RAO and MEDICAL BOARD OF AUSTRALIA
[2022] WASAT 55
•27 JUNE 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: RAO and MEDICAL BOARD OF AUSTRALIA [2022] WASAT 55
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
MS C CONLEY, MEMBER
DR H HANKEY, SENIOR SESSIONAL MEMBER
HEARD: 10 JUNE 2022
DELIVERED : 27 JUNE 2022
FILE NO/S: VR 37 of 2022
BETWEEN: LUKE SUDHAKAR VOOLA RAO
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Vocational regulation Medical practitioner Where Board determined to take immediate action by way of suspension of practitioner's regulation Where practitioner sought review of immediate action decision Decision to take immediate action by way of imposition of conditions on registration
Legislation:
Criminal Code (WA), s 325
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 3.3, s 4
Health Practitioner Regulation National Law (WA) Amendment Act 2018 (WA)
Health Practitioner Regulation National Law (Western Australia), s 61(1), s 64(1), s 64(3), s 155, s 156, s 156(1)(a), s 156(1)(e), s 199(1)(h)
Result:
The respondent's immediate action decision to suspend the practitioner's registration is set aside and is substituted with a decision to take immediate action by the imposition of conditions on the practitioner's registration.
Category: B
Representation:
Counsel:
| Applicant | : | Ms R Young and Ms G McGrath |
| Respondent | : | Mr D J Pratt and Ms J McKenzie |
Solicitors:
| Applicant | : | Panetta McGrath Lawyers |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Bernadt v Medical Board of Australia [2013] WASCA 259
Cheema v Medical Board of Australia [2020] SACAT 40
CJE v Medical Board of Australia (Review and Regulation) [2019] VCAT 178
Farshchi v Chinese Medicine Board of Australia (Review and Regulation) [2018] VCAT 1617
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
I v Medical Board of Australia [2011] SAHPT 18
Lee and Medical Board of Australia [2022] WASAT 28
Lindsay v NSW Medical Board [2008] NSWSC 40
Liddell and Medical Board of Australia [2012] WASAT 120
Loney v Nursing and Midwifery Board of Australia [2020] QCAT 486
Medical Practitioners Board of Victoria v Lal [2009] VSCA 109
Medical Board of Australia v Sami [2022] VSC 90
Medical Practitioners Board of Victoria v Lal [2009] VSCA 109
MOQ v Medical Board of Australia (Review and Regulation) [2022] VCAT 40
Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701
Pearse v Medical Board of Australia [2013] QCAT 392
Rosenbaum v Medical Board of Australia [2022] QCAT 141
Syme v Medical Board of Australia (Review and Regulations) [2016] VCAT 2150
TXA v Medical Board of Australia [2021] QCAT 279
WD v Medical Board of Australia [2013] QCAT 614
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and Overview
On 16 March 2022 Dr Rao was charged with two offences of sexual penetration without consent. In each case the charge alleges that the offence occurred on 5 March 2021 (Charges).[1]
[1] In fact, the second offences is alleged to have occurred in the early hours of the following morning, i.e. 6 March 2021.
At the time of the alleged offences, Dr Rao was a medical student. The alleged offences were committed against a woman who was, at the time, also a medical student and occurred, so it is alleged, following celebrations for the completion of their first rotation of the final year of medical school.
Dr Rao denies the Charges and, through his counsel, has indicated to the Tribunal that he intends to plead not guilty to them.[2]
[2] Applicant's Outline of Submissions, dated 31 May 2022, (Applicant's Submissions), para 5.
By letter signed by the legal practitioner engaged by Dr Rao in relation to the Charges, it is said that the trial of the Charges is 'unlikely' to be conducted until early 2024.[3]
[3] Exhibit 2, Respondent's Book of Documents (Respondent's Bundle), page 31.
Dr Rao is now an 'intern' - a trainee doctor. He was granted provisional registration, which enables an individual to complete a period of supervised practise ahead of an application for general registration,[4] on 27 December 2021.[5]
[4] Health Practitioner Regulation National Law (Western Australia), s 61(1).
[5] Exhibit 3, Respondent's Book of Documents Volume 2 (Respondent's Bundle Vol 2), page 80.
A WA Police officer notified the respondent, the Medical Board of Australia (Board) of the Charges against Dr Rao on 16 March 2022 (Notification 00495056).[6] Dr Rao also notified the Board on 22 March 2022.[7]
[6] Respondent's Bundle, pages 1-8.
[7] Respondent's Bundle, pages 13-15.
Following those notifications, on 10 May 2022 the Board decided to take immediate action against Dr Rao, pursuant to s 156 of the Health Practitioner Regulation National Law (Western Australia)[8] (National Law) by suspending Dr Rao's provisional registration until that suspension is revoked by the Board (IA Decision).[9]
[8] Health Practitioner Regulation National Law (Western Australia) is contained in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA), and applies as a law of Western Australia by s 4 of that Act.
[9] Respondent's Bundle, pages 73-79.
By application lodged on 16 May 2022, Dr Rao seeks review by the Tribunal of the IA Decision (Application) pursuant to s 199(1)(h) of the National Law.[10]
[10] The application was initially, and in error, lodged pursuant to s 199(1)(j) of the National Law. At the hearing, the applicant sought to amend the application, which the Tribunal allowed.
Section 156 of the National Law permits the Board (and the Tribunal on review) to 'take immediate action' if it 'reasonably believes' that certain criteria are established.
The Board submits that the Tribunal was entitled to form a reasonable belief that immediate action was required on each of two bases which, it says, overlap considerably:
(a)first, it submits that the Tribunal could and should reasonably believe that Dr Rao poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety (under s 156(1)(a) of the National Law); and
(b)secondly, it was submitted that the Tribunal could and should reasonably believe that immediate action is otherwise in the public interest (under s 156(1)(e) of the National Law).
The Board further submits that the only appropriate form of immediate action the only way in which the risk to public health or safety can be suitably managed, and that the public interest can be maintained is by suspending Dr Rao's provisional registration so that he is prohibited from practising medicine, until, effectively, further notice.
In contrast, Dr Rao submitted that the Tribunal ought not to reasonably believe there is a need for immediate action under either s 156(1)(a) or s 156(1)(e). That is, Dr Rao submitted that the Tribunal could not reasonably believe that he poses a serious risk to persons such that it is necessary to take immediate action to protect public health or safety and nor is it otherwise in the public interest to take immediate action.
Dr Rao also submitted that if, contrary to that primary position, the Tribunal did reach that state of belief, the appropriate form of immediate action in all the circumstances was to impose restrictions on his registration by way of a condition, rather than by suspending his registration.
For the reasons set out below, we are satisfied, and we find, that:
(a)the evidence supports a reasonable belief that Dr Rao poses a serious risk to that class of persons that may otherwise be examined and treated by Dr Rao for injuries or ailments associated with a sexual assault;
(b)taking immediate action is also in the public interest; and
(c)the protection of public health and the maintenance of the public interest will be achieved by the imposition of four conditions on Dr Rao's registration which:
(i)permit him to work only in workplaces approved by the Board;
(ii)prohibit him from examining or treating a particular class of patients;
(iii)require him to make disclosure to a specified class of persons with whom he works; and
(iv)require him to bear compliance costs.
The conditions which should be imposed on Dr Rao's registration are set out in full in Annexure A to these reasons.
The correct and preferable decision on the review is therefore to set aside the IA Decision and to substitute a decision to take immediate action in the form of the imposition of conditions on Dr Rao's registration as a health practitioner, in the terms set out in Annexure A to these reasons.
The Charges and the Statement of Material Facts
On 16 March 2022, Dr Rao was charged with two offences of sexual penetration without consent under s 325 of the Western Australian Criminal Code that are alleged to have occurred approximately 12 months earlier, on 5 and 6 March 2021.
The relevant Statement of Material Facts (SMF) prepared by the WA Police[11] alleges that, on the earlier date, celebrations occurred which were attended by both Dr Rao and the complainant for the completion of their first rotation of their final year of medical school.[12]
[11] We note, without criticism, that the SMF is the only material before us which contains any allegations. We have no copies of witness statements, records of interview or other such material.
[12] Respondent's Bundle, pages 1012.
The SMF alleges that, after attending a hotel where alcohol was consumed by the complainant at the encouragement of Dr Rao, she and Dr Rao and at least one other person continued the celebrations at a restaurant, to which the complainant took a bottle of wine which she had purchased. At some stage during the evening, the SMF says that the complainant 'was conveyed home by a former housemate' together with Dr Rao who undressed the complainant and put her to bed.
The SMF alleges that the first sexual assault occurred on that same evening, at a time when the complainant was 'severely affected by alcohol and incapable of consenting' to sex.
The SMF then alleges that early the following morning the complainant woke to find both herself and Dr Rao naked in her bed and that, having awoken, Dr Rao sexually penetrated her despite her telling him that she did not want to have sex.
The SMF alleges that on 13 March 2022, Dr Rao 'admitted the events outlined' in a 'pre-text telephone call' and that on 16 March 2022 he participated in a record of interview with police during which he made no comment. He was charged the same day.
Relevant Statutory Provisions and their History
As noted above, the Charges were laid against Dr Rao on 16 March 2022 which was also the date on which the Board was notified of the Charges by the WA Police.
On 2 May 2022, the Board wrote to Dr Rao and advised of its intention to take immediate action by way of the suspension of his registration on the basis that it reasonably believes that it is otherwise in the public interest to do so.
The reasons for the Board's stated position were, essentially, that the alleged offending was 'egregious in nature and may erode the intrinsic trust that the public has in medical practitioners'; and that 'what has been alleged demonstrates' various matters, including that Dr Rao lacks 'integrity, respect and compassion for another person' and that he failed 'to observe appropriate and requisite boundaries … '. The letter invited Dr Rao to make submissions.[13]
[13] Respondent's Bundle, pages 1822.
On 5 May 2022, solicitors acting for Dr Rao wrote to the Board and made submissions opposing the proposed suspension of Dr Rao's registration.[14] The letter was lengthy and comprehensively addressed several matters in support of Dr Rao's view that no immediate action ought to be taken. It also enclosed various assessments of his work as an intern as well as numerous character references. Given the very considerable overlap between the matters addressed in the letter and the submissions made in this proceeding, we will not describe them at this stage.
[14] Respondent's Bundle, pages 2330.
As noted above, on 10 May 2022, the Board determined to take immediate action (being the IA Decision) to suspend Dr Rao's registration on the basis that to do so was 'otherwise in the public interest' pursuant to s 156(1)(e) of the National Law.
By the IA Decision, the Board suspended Dr Rao's registration 'until the suspension is revoked by the Board'.
The basis for the IA Decision is set out in the Board's reasons, which are contained within the Board's letter of 10 May 2022 to Dr Rao, and which largely replicate the reasons of the Board's letter of 2 May 2022 but which, also, incorporate a summary of the matters relied upon by Dr Rao in his solicitor's letter of 5 May 2022.[15] For that reason it is unnecessary to address them here.
[15] Respondent's Bundle, pages 7379.
As noted above, on 16 May 2022 Dr Rao applied for review of the IA Decision. That application for review was accompanied by an Interim Application by which he sought a stay of the IA Decision pending determination of the substantive matter.
On 18 May 2022 the applications were listed for directions on 24 May 2022 at which the application for review of the IA Decision was programmed for hearing on 10 June 2022.
At the hearing on 10 June 2022, Dr Rao confirmed that he did not pursue the interim application for a stay.
Although it relied only on s 156(1)(e) in making the IA Decision, the Board now relies (as it is entitled to do) on both s 156(1)(a) and s 156(1)(e) of the National Law as the basis for its submission that immediate action is necessary. Those subsections provide as follows:
(1)A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if —
(a)the National Board reasonably believes that —
(i)because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety;
…
(e)the National Board reasonably believes the action is otherwise in the public interest.
Under the National Law, 'immediate action' may consist of one of several alternative actions including: (1) suspending a practitioner's registration; (2) imposing a condition on a practitioner's registration; (3) accepting an undertaking from the practitioner; (4) accepting the surrender of the practitioner's registration; and (5), in cases where immediate action has previously been taken by suspending the practitioner's registration or the imposition of conditions on that registration, revoking the suspension and imposing conditions or suspending the practitioner's registration, respectively, instead.[16]
[16] National Law, s 155.
As was noted by the Tribunal in Lee,[17] s 156(1)(e) was inserted as an amendment to the National Law in 2018[18] and the relevant Explanatory Memorandum makes clear that the purpose for including s 156(1)(e) in the National Law was to expand the bases on which immediate action could be taken beyond those cases already covered by s 156(1)(a). Further, the Explanatory Memorandum gives as an example of circumstances which might satisfy s 156(1)(e), an allegation that a practitioner has committed a serious crime that is unrelated to their health practise.[19]
[17] Lee and Medical Board of Australia [2022] WASAT 28 (Lee) at [27].
[18] Health Practitioner Regulation National Law (WA) Amendment Act 2018 (WA).
[19] See, in this regard Rosenbaum v Medical Board of Australia [2022] QCAT 121 (Rosenbaum) at [54].
As was also noted in Lee, some cases may involve facts which result in an overlap in the operation of s 156(1)(a) and s 156(1)(e) of the National Law, in that the same set of facts may warrant action under either or both of s 156(1)(a) and (e).[20]
Legal Principles
[20] Lee at [31].
The first issue arising from the statutory regime is whether the Tribunal has a reasonable belief that Dr Rao's conduct means that he poses a serious risk to persons such that it is necessary to take immediate action to protect public health and safety.
A 'belief' is 'an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture'.[21] But belief is more than a suspicion.[22]
[21] George v Rockett [1990] HCA 26; (1990) 170 CLR 104 (George) at [116].
[22] George at [115] [116].
Reasonable belief requires the existence of facts which are sufficient to induce the necessary state of belief in a reasonable person.[23]
[23] George at [112].
In Bernadt,[24] McLure P held:
[24] Bernadt v Medical Board of Australia [2013] WASCA 259 (Bernadt).
It is necessary to identify with precision what it is that must be the subject of the reasonable belief. There are three components in subpars (i) and (ii) of s 156(1)(a), one factual and two evaluative. They are:
(i)(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
(ii)it is necessary to take immediate action to protect public health or safety.
The 'reasonable belief' requirement applies, in my view, to the three components, including the factual substratum ((i)(1)) on which the evaluative assessments (in (i)(2) and (ii)) are to be made. That being so, the fact or facts directly in issue concerning a practitioner's conduct, performance or health do not have to be proven on the balance of probabilities … However, there must be proven objective circumstances sufficient to justify the belief.[25]
[25] Bernadt at [65] - [66] (internal citation omitted).
Very recently, in Sami[26] Cavanough J of the Victorian Supreme Court rejected submissions that the effect of the above passage requires the relevant decision maker to choose between competing versions of disputed past events by forming a reasonable belief in that regard before deciding whether it is necessary to take immediate action.
[26] Medical Board of Australia v Sami [2022] VSC 90 (Sami).
In doing so, Cavanough J emphasised that, while McLure P in the above passage spoke of 'components', that term represents 'a part of a whole … [it] is not separate from the whole' and that 'her Honour said nothing to the effect that the "components" had to be considered separately, or in any particular order'.[27] That is, s 156(1)(a) ought to be seen as an 'integrated whole' and is not to be compartmentalised into sections considered separately and in order.[28]
[27] Sami at [159] (emphasis in the original).
[28] Sami at [160].
In Cheema,[29] the South Australian Civil and Administrative Tribunal (SACAT) adopted the following principles from the Queensland Civil and Administrative Tribunal (QCAT) in WDv Medical Board of Australia[30]:
[29] Cheema v Medical Board of Australia [2020] SACAT 40 (Cheema).
[30] WD v Medical Board of Australia [2013] QCAT 614 at [8] citing, amongst other things, the decision of this Tribunal in Liddell and Medical Board of Australia [2012] WASAT 120.
1.an immediate action order does not entail a detailed enquiry;
2.it requires action on an urgent basis because of the need to protect public health and safety;
3.the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
4.an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6.the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7.a complaint that is trivial or misconceived on its face will clearly not be given weight;
8.the nature of the allegations will be highly relevant to the issue of whether the order is justified.[31]
[31] At [8]; citing I v Medical Board of Australia [2011] SAHPT 18; Lindsay v NSW Medical Board [2008] NSWSC 40; Liddell v Medical Board of Australia [2012] WASAT 120; Pearse v Medical Board of Australia [2013] QCAT 392.
Again, in Sami, Cavanough J held that McLure P 'was not saying anything different' in Bernadt.[32]
[32] Sami at [162].
The principles as to 'reasonable belief' apply equally to s 156(1)(e) as they do to s 156(1)(a).
As to the question of the 'public interest', the Victorian Court of Appeal in Lal[33] described the term as 'protean' so that the matters relevant to its consideration will depend on the statutory context. The Court went on to hold that, in the context of the Victorian version of the National Law ' … the protection of the public is a key aspect of the public interest'.[34]
[33] Medical Practitioners Board of Victoria v Lal[2009] VSCA 109 (Lal) at [56].
[34] Lal at [57].
Equally, in Lee, this Tribunal held that the public interest under s 156(1)(e) may warrant immediate action 'having regard to various public interest considerations, including the protection of the public, or maintenance of public confidence in the medical profession'.[35]
Is Immediate Action Necessary?
The parties' submissions
[35] Lee at [30].
In its written submissions the Board said that the Tribunal ought to be satisfied that immediate action is required under s 156(1)(a) because Dr Rao:
poses a serious risk of psychological harm to victims of sexual assault that he treats and perhaps even performs intimate examinations on, who subsequently discover that he was facing charges of sexual penetration without consent at the time of such examinations.[36]
[36] Respondent's Submissions, 3 May 2022 (Respondent's Submissions), paras 6(a) and 18.
For convenience we will refer to the above as the Risk of Psychological Harm. The Board accepts that Dr Rao does not pose any risk to public health or safety other than the Risk of Psychological Harm. In particular, the Board's case is not put on the basis that Dr Rao poses a risk of committing sexual assaults on patients.[37]
[37] ts 7, 10 June 2022.
The Board's written submissions in support of a finding that immediate action is required under s 156(1)(e) say that such action is 'necessary in the public interest to protect the public and to maintain public confidence in the medical profession' on the basis that 'Dr Rao may well be expected to encounter victims of sexual violence in his work at a public hospital'.[38]
[38] Respondent's Submissions, paras 20-21.
The Board's submissions, and particularly in relation to s 156(1)(e), were somewhat refined and clarified in the hearing at which Mr Pratt appeared for the Board.
As to the 'public interest' under s 156(1)(e), Mr Pratt submitted in an exchange with the Tribunal that the risk to 'public confidence in the profession'[39] arose in the need for the public to see that the profession was being properly regulated to mitigate the risk to the safety of the public, which he confirmed was limited to the Risk of Psychological Harm.
[39] ts 1213, 10 June 2022.
Accordingly, he agreed with the proposition that there is 'quite considerable'[40] overlap between the factors upon which the Board's case is based under sections 156(1)(a) and 156(1)(e).
[40] ts 13, 10 June 2022.
That is, the Board's case in relation to s 156(1)(e) is that immediate action is required in the public interest both: (1) to protect the public against the Risk of Psychological Harm; and (2) to protect public confidence in the medical profession which would be diminished if the Risk of Psychological Harm was not so managed.
In Lee, the Tribunal acknowledged the possibility of such overlap, based on the terms of the Explanatory Memorandum. The Tribunal also made clear that it was not necessary at that stage to determine the scope of the power in s 156(1)(e).[41]
[41] Lee at [30] - [31].
Without departing from anything said in Lee, and while emphasizing that, again, it is not necessary for us to determine the scope of the power in s 156(1)(e) at this stage, we note that the terms of s 156(1)(e) provide a power to take immediate action if the Board or Tribunal on review 'reasonably believes the action is otherwise in the public interest'.[42]
[42] (Italics added).
Returning to the Board's submissions as to s 156(1)(e), the Board's written submissions were that although the 'countervailing' public interest factors (such as the ability of medical professionals, particularly in an "area of need" being able to practise) are 'relevant, … in the circumstances of this case [they] cannot outweigh the public interest in protecting the public and maintaining confidence in the medical profession'.[43]
[43] Respondents Submissions, paras 16(c) and 22.
The factors that the Board refers to as 'countervailing' are elements which the Victorian Civil and Administrative Tribunal (VCAT) held in Farshchi[44] formed part of the public interest as that term is understood in the context of s 156(1)(e). In that case, the VCAT held that the public interest is 'not a one-sided construct' and said that:
71.The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.
72.There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.
73.There is a public interest in "area of need" professionals being able to practise.
74.There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.
75.There is a public interest in ensuring immediate action is only taken when it is necessary to do so. Immediate action is not required every time a health practitioner's conduct is brought into question. There will be many cases where no immediate action against a practitioner is taken, even though they may later be found to have engaged in serious misconduct.
[44] Farshchi v Chinese Medicine Board of Australia (Review and Regulation) [2018] VCAT 1617 at [71] [75]. The Board's description of what it says are the countervailing factors are set out in the Respondent's Submissions, 3 May 2022, para 16(c).
However, Mr Pratt appeared to go further at the hearing. That is, while some of his submissions were to the effect that where there is a serious risk to the public, little to no weight ought to be given to the 'countervailing' public interest factors, he also appeared to suggest that the 'countervailing' public interest factors had a role to play only where there was no risk to the public.[45]
[45] ts 1214, 10 June 2022.
According to the Board, CJE[46] is an example where the public interest in issue did not include whether there was a need to protect the public from a risk to its safety.
[46] CJE v Medical Board of Australia (Review and Regulation) [2019] VCAT 178 (CJE) at [84] - [89].
In CJE the VCAT described several factual scenarios in which serious criminal charges of different types are laid against a medical practitioner. The VCAT found that the different factual scenarios fall within a 'spectrum' of 'public outrage' so that not all scenarios where serious criminal charges are laid against a medical practitioner will require the invoking of s 156(1)(e).
At [89], the VCAT described a scenario very similar (although not identical) to the facts alleged in the SMF as follows:
In this example, a medical practitioner met another adult. Shortly after first meeting, one night after drinking wine at the person's home, they first went to bed, unsuccessfully attempted sexual intercourse due to the amount of alcohol consumed and fell asleep. The next morning, the person alleged to Police that in the middle of the night the medical practitioner started sexual intercourse without consent, to which the person protested. The doctor pleaded not guilty to charges of rape and sexual assault. The hospital which employed him supported his ongoing employment. The sense of the evidence was that the allegations related to intention and consent in the middle of the night, where there was consent earlier in the night. This scenario may not be seen as having the potential to cause public outrage if the doctor continues to practise while the charges were pending. It may well not cause the invoking s 156(1)(e).
The Board sought to distinguish the VCAT's decision (which the Board described, correctly, as obiter) in this regard on the basis of the different factual scenario, and on the basis that the VCAT's analysis was concerned only with public outrage and not with the protection of the public from harm, such as the Risk of Psychological Harm.[47]
[47] Respondent's Submissions, para 23.
In answer to a question from the Tribunal seeking clarity that the Board's case did not seek immediate action under s 156(1)(e) on the basis that the public interest required it in response to public outrage, Mr Pratt submitted that there would, inevitably, be a range of public responses to the charges against Dr Rao but that the response to which the Tribunal should have regard would be informed by all of the facts and circumstances.
That submission is, in our view, entirely consistent with the VCAT's decision in CJE but stands in contrast with the submission made by Mr Pratt as to how the Board says the Tribunal should assess the risk of serious harm to the public under s 156(1)(a). It is therefore convenient at this point to turn to that issue.
As noted above, the Board's submission as to s 156(1)(a) is that there is a serious risk that victims of sexual assault whom Dr Rao treats will suffer psychological harm upon subsequently discovering that he was facing such charges at the time he treated them.
In making that submission, Mr Pratt said that the Tribunal should have regard only to the nature of the charges themselves and not to any other facts and circumstances surrounding the allegations.
As we understand the submission, we are urged to assess the Risk of Psychological Harm on the basis that a prior victim of sexual assault, who is later treated by Dr Rao, would suffer psychological harm upon subsequently discovering that Dr Rao was the subject of the Charges, but in doing so we ought not have regard to the particular facts and circumstances surrounding the Charges.
In this case the facts and circumstances which the Board submits ought not to be taken into account in assessing the Risk of Psychological Harm include the following, paragraphs (a) to (k) which are taken from the SMF:[48]
[48] Respondent's Bundle, pages 11-12.
(a)Dr Rao and the complainant were known to each other;
(b)Dr Rao and the complainant were not in a doctor/patient, or other therapeutic, relationship;
(c)Immediately prior to the time of the alleged offences, Dr Rao and the complainant had been celebrating where alcohol was consumed at both a hotel and, then, a restaurant;
(d)Dr Rao had returned to the complainant's house in the company of the complainant and her former housemate;
(e)Dr Rao had undressed the complainant;
(f)The first alleged incident of sexual penetration is alleged to have occurred at a time when the complainant was so intoxicated as to render her incapable of giving consent;
(g)The second alleged incident of sexual penetration occurred the following morning after the complainant is alleged to have told Dr Rao that she did not want to have sex;
(h)Approximately 12 months passed between the alleged offences and the laying of the Charges;
(i)A few days prior to the laying of the Charges, communication occurred between Dr Rao and the complainant during which it is alleged Dr Rao made an admission of 'the events';
(j)Dr Rao denies the Charges and has indicated that he will plead not guilty to them; and
(k)Dr Rao is an 'intern' – a trainee doctor - whose provisional registration to practice is conditional upon his supervision.
Ms Young, who appeared on behalf of Dr Rao, submitted that all of those facts and circumstances ought to be taken into account by the Tribunal in its proper assessment of the Risk of Psychological Harm.
In written submissions it was said on behalf of Dr Rao that 'because the assessment is about whether Dr Rao poses a serious risk to persons such as to require immediate action to protect public health and safety, where and how the alleged conduct occurred is relevant'.[49]
[49] Applicant's Submissions, para 15 (underlining in original).
At the hearing that submission was supported by reference to the decision in Oglesby[50] where it was held that:
a reasonable belief may be held that a practitioner poses a serious risk to persons if, based on evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
[50] Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 (Oglesby) at [20].
It was said by Ms Young that to assess whether the possibility was 'so remote as to be fanciful' or 'the possible harm trivial' one must have regard to all the facts and circumstances surrounding the alleged offending.[51]
[51] ts 2324, 10 June 2022.
In further support of that submission, Ms Young submitted that it was plainly relevant to the assessment of the Risk of Psychological Harm whether the alleged victim was a patient of the relevant practitioner. [52] If that is so, there seems to be no logical reason why other facts and circumstances are not also relevant. [53]
[52] ts 24, 10 June 2022.
[53] ts 24, 10 June 2022.
On that basis (i.e. that all of the facts and circumstances must be considered in assessing the relevant risk), it was submitted on behalf of Dr Rao that the Risk of Psychological Harm was not such that it was necessary to take immediate action to protect public health and safety.[54]
[54] Applicant's Submissions, para 8.
Ms Young also submitted that the facts and circumstances in the present case were sufficiently different from those in Lee such that we should not reach a similar conclusion as that reached by the Tribunal in that case; i.e. that in this case immediate action ought not to be taken. It was said that there are three such distinguishing features:
(a)In Lee the charges amounted to allegations of a sustained period of criminal conduct whereas the charges against Dr Rao are concerned with a very short period of time.
(b)Dr Lee was a general practitioner whereas Dr Rao is an intern at a hospital. It was said that Dr Rao's practise is supervised by a team of more senior doctors who are, if it is needed at all, best placed to manage any residual risk to patients.
(c)Dr Lee's practise as a GP meant that his interaction with patients would be more comprehensive, given the likelihood of long-standing therapeutic relationships and lengthier consultations, than Dr Rao's interaction with patients as an intern at a hospital which, it was said, would be briefer both as to the consultation itself and as to the duration of the therapeutic relationship.
In light of the manner in which the Board put its submission in relation to s 156(1)(e), Ms Young repeated her submissions on behalf of Dr Rao as to the Risk of Psychological Harm.
She also submitted that the 'countervailing factors' (as the Board put it) had a role to play in the Tribunal's assessment of the public interest, notwithstanding that the Board's case under s 156(1)(e) was concerned with the mitigation of what it said was a serious risk to the public.
In that regard, the written submissions made on behalf of Dr Rao included that:[55]
there is a public interest in members of the medical profession being able to practise. The public interest is not served by the suspension of a competent and enthusiastic doctor, particularly in light of the COVID19 pandemic. That is true as a matter of theory, but also demonstrated by Dr Rao's willingness to cover multiple shifts including when other staff were sick, as noted by several of his colleagues.'
[55] Applicant's Submissions, para 33.
It was also said that, while the Board submits that there is a Risk of Psychological Harm caused by keeping Dr Rao in the system, there was also a risk of harm caused to patients from the lack of sufficient, suitable junior doctors.[56]
[56] ts 35, 10 June 2022.
Other 'countervailing factors' put on behalf of Dr Rao were that the public understand the difference between a charge and conviction[57] and that Dr Rao has no history of disciplinary proceedings (in contrast to Dr Lee).[58]
[57] Applicant's Submissions, para 30.
[58] Applicant's Submissions, para 32.
There is one final issue which might properly be described as falling under the heading of a 'countervailing factor'.
In his written submissions, Dr Rao submitted that a suspension would have the effect of preventing him from completing his training, such that he may be precluded from ever practising as a doctor.[59]
[59] Applicant's Submissions, para 38.
That submission proceeded on a particular construction of the Board's Registration Standard: Granting general registration as a medical practitioner to Australian and New Zealand medical graduates on completion of intern training (Standard).
Dr Rao submitted that, properly construed, the Standard requires that practitioners undertaking their internship fulltime must complete 47 weeks fulltime equivalent service within a single 12 month period.
Dr Rao started his internship on 17 January 2022 and as at 10 May 2022 (the date of the IA Decision) had completed 19 of 47 weeks. He therefore needs to complete a further 28 weeks which, it was said, he would be unable to do unless he recommenced fulltime practise by 4 July 2022.[60]
[60] Applicant's Submissions, para 37.
It was further submitted (effectively in the alternative) on behalf of Dr Rao that if his internship is not completed in a single 12 month period, it would be necessary for him to start his internship again, in which case it would be necessary for him to apply for the renewal of his provisional registration.[61]
[61] Applicant's Submissions, para 40.
It was submitted that satisfaction by Dr Rao of his provisional registration requirements is a separate and distinct requirement which is, nonetheless, closely related to the task of completing his internship. It was said that provisional registration must also be completed within 12 months[62] and that, while provisional registration may be renewed, it may only be renewed twice.[63]
[62] National Law, s 64(1).
[63] National Law, s 64(3).
The orders we will make will allow Dr Rao to, at least, recommence his internship prior to 4 July 2022 so that, all other things being equal, he can complete his internship within the 12 month period.
It is therefore not necessary for us to carry out the task of construing the Standard. It is sufficient at this stage to note that the Board disagreed that the Standard, properly construed, required internship to be completed within a single 12 month period.
Rather, the Board says that the '47 weeks of fulltime equivalent experience as an intern must be completed within a period of 3 years after obtaining provisional registration and for that purpose the 12 month period of provisional registration may not be renewed more than twice'[64] and that, if the training cannot be completed in three years, a new application for provisional registration can be made.[65]
[64] Respondent's Submissions, para 26(a).
[65] Respondent's Submissions, para 26(b).
Suspension of Dr Rao would, in circumstances where the trial of the charges may not take place until 2024, likely make it impossible for him to complete his internship within three years. He is, understandably, concerned with the prospect of having to apply again to the Board for provisional registration. At the very least, there would be considerable delay and uncertainty associated with that course of action, should we decide that the appropriate course of action was to suspend his registration.[66]
[66] Applicant's Submissions, para 40.
Putting to one side the issue of the proper construction of the Standard, the submissions made on Dr Rao's behalf were, effectively, that suspension would require Dr Rao to apply to the Board in one form or another to allow him to complete his internship, and that brings with it considerable uncertainty and delay which were relevant 'countervailing factors' that we should weigh in considering the public interest under s 156(1)(e).
Consideration
In our view, the analysis of the VCAT at paragraph [89] of its decision in CJE (quoted above at [61]) has much to commend it; in our view, the public would not be sufficiently outraged by those alleged facts as to warrant immediate action under s 156(1)(e).
That is because, in our view, the public understands that in such circumstances it is likely to be very difficult for anyone (other than the two participants) to form a view as to what actually occurred and, accordingly, where there is no alleged course of offending that suggests repeat behaviour by the alleged offender, it is likely to be difficult to form a view as to the underlying character (central to the practice of medicine) of the alleged offender.
We are of the same view where the facts and circumstances are altered from those outlined in CJE to those of the present case.
The relevant difference in facts is that in CJE the two people attempted mutually consensual sex but were unable to do so before a second attempt which, it was alleged, was not consensual. In the present case the SMF states, in relation to the first alleged offence, that the complainant 'was severely affected by alcohol and incapable of consenting to the sex' which is alleged to have taken place with Dr Rao.
That appears to suggest that the prosecution case may concede that Dr Rao may have believed that the complainant consented to the first sexual act when, so it is alleged, she was incapable of doing so.
Regardless, for our purposes, the difference in the facts alleged here and those described in CJE are not such as to warrant a different result in the context of the task we are here carrying out.
In both cases, questions of consent arise in the context of sex between two people, known to each other, in a nontherapeutic relationship, in a private setting and affected by alcohol.
In contrast, however, we are of the view that the relevant factual circumstances are materially different to those in Lee, where the practitioner was charged with multiple offences of domestic violence (where questions of consent do not arise) over a lengthy period of time.
Further, in coming to a conclusion as to the underlying character of the practitioner and the associated risk, the fact that in Lee there were multiple charges over a lengthy period of time seems to us highly relevant in the circumstances of proposed immediate action,[67] notwithstanding the presumption of innocence that applies in a criminal trial.[68]
[67] Lee at [44].
[68] Lee at [44].
As such, it seems to us that it is not 'otherwise in the public interest' to take immediate action based on the need to protect the medical profession from 'public outrage'.
We repeat that the Board's case as to s 156(1)(e) was not put on the basis of public outrage. But in our view the above exercise is relevant and useful because, in our view, our conclusion as to the question of the public outrage informs the question of whether it is 'otherwise in the public interest' to take immediate action based on the need to demonstrate that the medical profession is acting to protect against the Risk of Psychological Harm.
That follows, in our view, because at the heart of the Board's submissions as to the Risk of Psychological Harm is its concern with Dr Rao's character and propensity to act in a particular way, as evidenced by the Charges.
The Board's case turns on the distress which it says would be experienced when a patient with a history of sexual assault discovers that s/he has been treated by a doctor charged with sexual assault. As we understand the case, it is said that the distress would be felt by the patient upon appreciating that s/he had been treated by, in effect, a doctor of doubtful character and, as evidenced by the Charges, a propensity to commit sexual acts without consent.
That is, it seems to us, precisely the same concern that feeds the 'public outrage' which the VCAT considered in CJE.
In our view the question of Dr Rao's character and propensity, as illuminated by the Charges and assessed in accordance with the VCAT's characterization in CJE, are most unlikely to be of sufficient concern to the vast majority of patients to warrant immediate action.
To put it in the terms found by the VCAT in Sami[69] (which concerned sexual relations between a doctor and a patient):
Nor, on the information we have, do we regard the circumstances as indicating a pervasive lack of ethical or moral integrity, such that we should in this case extrapolate from the alleged conduct, to a broad ranging risk to persons.[70]
[69] Sami at [95].
[70] See, also, Rosenbaum at [54].
Before progressing any further with our views in this regard, it is necessary to make explicit what may have already been inferred from the previous few paragraphs. That is, we accept the submissions made on behalf of Dr Rao that, in assessing the risk of serious harm to the public posed by the continued practice of Dr Rao, it is necessary to have regard to all of the facts and circumstances rather than merely the fact that he is charged with two counts of sexual penetration without consent.
Such a finding is consistent with the Tribunal's previous decision in Lee as well as the approach of the QCAT in Oglesby.
It also, with respect to the Board and Mr Pratt, makes sense. In our view it is self-evident that the 'status' of the complainant, in a case of alleged sexual assault, as someone who is or is not a patient of the relevant practitioner, is material to the Tribunal's assessment as to whether the allegations pose a serious risk to persons. If that characteristic is material to the relevant assessment, we cannot see any reason why other facts and circumstances should be excluded from our consideration.
We also wish to make explicit that we have proceeded on the basis that the rates of sexual assault in the community are unacceptably high and that, accordingly, there is a material proportion of the population who have suffered such an assault during their lifetime.
We also accept that there is, therefore, a material likelihood that persons who have been sexually assaulted will attend the hospital at which Dr Rao works and be treated by him.
However, we think that the facts and circumstances giving rise to the Charges are such that the majority of those patients will not suffer distress as a result of being treated by Dr Rao. Those facts and circumstances relevantly include, in our view, the following:
(a)That the allegations against Dr Rao do not concern behaviour said to have occurred at a hospital or other health facility and, indeed, do not concern a patient or, to put it another way, a person with whom he was in or had had a therapeutic relationship.
(b)Rather, Dr Rao and the complainant knew each other, had been celebrating together, including by or with the consumption of alcohol, after which they went together to the complainant's house, apparently with the consent of the complainant, and with the knowledge of the complainant's former housemate.
(c)That the alleged offending occurred over a very short period of time. The contrast with, for example, the alleged offending in Lee is, in our view, significant.
(d)That the allegations are denied. That is not uncommon in cases of immediate action and not too much should be made of it but, as Ms Young submitted, that was not the case in MOQ[71] which has otherwise similar facts and which was relied upon by the Board.
(e)That it is reasonable to assume, based on the facts alleged in the SMF, that there is likely to be a dispute at trial as to whether:
1.consent was given at the time of the first alleged offence and, if so, whether the complainant was capable of giving consent; and
2.consent was given in all of the circumstances of the second alleged offence.
(f)That 12 months passed between the date of the alleged offence and the date of the charges and that in that period Dr Rao has commenced his internship and has performed the duties of an intern apparently without incident and now has the benefit of a considerable number of references which can only be described as 'glowing'. In so saying, we acknowledge that the risk identified by the Board only arises after the charges are laid. But in understanding that risk it seems to us relevant that Dr Rao's supervisors have observed his dealings with patients and described him as kind and caring and, pertinently, conscientious when seeking patient consent for medical procedures.
(g)That Dr Rao is an intern at a hospital and is therefore subject to supervision by a team of more senior doctors in the performance of his medical practise. As we understand it, that includes both that he will not examine or treat a patient unless told to do so by a more senior doctor and, also, that any examination or treatment will be either be at the direction of a more senior doctor and/or only occur in the presence of a more senior doctor.
[71] MOQ v Medical Board of Australia (Review and Regulation) [2022] VCAT 40.
For these reasons we agree with Ms Young that the chance that a patient, with a history of sexual assault, who presents with, for example, a broken arm not related to the sexual assault, and who obtains radiological or surgical treatment from Dr Rao, will suffer distress upon discovering the charges against him is 'remote'.
In our view that description applies to most or all circumstances where Dr Rao examines or treats a patient for an injury or ailment not associated with a sexual assault.
In our view the only circumstances in which there is a material risk that a patient will suffer psychological harm by discovering, after Dr Rao has treated them, that he is the subject of the Charges, is where they have presented for treatment for an ailment or injury that has been suffered as a result of a sexual assault.
We also accept that the risk of psychological distress being suffered is considerably increased if the examination and/or treatment by Dr Rao involves an intimate examination.
There is nothing before us that goes directly to the likelihood of Dr Rao carrying out an intimate examination. However, we note that the remaining rotations for his internship are listed as: (1) general medicine; (2) orthopaedic surgery; (3) emergency medicine; and (4) general surgery.
Plainly, while there may be a chance that Dr Rao may be called upon to carry out an intimate examination in one or both of the general medicine or emergency medicine rotations, the likelihood appears to be low.
Certainly, the risk is very considerably lower than would be the case had Dr Rao been scheduled for a rotation in obstetrics and gynaecology and plainly our assessment of the Risk of Psychological Harm would have been dramatically different had that been the case.
That risk also appears to us to be considerably lower than would have been the case had Dr Rao been a general practitioner, as was the case with Dr Lee.
That brings us to another difference between the facts in Lee and the present case the status of Dr Rao as an intern and the consequential supervision of his practise. In our view, the likelihood of an intimate examination by Dr Rao on a victim of sexual assault, and, indeed, of him examining or treating any victim of sexual assault, is capable of being further reduced by the application of suitable procedures within the hospital that are possible due to his status as an intern and the associated supervision by a team of more senior doctors.
Further, clinical supervision by a comparable team of more senior doctors will continue during Dr Rao's residency at the hospital, assuming, as appears likely to be the case, that the hospital determines to employ him as a resident after his internship ends.
We find it likely that Dr Rao will continue to be employed by the hospital after his internship ends due to the quality of the assessments of Dr Rao's work as an intern and the volume of references with which we have been provided, several of which are from senior staff and which, as noted above, might accurately be described as 'glowing'.
The rigour of Dr Rao's supervision as a (possible, future) resident of the hospital was something about which the Tribunal sought assistance from the parties. Ms Young submitted, in effect, that there was no material difference between the level of supervision of an intern and that of a resident. Mr Pratt answered that the 'supervisory requirements for residents are lower'[72] than for interns but was unable to say more.
[72] ts 61, 10 June 2022.
It makes sense to say that, all other things being equal, a resident will require less supervision than an intern, given that residents are, by definition, more senior than interns. Nonetheless as we understand it, a similar team of senior doctors remains in supervision of a resident just as they do for interns, and if residency is taken with a particular specialty of medicine or surgery (ENT, plastic surgery, renal medicine, psychiatry etc) where the resident may not have obtained any real experience through their internship, the relevant supervision level will accordingly need to be higher such that the relative level of supervision may not be materially different.
Determination as to the Need for Immediate Action
Section 156(1)(a) of the National Law provides that immediate action may be taken if the Board (or the Tribunal in its place) 'reasonably believes' that there is a 'serious risk to patients'.
Risk, as it is usually understood, involves both the likelihood of an event occurring and the magnitude of harm inflicted if that event occurs.
We are of the view that the statutory language requires that before immediate action may be taken the Tribunal must form the view that either or both the likelihood and the magnitude of an adverse event are 'serious'.
That view appears to be supported by the terms of the passage quoted above from Oglesby,[73] which has been cited with approval by each of the relevant tribunals in Queensland,[74] Victoria[75] and South Australia,[76] and very recently by the Victorian Supreme Court.[77] In MOQ v Medical Board of Australia, the VCAT stated:[78]
In the language used in Oglesby … we consider that there is a real possibility that MOQ poses a serious risk to persons … - that is, we consider that there is a real possibility that he will engage in conduct that could be harmful to persons. Put another way, we do not consider that the possibility is so remote as to be fanciful, and we do not consider that the possible harm would be trivial.
[73] Oglesby at [20].
[74] Rosenbaum at [52].
[75] Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150 at [36] [37].
[76] Cheema at [45].
[77] Sami at [66].
[78] MOQ v Medical Board of Australia [2022] VCAT 40 at [88].
For the above reasons, we consider that the likelihood of Dr Rao examining or treating a patient who presents with an ailment or injury that is associated with a sexual assault is low. However, we are satisfied that the harm suffered by the patient, should that occur, could not be described as 'trivial'.
That is, we are satisfied that the evidence supports a reasonable belief that Dr Rao poses a serious risk to persons in that, while the likelihood that he will examine or treat a patient who presents with an ailment or injury that is associated with a sexual assault is low, should that occur and the patient becomes aware of the Charges, we are satisfied that the harm suffered by the patient may be 'serious' even if the Charges become known in the context of all of the relevant facts and circumstances.
In addition to likelihood and magnitude, the cases (and particularly the Queensland cases) tend to support the view that in assessing whether there is a 'serious risk', the nature of the risk is relevant.[79] So, in WDvMedical Board of Australia the QCAT found that 'the nature of the allegations will be highly relevant to the issue of whether the order is justified'. That statement forms part of a much adopted passage.
[79] Loney v Nursing and Midwifery Board of Australia [2020] QCAT 486 at [10]; TXA v Medical Board of Australia [2021] QCAT 279 at [9]; Rosenbaum at [53].
In our view the 'nature' of the risk effectively, psychological distress to patients that have suffered a recent sexual assault so as to exacerbate their suffering is serious.
In our view the serious risk as identified above makes it necessary to take immediate action to protect the public and, specifically, to ensure that Dr Rao does not examine or treat a patient who presents with an ailment or injury associated with a sexual assault. Dr Rao effectively conceded that it was reasonable for the Tribunal to reach that view. In his written submissions he 'accepted that an immediate supervisor in the emergency setting may determine it is therapeutically best if Dr Rao does not treat a rape victim who presents as a patient'.[80]
[80] Applicant's Submissions, para 42.
We are of also of the view that a specified class of persons with whom Dr Rao works, such as senior doctors charged with his supervision, must be able to take such steps as are necessary to ensure that Dr Rao does not examine or treat a patient who presents with an ailment or injury associated with a sexual assault. They can only do this if disclosure is made by Dr Rao.
In that regard, we note that Mr Pratt expressed considerable concern with leaving to senior doctors the task of ensuring that Dr Rao does not examine or treat a patient who presents with an ailment or injury associated with a sexual assault on the basis that some of the references provided in support of Dr Rao express doubt as to whether or not Dr Rao is guilty of the Charges.[81]
[81] Respondent's Bundle, pages 48 (registrar), 51 (resident), 59 (unstated) and 6162 (consultant).
We note here that only four of the 26 references do so and none of them indicate that they have supervised Dr Rao as an intern, although some of them have previously supervised him as a medical student. Nevertheless, it is regrettable that some referees appear to have prejudged the issue in that way.
However, in this regard we are comforted by the multiplicity of supervisors that we understand will supervise Dr Rao. We are also of the view, as detailed below, that a combination of conditions will appropriately manage the risk of Dr Rao examining or treating a patient presenting with the consequences of a sexual assault.
For these reasons, on the basis we have described, there is a need for immediate action pursuant to s 156(1)(a) of the National Law.
Turning to the public interest in s 156(1)(e), we are of the view that the same result ought to follow in relation to the contention that there is a public interest in protecting public health and safety by taking action to avoid the risk to patients described above.
In our view, therefore, this is a case in which immediate action is warranted under both s 156(1)(a) and s 156(1)(e) of the National Law.
What Immediate Action Should be Taken in this Case?
As should be apparent from the preceding paragraphs, we are of the view that the immediate action that should be taken is limited to the imposition of conditions as following.
First, a condition should be imposed which permits Dr Rao to work, only in workplaces approved by the Board (First Condition).
Second, a condition should be imposed that prevents Dr Rao from examining or treating a patient who presents with an ailment or injury associated with a sexual assault (Second Condition).
Thirdly, a condition should be imposed which requires Dr Rao to inform a specified group of persons with whom he works of the Charges, the substance of the SMF and the existence of the Second Condition (Third Condition).
The Third Condition is inextricably linked to the Second Condition because, without it, those specified persons cannot take the necessary steps to ensure that he does not contravene the First Condition.
The Fourth Condition is that Dr Rao is to bear the compliance costs.
Such a conclusion follows, in our view, from our assessment of the relevant risk to the public and our view that the Charges do not give rise to 'public outrage' which would otherwise perhaps require suspension of Dr Rao's registration.
It is also consistent with the statutory requirement to only take such action as is necessary to abate the risk or, to put it another way, to place restrictions on a practitioner's registration 'only if it is necessary to ensure health services are provided safely… '.[82]
[82] National Law, s 3(3).
Further, and in relation to s 156(1)(e), such an outcome is consistent with the 'countervailing' public interest factors referred to above. In case it is not otherwise clear, we expressly find that:
(a)the factors described as 'countervailing' are always relevant to the consideration of the public interest under s 156(1)(e). While we agree that in a particular case the likelihood, magnitude and nature of any risk to public health and safety may be such that the risk outweighs those countervailing factors, we are of the view that that must be determined in each case on all of the facts and circumstances. To the extent that Mr Pratt submitted to the contrary that any risk to public health and safety always overwhelms the countervailing factors we disagree; and
(b)in the present case, and for the above reasons, the risk to public health and safety is not such as to overwhelm the countervailing factors, including (but not limited to) the desirability of (quality) junior doctors being available to staff our public hospitals at a time of staff shortages due to the COVID19 pandemic and the uncertainty and delay that would otherwise arise in relation to the completion of Dr Rao's internship.
The Board submitted that the 'only appropriate means of protecting the public and public confidence in the medical profession is for Dr Rao to be suspended'.[83]
[83] Respondent's Submissions, para 25.
The basis for that (written) submission was that lesser restrictions, such as conditions which prevented Dr Rao from treating women (gender based restrictions), or which required him to provide patients with advance warning of the Charges (informed consent requirements) were impractical. At the hearing, while repeating the submission that suspension was the only viable option available to us, Mr Pratt did not further develop it.
We agree that gender based restrictions and informed consent requirements, which were imposed on the practitioner in Lee, may well be difficult to implement in a busy hospital setting. Further, a condition which would limit Dr Rao to telehealth consultations would be inappropriate given Dr Rao's status as an intern.
Indeed, in each case the written submissions made on behalf of Dr Rao conceded as much.[84]
[84] Applicant's Submissions, para 41(a)
But in our view the nature of Dr Rao's position as an intern means that conditions such as those are unnecessary because of the role of the senior doctors in both determining who Dr Rao is to examine and treat and in supervising him when he does so.
As set out above, we are of the view that there is unlikely to be many cases where a victim of sexual assault presents for treatment by Dr Rao of an associated ailment or injury.
But to the extent that there remains a material chance that that will occur, we are of the view that it can and should be further minimized by the imposition of the First, Second and Third Conditions.
For these reasons, we are not satisfied that suspension of Dr Rao's registration is necessary to protect public health, or that it is warranted in response to the public interest considerations engaged in this case. Rather, both bases for immediate action can be properly addressed by the imposition of suitable conditions on Dr Rao's registration.
At the conclusion of the hearing, we invited the parties to submit, on a without prejudice basis, a set of agreed conditions or if agreement could not be reached, an independently submitted list of conditions which they considered appropriate to address the issue if the Tribunal considered it appropriate to impose conditions requiring disclosure by Dr Rao to his supervising team such that they may keep him from treating or examining relevant patients.
Unfortunately, the parties were unable to agree completely, but there was some considerable overlap whereby the Board's proposed conditions built on, with some variations, the conditions submitted by Dr Rao.
Dr Rao's without prejudice proposed conditions are in three parts with the first part providing for a disclosure by Dr Rao to each of his Term Supervisors, Primary Clinical Supervisors and Immediate Supervisors prior to the commencement of each of his terms of internship and each new placement in a department. Such disclosure must be signed by the relevant supervisor and provided by Dr Rao to AHPRA. The second part of Dr Rao's proposed conditions provides for the approval by AHPRA of the relevant department within which Dr Rao is to practise. The third part concerns the costs of compliance, such that all of Dr Rao's costs are to be covered by himself.
As indicated previously, the Board's proposed conditions included a very similar obligation to disclose to his supervisors albeit that the relevant facts and circumstances underlying the Charges to be disclosed as contained in the relevant disclosure are slightly truncated in the Board's version. The Board also provided for preapproval of the relevant place of practice and departments by Dr Rao and for the compliance costs to be covered by Dr Rao.
In addition, however, the Board provided for three further matters as follows:
(1)That Dr Rao is to provide to AHPRA the contact details of the senior practitioners such that the senior practitioners would be contacted by AHPRA to ensure that they are provided with a copy of conditions imposed on Dr Rao's registration.
(2)That Dr Rao is not to undertake any clinical work.
(3)An obligation on Dr Rao to submit to an audit of his practise which, it is said, would 'focus on the practitioner's compliance with the disclosure conditions and must include details of the practitioner's Term Supervisors, Primary Clinical Supervisors and Immediate Supervisors during the audit period'.
In relation to the first additional condition, we are, with respect, unable to understand the benefit of such a condition given the terms of the Third Condition, by which Dr Rao must notify each of the relevant supervisors and provide a copy of the notifications to AHPRA.
The second additional condition is, in our view, well in excess of that required to either manage the Risk of Psychological Harm and the maintenance of the public interest as found by us in the preceding reasons.
Finally, in our view, the third additional condition would only be necessary if we thought there was a risk that Dr Rao would deliberately and dishonestly fail to comply with his obligations to make disclosure to his supervisors. There was nothing put to us that indicated Dr Rao might act dishonestly and indeed, material in the form of the relevant character references suggests it is most unlikely that he will behave in that way. Further, the consequences of dishonestly failing to comply with his disclosure requirements would be very serious indeed. We think it most unlikely that that will occur and we do not, therefore, propose to impose that condition.
The resulting conditions are, therefore, largely agreed between the parties and have not been significantly altered by the Tribunal.[85]
[85] In describing them in that way we acknowledge that the Board’s proposed conditions were provided on the basis that they were without condition to its primary position that suspension of Dr Rao was the only appropriate result.
In addition, as foreshadowed above, we are of the view that a positive obligation ought to be imposed prohibiting Dr Rao from having contact with patients who present with an ailment or injury associated with a sexual assault. That positive obligation can, for the reasons set out above, really only be met through the proactive management by Dr Rao's supervisors, but the fact that a breach would be a breach by Dr Rao of his obligation will have the effect that he will be concerned to ensure that his supervisors do all they can to ensure that it does not occur.
Conclusion
The correct and preferable decision in our view is that there is a need for immediate action to protect public health, that taking immediate action is also in the public interest, and that in all the circumstances the immediate action that should be taken is the imposition of conditions on Dr Rao's registration.
Specifically, in our view, the appropriate conditions that ought to be imposed are those which are set out in the Annexure these reasons, which largely represent conditions agreed by the parties, albeit that some additional conditions proposed by the Board have not been included.
Orders
The orders that should be made are:
1.The respondent's decision made on 10 May 2022 to suspend the applicant's registration is set aside.
2.Pursuant to s 156(1) of the National Law, immediate action is taken in relation to the applicant in that the applicant's registration is subject to the conditions set out in the Annexure hereto.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
27 JUNE 2022
ANNEXURE A
Work only in workplaces approved by the Board
The Practitioner may practise only in place(s) of practice and departments approved by the Medical Board of Australia (the Board).
For the purposes of this condition, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct nonclinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical profession.
By at least 10 days prior to the commencement of the Practitioner's proposed placement in a Department, the Practitioner must make a submission to the Australian Health Practitioner Regulation Agency (AHPRA) requesting the approval of his proposed placement in a Department and which submission must advise AHPRA of:
a.The location of the Department;
b.The anticipated number of Term Supervisors, Primary Clinical Supervisors and Immediate Supervisors applicable to the Practitioner at that Department; and
c.The anticipated length of placement at the Department.
Within 7 days of the Practitioner's submission to AHPRA specified in condition 3, AHPRA must advise the Practitioner as to whether the Department is approved, such approval not to be unreasonably withheld.
The Practitioner is prohibited from having clinical contact with (that is, examining or treating) any patient who presents with an injury or ailment arising from or related to a sexual offence (whether or not that sexual offence has been the subject of criminal charges).
Disclosure to supervisors
The Practitioner must ensure that a written disclosure in the following terms (Disclosure) is given in writing to each of his Term Supervisors, Primary Clinical Supervisors, and Immediate Supervisors, the Director of Medical Services and the Director of Nursing as soon as reasonably practicable:
(a)prior to the commencement of each Term of his internship;
(b)prior to the commencement of any new placement in a Department or any new role; and
(c)at any time that he commences working with a new Term Supervisor, Primary Clinical Supervisor, Immediate Supervisor or senior person.
DISCLOSURE REQUIRED BY CONDITIONS ON REGISTRATION
1. Dr Luke Sudhaker Voola Rao (Dr Rao) is required to provide this disclosure to each of his Term Supervisors, Primary Clinical Supervisors, Immediate Supervisors, the Director of Medical Services and the Director of Nursing so that those persons can ensure that he does not contravene a condition imposed on his registration prohibiting Dr Rao from having clinical contact with (that is, examining or treating) any patient who presents with an ailment or injury arising from or related to a sexual offence (whether or not that sexual offence has been the subject of any criminal charges).
2. Dr Rao is presently the subject of two charges contrary to s 325 of the Criminal Code (WA), being sexual penetration without consent. These charges were laid on 16 March 2022.
3. Dr Rao intends to plead not guilty to the charges. The charges are not yet presently listed for trial and it is estimated that a trial will be held in early 2024.
4. The charges are alleged to have been committed in the following circumstances:
a. The complainant and Dr Rao were medical students together at university.
b. On Friday, 5 March 2021, Dr Rao and the complainant completed the final day of their first rotation of the final year of medical school and went out for celebratory drinks with other students and associates.
c. During the evening, the complainant and Dr Rao consumed alcohol.
d. Later that evening, at the complainant's house, it is alleged Dr Rao sexually penetrated the complainant's vagina with his penis in circumstances in which the complainant was alleged to be incapable of consenting to sex.
e. During the early hours of the following morning on Saturday, 6 March 2021, it is alleged Dr Rao penetrated the complainant's vagina with his penis where the complainant did not consent to sex.
I (name) acknowledge that on (date) I received a written copy of the above disclosure.
_________________________________
Signature of person receiving disclosure
________________________________
Position of person receiving disclosure
________________________________
Type of supervisor to Dr Rao
The Practitioner must ensure that each person to whom a Disclosure is provided, signs a second copy of the Disclosure at the time that it is provided to them and returns it to him.
Within 48 hours after having obtained a copy of the signed Disclosure, the Practitioner must provide to AHPRA:
(a)a copy of the Disclosure signed by the person to whom the Disclosure has been given;
(b)notification of the date on which the Practitioner gave the Disclosure; and
(c)the person's name, position and type of supervisor to whom the Disclosure was provided.
If the Practitioner becomes aware that there is any material change to the matters detailed in the Disclosure, he must notify AHPRA of that change, or cause such notification to be given to AHPRA within seven days, so that the parties may agree an updated form of disclosure.
Prohibition on examination and/or treatment
Dr Rao is prohibited from having clinical contact with (that is, examining or treating) any patient who presents with an injury or ailment arising from or related to a sexual offence (whether or not that sexual offence has been the subject of criminal charges).
Costs
All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
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