Pathak v Medical Board of Australia (Occupational Discipline)
[2025] ACAT 35
•20 May 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PATHAK v MEDICAL BOARD OF AUSTRALIA (Occupational Discipline) [2025] ACAT 35
OR 7/2025
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner – where practitioner charged with offences against former employees including sexual assault and aggravated common assault – where Medical Board took immediate action to suspend practitioner’s registration – nature of appeal from immediate action decision – whether immediate action powers may only be exercised for protection of public health and safety - whether suspension reasonably necessary to address serious risk to persons posed by practitioner, or whether conditions sufficient – whether suspension is reasonably required in the public interest – adequacy of proposed conditions – relevance of public interest in the need for public confidence in the regulatory system and the reputation of the profession when taking immediate action – whether public interest in practitioner providing specialist services to patients outweighs any public interest in suspending his registration
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 48, 53, Dictionary
Health Practitioner Regulation National Law (ACT) ss 3, 3A, 5, 6, 85C, 102, 155, 156, 158, 159, 159Q, 199, 203, 205, Sch 7 cl 10
Health Practitioner Regulation National Law (ACT) Act 2010 s 8
Health Practitioner Regulation National Law (Queensland) s 199
Health Practitioner Regulation National Law (NSW) 2009 ss 3A, 55, 150
Health Practitioner Regulation National Law (WA) Act 2010 s 11
Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld)
Legal Profession Act 2006, s 416
Cases cited:Bosanac v Commissioner of Taxation [2022] HCA 34
Bushell v Repatriation Commission [1992] HCA 47
Dupas v R [2012] VSCA 328Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36
Hobart v Medical Board of Australia [2022] VSC 698
Hocking vMedical Board of Australia [2015] ACAT 22
Howard v Psychology Board of Australia [2018] ACAT 127
I v Medical Board of Australia [2011] SAHPT 18
Kaye v Psychology Board of Australia [2017] ACAT 27
Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312
Liddell v Medical Board of Australia [2012] WASAT 120
McDonald v Director-General of Social Security (1984) 1 FCR 354; [1984] FCA 59
Medical Practitioners Board of Victoria v Lal [2009] VSCA 109
Medical Board of Australia v Leow [2019] VSC 532
MLNO v Medical Board of Australia [2012] VCAT 1613
Osland v Secretary of Justice (No 2) [2010] HCA 24
Pathak v Medical Board of Australia (Occupational Discipline) [2025] ACAT 18
Pridgeon v Medical Council of NSW [2022] NSWCA 60
R v Spong [2018] ACTSC 129
Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; [1990] HCA 36
Regina v NZ [2005] NSWCCA 278
Rao v Medical Board of Australia [2021] QCAT 145
Reimers v Medical Board of Australia [2024] NSWCA 164
Syme v Medical Board of Australia [2016] VCAT 2150
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Zaphir v Health Ombudsman [2017] QCAT 193
Tribunal:Presidential Member J Lucy
Date of Orders: 20 May 2025
Date of Reasons for Decision: 20 May 2025
Date of Publication: 04 June 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 7/2025
BETWEEN:
RAJEEV PATHAK
Applicant
AND:
MEDICAL BOARD OF AUSTRALIA
Respondent
TRIBUNAL:Presidential Member J Lucy
DATE:20 May 2025
ORDER
The Tribunal orders that:
The appellable decision is confirmed.
The applicant is to pay the costs of the respondent, as agreed or assessed.
………………………………..
Presidential Member J Lucy
REASONS FOR DECISION
The applicant is a specialist medical practitioner who has been charged with serious offences against former employees, including charges of sexual intercourse without consent. He has appealed to the tribunal against a decision of the respondent (the Board) to take immediate action to suspend his registration.
The main issue in the appeal is whether the correct and preferable form of immediate action, to protect public health and safety and in the public interest, is suspension of the applicant’s registration or the imposition of strict conditions on his registration.
I have decided that suspension of the applicant’s registration is reasonably necessary to address the serious risk posed by the applicant to the public, and in the public interest. I have accordingly confirmed the Board’s decision.
Background
Dr Pathak is a specialist cardiac electrophysiologist. He is the Director of Canberra Heart Rhythm and a clinical academic (Associate Professor of Cardiology) based at the Australian National University.[1] He has an international reputation as being a leader in his field.
[1] Dr Pathak’s affidavit sworn on 12 March 2025, Exhibit D.
Dr Pathak has been charged with twenty offences, which are alleged to have occurred between June 2021 and January 2025. Those charges are:
(a)six counts of Aggravated Common Assault (Family Violence);
(b)two counts of Sexual Intercourse without Consent – Reckless;
(c)one count of Attempt sexual intercourse without consent;
(d)seven counts of Act of indecency without consent;
(e)one count of Aggravated Intimate Observations / Capture visual Data;
(f)two counts of Use carriage service to menace/harass/offend; and
(g)one count of Contravene Family Violence Order.
The alleged victims are four female former employees of Dr Pathak. None of the alleged victims is a patient of Dr Pathak.
Dr Pathak has pleaded not guilty to all of the criminal charges.[2]
[2] Dr Pathak’s affidavit sworn on 12 March 2025 at [6]
The Magistrates Court ordered at the first mention in Dr Pathak’s criminal proceedings that Dr Pathak’s name and the name of his practice is not to be published.
Dr Pathak has been released on bail. His bail conditions include a condition that he remain at his home except when required to attend on a patient at a hospital when an AVL consultation is not practicable, and that when travelling away from his home he must be in the company of nominated persons, being his wife or brother, or an approved person.
When the Board became aware of the charges and allegations against the applicant, it gave Dr Pathak an opportunity to make submissions about its proposed immediate action to suspend his registration under section 157 of the Health Practitioner Regulation National Law (ACT) (the National Law).
Dr Pathak made submissions to the Board, opposing the proposed suspension.
Following receipt of those submissions, the Board decided, on 25 February 2025, to take immediate action to suspend Dr Pathak’s registration under section 156 of the National Law (the Decision). It stated in the notice of decision:
On the basis of the evidence before it, the Board reasonably believes that because of Dr Pathak’s conduct, he poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety and taking immediate action in respect of Dr Pathak’s registration is otherwise in the public interest.
Dr Pathak appealed to the Tribunal from the Decision.
I heard Dr Pathak’s application for a stay of the Decision on 18 March 2025 and made orders dismissing the application shortly afterwards.[3] I adjourned Dr Pathak’s application for non-publication orders but made interim orders prohibiting the publication of Dr Pathak’s name, and related orders, pending the final determination of that application.
[3] Pathak v Medical Board of Australia (Occupational Discipline) [2025] ACAT 18
The appeal from the Decision was heard on 3 April 2025.
At the hearing of the appeal, Dr Pathak’s counsel advised the Tribunal that the prosecutor in the criminal proceedings had applied to lift the non-publication orders. I directed the applicant to advise the Tribunal of the outcome of that application.
On 17 April 2025, Dr Pathak’s legal representatives informed the Tribunal that the Magistrates Court had lifted the non-publication orders in the criminal proceedings, that day.
On 22 April 2025, the Tribunal vacated the non-publication and related orders made in these proceedings.
Relevant law
The object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners and of certain students.[4]
[4] National Law, s 3
The main guiding principle of the national registration and accreditation scheme is set out in section 3A of the National Law. That section provides:
3A Guiding principles
(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.
Other guiding principles are set out in section 3A(2) and include that 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.[5]
[5] National Law, s 3A(2)(c)
Section 4 of the National Law provides:
An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.
The Tribunal is such an entity.
Section 156(1) of the National Law confers on a National Board (such as the Board) a power to take immediate action in relation to a registered health practitioner in certain circumstances. It relevantly provides:
156 Power to take immediate action
(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 practitioners.
The term “immediate action” is defined to include the suspension, or imposition of a condition on, a health practitioner’s registration.[6]
[6] National Law, s 155(a)
Schedule 7 to the National Law, which is given force by operation of section 6 of the National Law, provides for various rules and principles of interpretation of the National Law. Clause 10 of the Schedule provides for the use of examples as follows:[7]
If this Law includes an example of the operation of a provision—
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend, the meaning of the provision; and
(c) the example and the provision are to be read in the context of each other and the other provisions of this Law, but, if the example and the provision so read are inconsistent, the provision prevails.
[7] National Law, Sch 7, cl 10
A person who is subject to a decision by a National Board to suspend the person’s registration “may appeal against the decision to the appropriate responsible tribunal for the appellable decision”.[8] The ACAT is the “responsible tribunal” for the ACT.[9]
[8] National Law, s 199(1)(h)
[9] Health Practitioner Regulation National Law (ACT) Act 2010, s 8
The National Law is an “authorising law” within section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), being a territory law that provides that an application may be made to the tribunal.[10] Jurisdiction to hear and determine the appeal is conferred on the ACAT by section 199 of the National Law and section 9 of the ACAT Act.
[10] ACAT Act, Dictionary, definition of “authorising law.”
After hearing the matter, the responsible tribunal may confirm or amend the appellable decision, or substitute another decision for the appellable decision.[11]
Nature of proceedings before the Tribunal
[11] National Law, s 202(1)
The nature of an appeal under section 199 of the National Law has been considered in a number of decisions in different jurisdictions.
The State Administrative Tribunal of Western Australia, in Liddell v Medical Board of Australia (Liddell),[12] considered that an appeal under section 199 of the National Law was a “review by way of a hearing de novo” which may “involve a more thorough consideration of evidence adduced by the parties than occurred before the Board.”[13] However, this was as a result of the operation of section 11 of the Health Practitioner Regulation National Law (WA) Act 2010, which has no equivalent in the ACT.
[12] [2012] WASAT 120
[13] Liddell at [26]
A South Australian tribunal took a similar approach.[14]
[14] I v Medical Board of Australia [2011] SAHPT 18.
In Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295 (Kozanoglu), the Victorian Court of Appeal considered that an appeal under section 199 of the Victorian version of the National Law[15] was not “a rehearing de novo in the widest sense of that term.”[16] It described the position taken by the South Australian tribunal that an appeal under section 199 of the National Law was a hearing de novo as being “erroneous.”[17]
[15] As applied by Health Practitioner Regulation National Law (Victoria) Act 2009
[16] [2012] VSCA 295 at [95]; see also at [106]
[17] [2012] VSCA 295 at [119]
The Victorian Court of Appeal found that the Victorian tribunal was entitled “to receive any evidence that bore upon the decision that was actually taken by the [delegate of the relevant National Board] at the time that decision was taken.”[18] The Court considered that the “better view” was that “the decision should be considered in the light of not only [the evidence before the original decision-maker], but also any additional evidence that bears directly upon the position as it was when the original decision was made.”[19] It observed:[20]
The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not “open slather”, but nor is it an appeal confined to error.
[18] [2012] VSCA 295 at [96]
[19] [2012] VSCA 295 at [108]
[20] [2012] VSCA 295 at [119]
This tribunal commented in Hocking vMedical Board of Australia [2015] ACAT 22 (Hocking) that “the decision in Kozanoglu should be regarded as binding the ACAT given that the law being considered is in essence, the same law.”[21]
[21] Hocking at [26]
Dr Pathak referred, in his submissions, to Kozanoglu, apparently accepting its application to these proceedings. He also relied, in his submissions, upon a more recent decision of the Queensland Civil and Administrative Tribunal (QCAT), Rao v Medical Board of Australia [2021] QCAT 145 (Rao). Dr Pathak cited a passage from Rao, in which Judge Allen QC, Deputy President of QCAT, said in relation to the Tribunal’s task when hearing an appeal under section 199 of the Health Practitioner Regulation National Law (Queensland): “The task of the Tribunal is to make a fresh decision on all the material before it, even if not all of which was before the Board.”[22]
[22] Rao at [37]
That approach is not entirely consistent with Kozanoglu. I note, also, that the circumstance that an appeal under section 199 of the Health Practitioner Regulation National Law (Queensland) is treated as a merits review is required by provisions in the tribunal statute in Queensland, which have no equivalent in the ACAT Act. His Honour Judge Allen summarised those provisions in Rao as follows:[23]
[8] Pursuant to section 23(4)(a) of the QCAT Act, the decision of 18 February 2021 is taken to be the reviewable decision the subject of these proceedings.
[9] Section 20 of the QCAT Act provides that the Tribunal must hear and decide the review by way of a fresh hearing on the merits, with the purpose of the review being to produce the correct and preferable decision.
[23] Rao at [8]-[9]
As may be seen from this analysis, Dr Pathak’s submissions apparently endorsed two inconsistent approaches to the nature of an appeal under section 199 of the National Law, one being that the appeal is not confined to error, but nor is it a rehearing de novo (Kozanoglu), and the other being that the review is a fresh hearing on the merits (Rao). The Board adopted Dr Pathak’s submissions on the nature of the appeal.[24]
[24] Submissions of the Medical Board of Australia, filed 28 March 2025 (Board’s Primary Submissions) at [6]
It is important to identify the nature of the appeal the Tribunal is conducting and the Tribunal’s functions on the appeal before proceeding to determine it.
The decision in Kozanoglu was the subject of consideration by Refshauge ACJ in Legal Practitioner “M” v Council of the Law Society of the Australian Capital Territory [2015] ACTSC 312 (Legal Practitioner “M”), handed down after Hocking, a case to which the parties did not refer in their submissions. The Acting Chief Justice considered the nature of an “appeal” to ACAT from a disciplinary decision of a regulator under section 416 of the Legal Profession Act 2006. His Honour observed:
Although described as an “appeal” (s 416 of the Legal Profession Act), it is, in reality, an administrative review of the decision of the Council of the Law Society.[25]
[25] Legal Practitioner “M” at [75]
His Honour commented that “[o]rdinarily, the function of merits review by a tribunal such as the ACAT is to determine what is the ‘correct or preferable’ decision”[26] and appeared to consider that that was its function when hearing an “appeal” under the Legal Profession Act 2006.
[26] Legal Practitioner “M” at [88]
Refshauge ACJ referred to the decision in Kozanoglu, including the Victorian Court of Appeal’s comment that an appeal under section 199 of the National Law “is not ‘open slather,’”[27] and continued:[28]
I have to say, however, that the notion of “open slather” is very problematic and vague. It is not clear what it means or how it is to be applied. What material should the tribunal exclude as breaching the “open slather” rubric is by no means clear. Of course, material that is irrelevant is not to be adduced, but that is obvious and hardly all that is likely to have been intended.
[27] Legal Practitioner “M” at [82]
[28] Legal Practitioner “M” at [83]
His Honour pointed out that the Victorian Court of Appeal in Kozanoglu had not considered the High Court’s decisions in Osland v Secretary of Justice (No 2) [2010] HCA 24 (Osland) and Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267; [1990] HCA 36 (Re Coldham).[29] In Osland, the High Court said of a provision conferring a right to “appeal, on a question of law” from an order of a Victorian tribunal to a court that it conferred “original not appellate jurisdiction,” the proceedings being “in the nature of judicial review.”[30] In Re Coldham,[31] in a passage quoted by Refshauge ACJ,[32] the High Court said:
... it is well settled that, when the legislature gives a court the power to review or hear an “appeal” against the decision of an administrative body, a presumption arises that the court is to exercise original jurisdiction and to determine the matter on the evidence and law applicable as at the date of the curial proceedings: see Ex parte Australian Sporting Club Ltd; Re Dash (1947) 47 SR (NSW) 283. Nevertheless, whether the right of appeal against an administrative decision is given to a court or to an administrative body, the nature of the appeal must ultimately depend on the terms of the statute conferring the right: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at p 621-622.
[29] Legal Practitioner “M” at [93]
[30] Osland at [18]
[31] 170 CLR at 273-274
[32] Legal Practitioner “M” at [93]
Having regard to those and other authorities, Refshauge ACJ concluded (in relation to the nature of an appeal under the Legal Profession Act 2006) that “[t]he balance of authority seems to favour a wide role for the ACAT in hearing the appeal from the Council of the Law Society.”[33]
[33] Legal Practitioner “M” at [94]
It is also worth noting a recent appellate South Australian decision which has taken a similar approach to appeals from immediate action decisions under the National Law. In Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36, the South Australian Court of Appeal commented of the tribunal’s function when considering an appeal from an immediate action decision that “[t]he question for the Tribunal, standing in the shoes of the Board, was what the correct or preferable immediate action was in the circumstances.”[34]
[34] Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36 at [12]
This tribunal is not bound by decisions of the Victorian Court of Appeal, although it would normally follow decisions of an appellate state court in the absence of any conflicting authority. That is particularly so when making decisions under the National Law, as it is part of a national scheme in which consistency in approach is important.[35] In the present situation, however, I consider that the tribunal may properly decide not to follow the Victorian Court of Appeal’s decision. That is because the decision of the Acting Chief Justice of the ACT Supreme Court in Legal Practitioner “M” casts doubt on the Victorian authority, on the basis of High Court decisions not referred to by the Victorian Court of Appeal, and the South Australian Court of Appeal has taken an approach consistent with that of the Acting Chief Justice of the ACT Supreme Court in Legal Practitioner “M”. I note that Senior Member Meagher SC decided not to follow Kozanoglu for similar reasons in Kaye v Psychology Board of Australia [2017] ACAT 27 at [9].
[35] See, for example, Dupas v R [2012] VSCA 328 at [221]-[228]; R v Spong [2018] ACTSC 129 at [33]-[41]; Regina v NZ [2005] NSWCCA 278 at [156]-[160]
It is also relevant to consider that section 199 confers a right of appeal from a wide range of decisions, many of which are not “immediate action” decisions. As President Crebbin (as she then was) noted in Hocking, “the decision to take immediate action is not an appellable decision”; rather, the “appellable decision is the decision made on an immediate basis” such as “the suspension of the applicant’s registration.”[36] Other decisions subject to appeal under section 199 include a decision by a National Board to withdraw a practitioner’s registration (section 85C), refuse to endorse an applicant’s registration (section 102) or to make a public statement about a person (section 159Q). To the extent that the Victorian Court of Appeal relied upon the urgency of an immediate action decision as relevant to the nature of a section 199 appeal,[37] that did not account for the circumstance that many appeals under that section are not attended by such urgency.
[36] Hocking at [15]
[37] See, for example, Kozanoglu at [106]-[109]
In my view, consistently with Refshauge ACJ’s observations in Legal Practitioner “M”, the Tribunal’s function on an “appeal” under section 199 of the National Law is to conduct a merits review of the relevant decision, and to determine what is the correct and preferable decision at the time of the hearing. This means that the Tribunal is not limited to receiving only evidence which was before the National Board and “any evidence that bore upon the decision that was actually taken by the [National Board] at the time that decision was taken,”[38] as suggested in Kozanoglu. It may also receive evidence that bears upon a decision the Tribunal is making, standing in the shoes of the relevant National Board, at the time of the hearing.
[38] Kozanoglu at [96]
As the tribunal is conducting a merits review, it may be doubted that the Board has the onus of persuading the Tribunal that immediate action is justified, as Dr Pathak contended and as the Board accepted.[39] In merits review proceedings, there is generally no onus of proof.[40] However, it is not necessary to decide that question. For the reasons which follow, I would be satisfied that the correct and preferable decision is to take immediate action in the form of suspension, irrespective of whether the Board bears an onus. In other words, if the Board does bear an onus, it has discharged it.
Hearing and evidence
[39] Outline of Submissions on behalf of the Applicant - Appeal from a Decision of the Medical Board, filed 21 March 2025 (Applicant’s Primary Submissions) at [15], citing Syme v Medical Board of Australia [2016] VCAT 2150 at [114]; Board’s Primary Submissions at [6]
[40] McDonald v Director-General of Social Security (1984) 1 FCR 354; [1984] FCA 59, Woodward J at FCR 356; Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 424-425; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40].
A hearing of Dr Pathak’s appeal was held on 3 April 2025. He was represented by senior and junior counsel and the Board was also represented by counsel.
Dr Pathak relied upon a bundle of documents at the hearing. The documents in the bundle included an affidavit of Dr Pathak sworn on 12 March 2025; Dr Pathak’s bail conditions; letters of support from other cardiologists and doctors; and an affidavit of Jenish Shroff, a cardiac electrophysiology fellow at Canberra Heart Rhythm.
Dr Pathak also read affidavits made by:
(a)himself on 21 March 2025 and 1 April 2025;
(b)Hamad-Ul-Hassan Chaudhary, practice manager at Canberra Heart Rhythm, on 17 March 2025;
(c)Professor Prashanthan Sanders, professor of cardiology at the University of Adelaide and Director of Cardiac Electrophysiology and Pacing at the Royal Adelaide Hospital, on 17 March 2025;
(d)Walter Abhayaratna, consultant cardiologist in the Australian Capital Territory (ACT) on 21 March 2025; and
(e)Dr Christopher Allada, an ACT-based interventional cardiologist, on 17 March 2025 and 1 April 2025.
Dr Pathak’s evidence was confined to matters relevant to section 156(1) of the National Law and, in particular, the Tribunal’s discretion as to the appropriate immediate action to take, should it decide that taking immediate action is the correct and preferable decision. Consistently with his right to silence in the criminal proceedings, his evidence did not engage with the charges against him.
The Board relied upon a bundle of documents filed on 28 March 2025. That included a statement of Dr Peter Scott, Director of Cardiology, Canberra Hospital, notifications regarding concerns about Dr Pathak and the Australian Federal Police statement of facts in Dr Pathak’s criminal matter. Some documents in the bundle were not admitted into evidence, following objections made on behalf of Dr Pathak. Some documents were not pressed and objections to other documents were upheld.
The Board also relied upon a witness statement of Dr Peter Scott, Director of Cardiology for Canberra Health Services. At the hearing, Mr Jones, for the Board, handed up a curriculum vitae of another cardiologist at Canberra Hospital.
The Board required Dr Pathak, Professor Sanders and Dr Allada for cross examination. Dr Pathak and Professor Sanders were not made available for cross examination. Ms Mathur SC explained that Professor Sanders was “on a flight somewhere in Europe”[41] and that the context of Dr Pathak not being made available was “that there are currently criminal proceedings on foot” and he had a right to silence.[42]
[41] Transcript of hearing dated 3 April 2025, page 4, line 43
[42] Transcript of hearing dated 3 April 2025, page 6 lines 1-9
Dr Allada and Dr Scott were cross examined at the hearing. Their evidence is discussed below.
Immediate action – relevant principles
The power to take immediate action under section 156(1)(a) of the National Law is enlivened where a National Board reasonably believes, relevantly, that because of the registered health practitioner’s conduct, the practitioner poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.[43] The power to take action under section 156(1)(e) is also conditioned upon a National Board forming a reasonable belief, namely that the action “is otherwise in the public interest.”
[43] National Law, s 156(1)(a)
A “reasonable belief” is a low threshold compared to the level of certainty required to make a decision on the balance of probabilities or beyond reasonable doubt.[44] The matter is to be approached on the basis that an immediate action decision does not entail a detailed inquiry by the Board or the Tribunal, because the purpose of the provision is to allow the taking of urgent action to protect the public.[45] Nevertheless, “that does not mean the material available to the decision-maker should not be carefully scrutinised in order to determine the weight to be attached to it.”[46]
[44] See Hocking vMedical Board of Australia [2015] ACAT 22 at [33]
[45] Zaphir v Health Ombudsman [2017] QCAT 193 at [14], citing I v Medical Board of Australia [2011] SAHPT 18
[46] Zaphir v Health Ombudsman [2017] QCAT 193 at [15]
Dr Pathak relied upon the principle, referred to in Hocking, that any action should be limited to that which is “necessary to address the identified risk,” and “nothing broader or more onerous”.[47] That principle applies in the context where the only relevant provision is section 156(1)(a) of the National Law, which provides that a National Board may take immediate action if it reasonably believes that the practitioner poses a serious risk to persons. That was the only provision considered in Hocking.[48]
[47] Hocking at [20]
[48] Hocking at [12]
That principle does not necessarily apply, however, where the Board relies upon section 156(1)(e) of the National Law, which provides that a National Board may take immediate action if it reasonably believes that immediate action is otherwise in the public interest. A similar principle applies in that context, being that any action should not be more onerous than that which reasonably needs to be taken, in the public interest.[49]
Does Dr Pathak pose a serious risk to persons because of his conduct (s 156(1)(a)(i))?
[49] See also Dielenberg v Medical Board of Australia [2021] ACAT 85 at [58] where the tribunal commented that “action should be the minimum regulatory force to adequately protect the public.”
The Board submitted that there was “a clear risk to public safety and the public interest”[50] if Dr Pathak were allowed to practise, even with conditions.
[50] Board’s Primary Submissions at [14]
Dr Pathak’s counsel, Ms Mathur SC, submitted that Dr Pathak does not pose a serious risk to persons for which it is necessary to take immediate action (in the form of suspension) to protect public health or safety. Her submission was that the evidence only supported a risk to a certain class of persons, namely Dr Pathak’s female employees.[51] She also submitted that that risk could appropriately be addressed by conditions.
[51] Outline of Submissions on behalf of the Applicant on the Stay Application, filed 12 March 2025 (Applicant’s Stay Submissions) at [38]-[42]; Applicant’s Primary Submissions at [32]
When considering whether, because of his conduct, Dr Pathak poses a serious risk to persons, it is not necessary to make definitive findings of guilt or innocence. In Hocking, the Tribunal endorsed the following observations of the Victorian Civil and Administrative Tribunal:[52]
Definitive findings of guilt or innocence do not need to be established. The primary focus is the protection of the public. Nevertheless, the belief must be reasonably founded. It must be based on more than innuendo and suspicion.
[52] Hocking at [32], citing MLNO v Medical Board of Australia [2012] VCAT 1613 at [4]
Similarly, the New South Wales Court of Appeal has endorsed a passage from a decision of the New South Wales Civil and Administrative Tribunal (NCAT), where NCAT said of a power in the Health Practitioner Regulation National Law (NSW) 2009, which performs a similar function to section 156 of the National Law, that “the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court.”[53]
[53] Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9], citing Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123]
The police statement of facts contains serious allegations about Dr Pathak’s conduct. The charges involve four alleged victims who were all female employees of Dr Pathak. The charges include that Dr Pathak:
(a)assaulted a complainant by slapping her on the cheek on more than one occasion;
(b)slapped a complainant in the sternum whilst in the car with her;
(c)had sexual intercourse with a complainant and recorded a video of it whilst they were both intoxicated, and while the complainant did not consent to the intercourse or the recording;
(d)placed his hand on a complainant’s leg in an Uber, after the complainant had told Dr Pathak earlier that evening that their relationship was entirely professional;
(e)squeezed a complainant’s left thigh and buttock at a work Christmas party;
(f)moved his hand underneath a complainant’s dress in a taxi and rubbed the opening of her vagina, then placed his fingers inside, even though the complainant told him to stop; and
(g)told a complainant that part of her role as employee was to give him sexual favours and engage in sexual intercourse with him.
Dr Pathak, through his counsel, accepts that “the allegations are plainly serious, occurred against more than one complainant, and took place over a period of time,” but adds that “none of the alleged offending is against any of [his] patients.”[54] I accept Dr Pathak’s evidence that he has never been accused of behaving in an inappropriate manner towards a patient.[55]
[54] Applicant’s Primary Submissions at [28]
[55] Dr Pathak’s affidavit sworn on 21 March 2025 at [11]
Without making any definitive findings about Dr Pathak’s conduct the subject of the charges, I have formed a reasonable belief that, because of that alleged conduct, Dr Pathak poses a serious risk to persons. It is reasonable to believe that that serious risk exists in circumstances where four complainants have made allegations of a broadly similar nature against Dr Pathak which appear, on their face, to be credible. I did not understand Dr Pathak’s counsel to contend otherwise.[56]
Is it necessary to take immediate action to protect public health or safety (s 156(1)(a)(ii))?
[56] I note that Ms Mathur SC said in closing submissions at the hearing, “we don't dispute that it doesn't give rise to a call for immediate action”: Transcript of hearing dated 3 April 2025, page 76, lines 37-38
The question of whether it is necessary to take immediate action to protect public health or safety, within section 156(1)(a)(ii) of the National Law, is to be approached in the context of the existing legal constraints on Dr Pathak’s conduct. Dr Pathak submitted that his bail conditions are stringent and meet any perceived risk.[57]
[57] Applicant’s Stay Submissions at [39]; Applicant’s Primary Submissions at [32]
The “revised proposed bail conditions” filed on 7 February 2025 require Dr Pathak to be at his home at all times, except when travelling to and from, or when at, an ACT Hospital when required to conduct a surgery or an in-person consultation where an AVL consultation is not practicable because of the status of the patient’s medical condition, and whilst in the company of his wife, brother or another approved person. They also prohibit him from being in the physical company of any female employee or patient, unless also in immediate physical company of his wife, brother or another approved person.
I have assumed that those revised proposed bail conditions have been adopted, as the parties presented their cases on that basis.
The Board submitted, and I accept, that the bail conditions are not sufficient to protect public health and safety. The applicant’s wife and brother are not independent of the appellant. There is a risk that they would not stay with him at all times when he is not at home and that they may fail to report any breach of the conditions by Dr Pathak. Further, one of the bail conditions effectively leaves Dr Pathak to determine whether an AVL consultation is “practicable” or not. As the Board submits,[58] the condition leaves considerable ambiguity and uncertainty as to when the appellant will conduct in person consultations and is therefore “not capable of objective assessment of compliance for monitoring purposes”, which is an important requirement of any conditions imposed under the National Law.[59]
Power to take immediate action under section 156(1)(a)
[58] Board’s Primary Submissions at [24](b)
[59] HCCC v Iskander [2015] NSWCATOD 30 at [195]
For the reasons given above, I hold a reasonable belief that, because Dr Pathak’s conduct, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety. It follows that the Tribunal has power, standing in the shoes of the Board, to take immediate action under section 156(1)(a) of the National Law (or, more accurately, to confirm or amend the Decision, or to substitute another decision for the Decision).[60]
Is immediate action otherwise in the public interest? (s 156(1)(e))
[60] National Law, s 202(1)
It is only necessary for a circumstance in one paragraph of section 156 to apply before the Board has power to take immediate action. It is relevant, however, to consider the application of section 156(1)(e) as well, because all applicable paragraphs need to be considered when determining what form of immediate action to take.
The Board relied, both when making the Decision and in the Tribunal proceedings, upon section 156(1)(e) of the National Law as well as section 156(1)(a). In its reasons for making the Decision, the Board stated that it had formed “a reasonable belief that it was otherwise in the public interest – public protection and public confidence in the profession – to take immediate action on Dr Pathak’s registration.”[61] The Board reasoned that “[p]ublic confidence may be undermined if a medical practitioner facing criminal charges for sexual and family violence offending is allowed to continue to practise, especially where the behaviour was perpetrated against four former employees.”[62]
[61] Letter dated 25 February 2025 to Dr Pathak’s solicitor at paragraph 9.
[62] Letter dated 25 February 2025 to Dr Pathak’s solicitor at paragraph 12
It was submitted for the Board that the Tribunal may take into account the need for public confidence in the regulatory system and the reputation of the profession,[63] when deciding what immediate action to take. The effect of the Board’s submission that public confidence in the regulatory system and the reputation of the profession are relevant to the Tribunal’s discretion appears to be that, even if the risk posed by a practitioner may adequately be addressed by conditions, the Tribunal may still decide that suspension is the appropriate response if section 156(1)(e) is engaged.
Can the Board rely upon section 156(1)(e) where 156(1)(a) applies?
[63] Board’s Primary Submissions at [13]
Ms Mathur SC, for Dr Pathak, and Mr Jones, for the Board, both accepted that section 156(1)(e) could apply in circumstances where section 156(1)(a) applied.[64] That is, the word “otherwise” in section 156(1)(e) does not preclude its application, even where another paragraph of section 156(1) is engaged.
[64] Transcript of hearing dated 3 April 2025, page 81, line 45 to page 82 line 14
The Victorian Supreme Court has taken a different view, albeit in circumstances where the issue does not appear to have been the subject of argument. In Medical Board of Australia v Leow [2019] VSC 532 (Leow) at [74], Niall JA observed of section 156(1)(e): “The word ‘otherwise’ indicates that this sub-section provides an additional and alternative source of power that is available where none of the other specific circumstances has been established.” Similarly, at [85], his Honour referred to the provision applying “in circumstances where none of the other sub-paragraphs of s 156(1) apply.”
In support of the proposition that the Board could take into account section 156(1)(e) when another paragraph in section 156(1) applied, Mr Jones drew an analogy between the language of section 156(1)(e) (“otherwise”) with the wording of section 55(1) of the National Law (“any other reason”).[65] He referred to the construction of the latter provision by the New South Wales Court of Appeal in Reimers v Medical Board of Australia [2024] NSWCA 164 (Reimers). Subsection 55(1) provides that “[a] National Board may decide an individual is not a suitable person to hold general registration in a health profession if” then provides for specific circumstances in (a) to (g), concluding with (h), being that “in the Board’s opinion, the individual is for any other reason” not a fit and proper person or unable to practise the profession competently and safely. In Reimers, the New South Wales Court of Appeal rejected an argument that the words “for any other reason” in section 55(1)(h) precluded the consideration of matters, or aspects of matters, referred to in the preceding paragraphs when the Board was forming the opinion referred to in section 55(1)(h).[66]
[65] Transcript of hearing dated 3 April 2025, page 89, lines 7-12
[66] Reimers at [95]
The language and context of section 156(1) of the National Law are materially different from those of section 55(1) of that Law and I am not persuaded that it necessarily flows from the decision in Reimers that section 156(1)(e) may apply where one of the paragraphs 156(1)(a) to (d) applies. Nevertheless, the text of section 156(1)(e) does not, on its terms, purport to apply only when the preceding paragraphs do not apply. The word “otherwise” only conditions the subject of the National Board’s belief (whether action is otherwise in the public interest).
I favour the construction that section 156(1)(e) authorises the Board to take immediate action where the Board reasonably believes that the action is in the public interest on a basis other than the circumstances the subject of paragraphs 156(1)(a) to (d). Section 156(1)(e) may also authorise the Board to take immediate action where it considers the action to be in the public interest for reasons which include one or more of the matters referred to in paragraphs 156(1)(a) to (d). However, it is not necessary to decide that, because the Board’s case is that the Tribunal would reasonably believe that action is in the public interest to uphold public confidence in the regulatory system and the safety of services, and to uphold the reputation of the profession. None of those matters is dealt with in paragraphs 156(1)(a) to (d).
Parties’ submissions as to action in the public interest
The Board maintained, at the hearing, that it was relevant for the Tribunal to have regard to the need for public confidence in the profession and public confidence in the regulatory system when considering the public interest under section 156(1)(e) of the National Law. It submitted that:[67]
… in assessing the public interest under s 156, the Tribunal must have regard to the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession: Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 (Ghosh). Consideration should also be given to the need for public confidence in the regulatory system, that it is safe and adequate to protect the public and the reputation of the profession: Medical Board of Australia v Liang Joo Leow [2019] VSC 532 at [81].
[67] Board’s Primary Submissions at [13]
Mr Jones, for the Board, submitted that the risk to public confidence in the profession by allowing someone charged with serious offences to continue to practice was “extreme.”[68] He told the Tribunal that a decision not to suspend “carries with it a representation to the public that the board considers that this person is safe to practice.” [69] He submitted that the public expects that the people who are able to practise medicine will exhibit honourable traits in accordance with an honourable profession, and that public confidence would be undermined by allowing a person charged with such serious offences to continue to practise medicine. [70]
[68] Transcript of hearing dated 3 April 2025, page 90, lines 7-15
[69] Transcript of hearing dated 3 April 2025, page 90, lines 7-15
[70] Transcript of hearing dated 3 April 2025, page 91, lines 4-10
Dr Pathak’s position is that the reputation of the profession is not relevant to the exercise of the power under section 156. In his submission, the power in section 156 is an emergency power directed towards ensuring the safe and high quality provision of medical services and not a power conferred to protect or manage the reputation of the medical profession.[71] It was submitted for Dr Pathak:[72]
There is no ‘presumption’ that action will or should be taken when criminal charges are pending: Medical Board of Australia v Liang Joo Leow [2019] VSC 532, at [83]-[85]. The emergency power in s. 156 is directed towards protection of the public in the public interest, not professional discipline and it is not concerned with broader reputational or disciplinary concerns: Kirby v Dental Council of NSW [2020] NSWCA 91 at [15]. The reputation of the medical profession possibly affected by alleged criminal conduct is ‘not a concern that relevantly informs the particular public interest in the protection of the public’ with which s. 156 is concerned: Pridgeon v Medical Council of NSW [2022] NSWCA 60, at [68].
[71] Applicant’s Primary Submissions at [74]
[72] Applicant’s Primary Submissions at [72]
It was also submitted for Dr Pathak, relying upon Leow, that concepts of public confidence are generally unhelpful.[73] Further, Dr Pathak’s counsel submitted that he was entitled to the presumption of innocence and that the public could be expected to know about that presumption. It was also said on Dr Pathak’s behalf that there were public interest considerations in favour of allowing him to practise, concerning the welfare of his patients and the progress of important clinical trials in which he was engaged.
Consideration of public interest submissions
[73] Appellant’s Reply Submissions at [5]
The main guiding principle of the national registration and accreditation scheme is that protection of the public, and public confidence in the safety of services provided by registered health practitioners and students, are paramount.[74] This principle informs what is in the “public interest” for the purposes of section 156(1)(e) of the National Law. It supports the proposition that the Board, or the Tribunal standing in its shoes, may consider public confidence in the safety of services when considering the public interest under section 156(1)(e).
[74] National Law, s 3A
When considering whether immediate action is otherwise in the public interest, within section 156(1)(e), that provision and the example following it are to be read in the context of each other.[75] The example of when action may be taken in the public interest is:
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 practitioners.
[75] National Law, Sch 7, cl 10(c)
As Niall JA observed in Leow, that example “provides an important aspect of the context in which the phrase public interest appears,” albeit that “it does not control the language of the provision, nor does it provide a substitute or alternative test.”[76] The example confirms that it may be in the public interest to take immediate action to maintain public confidence in the provision of services by health practitioners, even where a practitioner’s alleged offending does not relate to the practitioner’s practice.
[76] Leow at [77] and [83]
In this case, Dr Pathak’s alleged offending does relate to his practice, in that the alleged victims were his employees. Whilst the alleged conduct did not take place in the workplace, much of it is alleged to have taken place at or in connection with work events (such as a work Christmas party). All of the alleged conduct is capable of affecting the workplace, in that, if it occurred, it would plainly have affected Dr Pathak’s relationship with his employees.
Dr Pathak’s counsel placed a lot of emphasis upon Niall JA’s remark in Leow that, in “assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response.”[77] The Tribunal has not allowed visceral responses to the allegations against Dr Pathak to govern its consideration of the appropriate action to take. However, as submitted by Mr Jones,[78] the nature of the allegations, which may prompt visceral responses in members of the public, is relevant to determining what form of immediate action is needed to maintain public confidence in the provision of services by health practitioners.
[77] Leow at [94]
[78] Transcript of hearing dated 3 April 2025, page 97, lines 4-9
Dr Pathak relied upon New South Wales Court of Appeal authorities[79] on the question of whether the Tribunal, standing in the shoes of the Board, was entitled to consider matters such as the reputation of the medical profession when deciding whether to take immediate action and, if so, what form that action should take.
[79] In particular, Kirby v Dental Council of NSW [2020] NSWCA 91 and Pridgeon v Medical Council of NSW [2022] NSWCA 60
There are some material differences between section 156(1) of the National Law and the equivalent provision, section 150 of the Health Practitioner Regulation National Law (NSW) 2009, considered in the cases on which Dr Pathak relied. Section 150(1) of the Health Practitioner Regulation National Law (NSW) 2009 provides, and provided when considered by the New South Wales Court of Appeal in the cases relied upon by the parties, as follows:
150 Suspension or conditions of registration to protect public [NSW]
(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest—
(a)by order suspend a registered health practitioner’s or student’s registration; or
(b)by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate; or
(c)by order impose on a student’s registration the conditions the Council considers appropriate.
Section 150 is the first provision in Subdivision 7 of Division 3 of Part 8 of the Health Practitioner Regulation National Law (NSW) 2009, which is headed “Subdivision 7 Powers of a Council for protection of public [NSW].”
In Pridgeon v Medical Council of NSW [2022] NSWCA 60 (Pridgeon), the Court, constituted by Bell CJ, White JA and Harrison J, observed that the content of the expression “public interest” was informed by a heading to the subdivision in which section 150 appears, and that “the powers provided by s 150 are to be exercised for the protection of the public.”[80] It said that in the context of Subdivision 7, “the reference to the ‘public interest’ should be understood as a reference to the public interest in the protection of the public’s health and safety.”[81] In that case, the Court held that “the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner.” However, the Court said that “the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned.”[82]
[80] Pridgeon at [57]
[81] Pridgeon at [68]
[82] Pridgeon at [68]
The text and statutory context of section 156 of the National Law differ from those of section 150 of the Health Practitioner Regulation National Law (NSW) 2009 in several significant ways. First, section 156 of the National Law is in Division 7, headed “Immediate action,” of Part 8 of the National Law, headed “Health, performance and conduct.” There is nothing in either of those headings which indicates that the powers are to be exercised only for the protection of the public’s health and safety.
Secondly, the guiding principle in the National Law that “public confidence in the safety of services provided by registered health practitioners and students” is paramount,[83] is not a guiding principle in the Health Practitioner Regulation National Law (NSW) 2009. The main guiding principle in that legislation is that the protection of the health and safety of the public must be the paramount consideration.[84]
[83] National Law, s 3A(b)
[84] Health Practitioner Regulation National Law (NSW) 2009, s 3A(1)
Thirdly, there is no equivalent in the New South Wales legislation to the example following section 156(1)(e) of the National Law. As discussed above, that example confirms that maintaining public confidence in the provision of services by health practitioners may be considered to be in the public interest, within that provision.
For these reasons, if the NSW Court of Appeal in Pridgeon endorsed the proposition that the reference to the “public interest” in section 150 of the New South Wales legislation should be understood as (only) a reference to the public interest in the protection of the public’s health and safety, and not to public confidence in the provision of services, the Court’s reasoning does not govern the construction of section 156(1)(e) of the National Law.[85] The expression “public interest” in section 156(1)(e) of the National Law has a greater breadth, as a consequence of its statutory context.
[85] See the similar observations of Richards J in Hobart v Medical Board of Australia [2022] VSC 698 at [51]
It may be, as counsel for the Board submitted,[86] that Pridgeon, properly understood, is consistent with the proposition that the scope of the public interest consideration for immediate action always includes the need to have public confidence in the provision of services by health practitioners and that practitioners will exhibit honourable traits. That is consistent with a passage from an NCAT decision, endorsed by the Court of Appeal in Ghosh, being that “[t]he ‘public interest’ consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession.”[87] It is also consistent with Acting Justice Griffiths’ observation that “the concept of ‘public confidence’ is necessarily implicit in the objective of protecting the health and safety of the public.”[88]
[86] Transcript of hearing dated 3 April 2025, page 93, lines 40-46
[87] Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9], citing Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123].
[88] Callan v Medical Board of Australia [2024] NSWSC 336 at [93]
However, it is not necessary to decide the scope of the public interest consideration in New South Wales, given the different considerations applicable to the National Law in the ACT, discussed above.
Power to take immediate action under section 156(1)(e)
Turning to whether immediate action is in the public interest in this case, the Board’s submissions are persuasive. The charges are serious and involve alleged abuse of power by a medical specialist in relation to much younger female employees. The allegations are of significant boundary violations in relation to those young women. The alleged conduct includes sexual and physical assaults over a period of years.
I have formed the reasonable belief that immediate action is in the public interest in maintaining public confidence in the provision of services by health practitioners and public confidence in the regulatory system. The significance of public confidence in the safety of services provided by registered health practitioners is illustrated by the insertion of section 3A into the National Law. As indicated above, that section relevantly provides that the main guiding principle of the national registration and accreditation scheme is that public confidence in the safety of services provided by registered health practitioners and students is paramount.
The Health Practitioner Regulation National Law and Other Legislation Amendment Act 2022 (Qld), which commenced on 21 October 2022, inserted section 3A into the Schedule and was thus adopted in the Queensland National Law and also in some of the other participating jurisdictions including the ACT. The Explanatory Notes to that Act relevantly state:
The amendments strengthen public protection and increase public confidence in health services provided by practitioners registered under the National Registration and Accreditation Scheme for health professions (National Scheme)…
The Bill inserts a new paramount principle making protection of the public and public confidence in the safety of services provided by registered health practitioners and students paramount considerations. This places an explicit legislative obligation on entities performing functions under the National Law to place protection of the public and public confidence foremost in all decisions and actions…
The Explanatory Notes to the Bill explain that the reforms to the National Scheme followed an independent review and governance review commissioned by health ministers in participating jurisdictions.
The risk to public confidence in the provision of health services provided by registered practitioners, if a doctor charged with serious sexual and physical assault offences is allowed to practise, is very significant. Once serious charges of that nature have been laid, the public would generally expect a practitioner to be suspended from practice whilst the charges are determined. I consider that public confidence in health services provided by registered practitioners would be diminished, in those circumstances, if the practitioner’s registration were not suspended, absent any exceptional circumstances.
Form of immediate action
I am of the view that the correct and preferable decision in the circumstances of the case is to take immediate action to address the serious risk identified to persons, and also to public confidence in registered practitioners and the regulatory system. The next issue to determine is whether the immediate action should take the form of the suspension of Dr Pathak’s registration (the decision taken by the Board), or the imposition of conditions on his registration.[89]
[89] See National Law, s 155, definition of “immediate action,” paragraph (a)
Dr Pathak’s position is that the imposition of conditions on his registration, as proposed by him, would be sufficient to mitigate any possibility of risk to female patients or female colleagues.[90] He also submitted that there were significant risks to his patients’ health and safety if he were not allowed to practise, due to the unavailability of other practitioners with his specialised skills.
[90] Applicant’s Primary Submissions at [34]
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