GLP and MEDICAL BOARD OF AUSTRALIA
[2024] WASAT 89
•29 AUGUST 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION APPLICATION ACT 2024 (WA)
CITATION: GLP and MEDICAL BOARD OF AUSTRALIA [2024] WASAT 89
MEMBER: JUDGE F VERNON, DEPUTY PRESIDENT
DR S WILLEY, SENIOR MEMBER
DR S RESNICK, SESSIONAL MEMBER
HEARD: 7 AUGUST 2024
DELIVERED : 29 AUGUST 2024
PUBLISHED : 29 AUGUST 2024
FILE NO/S: VR 41 of 2024
BETWEEN: GLP
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Vocational regulation - Medical practitioner - Immediate action - Whether immediate action in the form of suspension of the practitioner's registration is in the public interest - Whether immediate action in the form of suspension of the practitioner's registration is necessary to protect public health and safety
Legislation:
Criminal Code (WA), s 317(1)(a)
Health Practitioner Regulation National Law Act (WA)
Health Practitioner Regulation National Law and Other Legislation Amendment Act 2009 (Qld)
Health Practitioner Regulation National Law Act 2010 (WA), s 3, s 3A, s 3A(1), s 3A(1)(b), s 3A(2)(A), s 3A(2)(c), s 3(3), s 4, s 155(a), s 156(1), s 156(1)(a), s 156(1)(e), Pt 8 Div 8, Pt 8 Div 9, Pt 8 Div 10, Pt 8 Div 11, Pt 8 Div 12, Pt 8 Div 13, s 199(1), s 199(1)(h), s 199(2)(a)(i)
Health Practitioner Regulation National Law Application Act 2024 (WA), s 19, Pt 3 Div 3, s 36. s 42, s 47(1), s 47(2), s 52
State Administrative Tribunal 2004 (WA), s 27(1), s 27(2), s 31(1), s 62(3)
Result:
The respondent's decision to suspend the applicant is set aside and substituted by a decision to impose conditions on the applicant's registration
Category: B
Representation:
Counsel:
| Applicant | : | P Yovich SC |
| Respondent | : | J Pizer SC |
Solicitors:
| Applicant | : | Panetta McGrath Lawyers |
| Respondent | : | Perth Legal |
Case(s) referred to in decision(s):
Aly v Medical Board of Australia [2022] VCAT 1096
Bernadt v The Medical Board of Australia [2013] WASCA 259
Cheema v Medical Board of Australia [2020] SACAT 40
Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Gertstman v Medical Board of Australia [2020] VCAT 1367
Kearney v Nursing and Midwifery Board of Australia [2020] VCAT 1216
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295
Lee and Medical Board of Australia [2022] WASAT 28
Medical Board of Australia v Adams [2023] WASCA 41
Medical Board of Australia v Leow [2019] VSC 532
Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513
Medical Practitioners Board of Victoria v Lal [2009] VSCA 109
Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701
Rao v Medical Board of Australia [2021] QCAT 145
Syme v Medical Board of Australia [2016] VCAT 2150
Thekkekara and Nursing and Midwifery Board of Australia [2020] WASAT 160
WD v Medical Board of Australia [2013] QCAT 614
Webb v Tang [2023] WASCA 119
REASONS FOR DECISION OF THE TRIBUNAL:
[In this published version of the reasons certain words have been redacted for the reasons set out in [11].]
Introduction
By an application dated 29 April 2024, GLP (the Practitioner) sought review of a decision of the Medical Board of Australia (Board) made on 8 April 2024 under s 156(1) of the Health Practitioner Regulation National Law Act 2010 (National Law) to take immediate action to suspend his registration as a medical practitioner (Decision).[1]
[1] At the time of the Board's decision the National Law was given effect in WA by s 4 of the Health Practitioner Regulation National Law (WA) Act 2010 (the 2010 Act). The 2010 Act was repealed on 15 May 2024 and replaced by the Health Practitioner Regulation National Law Application Act 2024 (WA) (Application Act). By s 5(2) of the Application Act, the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner National Law and Other Legislation Amendment Act 2009 (Queensland) applies as the law in Western Australia (National Law). By s 19 of the Application Act the Tribunal is declared to be the responsible tribunal for Western Australia for the purposes of the National Law. The National Law operates as a continuation of the National Law under the 2010 Act; s 42 of the Application Act. Any undecided appeal commenced under s 199 of the National Law in the Schedule to the 2010 Act must be heard and decided under the National Law: ss 47(1) and (2) of the Application Act.
By order dated 6 June 2024, made by consent under s 31(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the matter was referred back to the Board for reconsideration of its decision. On 26 June 2024 the Board affirmed the Decision.
The Board made the Decision to suspend the Practitioner after it was notified that, on 6 March 2024, the Practitioner had been charged with one count of assault occasioning bodily harm in circumstances of aggravation contrary to s 317(1)(a) of the Criminal Code (WA) (the Charge). The aggravating circumstance was that the Practitioner was alleged to have assaulted his newborn son (the Infant). The bodily harm relied on in support of the Charge was abdominal bruising and an undisplaced rib fracture. The Infant also suffered an additional injury being an undisplaced fracture of his right femur, which injury was discovered after the Charge was laid. The Practitioner admits that his conduct caused the Infant's injuries. However, the Practitioner says that at the time he inflicted these injuries he was attempting to alleviate the Infant's symptoms of constipation and that he did not intend to injure the Infant.
It is common ground that the evidence of the Charge and the Practitioner's admitted conduct in injuring the Infant provides a reasonable basis for us to form a belief that taking some form of immediate action is in the public interest, under s 156(1)(e) of the National Law. The dispute in this matter arises because the Board submits that, in the circumstances, suspension is the only appropriate immediate action. The Practitioner submits that the imposition of conditions on his registration is a sufficient response to the public interest concerns under s 156(1)(e).
The Board also submits that there is a sufficient basis for the Tribunal to form a reasonable belief that, because of the Practitioner's conduct, the Practitioner poses a serious risk to persons and that it is necessary to take immediate action in the form of suspension to protect public health or safety under s 156(1)(a) of the National Law.
The Practitioner denies that there is any reasonable basis to believe that the Practitioner is a serious risk to persons. Accordingly, the Practitioner says that there is no basis for immediate action under s 156(1)(a). However, the Practitioner says that, if we form the belief that the Practitioner does pose a serious risk to persons, the imposition of conditions would adequately address any concerns as to public health or safety.
We believe, on what we consider to be reasonable grounds, that immediate action by imposing conditions on the Practitioner's registration in the terms set out in the Schedule to these reasons is in the public interest, under s 156(1)(e) of the National Law.
We do not believe that immediate action in the form of suspension of the Practitioner's registration is necessary in the public interest under s 156(1)(e) of the National Law.
We do not believe the Practitioner is a serious risk to persons. Accordingly, we do not believe that any immediate action is necessary to protect public health or safety under s 156(1)(a) of the National Law. However, if we had believed that the Practitioner was a serious risk to persons, we consider that immediate action in the form of conditions on the Practitioner's registration would be sufficient to meet any public health and safety concerns.
Accordingly, we have decided that the correct and preferable decision is to set aside the Decision and to substitute a decision to take immediate action under s 156(1)(e) of the National Law by imposing conditions on the Practitioner's registration in the terms set out in the Schedule to these reasons. Our reasons are set out below.
Non-publication order
An order was made in the Magistrates Court on 2 April 2024 by which the publication of the name or any other particular that would enable the identification of the Practitioner and the Infant was prohibited until further order. That order is still in place. A similar order was sought by the parties by consent in these proceedings, under s 62(3) of the SAT Act. Given the order in the Magistrates Court, and that the identification of the Practitioner will necessarily identify his partner and the Infant, at the hearing on 7 August 2024 the Tribunal ordered that the name and other identifying details of the Practitioner, the Infant, and the Practitioner's partner not be published. In light of that order, we have ordered that the Practitioner be referred to as GLP as appears in the heading of these reasons. In order to ensure that information that might identify the Practitioner, the Infant, and the Practitioner's partner is not disclosed we will order redactions be made to the published version of these reasons after consultation with the parties.
Issues
The issues to be determined are:
(a)whether, under s 156(1)(e) of the National Law, we reasonably believe that it is in the public interest to take immediate action against the Practitioner in the form of:
(i)suspension of the Practitioner's registration; alternatively
(ii)the imposition of conditions on the Practitioner's registration, and if so, what conditions should be imposed; and
(b)whether, under s 156(1)(a) of the National Law, we reasonably believe that:
(i)the Practitioner poses a serious risk to persons; and
(ii)if the Practitioner does pose a serious risk to persons, whether it is necessary to take immediate action against the Practitioner to protect public health or safety, and if so, whether that immediate action should be in the form of:
1.suspension of the Practitioner's registration; alternatively
2.the imposition of conditions on the Practitioner's registration, and if so, what conditions.
The legislative framework
As the person the subject of the Decision, the Practitioner has a right of review to the Tribunal.[2]
[2] A right of appeal to the appropriate responsible tribunal is granted under s 199(1)(h) and s 199(2)(a)(i) of the National Law. By s 19 of the Health Practitioner Regulation National Law Application Act 2024 (WA) (Application Act) the State Administrative Tribunal is the responsible tribunal in Western Australia. A reference to an appeal in s 199(1) the National Law is a reference to a review of the decision under the SAT Act Pt 3 Div 3: s 36 of the Application Act.
The review is by way of a hearing 'de novo', that is afresh, with the purpose of producing the correct and preferable decision at the time of the decision upon the review.[3] In conducting the review, we have the same jurisdiction, functions, and discretions as those of the Board in making the Decision.[4]
[3] Subsections 27(1) and 27(2) of the State Administrative Tribunal Act 2004 (WA).
[4] Thekkekara and Nursing and Midwifery Board of Australia [2020] WASAT 160 (Thekkekara) at [32(b)].
It has been held that the Board bears the persuasive burden of establishing that the preconditions for taking immediate action are met.[5]
[5] Gertstman v Medical Board of Australia [2020] VCAT 1367 at [74]; Syme v Medical Board of Australia [2016] VCAT 2150 at [114].
Section 156(1) of the National Law relevantly provides that:
(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 health, conduct or performance, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety; or
…
(e)the National Board reasonably believes the action is otherwise in the public interest.
Example of when action may be taken in the public interest –
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioner.
Subsection 155(a) of the National Law defines the term 'immediate action' to include the suspension or imposition of a condition on the health practitioner's registration.
Divisions 8 to 13 of Pt 8 of the National Law contains extensive and detailed provisions for the investigation, assessment, consideration and determination of notifications (or complaints) against health practitioners. This includes referral of allegations of professional misconduct against health practitioners to the Tribunal, under Div 12, following which disciplinary action may be taken against the practitioner after a hearing and determination of the facts (disciplinary proceedings).
Immediate action under Pt 8 Div 7, on the other hand, allows for urgent action to be taken under certain circumstances whilst the relevant regulatory board conducts investigations.[6] It has been said that the purpose of immediate action is to 'put measures in place to protect against, or ameliorate, harm pending determination' and that it is 'not an end in and of itself.'[7]
[6] Syme v Medical Board of Australia [2016] VCAT 2150 at [22].
[7] Medical Board of Australia v Leow [2019] VSC 532 at [78].
Immediate action by way of suspension or the imposition of conditions is for an unspecified period, applying until set aside on review,[8] or being revoked,[9] or removed by the board.[10] In addition, as a board must give effect to the decision of another adjudication body, the decision of a board to take immediate action may be overtaken by a decision of the responsible tribunal in subsequent disciplinary proceedings.[11] Where immediate action in the form of suspension is imposed there is an expectation that disciplinary proceedings in the Tribunal will ultimately proceed.[12]
[8] Under s 159(2)(a) of the National Law.
[9] In the case of suspension under s 159(2)(b) of the National Law.
[10] In the case of conditions under s 159(2)(b) of the National Law.
[11] Section 205 of the National Law, Bernadt v The Medical Board of Australia [2013] WASCA 259 at [298] (Murphy JA).
[12] Bernadt v The Medical Board of Australia at [78] (McLure P).
The unspecified period of suspension of registration under s 156(1) of the National Law differs from suspension after the determination of disciplinary proceedings against a practitioner, which may only be imposed for a specified period. In addition, an order cancelling a practitioner's registration after disciplinary proceedings must be subject to a review period.[13]
[13] Subsections 196(2)(d) and (e) and s 96(4) of the National Law.
Both s 156(1)(a) and s 156(1)(e) of the National Law require us to reasonably believe the matters identified in each subsection before we may take immediate action.
In Bernadt v Medical Board of Australia[14] Newnes JA said, with respect to s 156(1)(a) of the National Law, that:
… The Tribunal was not required to make findings as to whether in fact the appellant posed a serious risk to persons or whether immediate action was in fact necessary to protect public health. The question was whether the Tribunal held a reasonable belief as to those matters, not whether those matters were the fact.
[14] Bernadt v The Medical Board of Australia at [171] (Newnes JA).
In Medical Board of Australia v Adams[15] the Court of Appeal held, again with respect to s 156(1)(a) of the National Law, that:
First, determining what, if any, immediate action is appropriate does not involve determining what had occurred in relation to the matter notified. Rather the inquiry is directed to the future; the focus is upon the nature and extent of the risks to persons and the steps to be taken to address such risks. Ordinarily, it will be sufficient for the Board or Tribunal to know what the allegation is, what material supports it and whether the allegation is denied, without attempting to go into the merits of the allegation…Consistent with this, as Newnes JA observed in Bernadt v Medical Board of Australia, pt 7 of the National Law provides for a relatively summary process and makes no provision for the practitioner to be given any real opportunity to test the factual basis of the Board's belief.
[15] Medical Board of Australia v Adams [2023] WASCA 41 at [93].
In Medical Board of Australia v Sami,[16] Cavanough J held that s 156(1) of the National Law did not require the relevant board or tribunal to choose between differing versions of past events for the purpose of deciding whether or not to take immediate action.[17]
[16] Medical Board of Australia v Sami [2022] VSC 90; (2022) 66 VR 513 at [23].
[17] Cited with approval in Medical Board of Australia v Adams at [93].
Accordingly, we are not, in these proceedings, required to make any findings as to what actually occurred. Indeed, to do so may prejudice any future hearing of disciplinary proceedings against the Practitioner.[18]
[18] Medical Board of Australia v Adams at [94].
In Webb v Tang[19] the Court of Appeal considered the phrase 'believes on reasonable grounds' in the context of a teacher's duty to report child sexual abuse under the Children and Community Services Act 2004 (WA). Buss P and Vaughan JA said:
95The notion that 'belief' involves the formation of a 'positive inclination' in the mind to accept a proposition of fact acknowledges that ordinarily the mind will decide whether to accept a proposition of fact after weighing the probabilities by reference to the available information. The 'belief' of a person is ordinarily a conclusion after the probabilities have been weighed.
96A 'belief' is more than a 'suspicion' and is ordinarily less than 'positive knowledge'. The intermediate position of 'belief' in this spectrum between 'suspicion' and 'positive knowledge' recognises that the information available to a person who forms a belief may be from external sources, including hearsay, which the person may be unable independently to verify.
97The word 'belief' is of sufficient breadth to describe a state of mind which regards the existence of a proposition of fact as certain and also a state of mind which inclines towards accepting rather than rejecting that the proposition of fact exists, but acknowledges a doubt, a prospect or a chance that the proposition of fact may not exist.
[98]A person's mind will not incline towards accepting a proposition of fact if the person's mind inclines towards rejecting the proposition of fact or if the person's state of mind is that he or she is unable to arrive at a conclusion one way or the other.
[19] Webb v Tang [2023] WASCA 119.
In George v Rockett,[20] the High Court said that:
'[b]elief' 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.
[20] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at [116].
A 'reasonable' belief imports an objective criterion.[21] It requires the existence of facts which are sufficient to induce the belief in a reasonable person.[22] Accordingly, there is a subjective and an objective component to our holding a 'reasonable' belief. Subjectively, we must actually hold the belief that the particular form of immediate action is either necessary to protect public health or safety (under s 156(1)(a) of the National Law), or in the public interest (under s 156(1)(e)). Objectively, there must be a reasonable basis for any belief we hold.
[21] Webb v Tang [2023] WASCA 119 at [106] (Buss P & Vaughan JA).
[22] Bernadt v The Medical Board of Australia at [173].
With respect to s 156(1)(a) of the National Law, Hormeman‑Wren J said, in Oglesby v Nursing and Midwifery Board of Australia:[23]
… In my view, a reasonable belief may be held that a practitioner poses as serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
[23] Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20].
A decision to take 'immediate action' does not require a detailed inquiry.[24] In Cheema v Medical Board of Australia,[25] it was said that:
In our view, an appeal under s 156 is not an occasion for conducting a de facto disciplinary hearing or determining contested factual or medical issues. It would not generally be an occasion for hearing disputed oral evidence or assessing in any conclusive way the weight of disputed evidence. Where serious issues professional misconduct arise, they should be determined on a referral under s 193 of the National Law in accordance with established principles as to the onus and standard of proof. The task of the Tribunal in an appeal from an immediate action decision is limited in scope.
[24] WD v Medical Board of Australia [2013] QCAT 614 at [8].
[25] Cheema v Medical Board of Australia [2020] SACAT 40 at [25].
An immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations.[26] However, the material must be scrutinised to determine what weight to give to it.[27]
[26] WD v Medical Board of Australia at [8].
[27] WD v Medical Board of Australia at [8].
In Lee and Medical Board of Australia,[28] the Tribunal said that the same set of facts may warrant action under both s 156(1)(a) and s 156(1)(e).[29] In relation to s 156(1)(e) the Tribunal said:[30]
[P]arliament plainly contemplated that an allegation that a health practitioner has committed a serious crime, albeit one that lacks an obvious connection to clinical practice, may, depending on the circumstances, warrant immediate action against the practitioner. Immediate action may be warranted having regard to various public interest considerations, including the protection of the public, or maintenance of public confidence in the medical profession. Other public interest considerations may also be relevant.
[28] Lee and Medical Board of Australia [2022] WASAT 28.
[29] Lee and Medical Board of Australia at [31].
[30] Lee and Medical Board of Australia at [30].
The Tribunal in Lee went on to say, with reference to the decision in Farshchi v Chinese Medicine Board of Australia:[31]
[I]t is well established, and the parties agreed, that the 'public interest' is not a 'one-sided construct'. Rather, the public interest is a multi-faceted concept. In Farshchi the Victorian Civil and Administrative Tribunal referred to a variety of public interest considerations which may arise in cases such as this;
The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made;
There is a public interest in members of health professions, in whom training and expenditure have been made, being able to practice;
There is a public interest in 'area of need' professionals being able to practice.
There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.
There is a public interest in ensuring immediate action is only taken when it is necessary to do so.[32]
[31] Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617 at [71] to [75].
[32] Farshchi v Chinese Medicine Board of Australia.
As the Board's counsel submitted, s 156(1)(e) of the National Law does not expressly state that the decision‑maker must reasonably believe that the immediate action it imposes is 'necessary' in the public interest, as s 156(1)(a) does with respect to immediate action imposed to protect public health or safety. However, we did not understand the Board to be submitting that we could impose a form of immediate action that we did not believe was necessary or required in the public interest. The Board's position was that suspending the Practitioner's registration was the only appropriate form of immediate action in the circumstances: that is suspension was necessary in the public interest.
In any event, in our view, we can only determine a form of immediate action is warranted in the public interest if we believe that the particular form of immediate action is necessary or required. This is consistent with the aspect of the public interest that the regulatory system respond in a fair and proportionate manner and that immediate action only be taken when it is necessary to do so, as said in Farshchi.[33] It is also consistent with the Court of Appeal in Kozanoglu v Pharmacy Board of Australia,[34] which said, in relation to s 156(1)(a) of the National Law, that public safety should be ensured with 'as little damage to the practitioner as is consistent with its maintenance'.
[33] Farshchi v Chinese Medicine Board of Australia at [71] to [75].
[34] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 at [126].
Our view is consistent with the language used by Niall J in Medical Board of Australia v Leow,[35] who said with respect to s 156(1)(e) of the National Law:
Ultimately, the question is whether or not the Board reasonably believes, in circumstances where none of the other sub-paragraphs of s 156(1) apply, that it is necessary in the public interest to take immediate action. The meaning of public interest is informed by the example. It is necessary for the Tribunal to proceed on the basis that public confidence in the provision of services by health professionals is an aspect of the public interest. However, the Tribunal does not need to apply the example as if it were a statutory test. Specifically, the Tribunal was not required to analyse the issue of whether public confidence would be maintained, as opposed to whether, and to what extent, public confidence would be impacted and whether the extent of any such impact would require, in the public interest, that immediate action be taken.
Section 3A of the National Law
[35] Medical Board of Australia v Leow [2019] VSC 532 at [85].
Section 4 of the National Law provides that an entity exercising functions under the National Law, which includes the Tribunal on review, must have regard to the objectives and guiding principles set out in s 3 and s 3A of the National Law.
Section 3A came into effect in Western Australia on 15 May 2024.[36] That section provides, relevantly, as follows:
[36] On the commencement of the Application Act.
(1)The main guiding principle of the national registration and accreditation scheme is that the following are paramount –
(a)protection of the public;
(b)public confidence in the safety of services provided by registered health practitioners and students.
(2)The other guiding principles of the national registration and accreditation scheme are as follows:
(a)the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
(aa)…;
(b)…;
(c)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Subsections 3A(2)(a) and (c) reproduce what was previously contained in s 3(3) of the National Law applicable in Western Australia. Section 3A(1) is new.
As submitted by the Board, it follows from the inclusion of s 3A(1) of the National Law that we must give priority to considerations of public safety and public confidence in the safe provision of services by health practitioners over other considerations relevant to the determination of whether immediate action should be imposed under s 156(1)(a) or s 156(1)(e) of the National Law.
In its written submissions, however, the Board seemed to go further with respect to the effect of s 3A, submitting that:[37]
The National Law compels decision-makers to treat as paramount (and hence place more weight upon) the public interest in public confidence in the profession. (emphasis added)
[37] The Board's submissions dated 5 August 2024 at [56].
Overall, the Board's written submissions in relation to 'public confidence in the profession' did seem to suggest that public confidence in the profession in a more general sense, and in particular, the need to maintain public confidence by maintaining the reputation of the profession, was a paramount consideration under s 3A(1)(b) in determining whether immediate action should be imposed under s 156(1)(e) of the National Law. Such a consideration, whilst relevant, does not obviously affect the public perception of the safety of health services so as to fall within s 3A(1)(b) and be a 'paramount' consideration.
In any event, in its oral submissions the Board resiled from any such suggestion, saying that its use of the words 'public confidence in the profession' in its written submissions was merely a shorthand way of referring to 'public confidence in the safety of services provided by health practitioners', as stated in s 3A(1)(b). The Board made submissions on the relevance of s 3A(1)(b) in the circumstances of this case which we address later in these reasons.
Summary of the evidence
The application was heard on 7 August 2024, and proceeded on the documentary evidence. No witnesses gave evidence. That evidence is summarised in the following paragraphs. The evidence is largely uncontested save for the disputes which are referred to later in these reasons.
The Practitioner is a consultant in [REDACTED] and employed in [REDACTED] of [REDACTED] (the Hospital).
It is not in dispute that:
(a)the Practitioner does not have a criminal record;
(b)prior to the Charge, the Practitioner had never been arrested or charged with an offence; and
(c)prior to the current matter, the Practitioner had not been the subject of any notification or complaint to the Australian Health Practitioner Regulation Agency (Ahpra) concerning his conduct.
The Charge
As has been said, the Decision arose in the context of the Charge, which is being dealt with in the Magistrates Court. The offence the subject of the Charge carries a maximum penalty of 7 years imprisonment. However, in the Magistrates Court the maximum penalty that may be imposed is 3 years imprisonment.
The facts alleged in relation to the Charge are set out in a police statement of material facts (the material facts) which say, in summary, that:
(a)The Practitioner returned home after a shift at [REDACTED] the Hospital at 1 am on 5 March 2024.
(b)The Practitioner slept in the master bedroom with his partner and the Infant, who was a newborn aged [REDACTED]. The Infant woke frequently between the hours of 1 am and 7 am.
(c)At around 7 am, whilst the Practitioner's partner was in the shower, and the Practitioner was preparing breakfast for their elder child, the Practitioner heard the Infant crying and straining in the master bedroom.
(d)The Practitioner attempted to console the Infant, unsuccessfully.
(e)The Practitioner placed his hand over the Infant's abdomen and applied heavy pressure downward on the abdomen for four to five seconds whilst the Infant lay flat on the Infant's back. This caused distress to the Infant. The Practitioner then picked up the Infant placing a hand behind the Infant's bottom and, as he lifted the Infant, heard a popping noise. The Practitioner immediately disclosed this incident to his partner.
(f)A few hours later the Practitioner's partner noticed bruising to the Infant's abdomen and flanks. Later the Infant was unable to lay flat without a pain reaction.
(g)On 6 March 2024, the Practitioner and his partner took the Infant to Perth Children's Hospital (PCH) for assessment and treatment. The Practitioner disclosed to medical staff at PCH that the injuries were inflicted as described above and at one time said, 'I've inflicted an injury on my baby' and provided no medical reasoning for his actions.
(h)The Infant was examined by the Child Protection Unit of PCH (CPU) and was found to have significant bruising to the abdomen, flanks and back. Bruising was noted in horizontal lines across the Infant's abdomen consistent with finger impressions. The Infant was also found to have a fracture of the left posterior 8th rib. A full medical examination had not been completed.
The Practitioner intends to plead not guilty to the Charge. The matter has been listed in the Magistrates Court on 8 October 2024 for mention. The Practitioner's counsel says that it is likely, at that time, that a trial will be listed for some time in 2025.
Medical evidence
Dr Johnson's report
On 15 March 2024, a consultant paediatrician at PCH, Dr Alice Johnson, prepared a report concerning her examination of the Infant on 6 March 2024, after the Infant had been referred to the CPU, and her subsequent review on 15 March 2024 (the Report).
In the Report, Dr Johnson said that:
(a)she had been told that the Infant had attended PCH ED with his parents arriving at 13:18 hours on 6 March, that he had significant bruising on his abdomen which his father reported causing by massaging the Infant to help him with constipation, and that the Practitioner had contacted a colleague who worked at PCH who recommended the Infant be brought to the ED for an assessment;
(b)the Practitioner said that he had tried abdominal massage and 'squeezed [the Infant's] tummy very hard for four to five seconds'. The Practitioner had demonstrated how he had done this and indicated that the bruising was an outline of his hand. He said that, following this, the Infant was able to pass his 'poo'. The Practitioner said he had lifted the Infant up with his hand and forearm lengthways along the Infant's head and body and felt a 'pop' but was unsure what the 'pop' was due to. He said that later his partner noticed bruising while changing the Infant's nappy. The Practitioner called a colleague who suggested getting the Infant's coagulation profile checked. The Infant was feeding well, and the Practitioner and his partner decided to watch him overnight rather than take him to hospital at that time. The next day the Infant appeared to be holding his left leg straight and flexing his right leg. The Practitioner and his partner were concerned he may have an injury to his leg;
(c)the Practitioner also said that he had squeezed the Infant's abdomen hard on a previous occasion one week prior and that this had resulted in some linear bruising to the Infant's abdomen;
(d)the Practitioner 'acknowledged that squeezing a baby's abdomen was not a recognised treatment for constipation'; and
(e)the Practitioner's partner had said that the Practitioner had told her 'I think that I may have squeezed his tummy hard' after the event on 5 March 2024. The partner said that, when she saw the bruising, she was concerned about internal injury. She said that the Practitioner had spoken to a colleague, and they decided to watch him overnight. The next day they were concerned that he had hurt his leg and decided to take him to hospital.
With respect to the condition of the Infant, Dr Johnson said in the Report that:
(a)upon examination, 'he looked generally well but was irritable upon handling particularly moving his legs'. Dr Johnson found three parallel horizontal linear bruises, blue/purple in colour, one above the other and extending across the Infant's whole abdomen. Dr Johnson also found an oval shaped purple bruise to the Infant's right flank at the level of the bottom of the ribs;
(b)an undisplaced fracture through the left posterior 8th rib with surrounding soft tissue haematoma was identified on the imaging on 6 March 2024;
(c)an undisplaced oblique fracture through the mid right femur was observed in imaging taken on 15 March 2024. It had progressive callus formation and periosteal reaction suggestive of healing. Dr Johnson said that the right femur fracture was not obvious on the X-ray of 6 March but could be seen in retrospect;
(d)both fractures were acute on presentation on 6 March 2024. Dr Johnson said that the rib fracture was likely up to approximately 7-days-old on 6 March 2024, and therefore could have been sustained at the same time as the bruising;
(e)it was likely that the right femur fracture also occurred around the time of the abdominal bruising as it was up to 7-days-old at that time, and the Infant had been then observed to be holding his right leg in a flexed position. Dr Johnson said it would have been painful and likely contributed to the Infant's irritability on handling when he presented at PCH; and
(f)none of the injuries were life threatening and none of them were likely to have any long-term sequelae.
With respect to the causes of the Infant's injuries, Dr Johnson said that:
(a)she considered that the Practitioner's report of causing the bruising by squeezing the Infant's abdomen hard on the morning of 5 March 2024 was an adequate reason for that bruising. Dr Johnson said, 'although gentle abdominal massage may be used as a soothing technique for distressed babies, squeezing the abdomen hard is not a recognised form of treatment for constipation'. Dr Johnson also said that bruising requires 'significant force' and that this should not result from gentle, soothing techniques or normal infant handling;
(b)'significant force' is required to cause a rib fracture in an infant. She said, 'rib fractures are not caused by low level falls but may occur with major trauma such as motor vehicle accidents';
(c)'significant force' is required to cause a femur fracture in an infant and it could not have been caused by normal handling. It was possible the femur fracture occurred when the Practitioner picked the Infant up and heard a 'pop', but it was also possible it occurred on a different occasion around the same time the bruising occurred; and
(d)Dr Johnson excluded the possibility of either the rib fracture or the leg fracture being caused at birth because there was no callus formation on the 6 March 2024 imaging.
Other medical records
The notes of a triage nurse on 6 March 2024 state 'concerned he hurt babe when examining belly', with apparent reference to this being the Practitioner's concern.
The notes of the reasons for the Infant's referral to the CPU say that:
(a)the Practitioner had 'admitted to causing the bruising where he informs that he was massaging [the Infant's] stomach to help with constipation and that he has done this with force. [The Practitioner] demonstrated on [Dr Wilson's] arm the pressure he used and [Dr Wilson] described this as significant and painful';
(b)the Practitioner 'confirmed that squeezing [the Infant's] abdomen is not usual practice to relieve constipation';
(c)the Practitioner and his partner had 'engaged with the CPU assessment as well as all medical staff at PCH, inclusive of initial presentation and throughout [the Infant's] admission'; and
(d)the delay in attending at PCH was based on the Practitioner's assessment that the Infant was well.
Dr Katherine Wilson is an emergency department consultant at PCH. Dr Wilson's progress notes of 6 March 2024 say that:
(a)the Practitioner described 'moving his hand down the baby's abdomen in a pushing motion. He then described using his hand to squeeze the abdomen, very firmly. They noticed bruising to the abdomen a few hours later';
(b)the Practitioner, 'told me, "I did it". He is worried there is internal organ damage';
(d)the Practitioner's partner was concerned that the Infant was not moving his right leg and he was distressed with nappy changes;
(e)on examination the Infant 'was settled when at rest, however irritable when handled and examined'. Dr Wilson noted the bruising that Dr Johnson refers to and that the Infant was 'holding his right leg in a flexed, externally rotated position, cries when leg moved'.
In the intake notes for the CPU, the team leader notes, in particular, that there was concern about a femur fracture as the Infant was not moving his leg.
The progress notes dated 25 March 2024 of Mr C Whitewood, a consultant orthopaedic surgeon at PCH, indicate that he had been informed (it is not identified by whom) as follows, 'three weeks since accidental right femur fracture when dad …was performing leg manoeuvres for assistance with constipation'.
The notes of a CPU staff meeting on 7 March 2024 says that a Department of Communities (Department) employee reported having been told by the Practitioner and his partner that, 'both made informed decision being mindful they would be questioned about [the Infant]', with respect to their decision to take the Infant to hospital.
Matters following the Charge
The Practitioner was arrested and charged on 6 March 2024. On 7 March 2024, the Practitioner was released on bail, which bail was subject to protective bail conditions, requiring that he not have unsupervised access to the Infant.
On 7 March 2024, the police notified Ahpra of the Charge. The Practitioner also competed a notification to Ahpra on the same day (the Notification).
The Notification said:
I was sleep deprived and tired from returning to working consecutive late shifts, facing stressors in relation to my (sic) both of my parents' health, my baby … was particularly unsettled overnight and reaching the peak age for crying. Between 3am and 7 am every morning [the Infant] was particularly colicky/constipated/windy and would cry/grunt continuously. In the early morning, I firmly squeezed [the Infant's] abdomen for ≈ 5 secs to try to help [the Infant] to poo (which [the Infant] did), so that [the Infant] would settle and not be distressed. The squeeze left bruises across [the Infant's] tummy in the shape of my fingers. My partner and I noticed over the next 24 hours that [the Infant] would cry lots more during nappy changes. I recommended to my partner that we take [the Infant] to the Children's Hospital to get [the Infant] looked at; I wanted someone other than me to assess [the Infant], to make sure he was well. I have subsequently been charged with aggravated assault occasioning bodily harm. I am due in court 4th April 2024. I have notified my Head of Department at work.
On 14 March 2024, the Practitioner received correspondence from the Working with Children Screening Unit (WWCS Unit), which advised him that the Charge required the WWCS Unit to consider whether it should issue him with a negative notice prohibiting him from child‑related work.
By letter dated 6 May 2024, the Practitioner's lawyers made a submission to the WWCS Unit that the Practitioner be permitted to retain his 'working with children' card (WWC card), which was a requirement of his employment. That submission was supported by 14 references. Those references will be referred to later in these reasons.
On 10 May 2024, the WWCS Unit informed Practitioner that it had assessed that he did not pose an unacceptable risk of harm to children whilst in child-related work and he could retain his WWC card.
The Charge also resulted in the involvement of the Department with the Practitioner's family. Initially a safety plan was put in place with respect to the Practitioner's children. On 7 May 2024, the Department informed the Practitioner and his partner that the open period of involvement with them and their family was closed.
On 9 July 2024, the Magistrates Court varied the Practitioner's bail to remove the protective bail conditions previously imposed.
On 12 April 2024, the Practitioner received written notice from his employer that his employment was suspended as a result of the Charge and the suspension of his registration as a medical practitioner. As has been said that suspension was imposed on 8 April 2024.
The Practitioner does not to treat children under the age of 16 years in his current employment.
Admissions
The Practitioner admits that it was his action in applying firm pressure to the Infant's abdomen, on the morning of 5 March 2024, that caused bruising and the fracture to the Infant's rib. The Practitioner denies, however, that his actions were done with any intention to harm his son. Rather he says that he was attempting to relieve the distress that constipation was causing the Infant. The Practitioner also denies that his actions were the result of frustration or a lack of sleep.
The Practitioner also accepts that it was his action during the same incident on 5 March 2024, that caused the fracture of the Infant's leg, albeit that the mechanism of that injury has not been identified. He says that it may be that fracture occurred while he performed leg manoeuvres for assistance with constipation. Alternatively, it may be that injury occurred when he lifted the Infant and heard a 'pop'.
The Practitioner accepts that in late February 2024, he caused a bruise to the Infant's abdomen by pressing on the Infant's abdomen. Again, it is said there was no intention to harm. It appears implicit from the material that the rationale for that action was the same as the rationale on 5 March 2024.
The Decision
In affirming the Decision the Board said, after referring to facts that do not need to be repeated:
10.On the available information, the Board has formed a reasonable belief that the alleged conduct poses a serious risk of harm to persons that the [Practitioner] treats. That risk of harm encompasses:
a.a risk of psychological harm, to victims of abuse and others that he sees in a clinical setting, including children and victims of family violence. The serious risk arises from such patients subsequently discovering that they have been treated by a person who faced a criminal charge for a family violence offence:
b.a risk of physical harm to patients as a doctor who is a perpetrator of family violence may not provide the necessary care if they don't identify physical abuse or if they minimise its impact;
c.a risk of physical harm to patients resulting from the [Practitioner] making poor treatment decisions while suffering from sleep deprivation and other stresses.
11.This matter involves the [Practitioner] injuring his infant son on at least two occasions. This admitted conduct is likely to seriously contradict the expectations of the profession by the public. A doctor who is an alleged perpetrator of family violence may be, or be perceived to be, biased when they are caring for victims or perpetrators of family violence.
12.Whilst it may be accepted that the public is aware of the presumption of innocence and the difference between charges and convictions, the seriousness of the Charge and the context within which the alleged offending occurred is such that the Board has formed a reasonable belief that if the [Practitioner] is permitted to continue to practice pending determination of the Charge, then it will adversely impact public opinion and/or diminish public confidence in the medical profession as a whole. In that regard the public would rightly be alarmed to learn that [a]… medical specialist made such a poor treatment decision in respect of his own child that he is facing criminal charges.
13.The main guiding principle of the national scheme is that the protection of the public and public confidence in the safety of services by registered health practitioners are paramount.
14.The Board has reasonably formed the view that:
a.suspension is justified for the protection of public safety and the quality of health services, plus the protection of the public interest by the protection of public confidence in the quality and safety of health services and the reputation of the profession;
b.the minimum regulatory response in this case is suspension;
c.other forms of regulatory response such as the imposition of workplace restrictions, supervision and/or employer or patient notification obligations would not adequately protect the public and the public interest;
d.suspension is a proportionate and appropriate response to the identified risks to the public and the public interest; and
e.conditions are insufficient to adequately address the serious risk posed to the identified class of persons or to protect the identified public interest concerns.
Submissions
Board's submissions
The Board's submissions at the hearing focussed on the need for immediate action under s 156(1)(e) as being in the public interest.
The Board said in its written submissions:[38]
Put simply, the Decision was made to distance the [Practitioner] from the profession while allegations are being investigated and determined, to reassure the public that the high standards of the profession and its proper regulation are being maintained.
[38] Board's submissions dated 5 August 2024 at [94].
The Board submitted that the Tribunal may form a reasonable belief that immediate action was necessary in the public interest under s 156(1)(e). This was on the basis, in summary, that:
(a)the Practitioner faces a very serious charge alleging that he has caused bodily harm to the Infant, who was a very young baby;
(b)although the Practitioner has denied criminal responsibility for injuring the Infant and says that he did so unintentionally, or accidentally, the Practitioner had admitted that:
(i)he had applied sufficient force to the Infant's abdomen and leg so as to cause serious harm to the Infant, namely bruising to the Infant's abdomen, a broken rib and a broken leg;
(ii)on that occasion he failed to take the Infant to seek independent medical attention despite being concerned, immediately after applying the force referred to, that he had harmed the Infant; and
(iii)a week before that event, he had applied sufficient force to the Infant's abdomen so as to cause bruising to the Infant's abdomen;
(c)on the evidence, significant force is required to cause bruising to an infant or to break an infant's bones. Accordingly, the force the Practitioner applied to the Infant's body on each of the two occasions must have been significant;
(d)members of the community would expect that, in addition to being competent, medical practitioners would not inflict significant force on, and cause serious harm to, defenceless and inherently vulnerable infants. As a result, members of the community would be rightly outraged by the Practitioner's conduct;
(e)such conduct calls into question the Practitioner's fitness to be a medical practitioner because it demonstrates an absence of the qualities essential to a medical practitioner, in particular, the fundamental tenet of the profession to 'do no harm' and to protect the health of members of the community;
(f)in those circumstances, allowing the Practitioner, as a 'perpetrator of family violence', to continue to practice medicine until the criminal and disciplinary proceedings against him are heard and determined would undermine public confidence in the profession and its regulation;
(g)public confidence in the regulatory system can only be maintained if the public perceives appropriate regulatory action is being taken to maintain the reputation of the medical profession and uphold its standards. The failure to suspend the Practitioner may give rise to a perception that the regulatory authorities 'look after their own', or, as we understood it, place the interests of the Practitioner over the interests of the community; and
(h)the imposition of conditions on the Practitioner's registration, thereby allowing the Practitioner to continue practising pending the outcome of the criminal and disciplinary proceedings, would be inadequate to address the public interest considerations.
The Board submitted that some patients who might be treated by the Practitioner, 'might well feel betrayed by the regulatory system that continued to hold [the Practitioner] out as a person to be trusted' and 'might fairly question whether they had given informed consent to the consultations'.[39]
[39] Board's submissions dated 5 August 2024 at [78].
The Board submitted that, given the Practitioner's admissions, his motivation for his actions could not make any difference to the need for suspension in the public interest. However, the Board submitted that, to the extent that the Practitioner's motivations were relevant, his assertions concerning those motivations may be discounted in light of the other evidence, particularly the lack of any clinical justification in applying significant force to a very young infant's body.
For the purposes of determining that there was a need for immediate action under s 156(1)(a), in summary, the Board invited us to find on the evidence of the Practitioner's conduct that there were serious risks of harm as follows:
(a)psychological harm to 'victims of abuse and others' that the Practitioner might see in a clinical setting, including children and 'victims of family violence' if such patients were subsequently to discover that they had been treated by a person who faced a criminal charge for a family violence offence. It appears that the Board also relied on the submission referred to at [78] above in support of this submission;
(b)physical harm to patients, as a medical practitioner who is the alleged perpetrator of family violence may not provide the necessary care if the Practitioner does not identify physical abuse or if the Practitioner minimises its impact; and
(c)of physical harm to patients resulting from the Practitioner making poor treatment decisions whilst suffering from sleep deprivation and other stressors.
Practitioner's submissions
The Practitioner concedes immediate action under s 156(1)(e) of the National Law is warranted given the nature of the injuries and the very young age of the Infant. However, the Practitioner says that his motivation for these actions is a central consideration in determining the appropriate action to be taken. The Practitioner says that the seriousness of his conduct cannot be addressed without reference to the reasons for that conduct.
The Practitioner denies that any of his actions were done with the intention of harming the Infant and submits that the evidence points in the opposite direction. The Practitioner says that if the Tribunal accepts that conclusion, it reduces the seriousness of the conduct and therefore the force of the Board's description of him as a 'perpetrator of family violence'. The Practitioner says that the unintended application of too much force does not equate with 'family violence' as the public would understand it.
The Practitioner submitted that an excessive, even clumsy, attempt to relieve discomfort is qualitatively different from the Practitioner taking his frustrations out on the Infant or trying to hurt the Infant, noting the Board did not, apparently, suggest the latter of these alternatives.
The Practitioner submits that the material does not justify a reasonable belief that the Practitioner poses a serious risk to persons generally. The Practitioner submits that the Practitioner does not treat children. It is said that, whilst the conduct alleged technically falls within the label of 'family violence', there is no suggestion that it arose in the context of domestic dysfunction or ongoing risk of harm. It is submitted that these highly unusual circumstances are never likely to be repeated and that the Practitioner's professional history does not suggest any risk to patients from making bad decisions.
The Practitioner submits that there is a total lack of material that supports the proposition that he diminishes, condones or minimises violence generally or the impact of physical abuse. However, the Practitioner submits that any such risk would be sufficiently ameliorated by appropriate conditions.
The Practitioner provided a set of conditions which were submitted to be appropriate. The Practitioner said that these conditions were justified, not because the Practitioner was a serious risk of harm to patients, but because of the public interest in maintaining public confidence in the medical profession.
The Practitioner submitted that, if the Practitioner's suspension continues, it is likely to be of long duration. The Board has not yet commenced any disciplinary proceedings against the Practitioner and such proceedings could not proceed until the Charge was determined. The Practitioner says that a lack of income would seriously prejudice him in his ability to defend the Charge as well as his family's financial welfare.
Consideration and conclusions on the immediate action required
Submissions at the hearing focused on the need for immediate action by reason of the criteria in s 156(1)(e) of the National Law. Accordingly, it is appropriate to deal with that issue first.
Seriousness of the Charge and the admitted conduct
There is no dispute in this matter that the Practitioner is charged with a very serious offence. The fact that the Practitioner has admitted causing serious injuries to his own particularly vulnerable newborn child compels that conclusion. The bodily harm relied on in support of the Charge is the Infant's abdominal bruising and rib fracture. The alleged circumstances of the Charge are, however, made more serious by the presence of the fracture to the Infant's leg, although it is not referred to in the material facts.
However, whilst the Practitioner admits being the cause of the injuries, the Practitioner denies that he is criminally responsible for those injuries. He is, accordingly, entitled to the presumption of innocence of the Charge.
The Practitioner's solicitors informed the Board by letter dated 5 April 2024 that the Practitioner 'has defences available that would if accepted make him not criminally culpable or criminally responsible for the acts done'. The Practitioner's counsel did not go into detail in submissions about the defences the Practitioner might seek to raise. This is understandable given that the criminal proceedings are yet to go to trial. The Practitioner is entitled to exercise his right to silence in those proceedings. However, on the material before us, the Practitioner denies that he deliberately hurt the Infant because he was frustrated or tired or for any other reason. He says he injured the Infant unintentionally, and says that his intention, at the time he did what he did, was to relieve the Infant's constipation.
Whilst on the face of it, it might be said that the prosecution of the Charge seems likely to have some prospects of success at least, given that it apparently relies on admissions the Practitioner made to medical staff as well as the medical evidence, the legal basis of the prosecution of the Charge or of any defences was not canvassed before us. Accordingly, it is not possible, or appropriate for us to form any conclusion about the prospects of the Practitioner being convicted of the Charge. The Board did not submit that we should do so. The Board relies primarily on the Practitioner's admitted conduct, rather than his potential criminal culpability, in support of its submission that suspension is the appropriate form of immediate action.
Relevance of moral culpability
The question of the Practitioner's moral, as opposed to legal culpability, is relevant to how the matter will be finally dealt with, both if he is convicted in the Magistrates Court, and when disciplinary proceedings are brought and finally determined against him in the Tribunal. This will turn on the reason he did the acts which resulted in the injuries to the Infant. These issues will not be resolved until after evidence is heard and findings of fact are made by the relevant decision‑makers.
Whatever the prospects of success of the criminal prosecution, the admission that the Practitioner's willed actions were causative of injury to the Infant are likely, in our view, to give rise to significant concern in the community. However, in our view, the extent of that concern is likely to be affected by facts of the surrounding circumstances in which those injuries occurred, including the Practitioner's motivations for the acts causing the injuries.
We invited the Board to assist us in our determination of whether immediate action by way of the imposition of conditions was appropriate, by providing submissions on possible conditions on a 'without prejudice' basis. The Board provided us with a draft set of conditions on that basis on 14 August 2024, in response to which the Practitioner made submissions on 16 August 2024. This has assisted in our conclusion that the conditions are appropriate. However, to the extent that it may not have been apparent from our seeking such submissions on a 'without prejudice' basis, we note for the record that the Board provided draft conditions only because we asked the Board do so and without resiling from its position that the only appropriate form of immediate action was suspension of the Practitioner's registration.
Finally, we reiterate that our decision must not be mistaken for any finding of the likely outcome of any disciplinary proceedings after the Charge has been dealt with. The question of the Practitioner's criminal culpability is a question for the Magistrates Court to determine. The question of whether the Practitioner's conduct warrants disciplinary action under the National Law is also a matter that will be determined when those proceedings are commenced in this Tribunal. Our decision in these proceedings does not have any effect on the ultimate outcome of any future proceedings pursued by the Board.
The facts will ultimately be determined, and the Practitioner will be dealt with on the basis of those proven facts. In the meantime, he will operate under restrictions that, in our belief, satisfy the public interest requirements.
Conclusion
For these reasons we consider that the correct and preferable decision is to set aside the Decision to suspend the registration of the Practitioner under s 156(1)(a) and (e) of the National Law and to substitute a decision under s 156(1)(e) of the National Law to impose conditions on the Practitioner's registration in the terms set out in the Schedule to these reasons.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GH
Associate to Deputy President Judge Vernon
29 AUGUST 2024
SCHEDULE
The Tribunal orders:
The decision of the Medical Board of Australia (Board) made on 29 April 2024 and affirmed on 26 June 2024 to suspend the registration of [REDACTED] (Practitioner) under s156(1)(a) and (e) of the Health Practitioner Regulation National Law (WA) (National Law) is set aside and substituted by a decision under s 156(1)(e) of the National Law to impose the conditions in paragraphs 1 to 21 below being imposed on the Practitioner's registration.
Conditions
1.For the purposes of these conditions, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical profession.
Restrictions on practise
2.Save for the circumstances in condition 3, the Practitioner must not practise between midnight and 8 am.
3.The Practitioner may practise beyond midnight where, immediately before midnight, he is treating a patient with a serious or life threatening or urgent condition in the course of a medical emergency where it is not possible or reasonable to have the patient treated by another medical practitioner but in those circumstances the Practitioner must work only for as long as is necessary to ensure safe transfer of patient care and must inform the Australian Health Practitioner Regulation Agency (Ahpra) in writing of the relevant circumstances within 7 days.
4.The Practitioner must practise for no more than 80 hours a fortnight.
5.The Practitioner may practise only in place(s) of practice and departments approved by the Board.
6.The following is an approved practice location:
6.1.[REDACTED].
7.The Practitioner must obtain the Board's approval prior to changing his place of his practice.
8.The Practitioner must not provide treatment to any patient under the age of 16 years except in the circumstances identified in condition 9.
9.The Practitioner may provide treatment to a person under the age of 16 years in the event of a medical emergency and where it is not possible or reasonable to have a patient with a serious or life threatening or urgent condition treated by another medical practitioner or transferred to the nearest hospital.
Reports
10.Within 14 days of the notice of imposition of these conditions, the Practitioner must provide to Ahpra, on the approved form (HP7), acknowledgement that Ahpra may:
10.1. seek reports from the Area Director of Clinical Services or [REDACTED] Department Director (the senior person) at the Practitioner's place of practice on at least a monthly basis or as otherwise required;
10.2. request and access from the senior person at the Practitioner's place of practice copies of rosters, pay slips, or the equivalent; and
10.3. have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
11.Within 14 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPS7) acknowledgement from the senior person at their place of practice that they are aware that Ahpra will seek reports from them.
Supervised practise
12.The Practitioner only practise as a medical practitioner when supervised by another health practitioner approved by the Board (the supervisor) or an alternative health practitioner to the supervisor approved by the Board (alternative supervisor).
13.For the purposes of condition 12, 'supervised' is defined as:
13.1.The Practitioner must consult the supervisor, or an alternative supervisor, who is always physically present in the workplace and available to observe and discuss the management of patients and/or performance of the Practitioner when necessary and otherwise at weekly intervals.
14.Within 14 days of the notice of imposition of this condition, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by the Board. Nothing in this condition is to be taken as limiting the number of alternative supervisors the Practitioner may seek to be approved by the Board.
15.The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that Ahpra will seek reports from them.
16.If no approved supervisor is willing or able to provide the supervision required, the Practitioner must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Practitioner and approved by the Board.
17.Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra, on the approved form (HP10) acknowledgement that Ahpra may:
17.1.obtain information from relevant authorities (such as but not limited to Medicare);
17.2.obtain information and/or a report from the senior person at each place of practice on a quarterly basis; and
17.3. obtain a report from the approved supervisor on a quarterly basis.
18.Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to Ahpra, on the approved form (HPS10), acknowledgement from the senior person at each place of practice that Ahpra may seek reports from them.
Common restrictions
19.Within 14 days' notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Area Director of Clinical Services or [REDACTED] Department Director or equivalent (the senior person) at his current place of practice. In providing this form, the Practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The Practitioner will be required to provide the same form:
19.1.within seven days of the commencement of practice at each subsequent place of practice; and
19.2.within seven days of each and every notice of any subsequent alteration of these conditions.
20.The Board may notify the Practitioner's employers of any issues arising in relation to compliance with these Conditions.
Costs
21.All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
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