has been suspended or a condition imposed on it by way of immediate action, the National Law does not provide any process by which a practitioner may apply for the suspension to be revoked or the condition removed by the Board.
Under pt 8 there are a number of courses open to the Board where, as a result of a notification or otherwise, it reasonably believes that a practitioner may have an impairment, or that the way in which the person practises is or may be unsatisfactory. They are to:
1.appoint an investigator to conduct an investigation under div 8;
2.require a practitioner to undergo a health or performance assessment under div 9;
3.take action itself in respect of the practitioner if it is not necessary or appropriate to refer the matter to a panel or the Tribunal under div 10;
4.refer the matter to a health panel under div 11;
5.refer the matter to the Tribunal if the Board reasonably believes, among other things, that the practitioner has behaved in a way which constitutes professional misconduct under div 12.

A 'health complaints entity' is, generally speaking, an entity whose functions include 'conciliating, investigating and resolving complaints made against health service providers and investigating failures in the health system' (s 5 definition). A similar provision, ie, referral to another 'entity', such as a 'health complaints entity' appears in div 10 (direct action by the Board - s 178(2)(d)), and div 11 (panels - s 191(1)(v)). The power to refer to another entity, such as a conciliation entity, does not appear in div 12 (in relation to the Tribunal), nor in div 7 (in relation to 'immediate action' - referred to later in these reasons).
As to the general relationship between the Board and a 'health complaints entity', see s 150 of the Law.

Disciplinary/regulatory powers

The disciplinary/regulatory‑type powers in pt 8 are contained in:
•div 10 (dealing with, in effect, direct action by the Board);
•div 11 (dealing with the functions and powers exercisable by 'panels', being a 'health panel' and a 'performance and professional standards panel'); and
•div 12 (dealing with the functions and powers exercisable by the Tribunal).
I will mention each in more detail in turn.

Board's powers under div 10

In div 10 of pt 8, under s 178(2), the Board may take one or more of the following 'relevant actions':
(a)caution the practitioner;
(b)accept an undertaking from the practitioner;
(c)impose conditions on the practitioner's registration; and
(d)refer the matter to another entity, including, eg, a 'health complaints entity' for investigation or other action.
If the Board imposes a condition, it must also set a review period for the condition (s 178(3)).
There is no provision under div 10 for the Board to reprimand, to impose a fine, or to suspend or cancel registration.
The Board must not take 'relevant action' under div 10 of pt 8, however, if:
•the matter is required to be referred to a 'responsible tribunal' under s 193 (s 178(1)(b)); and
•it decides that it is necessary or appropriate to refer the matter to a 'panel' (s 178(1)(c)).
Under s 193(1), the Board must, inter alia, refer a matter to a Tribunal if, in effect, it reasonably believes that the practitioner has engaged in 'professional misconduct'.
The Board's direct action powers under div 10 of pt 8 are not exercisable unless the Board has given the practitioner the opportunity to make submissions through, in effect, a 'show cause' process (s 179(1) and s 179(2)). A separate 'show cause' process under div 10 is, however, unnecessary if the matter that forms the basis of the Board's proposed action has already been the subject of investigation under div 8, or the subject of an assessment conducted under div 9 (s 179(3)). In that regard, it is to be noted that with respect to investigations under div 8, the Board must give notice of the proposed investigation and give reports as to its progress to the practitioner, subject to specified exceptions, eg, if notice would seriously prejudice the investigation (s 161). As to assessments under div 10, notice of a proposed assessment must be given to the practitioner (s 172) and the Board must discuss the report of the assessor with the practitioner (s 176(3)).

Panels - Division 11

Panels reflect the distinction between 'impairment' on the one hand and 'performance' and 'conduct' on the other. 'Panels' are dealt with under div 11 of pt 8. A 'panel' is defined in s 5 to mean a 'health panel' (which deals with 'impairment' (s 181)) and a 'performance and professional standards panel' (s 182). As noted earlier, the latter is established if the Board reasonably believes because of a 'notification' or for any other reason that the way a practitioner practises their profession is, or may be, 'unsatisfactory', or that the practitioner's professional conduct is, or may be, 'unsatisfactory'.
By s 190, a panel must stop hearing a matter and require the Board to refer it to the Tribunal if the practitioner so requests, or if the panel reasonably believes that the evidence demonstrates either that the practitioner has engaged in 'professional misconduct' or that registration has been obtained improperly by, in effect, materially false or misleading information.
Panels, thus, do not deal with 'professional misconduct', although they may deal with 'unsatisfactory professional performance', 'unprofessional conduct' and 'impairment' (s 191(1)).
Both the 'health panel' and the 'performance and professional standards panel' may impose conditions on registration (s 193(3)(a)). If a condition is imposed, the panel must also decide a review period for the condition (s 193(4)).
A 'health panel' may suspend registration, but not caution or reprimand the practitioner (s 193(1)(b)). There is no requirement that the suspension be for a specified period.
A 'performance and professional standards panel' may caution and reprimand the practitioner, but not suspend registration (s 191(3)(c)).
There is no provision for either type of 'panel' to impose a fine or to cancel registration.
In proceedings before a 'panel', the practitioner may have legal representation with leave of the panel (s 186). The notifier, with leave of the panel, may make submissions to the panel (s 187). A hearing before the panel is not open to the public (s 189).

Responsible tribunals - Division 12

As to 'responsible tribunals', the Board must refer a matter to the Tribunal under s 193(1) if:
(a)the Board reasonably believes, based on a notification or for any other reason, that:
(i)the practitioner has behaved in a way that constitutes professional misconduct; or
(ii)the practitioner's registration was improperly obtained because of, in effect, the provision of materially false or misleading information;
(b)a panel established by the Board requires the Board to refer the matter to the Tribunal.
After hearing a matter, the Tribunal may decide, inter alia, whether, in effect, the practitioner has (s 196(1)(b)):
(i)engaged in unsatisfactory professional performance;
(ii)engaged in unprofessional conduct;
(iii)engaged in professional misconduct;
(iv)an impairment;
(v)improperly obtained registration through the provision of materially false or misleading information.
The Tribunal's powers in that regard include the power to (s 196(2)):
(a)caution or reprimand;
(b)impose a condition on registration;
(c)impose a fine up to $30,000;
(d)suspend registration for a specified period; and
(e)cancel the practitioner's registration.
Where, either, the Tribunal decides to cancel a practitioner's registration, or the practitioner does not hold registration, the Tribunal may also decide to (s 196(4)):
(a)disqualify the practitioner from applying for registration for a specified period; or
(b)prohibit the practitioner from using a specified title or providing a specified health service.
Insofar as s 196(4) deals with a situation where the practitioner is not registered, it is to be read in conjunction with div 1 of pt 8 of the Act. Section 138 in div 1 provides, in effect, that a 'notification' may be made, and proceedings may be taken, under pt 8 against a person who was, but is no longer, registered as a practitioner. For example, a practitioner is no longer registered where the practitioner has surrendered their registration under s 137.
Section 151(1)(c) also indicates that there may be cases where it is not in the public interest to deal with a notification where the practitioner is no longer registered.
In proceedings before the Tribunal, the parties are the practitioner and the Board (s 194). The Tribunal may make any orders about costs it considers appropriate (s 195).

Immediate action

In addition to the inquisitorial powers given to the Board and the disciplinary/regulatory‑type powers given to the Board, panels and the Tribunal referred to above, the Board is also given powers of 'immediate action' in div 7 of pt 8. Division 7 is referred to in some detail below.

Appeals - Division 13

Division 13 of pt 8 deals with appeals. It provides, relevantly, in effect, that a practitioner may appeal to the Tribunal against:
(1)a decision by the Board:
(a)to impose or change a condition on a person's registration (other than certain specified conditions) (s 199(1)(e));
(b)to refuse to change or remove a condition imposed on a person's registration (s 199(1)(f));
(c)to refuse to change or revoke an undertaking given to the Board (s 199(1)(g)); and
(d)to suspend the person's registration (s 199(1)(g));
(2)a decision by a panel to impose a condition on the person's registration (s 199(1)(i));
(3)a decision by a 'health panel' to suspend the person's registration (s 199(1)(j));
(4)a decision by a 'performance and professional standards panel' to reprimand the person (s 199(1)(k)).
The parties to appeal proceedings are the person the subject of the appellable decision and the Board that made the appellable decision or that established the panel that made the appellable decision (s 200).
By s 202, after hearing an appeal, the Tribunal may confirm the appellable decision, amend the appellable decision or substitute another decision for the appellable decision. In substituting another decision, the Tribunal has the same powers as the entity that made the appellable decision.
As noted earlier, the Tribunal's power to suspend the practitioner requires the Tribunal to specify a period of suspension. However, it should be noted that by s 202 where the Tribunal substitutes its decision for an appellable decision (eg, a decision by the Board or health panel to suspend the person's registration), the Tribunal has the same powers as the entity that made the appellable decision.
There is no appeal against:
•a decision by the Board to caution the practitioner (div 10, s 178(2)(a));
•a decision by the Board to refer the matter to another entity, such as a health complaints entity, after an investigation (div 8), or after an assessment (div 9), or by way of 'relevant action' (div 10); or
•a decision by the panel to refer the matter to another entity, such as a health complaints entity (div 11).
Also, div 13 of pt 8 does not deal with appeals from the Tribunal.

Division 7 - Immediate action

In div 7, s 156(1) relevantly provides:
156.Power to take immediate action
(1)A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board 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.
…
(c)the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or
(d)the registered health practitioner's … registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.
Subsection (a) of s 156(1) depends upon the formation of a reasonable belief, whereas subs (c) and (d) of s 156(1) concern jurisdictional facts in the 'narrow sense' - ie, which must objectively exist in fact. See, eg, the discussion in Perrinepod Pty Ltd v Georgiou Building Pty Ltd [2011] WASCA 217; (2011) 43 WAR 319 [101], [106] ‑ [107]. Also, subs (c) and (d) of s 156(1) do not, in terms, include reference to the necessity to take immediate action to protect public health or safety.
The 'immediate action' which the Board is empowered to take means:
•the suspension of the practitioner's registration (s 155(a));
•the imposition of a condition on the practitioner's registration (s 155(a));
•accepting an undertaking by the practitioner (s 155(b));
•accepting the practitioner's surrender of their registration (s 155(c)).
As with a health panel under div 11, there is no requirement that the suspension imposed by the Board under s 155(a) be for a specified period.
The power in s 156(1)(c) to 'accept' the practitioner's surrender of their registration is to be read in the context of s 137, which permits a practitioner, in any event, effectively to surrender their registration. Presumably, s 155(1)(c) is designed to operate on the basis that if surrender is effected by the practitioner, the Board may decide to treat that as a sufficient response to the circumstances which would enliven the power to take immediate action.
The Board may not either suspend, or impose a condition, however, unless a 'show cause' process has been followed (s 156(2) and s 157)).
The Board's power of immediate action appears, generally speaking, to be capable of exercise at any time, and from time to time (whether the power is exercisable if the State Administrative Tribunal is seized of the matter does not require determination). As to the former, it is to be noted that cl 22(1) of sch 7 provides, in effect, that where the Law confers a function or power on a body, the function may be performed, or the power may be exercised, from time to time as the occasion requires. For example, if the Board, in the exercise of its power of immediate action under s 156(1)(a), accepted an undertaking by the practitioner which the practitioner subsequently breached or which the Board otherwise found to be inadequate for the necessary protection of the public, the Board could re‑exercise the power under div 7, this time to suspend the practitioner by way of immediate action. (A breach of the undertaking could also itself give rise to a separate allegation of 'unprofessional conduct' within par b(ii) of the definition of that term in s 5.) Conversely, if the Board had taken a decision by way of immediate action to suspend the practitioner, and the practitioner subsequently proffered an acceptable undertaking, the Board could accept the undertaking if it was relevantly satisfied that that was all that was necessary at that point in time to protect public health or safety.
Section 158 of the Law provides:
158.Notice to be given to registered health practitioner or student about immediate action
(1)Immediately after deciding to take immediate action in relation to a registered health practitioner …, the National Board must -
(a)give written notice of the Board’s decision to the health practitioner …; and
(b)take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner … or requiring the practitioner … to undergo a health or performance assessment.
(2)The notice must state -
(a)the immediate action the National Board has decided to take; and
(b)the reasons for the decision to take the immediate action; and
(c)the further action the National Board proposes to take under this Part in relation to the health practitioner …; and
(d)that the registered health practitioner … may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's … registration; and
(e)how an application for appeal may be made and the period within which the application must be made.
Section 158, read with s 155 to s 157, seems to contemplate a timetable as follows:
(1)the decision for the immediate action is taken, where appropriate, after a 'show cause' process;
(2)notice of the decision to take immediate action is to be given immediately to the practitioner, including reasons for the decision, advice on the practitioner's rights and procedures with respect to appeals, and advice on the Board's proposed further action under pt 8; and
(3)at about the same time as (2), the Board commences to take the further action proposed in the notice.
Section 159 of the Law provides, relevantly:
159.Period of immediate action
(1)The decision by the National Board to take immediate action in relation to the registered health practitioner … takes effect on -
(a)the day the notice is given to the practitioner …; 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 … 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.
As to s 159(2)(a), as noted earlier, a decision by the Board to suspend, or to impose a condition on, a practitioner's registration is an appellable decision and may be set aside on appeal. This is also recognised by s 158(2)(d).
As to s 159(2)(b), as noted earlier, if the Board imposes a condition, which the practitioner does not appeal, but rather requests the condition to be changed or removed (eg, under s 125), a decision by the Board not to change or remove the condition is an appellable decision.
As to s 159(2)(c), although a decision by the Board to accept an undertaking is not an appellable decision, a decision by the Board to refuse a practitioner's request to change or revoke the undertaking is an appellable decision.

Interpretation - 'may' and 'must' - 'power'

Schedule 7 of the Law contains miscellaneous provisions relating to interpretation of the Law (see s 6). Clause 14 of sch 7 provides:
14.Meaning of 'may' and 'must' etc
(1)In this law, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.
(2)In this law, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.
(3)This clause has effect despite any rule of construction to the contrary.
Clause 12 provides that the term 'power' includes 'authority'. Under s 5 of the Interpretation Act 1984 (WA) 'power' includes 'discretion'.

Proper construction of s 158 and disposition of ground 5

Section 158 deals with the position after the Board has decided to take immediate action.
Section 158(1)(b) provides, relevantly, that 'immediately' after deciding to take immediate action the Board 'must … take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner … or requiring the practitioner … to undergo a health or performance assessment'.
The phrase 'the further action' in s 158(1)(b) recognises that the taking of immediate action is itself the taking of some action under pt 8. The word 'the' in that phrase recognises that there is a range of actions available to the Board under pt 8, and is used to specify that it is that particular action which the Board considers appropriate which must be taken. The use of the word 'must' signifies that the power of further action is required to be exercised (cl 14, sch 7). The word 'under' in 'under this Part' includes 'in accordance with' and 'pursuant to' (s 5 of the Interpretation Act).
Section 158(1)(b) thereby provides, in effect, that immediately after the decision to take immediate action, the Board is required to take that further action in accordance with or pursuant to pt 8 which the Board considers appropriate. Although s 158(1)(b) uses mandatory language, the further action that must be taken is confined to that which the Board considers to be 'appropriate'. In deciding what is appropriate, the Board would have regard to which of the grounds in subs (a) to (d) of s 156(1) the Board has relied upon in taking the immediate action. It would also have regard to its powers and responsibilities under pt 8 in the context of the Law as a whole, and more broadly, have regard to the objective in s (2)(a) and the guiding principles in s (3)(a) and s (3)(c) providing for the protection of the public by:
•ensuring that only practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;
•ensuring the scheme operates in a transparent, accountable, efficient, effective and fair way;
•ensuring that under the scheme restrictions on the practise of a health profession are imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

The examples of the further action that may be taken which are given in s 158(1)(b) are investigation (div 8) and assessment (div 9). However, as noted earlier, at least generally speaking, the power of immediate action may be exercised at any time, and from time to time, once the statutory criteria are satisfied. If, for example, the power became properly exercisable, and was exercised, after the Board had received an investigator's report or an assessor's report, it would prima facie be inappropriate to take further inquisitorial action under div 8 or div 9, respectively.
Section 158(1)(b), in relation to its application to s 156(1)(a) (with which this case is concerned), appears to be designed to ensure that the Board appropriately addresses, in accordance with or pursuant to pt 8 properly construed, the underlying 'conduct, performance or health' of the practitioner beyond the alleviation of the immediate serious risk to persons and the protection of public health or safety.
In relation to s 156(1)(d), if, for example, it emerged that the practitioner has contravened s 130(1) by failing to notify the Board of the cancellation or suspension of their registration in a foreign country, in addition to taking immediate action, the Board could take further action in respect of unprofessional conduct (par (a) of the definition of unprofessional conduct in s 5).
It is also to be recalled that proceedings may be taken under pt 8, even though the practitioner has surrendered their registration (s 138).
The absence of an express option in the wording of s 158(1)(b) to take no further action (compare s 167 and s 177), and the requirement to give notice of the proposed further action under s 158(2)(c), tend to indicate that the legislature did not envisage that course (of doing nothing) as routinely or typically being open after taking immediate action. That is confirmed by the evident amplitude within pt 8 for the Board to take further action consequential upon immediate action, particularly with respect to matters concerning the conduct performance or health of the practitioner.
Whether circumstances might arise where the conduct or matter which forms the basis of the taking of the immediate action is of a nature where, having regard to its powers and responsibilities under pt 8 and to the objectives and guiding principles of the Law, the Board could properly consider that no further action pursuant to or in accordance with pt 8 would be appropriate is not a question which requires determination in this appeal. If, hypothetically, there may be such cases, this is not one of them.
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] to [285] above. However, they are also exercisable in the context that the Board must give effect to any decision by a panel or the Tribunal (s 205). Accordingly, the Board's immediate action may, in due course, effectively be overtaken by a decision of a panel or the Tribunal.
It follows from what I have written that I would reject the appellant's contention to the effect that the Board's decision to suspend the appellant by way of immediate action was invalid or beyond power because it was not expressed in terms that the immediate action would have effect only until the determination of some further action. That conclusion is not warranted on the proper construction of s 158. Similarly, the Board's failure immediately to consider and take the further action that was appropriate in the circumstances was a separate and subsequent omission which did not vitiate the anterior decision to take immediate action. Subject to the above, I agree with Newnes JA, for the reasons that he gives at [157] to [163] that the failure to comply with s 158(2)(c) does not invalidate the decision to take immediate action. Essentially for the same reasons, it does not mean that the notice itself is ineffective for the purposes of s 159(1).
For these reasons I would dismiss ground 5.
The appeal should be dismissed.