Bham v Medical Board of Western Australia
[2005] WASC 257
BHAM -v- MEDICAL BOARD OF WESTERN AUSTRALIA [2005] WASC 257
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 257 | |
| Case No: | CIV:2082/2005 | 12 SEPTEMBER 2005 | |
| Coram: | EM HEENAN J | 12/09/05 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Stay of execution of Medical Board decision granted for three months | ||
| B | |||
| PDF Version |
| Parties: | AMEEN AHMED BHAM MEDICAL BOARD OF WESTERN AUSTRALIA |
Catchwords: | Appeals Boards and tribunals Medical Board Appeal to single Judge of Supreme Court Suspension for infamous or improper conduct Stay of execution |
Legislation: | Medical Act 1894 (WA), s 13, s 15 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
MEDICAL BOARD OF WESTERN AUSTRALIA
Respondent
Catchwords:
Appeals - Boards and tribunals - Medical Board - Appeal to single Judge of Supreme Court - Suspension for infamous or improper conduct - Stay of execution
Legislation:
Medical Act 1894 (WA), s 13, s 15
Result:
Stay of execution of Medical Board decision granted for three months
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Mr R J Butcher
Respondent : Mr P A Tottle
Solicitors:
Applicant : Butcher Paull & Calder
Respondent : Tottle Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 EM HEENAN J: Before the court is a notice of originating motion involving an appeal from decisions of the Medical Board of Western Australia made on 24 June and 6 September 2005 in relation to an inquiry conducted under s 13 of the Medical Act 1894 into the conduct of Dr Ameen Ahmed Bham.
2 The documents reveal that after that hearing Dr Bham was found guilty of some form of professional transgression, the details of which I cannot describe precisely because of the surprising absence from the record of the complaint initiating the proceedings against Dr Bham, the formal finding of the Medical Board or any reasons for decision.
3 It is clear that the substance of the allegation against Dr Bham was that, through counsel, he gave a false explanation to the Medical Board of the reasons for his inability to attend when summoned to another inquiry into his conduct held by the Medical Board on 25 June 2004. The result of the finding of professional misconduct of some form or another within s 15 of the Medical Act has resulted in orders, including an order that Dr Bham be suspended from practice for some period.
4 It appears from Dr Bham's affidavit of 5 September 2005 that the allegation against him was that he engaged in infamous or improper conduct in a professional respect and that the result was that he was suspended for a period of one month commencing on 12 September 2005. He seeks to exercise a right of appeal to this Court from that decision. The originating motion includes an application, if necessary, for an extension of time to appeal. No point has been taken on either side in the application before me as to whether or not the appeal is out of time, or if it is, whether an extension of time is opposed. It seems that I should leave that matter over and deal only with that part of the application which seeks a stay of the operation of the order for suspension from practice of Dr Bham from today.
5 It is conceded that there is no specific provision in the Medical Act dealing with an appeal from findings of the Medical Board so as to allow this Court to suspend the operation of an order pending the determination of the appeal; yet it has been submitted on behalf of the applicant and acknowledged by counsel for the Medical Board that there have been precedents in the past where orders suspending the operation of such orders, particularly orders for striking off and for suspension, have been made.
(Page 4)
6 I have not been referred specifically to those cases in the circumstances of this urgent application; nor was it possible to have the matter adequately investigated and determined. It has been submitted to me on behalf of the Board that on the occasions when that was done in the past, the issue of the power of the court to grant a stay of proceedings was not specifically addressed. I have some reservations about the question of whether or not there is power for the court to grant a stay in these circumstances but out of deference to the fact that it has been done before and without in any way purporting to examine whether or not there is such power, I will order a stay on this occasion because of the absence of any objection by the Medical Board to this course and, more particularly, because of the assurance that the adverse finding made by the Board against Dr Bham and the other matters which the Board was investigating do not suggest that there is any material risk to the public or patients of Dr Bham which might arise if he is permitted to continue to practice in the interim.
7 Nevertheless, the finding of professional misconduct of any kind against a doctor and a decision to suspend him from practice are not conclusions reached lightly by the Medical Board and this Court should respect those orders.
8 In the circumstances I will grant a stay of the operation of that order for three months or for such shorter period as may arise, with liberty to the Medical Board to apply to revoke the suspension at any time. If an order staying the suspension for longer than three months is sought, then Dr Bham will need to apply again before the expiration of the present stay to renew and extend the stay. On that occasion I would hope that there would be more informative materials put before the court than I have been favoured with today.
9 The only orders I make therefore are that the effect of the order suspending Dr Bham from practice made by the Medical Board on 6 September shall be stayed for three months, subject to the power of the Medical Board to apply to revoke that stay at any time on notice, and subject to the power of Dr Bham to apply to renew or extend the stay before its expiration.
10 It seems to me that some steps are required to have this appeal determined quickly and I would therefore entertain any application for directions which might achieve that purpose.
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