Nugawela v Medical Board of WA [No 2] - [2024] WASC 496

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NUGAWELA -v- MEDICAL BOARD OF WA [No 2] [2024] WASC 496
CORAM:   COBBY J
HEARD:   19 SEPTEMBER 2024
DELIVERED          :   23 DECEMBER 2024
FILE NO/S:   CIV 1636 of 2023
BETWEEN:   PATRICK ALLAN NUGAWELA
Plaintiff
AND
MEDICAL BOARD OF WA
Defendant

Catchwords:

Judicial review - Health Practitioner Regulation National Law - Medical practitioner - Immediate action - Where registration of medical practitioner suspended by immediate action decision of Medical Board

Legislation:

Australian Privacy Principles
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Healthcare Identifiers Act 2010 (Cth)
Medicines and Poisons Regulations 2016 (WA)
My Health Records Act 2012 (Cth)
National Health (Privacy) Rules 2021 (Cth)
National Health Act 1953 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Ms H M Cormann

Solicitors:

Plaintiff	:	In person
Defendant	:	Clayton Utz

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

Bailey v Conole (1931) 34 WALR 18
Bernadt v Medical Board of Australia [2013] WASCA 259
Callan v Medical Board of Australia [2024] NSWSC 336
Freeman and Medical Board of Australia [2020] WASAT 64
Martin v Medical Complaints Tribunal [2006] TASSC 73; (2006) 15 Tas R 413
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Milky v Medical Board of Australia (Review and Regulation) [2019] VCAT 1780
Nugawela v Medical Board of Australia (WA Branch) [2022] WASC 385
Nugawela v Medical Board of Western Australia [2024] WASC 100
Solomon v Australian Health Practitioner Agency [2015] WASC 203
Woollard v Medical Board of Australia (sitting as a Performance and Professional Standards Panel) [2015] WASC 332

COBBY J:

On 12 May 2023 the defendant Board determined to take immediate action in relation to Mr Nugawela pursuant to s 156(1)(a) of the Health Practitioner Regulation National Law (National Law) and suspended his registration as a medical practitioner.[1]
[1] At the relevant times, the National Law was a schedule to the now repealed Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the Act). The 2010 Act has been replaced by the Health Practitioner Regulation National Law (WA) Act 2024 (WA).
Mr Nugawela has sought judicial review of that decision on a number of grounds, which he identified in his written submissions as follows:
1.that there was a lack of evidence as to the nature, seriousness and ongoing nature of the risks presented by Mr Nugawela continuing to carry on practise identified by the Board in reaching its decision;
2.the Board failed to take into account relevant facts in arriving at its decision, those facts said to include that Mr Nugawela's previous conduct had caused no harm to his patients;
3.the material before the Board did not demonstrate what future risk existed to warrant it taking immediate action against him;
4.Mr Nugawela's failure to comply with orders made by consent in the State Administrative Tribunal did not justify the Board exercising its powers under the National Law;
5.the Board used its power to suspend Mr Nugawela to enforce the orders made in the Tribunal, when it had no power to do so;
6.there was no evidence that the immediate action committee of the Board had unanimously resolved to take immediate action against Mr Nugawela; and
7.the Board exercised its power to take immediate action in relation to Mr Nugawela in bad faith.
For the reasons which follow, I have determined to dismiss Mr Nugawela's application.
On 8 September 2022 the Tribunal made orders by consent in disciplinary proceedings instituted by the Board against Mr Nugawela on the basis of a statement of agreed facts.
That statement of agreed facts recorded that Mr Nugawela and the Board agreed, amongst other things, that:
1.Mr Nugawela ceased to have control of the premises at which he had formerly carried on medical practice when a mortgagee took possession of those premises on or around 21 June 2018;
2.an inspection of the premises after Mr Nugawela had ceased practice revealed that patient medical records remained in those premises and had not been appropriately stored;
3.the inspection also showed that sch 4 medicines (i.e. prescription only drugs) remained on the premises and were not stored in a locked container, cabinet or room as required by the Medicine and Poison Regulations 2016 (WA) and that a sch 8 medicine (i.e. a drug that can only be supplied on prescription and which is subject to tight restrictions due to its potential to produce addiction) was not stored in a small safe as required by those regulations;
4.Mr Nugawela had failed to destroy or make suitable arrangements for the destruction of medications at his practice after his eviction from the premises, as required by the Department of Health; and
5.Mr Nugawela had failed to provide information required of him by the Board within the time permitted to do so, and, at least in some instances, at all.
It was also agreed that Mr Nugawela's conduct, as set out in the statement of agreed facts, had caused no harm to his patients.
Order 3 of the Tribunal's orders imposed a number of conditions on Mr Nugawela's registration as a medical practitioner, including that he be supervised by another registered medical practitioner in respect of the maintenance and storage of clinical records and the storage of medicines.
The conditions imposed required that Mr Nugawela nominate at least two supervisors for approval by the Chair of the Board by 6 October 2022.
Condition (d) provided:
In the event that no approved supervisor is willing or able to provide the supervision required, [Mr Nugawela] must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Respondent and approved by the Chair of the Board.
Mr Nugawela did not nominate a supervisor, nor did he engage one. On the construction of the conditions most favourable to Mr Nugawela, he was therefore required to cease practice as of 7 October 2022.
Notwithstanding that the Tribunal's orders had been made by consent, on 6 October 2022 Mr Nugawela filed an appeal notice in this court in respect of the Tribunal's orders, and on 31 October 2022 applied for a stay of those orders. The stay application was dismissed on 16 November 2022.[2]
[2] Nugawela v Medical Board of Australia (WA Branch) [2022] WASC 385.
On 2 February 2023 the Board became aware that Mr Nugawela was continuing to practise as a result of Mr Nugawela informing the court in other proceedings between the parties that he had a practice and that he was operating 'from practice premises'. He did not disclose the location of those premises on that occasion.
On 20 March 2023 two investigators attended certain premises to confirm that Mr Nugawela was carrying on practise there. The next day one of the investigators spoke to a receptionist at those premises to ascertain when Mr Nugawela might next be there, and was informed that Mr Nugawela carried on practise completely separately to the physiotherapy business conducted from the same premises, and that he maintained his own records.
On 20 April 2023 the Board wrote to Mr Nugawela notifying him that it proposed to take immediate action to suspend his registration under s 156 of the National Law.
The Board stated in its letter to Mr Nugawela that it was 'proposing to take [immediate] action because it reasonably believes that because of your health, you pose a serious risk to persons and it is necessary to take immediate action to protect public health or safety'.
Section 156(1)(a) of the National Law empowers the defendant to take immediate action in relation to a registered health practitioner if the defendant reasonably believes that the practitioner poses a serious risk to persons because of the practitioner's conduct, performance or health and that it is necessary to take immediate action to protect public health or safety.
The term 'immediate action' is defined in s 155[3] to mean, in relation to a registered health practitioner:
(a)the suspension, or imposition of a condition on, the health practitioner's … registration; or
(b) accepting an undertaking from the health practitioner …; or
(c)accepting the surrender of the health practitioner's … registration.
[3] All references to legislation are to the provisions of the National Law unless otherwise stated.
Although the 20 April 2023 letter stated that the Board was proposing to take immediate action due to concerns about Mr Nugawela's health, it contained a statement of the Board's reasons for considering taking immediate action regarding Mr Nugawela, and identified the information on which the Board relied in coming to that decision. Copies of the documents containing that information accompanied the letter.
Those documents included the transcript of the hearing in which Mr Nugawela had revealed that he was continuing to practise, and five tables of medical data covering the period 1 September 2022 to 28 February 2023, to which I refer further below.
On a fair reading of the letter of 20 April 2023 as a whole, it was clear that the Board's reason for proposing to take immediate action was Mr Nugawela's failure to comply with the conditions imposed on his registration by the Tribunal's orders made 8 September 2022, and a 'disregard for the Board as regulator'.
In particular, the Board stated in the 20 April 2023 letter that 'in continuing to practise, you have … demonstrated a continued willingness to disregard your professional obligations, as evidenced by your ongoing inability and/or unwillingness to comply with regulatory safeguards or processes put in place to protect public health or safety. Such conduct demonstrates a complete disregard for the Tribunal and the Board as the national regulatory authority and its role in public protection'.
By the same letter, the Board invited Mr Nugawela to provide a written submission or to make an oral submission to the Board regarding any concerns he might have regarding the notice he had been given and to provide the Board with relevant evidence to support his view.
On 26 April 2023 Mr Nugawela requested an extension of time until 28 May 2023 in which to respond. On 27 April 2023 the Board rejected that request, but agreed to extend the time in which Mr Nugawela was to respond to 11 May 2023.
On 1 May 2023 Mr Nugawela again requested that the time for his response be extended to 28 May 2023.
By email dated 4 May 2023, the Board informed Mr Nugawela that there had been an 'inaccuracy' in its letter dated 20 April 2023, and that the Board was proposing to take immediate action against him because of his alleged conduct, not his health. Under cover of that email, the Board issued a letter dated 4 May 2023 to Mr Nugawela, in near identical terms to its letter of 20 April 2023, but correcting the reference to Mr Nugawela's health.
The letter of 4 May 2023 stated that the Board proposed to suspend Mr Nugawela's registration because it believed that Mr Nugawela, due to his conduct, posed a serious risk to persons and that it was necessary to take immediate action to protect public health and safety.
The Board's stated reasons for its decision to consider taking immediate action remained substantially the same as set out in its letter dated 20 April 2023. Copies of the documents containing the information on which the Board relied in coming to its decision were again enclosed with its letter.
On 5 May 2023 the Board refused Mr Nugawela's second request for an extension of time until 28 May 2023, and informed him that the Board continued to require his response by 11 May 2023.
On 11 May 2023 Mr Nugawela wrote to the Board. He complained that he was being denied natural justice, but did not address the matters raised in the Board's letters of 20 April and 4 May 2023. In particular, Mr Nugawela did not respond to the allegation that he was continuing to practise without having appointed a supervisor.
There is no suggestion that Mr Nugawela sought an opportunity to make an oral submission to the Board.
On 12 May 2023 the Western Australian Immediate Action Committee[4] of the Board met to consider '[w]hether, based on the information available' the Board forms a reasonable belief that because of Dr Nugawela's conduct (breach of conditions), he poses a serious risk to persons and it is necessary to take immediate action to protect public safety'.
[4] A National Board, such as the Board, may delegate any of its functions to a committee: s 37(1)(a), National Law.
One of the members of the Immediate Action Committee was apparently present for only part of the meeting, and was not present when the Committee considered Mr Nugawela's conduct.
Although Mr Nugawela asserted in submissions that the Immediate Action Committee must 'return a unanimous verdict' in order to take immediate action, he did not identify the basis for that proposition and I have been unable to identify that requirement in the legislation or the materials otherwise before me. The submission appears to have been based upon the absence of one member of the Committee when it considered Mr Nugawela's conduct, which would not invalidate its decision without more.
I accordingly do not accept Mr Nugawela's submission that the Board's decision was invalid because the decision was not unanimous, assuming for the sake of the argument that was the case.
The Board advised Mr Nugawela by letter dated 12 May 2024 that, after having considered his submission dated 11 May 2023, it had determined to take immediate action and had suspended his registration. As with its previous correspondence, the Board set out its reasons for its decision, and enclosed copies of the material on which it relied in reaching that decision.
The Board's reasons stated in part:
2.The information available indicates that since the Tribunal's imposition of conditions on your registration, there has been repeated non‑compliance with the terms of the conditions demonstrative of a lack of insight and disregard for your professional obligations and the Board as the regulator. In particular it is noted:
a.You have no approved supervisor(s) in place.
b.On 2 February 2023, during Court of Appeal proceedings in the Supreme Court of Western Australia, you, acknowledged in open Court that you are practising;
c.Site visits and compliance checks conducted by Ahpra indicate that you are practising;
d.Medicare Data / PBS data indicate that you have been continuing to prescribe to patients;
e.Your conditions require you to be subject to supervision in relation to the maintenance and storage of clinical records and storage of medicines. You have failed to provide any nominations for a supervisor, and currently have no approvals in place however, continue to practise.
f.You have disengaged with Ahpra's regulatory processes.
3.The conditions imposed by the Tribunal were a direct result of professional misconduct findings that you did not appropriately store and/or secure patient records as well as did not comply with the requirements of the Medicines and Poisons Regulations 2016 (WA) in relation to the storage and disposal of medication. As such, the conditions imposed were considered an appropriate and proportionate regulatory response in the circumstances to mitigate future risk associated with your practise.
4.While it is noted that there is an appeal process ongoing in the Supreme Court of Western Australia, your application for a stay of the conditions was denied. In continuing to practise and failing to meaningfully engage with the regulator in relation to the monitoring of your conditions, you have therefore demonstrated a continued willingness to disregard your professional obligations, as evidenced by your ongoing inability and/or unwillingness to comply with regulatory safeguards or processes put in place to protect public health or safety. Such conduct demonstrates a complete disregard for the Tribunal and the Board as the national regulatory authority and its role in public protection.
5.The definition of 'practice' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge in their profession. Clause (d) of the conditions imposed state that, 'in the event that 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 Chair of the Board'. You have no approved supervisors currently in place however the information available supports that you continue to practise, in contravention of the restrictions imposed on your registration, and in the absence of a supervisor approved by the Board.
6.As such there remains a serious risk of harm to all patients to whom you provide care and treatment in circumstances where you are aware of the nature and extent of your conditions and requirements. In the circumstances, we are not assured that the current regulatory action in place has proven sufficient to mitigate the identified deficiencies across your practice, where such action was taken to address the serious and ongoing risks associated with your professional practice.
7.In response to the proposed action, you submit that, because of Ahpra's administrative error, and because your extension request was ignored, you only had one week to reframe your proposed submissions. As such you are being denied procedural fairness to provide a proper submission on the issue of alleged conduct. You submit that the Board defer any action until the appeal is finalised.
8.The Board had regard to the multiple regulatory and legal proceedings underway. Any concerns in relation to your health are being managed by other regulatory processes and have not informed the Board's decision to propose to take immediate action on this occasion. However, notwithstanding your submissions and request to defer the immediate action decision, in circumstances where you have been on notice of the Board's concerns in which its reasons outlined the issues raised regarding non‑compliance with your conditions, and where you have not provided any submissions to address these issues, and/or reassure that you do not continue to be in contravention of your conditions, it remains necessary to take immediate action now whilst the ongoing processes remain afoot.
9.The Board noted that, in reaching a decision as to whether to proceed with the proposed immediate action at this point in time, it is required to balance your request for further time to provide submissions, and the need to take immediate action to address the serious risk identified as a result of your conduct. Having regard to the information before it, the Board considers that proper procedural fairness has been afforded to you.
10.As such having regard to the information available where your submissions do not address and/or displace the Board's concerns, noting the Board's primary role of public protection, the Board continues to form a reasonable belief that suspension is the minimum regulatory force appropriate to mitigate the identified serious risk being posed by you. Lesser forms of action would not be sufficient in circumstances where you have demonstrated a repeated failure to comply with the conditions imposed and the requirements on your registration. Further, where such conditions have been disregarded, your conduct cannot be mitigated by the imposition of any further conditions and/or restrictions. (original emphasis)

Mr Nugawela contends that the Board's reasons for decision were inadequate.
Section 158(1)(a) requires the Board give written notice of the Board's decision immediately after deciding to take immediate action. Section 158(2)(b) requires that notice state the Board's reasons for decision.
Section 158(2) is in near identical terms to s 192(3) of the National Law. In Solomon v Australian Health Practitioner Agency[5] Mitchell J (as his Honour then was), considering the content of the requirement to give reasons imposed by s 192(3)(b), identified the primary reason for the statutory requirement to give reasons was to enable the practitioner to understand why the relevant panel had concluded that the practitioner had behaved in a way that constituted unsatisfactory professional performance, so that the practitioner could make a proper assessment whether to seek review of that decision.[6]
[5] Solomon v Australian Health Practitioner Agency [2015] WASC 203.
[6] At [142] ‑ [144].
His Honour's reasoning, which I gratefully adopt, is equally applicable to the requirement to give reasons imposed by s 158(2)(b).
Here, the Board's letter of 12 May 2023 identified the information relied upon by the Board, and set out the reasoning process leading to the decision to take immediate action in relation to Mr Nugawela.
In my view, the Board's statement of its reasons adequately set out why the Board came to the view that immediate action was required to be taken in relation to Mr Nugawela's conduct, and I therefore do not accept Mr Nugawela's submission that the reasons were inadequate in the legal sense.
Mr Nugawela further submits both that the Board failed to have regard to relevant evidence in reaching its decision and that there was insufficient evidence before the Board to justify its decision.
The facts Mr Nugawela contends were relevant but which the Board failed to take into account were said to be:
1.the lapse of time since the events which gave rise to the previous Tribunal proceedings, including the sale of the premises from which Mr Nugawela had conducted his practice;
2.that the Board had conducted an inspection of the premises from which Mr Nugawela was practising on 20 March 2023, and had not reported any issue pertaining to storage of records and drugs;
3.Mr Nugawela had taken appropriate steps to ensure there would be no recurrence of past events by not storing records or drugs on those premises; and
4.there was no evidence that the action taken by the Board was relevant to Mr Nugawela's existing practice or would further improve the public safety and reduce risk to the public, in circumstances where the Board had agreed in the Tribunal proceedings that his conduct prior to 8 September 2022 had not caused any harm to his patients.
The evidence does not support a finding that the Board's investigators inspected the premises from which Mr Nugawela was carrying on practice, so that there is no basis for the submission that the investigators had an opportunity to form any view about whether Mr Nugawela was storing drugs at those premises. The information before the Board was that its investigators had attended the premises, but did not indicate that they had had an opportunity to inspect them.[7]
[7] There was evidence that the investigators had inspected Mr Nugawela's former practice premises.
The receptionist at those premises informed the Board's investigators that Mr Nugawela conducted his practice independently of the physiotherapy business conducted from the same premises. The investigators' attempts to identify when Mr Nugawela would next be in attendance at the premises were unsuccessful.
It is therefore correct to say that the investigators had not reported any issues as to the storage or records or drugs at the premises, but they did not have an opportunity to form a view about those matters.
There was consequently nothing before the Board to indicate that Mr Nugawela was not storing records or drugs on the premises from which he was conducting his practice, due in part because Mr Nugawela did not respond substantively to the Board's letters of 20 April and 4 May 2023. It was reasonably open to the Board to infer that he would do so.
I therefore do not accept Mr Nugawela's submission that the Board failed to have regard to evidence that Mr Nugawela was not storing patient records and drugs on the premises from which he was carrying on practise. That information was not available to it.
It is convenient to deal with Mr Nugawela's submissions that the Board had failed to take account the lapse of time between the making of the Tribunal's orders on 8 September 2022 and its consideration of his conduct in May 2023 and that there was a lack of evidence that the action taken by the Board was relevant to Mr Nugawela's existing practise or would reduce risk to the public in conjunction with his submissions that 'not a scintilla of evidence' was produced by the Board to show 'what risk' and 'what harm' was posed by his conduct. Nugawela contended that the Board had failed to produce evidence as to:
(a)alleged risks to all patients whom Nugawela (sic) provided care and treatment;
(b)the seriousness of the risks;
(c)the ongoing nature of the risks;
(d)whether the Board had exercised power to enforce Tribunal Orders;
(e)whether the Board has jurisdiction to enforce Tribunal Orders made under the SAT Act 2004 under National Law;
(f)serious and ongoing risks incurred in attending the practice which had 'identified deficiencies'. (original emphasis)
With respect to Mr Nugawela, those submissions misunderstand the nature of these proceedings, which are not an appeal from, nor a review of the merits of, the Board's decision.[8] Judicial review is, in general, restricted to the questions whether the decision maker had jurisdiction to make the challenged decision and the correctness of the process by which that decision was made, rather than the merits of the decision.[9]
[8] Woollard v Medical Board of Australia (sitting as a Performance and Professional Standards Panel) [2015] WASC 332 [68].
[9] See Nugawela v Medical Board of Western Australia [2024] WASC 100 [31].
Section 156(1)(a) provides that, in order to take immediate action, the Board must hold a reasonable belief that:
1.because of (that is, by reason of) the practitioner's conduct, performance or health;
2.the practitioner poses a serious risk to persons; and
3.it is necessary to take immediate action to protect public health or safety.[10]
[10] Bernadt v Medical Board of Australia[2013] WASCA 259[65].
A reasonable belief requires the existence of facts which are sufficient to induce that belief in a reasonable person.[11] It is not necessary that those facts be proved on the balance of probabilities, but there must be proven objective circumstances sufficient to justify the required belief.[12] Because the Board must form a reasonable belief that the matters specified by s 156(1)(a) are present, the Board is required to scrutinise and evaluate the 'known facts, circumstances and considerations which bear rationally' on the questions on which it must form a belief.[13]
[11] Bernadt [66], [173].
[12] Bernadt [66].
[13] Milky v Medical Board of Australia (Review and Regulation) [2019] VCAT 1780[56], citing McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [429] ‑ [430]; Freeman and Medical Board of Australia [2020] WASAT 64.
It is therefore unnecessary for there to have been evidence before the Board which proved, on the balance of probabilities, any of the matters identified by Mr Nugawela. Nor was the Board required to prove those matters in these proceedings, since the issue for determination is whether the Board reasonably believed that each of the matters specified in s 156(1)(a) was satisfied when it made its decision.
Determination of that issue requires consideration of whether the beliefs held by the Board regarding Mr Nugawela's conduct were reasonable.
In this regard, the materials before the Board when it made the decision in question were identified in the Board's letter to Mr Nugawela dated 12 May 2023. They included documents referred to in the Board's letter as 'Australian Government Services Australia tables for prescriber name Dr Patrick Nugawela together with Provider Servicing Reports for the period 1 September 2022 to 27 February 2023', being the five tables of medical data covering the period 1 September 2022 to 28 February 2023 to which I have previously referred.
I infer from the tables that the source of the information contained in the tables was Services Australia, because each of the tables identify that agency in the top left corner of the first page of each document, and because the information contained in the tables appears to comprise information relating to benefits provided under the Medicare Benefits Program and the Pharmaceutical Benefits Program, as defined in s 135AA(11) of the National Health Act 1953 (Cth) to the persons identified in the tables.
Each document was stated to be a 'Provider Servicing Report', and each identified the provider of the services recorded as Mr Nugawela. The identities of the persons who received those services, the dates on which they were provided and the services received by each of them was disclosed in the tables.
As such, the tables evidenced that Mr Nugawela had continued to treat and prescribe medications to patients after 8 September 2022.
Both Mr Nugawela[14] and the Board[15] tendered the tables in evidence at the hearing.
[14] Affidavit Patrick Nugawela 26 June 2023, PAN‑20 pages 367 ‑ 501; PAN‑18 pages 130 ‑ 264.
[15] Affidavit Karen La 18 June 2024, KL‑7 pages 101 ‑ 235.
At the hearing, however, Mr Nugawela objected to these documents for the first time. It was not clear whether the objection was to their use in evidence at the hearing or their previous use by the Board. No prior notice of objection had been given by Mr Nugawela. As a result, the evidence as to how the Board came to be in possession of the documents was less that it might have been. In written submissions filed with leave subsequent to the hearing, Mr Nugawela contended that the information contained in the tables 'was published and used in the action without consent of the parties named, including a medical practitioner and various pharmacists, legal guardians'.[16]
[16] Mr Nugawela's written submissions filed 27 September 2022 [59].
There was no evidence that was the case, but I will assume that was so for the purposes of determining the objection.
A report by a Board investigator dated 20 March 2023 which was before the Board when it made the decision to take immediate action referred to 'Services Australia data obtained during notifications process/investigation' as not including a reference to the address from which Mr Nugawela was conducting practice. That description is consistent with the information contained in the tables.
Mr Nugawela submitted that the collection of personal information from government agencies must be authorised, and that s 160 of the National Law requires that authorisation must be obtained from the Board and directed to a specific investigator.
I do not accept that construction of s 160, which governs when the Board may investigate a registered health practitioner. Relevantly, the Board may investigate a practitioner where, amongst other circumstances, the Board believes that a practitioner's conduct may be unsatisfactory,[17] or to ensure that the practitioner is complying with conditions imposed on his or her registration.[18]
[17] Section 160(1)(b).
[18] Section 160(1)(c).
I am satisfied that there were grounds for the Board to believe that Mr Nugawela's conduct might be unsatisfactory or that he was not complying with the conditions imposed on his registration after Mr Nugawela made submissions on 2 February 2023 to the effect that he was carrying on practise, as the Board knew that Mr Nugawela had not complied with the condition that he nominate a supervisor.
Section 160(2) provides that if a National Board decides to investigate a registered health practitioner it must direct an appropriate investigator to conduct the investigation. The evidence demonstrated that at least two investigators were involved in conducting the Board's investigation into Mr Nugawela's conduct as at 20 March 2023. There is nothing to indicate that those investigators were not appointed in accordance with Division 8 Subdivision 2 of the National Law.
Mr Nugawela also identified various provisions of the Privacy Act 1988 (Cth), My Health Records Act 2012 (Cth), Healthcare Identifiers Act 2010 (Cth), National Health Act 1953 (Cth) and National Health (Privacy) Rules 2021 (Cth) in support of his objection. Regrettably, Mr Nugawela's submissions did not address when a body such as the Board might obtain and use information subject to privacy legislation.
Clause 6.2(b) of the Australian Privacy Principles permits the use or disclosure of personal information about individuals where that use or disclosure is authorised or required by or under, relevantly, an Australian law, whereas while cl 9.2(c) similarly provides that an organisation may use or disclose a government related identifier[19] of an individual if the use or disclosure is required or authorised by or under an Australian law.
[19] As defined by s 6 of the Privacy Act 1988 (Cth).
Section 32(4)(a) of the National Law authorises a National Board to request information from a government agency of the Commonwealth that the National Board requires to exercise its functions under the National Law and s 32(5) authorises a government agency which receives such a request to supply that information to the National Board.
The Board is a National Board. I gratefully adopt, without repeating here, Griffith AJ's recent summary of the legislative framework surrounding the National Law in Callan v Medical Board of Australia.[20]
[20] Callan v Medical Board of Australia [2024] NSWSC 336 [11] - [31].
I infer, from the facts that the tables appear to have been provided by Services Australia, that they are each stated to be a 'Provider Servicing Report', that they each identify the provider of the services recorded as Mr Nugawela, that the Board was concerned as at 20 April 2023 that Mr Nugawela was carrying on practise in contravention of the conditions imposed on his registration by the Tribunal's orders of 8 September 2022 and that the Board was in possession of the tables by no later than 20 April 2023, that the Board obtained the tables as a result of a request or requests made to Services Australia for the purposes of its investigation into Mr Nugawela's conduct.
I consider that the information contained in the tables is information that was required by the Board for the exercise its functions under the National Law.
I am therefore not satisfied that the Board obtained the tables in breach of any applicable privacy legislation, or that their tender in these proceedings involved any breach of such legislation. I accordingly reject Mr Nugawela's objection to those documents.
It is consequently unnecessary to determine whether the Board would be entitled to rely upon improperly or illegally obtained information in reaching a decision to take immediate action under s 156, although authority suggests that it would.[21]
[21] See, for example, Martin v Medical Complaints Tribunal [2006] TASSC 73; (2006) 15 Tas R 413 [8] ‑ [18].
I am therefore satisfied that there was information before the Board when it made its decision that Mr Nugawela had continued to practise after conditions had been imposed on his registration, continuously and without interruption, and that he saw many patients each month when he was not entitled to do so. Further, that information demonstrated that Mr Nugawela had continued to do so after this court had refused his application for a stay of the Tribunal's orders, so that there could be no question that Mr Nugawela was acting in deliberate disregard of the conditions that had been imposed the Tribunal.
It is evident from the Board's reasons for decision that its decision to suspend Mr Nugawela's registration was not based on whether he was continuing to engage in the conduct which had led to the making of orders in the Tribunal on 8 September 2022. The Board's concern in April and May 2023 was Mr Nugawela's ongoing failure to comply with the conditions imposed on his registration by continuing to practise without supervision, which the Board regarded both as a serious risk to the public and as demonstrative of Mr Nugawela's lack of insight into and his regard for his professional obligations, and his lack of regard for the Board as the regulator of his profession.
The Board reasoned that the conditions imposed by the Tribunal's orders, to which Mr Nugawela had agreed, had been an 'appropriate and proportionate regulatory response' to mitigate future risk associated with Dr Nugawela's continuing to practise, such that his ongoing refusal to comply with them gave rise to 'a serious risk of harm to all patients to whom [Dr Nugawela provided] care and treatment'.
I consider that assessment of Mr Nugawela's conduct was clearly open on the information available to the Board as at 12 May 2023, and was a reasonable assessment of his conduct. Mr Nugawela's failure to engage a supervisor in relation to his storage of drugs which were subject to the Medicines and Poisons Regulations 2016 (WA) gave rise to a clear risk that Mr Nugawela might repeat his past failure to comply with his obligations under those regulations, with the potential consequence that persons might gain unauthorised access to those drugs.
Further, there was a clear risk of harm to the public arising from Mr Nugawela's continuing to prescribe medications to patients when his registration was suspended. It was open to the Board to form the belief that there was a risk that Mr Nugawela would not conduct his practice in accordance with appropriate regulatory safeguards when regard was had to his failure to comply with the conditions imposed on his registration.
As Mr Nugawela had continued to carry on practise when he knew, having regard to his failure to nominate a supervisor and the refusal of his application for a stay of the Tribunal's orders, that he was not entitled to do so, it was also open to the Board to reasonably form the belief that any regulatory action short of suspension would be ineffective in dealing with the risks presented by Mr Nugawela's conduct.
I therefore do not accept Mr Nugawela's submissions to the effect that the information before the Board did not reasonably justify its decision to take immediate action by suspending his registration.
I accordingly turn to Mr Nugawela's submissions that the Board exercised its power to take immediate action 'to bring penalty upon [him] for alleged non‑compliance with the Tribunal's orders of 8 September 2024' and that the Board has 'no power to bring suspension for non‑compliance per se with the Board's orders'.
Those submissions are founded upon a misunderstanding of the effect of the Tribunal's orders. As identified previously, the effect of order 3 of those orders was to impose conditions on Mr Nugawela's registration. By continuing to carry on practise without supervision, Mr Nugawela contravened those conditions, as imposed by the Tribunal, particularly condition (d), but he did not contravene the orders as such.
The action taken by the Board therefore did not involve enforcing Mr Nugawela's compliance with orders of the Tribunal, but regulatory action in relation to his failure to comply with the conditions of his registration. The Board's investigation of Mr Nugawela's conduct was expressly authorised by s 160(1)(c). Further, one of the Board's functions is 'to oversee the management of health practitioners and students registered in the health profession, including monitoring conditions, undertakings and suspensions imposed on the registration of the practitioners or students'.[22]
[22] Section 35(1)(j) National Law.

I accordingly do not accept that the Board exercised its power to take immediate action to enforce the Tribunal's orders, or for a purpose not authorised by the Act.
Nor was it necessary for the Board to take action to enforce the Tribunal's decision in accordance with the procedure provided by s 86, State Administrative Tribunal Act 2004 (WA). That section provides that a person can seek to enforce a decision of the Tribunal as if it were a decision of this court once the Tribunal's decision has been registered in accordance with the section. Assuming for the sake of argument that procedure was open where the order sought to be enforced effected the imposition of conditions on a practitioner's registration, which is open to question, there was no obligation imposed by either the National Law or the State Administrative Tribunal Act 2004 to take that course, as opposed to the Board making the decision that it did.
For the same reasons, I do not accept Mr Nugawela's submission that the Board acted in bad faith. Mr Nugawela did not identify what he alleged constituted bad faith on the part of the Board, but if the submission as directed to the Board having exercised its power to take immediate action to enforce the Tribunal's orders, such that it exercised the power for a purpose not authorised by the Act,[23] I do not accept it because, properly understood, that it is not what the Board's decision entailed.
[23] See, for example, Bailey v Conole (1931) 34 WALR 18.
Nor do I accept, if the submission was intended to mean that the Board's decision was infected by animus, that there is a proper basis for it. Notwithstanding the Board's reference to Mr Nugawela's health in its letter of 20 April 2023, Mr Nugawela was given an adequate opportunity to respond to the Board's concerns and, for the reasons I have identified, I consider that no error has been demonstrated in the decision the Board made on 12 May 2024.
Further, I have found that the Board held a reasonable belief that there was a risk to the public arising from Mr Nugawela's failure to comply with the Tribunal's orders and his failure to engage with the Board as regulator, justifying the taking of immediate action. In those circumstances, the Board was under no obligation to employ the procedure provided by s 86, State Administrative Tribunal Act 2004 to enforce Mr Nugawela's compliance with the Tribunal's orders. That is particularly so when it was likely that the use of that alternative procedure would likely have allowed Mr Nugawela to continue to carry on practice in contravention of the conditions imposed on his registration for some time.
As Mr Nugawela has failed to make out any of the grounds on which he relied to challenge the Board's decision, his application must be dismissed.
I will hear the parties as to the orders to be made to give effect to these reasons and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
23 DECEMBER 2024