FREEMAN and MEDICAL BOARD OF AUSTRALIA
[2020] WASAT 64
•16 JUNE 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: FREEMAN and MEDICAL BOARD OF AUSTRALIA [2020] WASAT 64
MEMBER: JUDGE T SHARP, DEPUTY PRESIDENT
HEARD: 13 MAY 2020
DELIVERED : 16 JUNE 2020
FILE NO/S: VR 26 of 2020
BETWEEN: AKINYEMI FREEMAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Vocational regulation - Medical practitioner - Medical practitioner suspended by immediate action decision - Interim stay of immediate action - Principles relevant to application for interim stay
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 3, s 3(2)(a), s 4, s 155, s 156, s 156(1)(a), s 160(1), s 199(1)(h)
State Administrative Tribunal Act 2004 (WA), s 18, s 25, s 25(2), s 25(4)
Result:
Application for interim stay granted
Category: B
Representation:
Counsel:
| Applicant | : | Ms R Cosentino |
| Respondent | : | Ms FA Stanton |
Solicitors:
| Applicant | : | Jacobson and Associates |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Bernadt v Medical Board of Australia [2013] WASCA 259
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
Medical Board of Australia v Naim (Review and Regulation) [2013] VCAT 1006
Milky v Medical Board of Australia (Review and Regulation) [2019] VCAT 1780
PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57
Soutorine and Medical Board of Australia [2020] WASAT 5
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Notice of proposed immediate action
In a letter dated 17 February 2020, the Australian Health Practitioner Regulation Agency (AHPRA), on behalf of the Medical Board of Australia (Board), informed the applicant (Practitioner) that AHPRA had received a notification about the Practitioner's conduct from a female former employee of the Practitioner (F). In F's notification, F alleged that the Practitioner between January 2017 and September 2018 had engaged in ongoing sexual harassment and bullying towards her.
AHPRA said that, based on the information before it, the Board believed that there were ‘objective circumstances that support a reasonable belief' that the Practitioner had 'engaged in repeated sexual contact on multiple occasions toward [his] colleague [F], some of which could amount to serious sexual assaults'.
The letter from AHPRA included a summary of F's allegations against the Practitioner in the following terms:
(a)The Practitioner visited F's home on 23 January 2017 (knowing she was home alone) and refused to leave until she had sexual relations with him. He touched her indecently before she fled to the garage and locked herself in her car in order to protect herself, while the Practitioner stayed in her house and slept in her bed.
(b)On 26 March 2017, the Practitioner booked a hotel and engaged in persistent demands that she stay with him in the hotel overnight to enable sexual relations to occur.
(c)On 11 July 2017, the Practitioner grabbed F's breasts from behind when they were both in the kitchen of their mutual workplace and indicated to F that the Practitioner had disabled security cameras to enable the Practitioner to freely engage in such behaviour.
(d)The Practitioner grabbed F's breasts and buttocks and touched her genital area at their mutual workplace in August 2017.
(e)The Practitioner bullied F at work following her refusal of his advances.
(f)The Practitioner indicated during conversations with F that the Practitioner would continue to pursue her sexually despite her repeated refusal of his advances.
(g)The Practitioner opened the door of the staff toilet at their mutual work premises when F was using the toilet.
(h)The Practitioner grabbed F's breasts and buttocks from behind in the kitchen of their mutual workplace on 23 May 2018.
AHPRA noted that F was an employee of the Practitioner at the relevant time and that the Board 'considered that [the Practitioner's] conduct demonstrates a poor understanding of the nature and consequences of sexual harassment in the workplace and the detrimental impact this can have on the delivery of safe and effective patient care'. It represents ‘a significant departure from acceptable standards expected of a medical practitioner'.
AHPRA said that the Board considered that the Practitioner posed a serious risk to persons and that it was necessary to take immediate action under s 156 of the HealthPractitioner Regulation National Law (WA) Act 2010 (National Law) 'to protect public health or safety'.
In forming its belief, AHPRA said that the Board had 'placed weight' on F's allegations and also on:
(i)some handwritten notes which were said to be from the Practitioner to F; and
(ii)'additional information' from F in the form of an email in which F outlines more of her dealings with the Practitioner.
The immediate action proposed by the Board was the suspension of the Practitioner's registration as a medical practitioner.
However, AHPRA went on to say that the Board had 'not made a final decision in relation to the notification' and at that stage was only considering whether or not immediate action should be taken.
AHPRA invited the Practitioner to provide a submission addressing 'any concerns raised in the notification' including any supporting evidence, and to provide evidence to the Board as to 'why [the Practitioner's] alleged conduct does not pose a serious risk to persons and why it is not necessary to take immediate action to protect public health and safety'.
AHPRA further informed the Practitioner that '[t]he Board has also decided to refer the matter for investigation under section 160(1) of the National Law' and that the Practitioner would receive further correspondence about that decision.
Practitioner's response to the Board
The Practitioner, through his solicitor, responded to AHPRA in a letter dated 18 February 2020. In that letter, he set out at length the Practitioner's account of what had happened between the Practitioner and F. He included copies of various photographs of F and of some text message exchanges between F and the Practitioner. He stated that the relationship between the Practitioner and F 'had romantic elements, however it was at all times platonic and importantly, it was reciprocated'. He says that the taking of this immediate action will have serious consequences on his reputation and his capacity to earn a livelihood. He requested that the Board reconsider its decision to suspend the Practitioner's registration.
Taking of immediate action
In a letter dated 24 February 2020 from AHPRA to the Practitioner's solicitor, the Board advised the Practitioner that it had considered his submission and had resolved to take immediate action by suspending the Practitioner's registration as a medical practitioner with effect from 24 February 2020.
Application for review of decision to take immediate action
On 18 March 2020, the Practitioner filed an application with the Tribunal (Review Application) under s 199(1)(h) of the National Law for a review of the Board's decision to take immediate action.
Application for a stay
The Practitioner on 7 April 2020 also filed an interim application (Interim Application) with the Tribunal, together with an affidavit sworn on 6 April 2020. In the Interim Application, the Practitioner sought an order for a stay of the immediate action decision pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It is the Interim Application to which these reasons relate. The Review Application is yet to be considered.
The hearing of the Interim Application and the Tribunal's decision
Prior to the hearing of the Interim Application, the Board filed submissions in support of its opposition to the Practitioner's stay application dated 5 May 2020 (BS). The Practitioner through his solicitor also filed written submissions dated 4 May 2020 in support of his stay application (PS). The Board and the Practitioner both filed supporting documentation.
The parties were heard on the Interim Application on 13 May 2020. At the conclusion of the hearing, I granted a stay of the Board's decision to suspend the Practitioner's registration. I said I would give reasons for that decision and these are those reasons.
Legislative scheme
Section 156(1)(a) of the National Law provides as follows:
(1)A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if -
(a)the National Board reasonably believes that -
(i)because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety[.]
'Immediate action' is defined by s 155 of the National Law and includes, among other forms of action, suspending a health practitioner's registration.
The Tribunal's jurisdiction to review the Board's decision to take immediate action is conferred by s 199(1)(h) of the National Law.
The Tribunal's power to stay the Board's immediate action decision is conferred by s 25(2) of the SAT Act, which relevantly provides as follows:
(2)The Tribunal, on the application of a party or on its own initiative, may make an order staying the operation of a decision that is the subject of a proceeding for review.
Section 25(4) of the SAT Act then provides:
(4)The Tribunal may make an order under subsection (2) only if it considers that it is desirable to do so after taking into account -
(a)the interests of any persons whose interests may be affected by the order; and
(b)any submission made by or on behalf of the decisionmaker; and
(c)the public interest.
…
Principles to be applied
In Soutorine and Medical Board of Australia [2020] WASAT 5 (Soutorine), a case also dealing with an application to the Tribunal under s 25 of the SAT Act to stay an immediate action decision by the Board, Tottle J (in his capacity as a supplementary President of the Tribunal) conducted a detailed analysis of the principles to be applied. I respectfully agree with what his Honour said in Soutorine and adopt his conclusions. It is unnecessary to repeat all of what his Honour said in Soutorine, but to assist with the reading of these reasons I will summarise those conclusions.
His Honour observed that the discretion to make a stay order is conditioned by the Tribunal forming the opinion that it is desirable to order a stay having regard to the matters specified in subparagraphs (a), (b) and (c) of s 25(4) of the SAT Act. His Honour noted that the discretion conferred by s 25(2) of the SAT Act is a wide statutory discretion to be exercised judicially and that the matters specified in subparagraphs (a), (b), and (c) of s 25(4) do not constitute an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision.
His Honour said that the considerations that guide the exercise of the discretion to grant a stay pending an appeal in curial proceedings, restated in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 at [47], may provide some guidance when determining whether to grant a stay pending the determination of a review application. However, he added that the relevance of those considerations will vary according to the nature of the decision giving rise to the order in respect of which a stay is sought. As his Honour said, '[t]hose principles do not displace the statutory considerations and nor should they be grafted on to the statutory provision'; Soutorine at [25].
His Honour referred to and agreed with Curthoys J's observation in PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57 'that, in the context of a stay application brought within an application to review an administrative decision, a regulatory decision-making authority is not to be equated with the successful party in proceedings in which the issues have been contested and determined by a court or tribunal'; Soutorine at [27].
His Honour noted that, while the decisions on applications to stay immediate action decisions in other jurisdictions may also provide some guidance as to the considerations bearing upon the discretion to grant a stay, care should be taken to recognise any relevant differences in the legislative frameworks in which the interstate decisions were made and the nature of the decision that gave rise to the order the subject of the stay application.
It is apparent that, before the Board can take immediate action under the National Law, it needs to reasonably believe the matters specified in s 156(a)(i) and (ii) of the National Law. The underlying facts of the complaint do not have to be proven on the balance of probabilities. However, there must be proven objective circumstances sufficient to justify the belief; Bernadt v Medical Board of Australia [2013] WASCA 259 (Bernadt) at [66]. As the Victorian Civil and Administrative Tribunal put it in Milky v Medical Board of Australia (Review and Regulation) [2019] VCAT 1780 at [56], which was also a decision concerning an application to stay an immediate action decision,
there must be a sufficient basis for the formulation of the required reasonable belief in s 156. It is necessary to evaluate 'the known facts, circumstances and considerations which bear rationally on this issue'; McKinnon v Department of Treasury [2006] HCA 45; 228 CLR 423 at 429-30.
With regard to the taking of immediate action under s 156(1)(a) of the National Law, McClure P in Bernadt at [65] said that it is necessary to identify with precision what it is that must be the subject of the reasonable belief. Her Honour then observed that there are in fact three components to subparas (i) and (ii) of that section, one factual and two evaluative. They are:
(i)(1) because of (that is, by reason of) the relevant 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.
I agree with the Board's observation (at [32]-[33] below) that, when considering the stay application, the Tribunal must observe the relevant statutory objectives of the National Law, one of which is set out in s 3(2)(a) of the National Law, namely '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'.
Board's submissions
The Board opposes the Practitioner's stay application.
The Board agrees that the Tribunal's power to grant a stay of the immediate action decision is derived from s 25(2) of the SAT Act and that an order for a stay may only be made if the Tribunal considers that it is desirable to grant a stay after taking into account the factors set out in s 25(4) of the SAT Act.
However, the Board considers that the National Law is an enabling Act under the SAT Act and, pursuant to s 18 of the SAT Act, modifies the operation of the SAT Act in relation to a matter that comes within the Tribunal's review jurisdiction. Accordingly, the Tribunal must also have regard to s 4 of the National Law.
Section 4 of the National Law provides that an entity that has functions under the National Law must exercise those functions having regard to the objectives and guiding principles set out in s 3 of the National Law. The relevant objective is at s 3(2)(a) of the National Law.
The Board recognises that it is the maker of the decision under review and, as such, in the context of a stay application it is not to be treated as a successful litigant pending the outcome of an appeal. However, the Board says that the considerations that guide the exercise of the discretion to grant a stay pending an appeal in curial proceedings may provide some guidance when determining whether to grant a stay pending the determination of a review application; BS at para 19.
The Board then goes on to refer to various cases dealing with the principles applicable in respect of a review application concerning immediate action decisions and submits that, amongst other things, an immediate action order does not entail a detailed enquiry and that the taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the practitioner concerned poses a serious risk. The Board says that a necessary guiding principle in determining an application for an interim stay in this context is that a stay must be refused if the Tribunal considers that the decision to take immediate action was necessary to avoid a risk of serious harm to persons. The Board cited the following passage from Medical Board of Australia v Naim (Review and Regulation) [2013] VCAT 1006 (Naim) at [15] where Macnamara J, when determining an application for an interim stay of a decision to disqualify a medical practitioner pending the outcome of an appeal to the Victorian Court of Appeal, said:
To take a clear example, if it appeared that a medical practitioner was a menace to the community it would be the duty of anybody in my position to refuse to grant a stay at this point in the interests of the public.
The Board says that, in deciding to take immediate action, it formed a reasonable belief that the Practitioner's conduct gave rise to a serious risk to persons such that it was necessary to suspend his registration in order to protect the public; BS at para 30.
The Board submits that, in the necessary examination of the balance of convenience, the matter of hardship to the Practitioner may properly be regarded as a secondary or subsidiary consideration to that of the need to protect the public interest; BS at para 29.
The Board rejects the Practitioner's submission that his relationship with F was 'romantic but platonic' and suggests that the Practitioner was selective in the copies of the text messages which he provided to the Board in his submissions to the Board of 18 February 2020; BS at para 31.
The Board notes that F was dependant on the Practitioner for financial sponsorship in support of her visa and that he was also her employer and the Board took that context into account when considering the messaging between F and the Practitioner.
The Board refers to a notification that it received on 3 April 2010 involving 'similar allegations' against the Practitioner from another female colleague of the Practitioner. Even though the Board made a decision to take 'no further action' in relation to that notification, the Board considers that it is entitled to take that prior notification into consideration 'as part of a pattern of conduct or practice by [the Practitioner]'; BS at para 33.
The Board thus considers that no lesser form of restriction than suspension of the Practitioner's registration would be adequate for the protection of the public.
Turning to the Practitioner's application for a stay of the immediate action taken by the Board, the Board says that it should be refused. The Board understands that F's complaint is in substance a complaint of unwelcome sexual advances persisting over a period of approximately oneandahalf years at a time when F was vulnerable. The Board says that the available evidence and information demonstrates that there is a risk that the Practitioner is a person who has a propensity to make unwelcome sexual advances to young females and that he will do so in connection with his medical practice. The Board says that this risk is a serious risk of harm to members of the public, whether they are patients or colleagues.
The fact that the Practitioner is currently working as a locum at a range of medical practices, the Board says, does not ameliorate the risk. The Practitioner may encounter vulnerable young women in any medical practice or hospital setting.
The risk to the public identified by the Board provides, in the Board's submission, a proper basis for the Tribunal to refuse the Practitioner's application for a stay of the suspension of his registration.
Practitioner's submissions
The Practitioner 'strongly denies the allegations' made by F against him, although he concedes that he was the author of the written notes referred to in the notice of proposed immediate action. He says that he and F had 'a mutual familiar and affectionate, but platonic relationship with each other'; PS at para 9. He said that his relationship with F 'involved no unwelcome conduct, no conduct of sexual nature and no bullying'; PS at para 9.
He points out that F's complaints are at this stage unsworn and uncorroborated.
The Practitioner submits that a stay of the Board's immediate action decision should be granted by the Tribunal because:
(a)his appeal has reasonable prospects of success;
(b)the material before the Board is not sufficient to form the basis of a reasonable belief about the Practitioner's conduct for the purpose of s 156 of the National Law;
(c)the Practitioner's conduct does not create a serious risk to persons such that suspension is necessary to protect public health or safety;
(d)suspending his practice will cause irreparable hardship to the Practitioner; and
(e)the public interest and balance of convenience weigh in favour of the grant of a stay.
The Practitioner considers that the Board's 'reasonable belief' upon which the Board based the taking of immediate action against him was formed on the basis of the notification from F to AHPRA and that the Board relied entirely upon that notification to form its belief; PS at para 26. The Practitioner says, quoting McLure P in Bernadt at [65], that the Board has made no attempt to 'identify with precision what it is that must be the subject of the reasonable belief'; PS at para 21.
The Practitioner says that the requirement for the existence of a reasonable belief about the Practitioner's conduct imports a requirement that there be sufficient facts before the Board for it to found such a belief; PS at para 26. The Practitioner says, citing George v Rockett [1990] HCA 26; (1990) 170 CLR 104, that this will ordinarily require something more than repeating the allegations of the notifier and that the subject matter of the belief must be identified with precision; PS at para 26.
The Practitioner considers that the Board must identify whether and how the conduct concerned is of a sexual nature and then set out the basis for the Board being satisfied that the conduct was unwelcome. The Board must also show why it believed that F had reasonable grounds to believe that if she rejected the advance she would be disadvantaged or was in fact disadvantaged; PS at para 27.
The Practitioner says that F's notification and statement does not qualify as 'objective circumstances'. The Practitioner would describe them instead as 'bald assertions'; PS at para 31.
The Practitioner submits that he has produced 'credible, corroborated and objective evidence' disproving F's version of events or at least creating doubt as to the veracity of F's version of events; PS at para 33.
The Practitioner notes that the Board has acknowledged that the conduct complained about does not directly concern patients or the provision of health care services. The Practitioner says that the alleged risk is therefore 'a vague and indirect one' and cannot be reasonably held to be a 'serious risk'. Accordingly, the Board was not justified in the taking of the 'most serious immediate action available to [it]'; PS at para 40.
The Practitioner also contends that, for his conduct to be the subject of immediate action, it must be capable of being characterised as professional misconduct as defined in the third limb of the definition of professional misconduct in the National Law (PS at para 42) namely 'conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession'.
The Practitioner says that there is no material before the Board to justify the Board's belief that the Practitioner had engaged in conduct that demonstrates a significant departure from acceptable standards. The Practitioner says that he has not worked with F since September 2018 and no longer owns the medical practice where he and she were colleagues; PS at para 50. He says that since June 2019 he has worked as a locum for three different practices, limited to one or two days per week in each practice PS at para 51. He says that there have been no complaints against him from female colleagues who he says will confirm that at no time did the Practitioner behave in a manner towards them that was inappropriate; PS at para 52.
The Practitioner says that the Board has failed to consider and identify with any precision the nature of the risk that the Practitioner poses. The Practitioner says that '[t]he Board's reliance on a previous notification some 10 years earlier which was found to be unsubstantiated lacks logic in the context of the question the Board was required to answer'; PS at para 57.
The Practitioner submits that there is no reasonable basis for a belief that immediate action in the form of suspension is necessary for the protection of the public.
The Practitioner considers that his prospects of success in the Review Application are high and that the suspension of the Practitioner's registration is a 'draconian step' which could cause him severe financial hardship; PS at para 60. He also considers that the likelihood of an investigation into the substantive complaint against him will not be completed for 'many months'; PS at para 61. Further, he says, the medical practices for whom the Practitioner has been providing services have been adversely affected by his suspension. He points out that two of those practices are regional practices.
Reasons for granting the stay
In coming to my decision to grant a stay of the immediate action taken by the Board, I have not made, nor will I make, any findings of fact other than the fact of the complaint having been made and the content of the complaint and the Board's response to it. My role was to decide whether it is desirable to stay the immediate action decision pending the Tribunal's decision in the Review Application, after taking into account the submissions of the Board, the interests of the Practitioner and the public interest.
This is in the context that none of F's allegations against the Practitioner have been tested and I have not formed even a preliminary view of what might be the outcome of the Review Application.
I have considered the Board's and the Practitioner's submissions and I took those into account before I arrived at my decision.
The Board's clear position is that it holds a reasonable belief that it is necessary to take immediate action to protect the safety of the public, which is founded on the complaint from F and F's allegations about the Practitioner's conduct.
It is apparent that the factors included in the Board's primary consideration of whether to take immediate action were the nature of the allegations against the Practitioner and the power imbalance between the Practitioner and F, both because he was her employer and also because he was providing financial sponsorship in support of her visa application. I also understand that the Board considers that the prior complaint made against the Practitioner in 2010 is of relevance.
While the allegations made against the Practitioner are undoubtedly serious and, if proved, would have at least professional consequences for the Practitioner, in my opinion none of the factors referred to support the Board's conclusion that, at least at this stage in the investigation, there is a basis to form the reasonable belief that the Practitioner presents a risk to persons such that no lesser form of restriction than the immediate suspension of the Practitioner's registration would be adequate to protect public safety. The Board does not articulate how F's safety is affected, positively or negatively, by the suspension of the Practitioner's registration and it is difficult to see, at this stage, how the Practitioner should be regarded as a danger to the wider community. Nor does the Board identify exactly what risk to the wider public the Practitioner poses. Other than a general reference to the safety of vulnerable young women, particularly in the context of medical practice, the Board has not identified with any precision the nature of the risk which the Practitioner poses to the public. When the Board's current assessment of the risk to the safety of the public is considered in the light of the effect that an immediate suspension will have on the Practitioner, in my view the immediate action taken by the Board should be stayed until the Review Application is heard.
I would add that there is no suggestion before me that there is any complaint about the Practitioner's competence as a medical practitioner, or, with one exception, any complaint about his conduct other than from F. There was, as the Board says and the Practitioner concedes, a complaint made in 2010 by a then colleague of the Practitioner, but as can be seen from the terms of a letter from AHPRA to the Practitioner dated 24 February 2012, a copy of which was filed by the Board within its book of documents, 'it did not appear to the State Board that there were sufficient grounds to proceed with disciplinary action. Consequently, there will be no disciplinary action taken in relation to [the relevant notification]'.
Whether or not the Board (and the Tribunal in the exercise of its review function) has reasonable grounds for believing that the conduct of the Practitioner is such that the Practitioner does in fact pose a serious risk to persons and that immediate action should be taken, prior to the Board completing its investigation under s 160 of the National Law, is of course to be determined after the hearing of the Review Application.
Further, whether the Practitioner is a fit and proper person to remain a member of the medical profession is also a matter to be considered in the future. As I have said, the allegations by F about the Practitioner are serious and, if established, could lead to a finding of professional misconduct, even though F was not a patient of the Practitioner and the conduct the subject of the complaint did not concern the provision of health care services. However, that is a matter to be dealt with at another time.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE T SHARP, DEPUTY PRESIDENT
16 JUNE 2020
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