Medical Practitioners Board of Victoria v Lal

[2008] VSCA 264

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3884 of 2008

MEDICAL PRACTITIONERS BOARD OF VICTORIA	Applicant
	v
SABI LAL	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	REDLICH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 December 2008
DATE OF JUDGMENT:	5 December 2008
MEDIUM NEUTRAL CITATION	[2008] VSCA 264

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ADMINISTRATIVE LAW – VCAT sets aside Medical Practitioners Board decision refusing respondent registration as medical practitioner following convictions for serious sexual offences – Leave granted to Board to appeal Tribunal decision – Whether there should be a stay on respondent being able to practise pending hearing of appeal – Paramount consideration protection of public – Public interest best served if respondent does not practise even subject to close supervision

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T J Ginnane SC with Dr S P Donaghue	Minter Ellison
For the Respondent	Mr J J Noonan SC with Mr  S P Cash	Brygel Lawyers

1. Earlier this day, the Court heard an application by the Medical Practitioners Board of Victoria (‘the Board’) pursuant to s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act1998, seeking leave to appeal from a decision of that Tribunal dated 10 October 2008. 

1. By that decision, the Tribunal set aside a decision of the Board and ordered that the respondent be registered as a medical practitioner, though subject to a number of strict conditions.  The Court granted leave to appeal but reserved the question whether there should be a stay of the Tribunal's decision such that the respondent would be prevented from practising as a registered medical practitioner pending the hearing and determination of the appeal.

1. The respondent was formerly a registered medical practitioner in Victoria, having obtained his medical qualifications in India.  He has suffered from an Obsessive-Compulsive disorder (OCD).  His condition was described as one of extreme severity.  He has also been diagnosed as having at one time had a major depressive episode and having displayed significant levels of anxiety.  It appears that this is common with individuals suffering from an Obsessive-Compulsive Disorder.  The disorder is said to be a relapsing one which can recur when stress levels are heightened.  The recommended treatment, as mentioned by the Board in its reasons, is pharmacotherapy and cognitive behavioural therapy.

1. From July 1999 onwards, the respondent was treated by a clinical psychiatrist, Professor Michael Kyrios.  He reported at that time that the respondent was experiencing unwanted and personally repugnant sexual thoughts.  These had manifested in inappropriate and criminal behaviour towards women.  He was eventually charged before the Board with 43 separate offences. 

1. In 2000, the respondent was reprimanded by the Board after a finding that he had engaged in unprofessional conduct of a serious nature.  That conduct included inappropriate comments of a sexual nature during consultations, untoward personal conduct outside consultations, and attendance at a patient's home uninvited in breach of an undertaking given to the Board.  In reprimanding the respondent, the Board noted that the respondent's mental condition had played a major role in its decision not to suspend or cancel his registration. 

1. On 20 December 2002, the respondent was convicted of a number of serious sexual offences, including some involving one of his female patients.  He was sentenced in the County Court to a term of two years and six months' imprisonment, but that sentence was wholly suspended for three years.  It is undesirable that these offences now be set out here, but it will no doubt be the case that they will be fully canvassed at the hearing of the appeal.

1. As a result of the respondent's offending, the Board found that he had engaged in unprofessional conduct of a serious nature within the meaning of the Medical Practice Act1994.  It cancelled his registration. 

1. On 20 September 2006, the respondent applied for re-registration under the Health Professions Registration Act2005. The Board refused his application in reliance upon ss 6(2)(a) and 6(2)(d) of that Act. These provisions relate respectively to what might be described as ‘character’ and ‘offence’ grounds. The question in relation to each ground was whether it was in the public interest to allow the respondent to return to practise as a registered health practitioner, and the Board found against the respondent.

1. The respondent applied to the Tribunal pursuant to s 78 of the relevant act. The Tribunal was exercising its review jurisdiction and stood in the shoes of the Board in doing so. It considered that there were three grounds relevant to the respondent's position. These were the ‘character’ and ‘offence’ grounds and a third ground under s 6(2)(c), that of ‘mental impairment’.

1. In respect of the character ground, s 6(2)(a), the Tribunal found that the respondent's lack of insight into his wrongdoing was explicable in terms of his mental state at the time. It concluded that the imposition of appropriate conditions on his registration would overcome any risk associated with a relapse.

1. In respect of the mental impairment ground, s 6(2C), there was a conflict in the expert evidence as to whether the respondent was still suffering from the Obsessive-Compulsive Disorder. The Tribunal had before it the opinions of four psychiatrists. Two of them considered that, by 2004, the respondent was in remission and did not pose any ‘significant’ chance of relapse. A third agreed in general terms, but considered there to be a ‘small residual risk’ of such a relapse. The fourth considered that the respondent had a ‘low but significant chance of a relapse’. The Tribunal concluded that there was insufficient evidence to establish that the respondent was under a sufficient impairment to satisfy s 6(2)(c) and, in any event, that the risk of relapse was low.

1. In respect of the ‘offence’ ground, s 6(2)(d), the Tribunal took into account the nature of the offending, the respondent's moral culpability, and his rehabilitation and remorse. Whether it was correct to do so is a matter that will be considered by this Court on the appeal. The Tribunal found that the offences were very serious, but that the respondent's culpability was reduced because of his impaired mental function at the time. It concluded, therefore, that he did not fall within the offence ground.

1. In light of the Tribunal's concerns about the respondent, a number of conditions were imposed on his registration pursuant to s 6(3) of the HPR Act. In summary, they were that he continue to receive psychiatric and other appropriate treatment; that he practise only in a group or in a hospital where at least one other registered medical practitioner was in attendance; that he not consult with females or children under 16; and that he not engage in medical practice for more than 25 hours per week.

1. The question that remains to be determined is whether, pending hearing and determination of the appeal, the respondent should be permitted to practise in accordance with the Tribunal's finding.  We were informed from the Bar table by counsel who appeared for the respondent that he has not engaged in any medical work since 2003, but that he now wishes to return to the practice of medicine.  It appears that he is presently seeking a position with a group practice and that an interview has been arranged. 

1. It goes without saying that an appeal does not of itself operate as a stay.  Moreover, the jurisdiction to grant a stay pending an application for leave to appeal will only be exercised in exceptional circumstances.  This Court, having already granted leave to appeal, may not be so constrained. 

1. But, in any event, the factors that are relevant include the prospects that the appeal will be successful, the balance of convenience, and any prejudice that will flow to either party from granting or refusing the stay.  As a general proposition, the respondent should not lightly be denied the ‘fruits’ of his success before the Tribunal.  It is clear that the onus rests upon the party seeking the stay.

1. Despite the careful findings of the Tribunal, we have concluded that the Board has discharged that onus.  We are influenced to some degree in arriving at that conclusion by the fact that this appeal can be expedited and heard relatively soon.  Enquiries with the Registry indicate that the appeal can be listed for hearing very early on in term two next year.  We propose to direct that that course be followed. 

1. There is nothing to indicate that the respondent is presently suffering undue hardship by being unable to practise medicine.  He is currently employed in a book-keeping capacity and appears to be able to make a living.  At worst, he will face a stay of some few months, which will delay his return to practise for a relatively short time.  Given that he has not been practising for some six years, a delay of a few months longer does not strike us as gravely prejudicial. 

1. In addition, it should be borne in mind that this is not a commercial dispute between two private litigants.  The paramount consideration must be the protection of the public.  To refuse the stay would require a conclusion on our part, albeit a provisional one, that the public welfare will be adequately protected, that being the primary question which must be resolved on the appeal.  The public interest will be best served, we have concluded, if the respondent does not return to his practice as a doctor, even under close supervision, until this Court has determined whether he should be permitted to do so.  It would serve no one's interest if the respondent were to treat patients for several months and then find his registration once again cancelled.

1. For these reasons, we will order that the decision of the Tribunal allowing the respondent to be registered as a medical practitioner, subject to the conditions specified, be stayed until the hearing and determination of the appeal or further order.  As previously indicated, we will direct that the appeal be given expedition.

1. The order of the Court will thus be as follows:

1.The decision of the Victorian Civil and Administrative Tribunal given on 10 October 2008 granting the respondent general registration as a medical practitioner pursuant to s 6 of the Health Professions Registration Act2005 be stayed until the hearing and determination of the appeal to this Court or further order.

2.The appeal be given such expedition as the Registrar may see fit.

3.The costs of this application be costs in the appeal.

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