Shah (a pseudonym) v Medical Board of Australia - [2022] SASC 140

Supreme Court of South Australia
(Appeal to a Single Judge)
SHAH (A PSEUDONYM) v MEDICAL BOARD OF AUSTRALIA
[2022] SASC 140
Judgment of the Honourable Justice Blue
25 November 2022
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - ACT CIVIL AND ADMINISTRATIVE TRIBUNAL - APPEAL TO COURTS
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROCEEDINGS BEFORE BOARDS, TRIBUNALS, ETC
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - APPEALS
The appellant appeals, and seeks leave to appeal, against an order by the South Australian Civil and Administrative Tribunal affirming a decision by the Medical Board of Australia to suspend his registration as a medical practitioner pursuant to section 156 of the Health Practitioner Regulation National Law pending an investigation by the Board into his conduct.
The appellant was charged with two counts of indecent assault and one count of serious criminal trespass in a place of residence. The complainant was a receptionist employed at the Medical Practice at which the appellant worked as a general practitioner.
The Board commenced an investigation into the appellant’s conduct and suspended his registration as a medical practitioner pursuant to section 156 of the National Law.
The appellant sought review by the Tribunal of the suspension decision. After the Tribunal heard the review, the Police withdrew the charges against the appellant.
The Tribunal subsequently confirmed the Board’s decision.
The appellant appeals against that decision on five grounds:
1The Tribunal failed substantively to take into account the fact that the criminal charges against Dr Shah (a pseudonym) had been withdrawn.
2The Tribunal erred in its assessment of risk in:
(a)    finding that the evidence suggested that Dr Shah has a fundamental lack of insight, an inability to understand what is appropriate or to “read” the behaviour of other persons and regulate his behaviour accordingly;
(b)    finding that Dr Shah poses a risk to patients in understanding whether they are consenting to treatment; a risk to fellow practitioners and a risk to males.
3The Tribunal erred in its formulation and characterisation of the risk posed by Dr Shah in relying on evidence given by the AHPRA investigator of a discussion with the former practice manager of the Medical Practice.
4The Tribunal, in finding that no action other than suspension of Dr Shah’s registration could adequately address the risk he posed and that conditions on his practice could not adequately address the risk or satisfy the public interest, erred by:
(a)    failing to properly balance public interest considerations including fairness, proportionality, the requirement for area of need professionals to be able to practise, and public understanding of the difference between allegations and proven guilt (ground 4);
(b)    failing to give effect to the principle that immediate action should only be taken where necessary (ground 5).
Held (allowing the appeal):
1The decision of the Board, and the decision of the Tribunal, to take immediate action was not a discretionary decision and House v The King principles do not apply to an appeal against the decision of the Tribunal (at [218]).
2The Tribunal failed to substantively take into account the withdrawal of the criminal charges against Dr Shah (at [245]).
3The Tribunal erred in finding that Dr Shah poses a serious risk to patients in understanding whether they are consenting to treatment or a serious risk to fellow practitioners because there was no evidence capable of supporting the findings (at [257] and [270]).
4The Tribunal erred in finding, regardless of whether the allegations are true, that the evidence suggested that Dr Shah has a fundamental lack of insight, an inability to understand what is appropriate or to “read” the behaviour of other persons and regulate his behaviour accordingly (at [290]).
5The Tribunal erred in relying on evidence given by the AHPRA investigator of a discussion with the former practice manager of the Medical Practice (at [307]).
6The Tribunal erred in finding that no action other than suspension of Dr Shah’s registration could adequately address the risk he posed to persons and public safety and that conditions on his practice could not adequately address those risks (at [335], [343] and [360]).
7The Tribunal erred in finding that suspension of Dr Shah’s registration was in the public interest and that conditions on his practice could not adequately address the public interest (at [379] and [386]).
8Even if the decision of the Tribunal was a discretionary decision, the Tribunal’s decision is vitiated under House v The King principles (at [244], [259], [272], [291], [308], [336], [344], [361], [380] and [387]).
9Leave to appeal should be granted (at [391]).
10On reconsideration, under both limbs, there are no reasonable grounds to believe that suspension of Dr Shah's registration is necessary (at [395]-[396]).
11Leave to appeal granted; appeal allowed; decision of the Tribunal to be varied by allowing the appeal against the decision of the Board, setting aside the suspension of registration and imposing conditions on the appellant’s registration in terms on which the parties are to be heard (at [398]).

Criminal Law Consolidation Act 1935 (SA) s 56(1), s 170A(1); Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 3(3), s 5, s 31, s 39, s 155, s 156, s 156(1), s 156(1)(a), s 156(1)(e), s 157, s 158(2)(c), s 160, 161(1), 161(2), s 161 (3), s 162, s 166, s 167, s 178(1), s 178(2), s 182(1), 191(1), 193 (3), s 196 (2); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 35, s 35(2)(b), s 71, s 71(2), referred to.
Bernadt v Medical Board of Australia [2013] WASCA 259; Cheema v Medical Board of Australia [2020] SACAT 40; Farshchi v Medical Board of Australia [2018] VCAT 1618; Health Ombudsman v Harirchian [2021] QCA 141; House v The King (1936) 55 CLR 499; I v Medical Board of Australia [2011] SAHPT 18; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; Khoo v Bartholomaeus [2020] SASCFC 122 ; Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295, (2012) 36 VR 656; Maroulis v Psychology Board of Australia [2020] SASC 16; Medical Board of Australia v Liang Joo Leow [2019] VSC 532; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, (2018) 264 CLR 541; Pix v South Australian Housing Trust [2016] SASCFC 57; Sami v Medical Board of Australia [2021] VCAT 447; Warren v Coombes (1979) 142 CLR 531, considered.

SHAH (A PSEUDONYM) v MEDICAL BOARD OF AUSTRALIA
[2022] SASC 140
Single Judge Appeal: Civil

BLUE J: The appellant Ahmed Shah (a pseudonym) appeals, and seeks leave to appeal, against an order by the South Australian Civil and Administrative Tribunal affirming a decision by the respondent Medical Board of Australia (the Board) to suspend his registration as a medical practitioner pursuant to section 156 of the Health Practitioner Regulation National Law (the National Law) pending an investigation by the Board into his conduct and any disciplinary proceeding that might be brought by the Board.
In January 2021 the police commenced an investigation into Dr Shah’s conduct as a result of allegations of sexual assault by a receptionist employed at the medical practice in the Adelaide metropolitan area (the Medical Practice) at which Dr Shah worked as a general practitioner.
In February 2021 the Board commenced an investigation into Dr Shah’s conduct as a result of those allegations.
In March 2021 Dr Shah was arrested by and charged by police on information (the original information) with two counts of indecent assault and one count of serious criminal trespass in a place of residence allegedly committed in January 2021. The complainant was the receptionist referred to above.
In April 2021 the Board proposed to suspend Dr Shah’s registration as a medical practitioner pursuant to section 156 of the National Law. The Australian Health Practitioner Regulation Agency (AHPRA) sent a letter to Dr Shah’s lawyer inviting Dr Shah to make a submission as to why the Board should not so act.
In April 2021, after receiving a submission from Dr Shah’s lawyer, the Board decided to suspend Dr Shah’s registration as a medical practitioner.
In May 2021 Dr Shah filed an application at the Tribunal seeking review of the suspension decision.
In September 2021 the Tribunal heard the review application and reserved its decision.
In October 2021 the Police withdrew the charges against Dr Shah.
In December 2021 the Tribunal received written submissions from the parties concerning developments since the hearing in September 2021.
In May 2022 the Tribunal delivered a statement of reasons confirming the Board’s decision.
Dr Shah appeals against that decision on five grounds. The manner in which the appeal was argued differed in several respects from the grounds of appeal set out in the notice of appeal. As argued, the grounds in broad terms are:
1The Tribunal failed substantively to take into account the fact that the criminal charges against Dr Shah had been withdrawn.
2      The Tribunal erred in its assessment of risk in:
(a)    finding that the evidence suggested that Dr Shah has a fundamental lack of insight, an inability to understand what is appropriate or to “read” the behaviour of other persons and regulate his behaviour accordingly;
(b)    finding that Dr Shah posed a risk to patients in understanding whether they are consenting to treatment; a risk to fellow practitioners and a risk to males.
3The Tribunal erred in its formulation and characterisation of the risk posed by Dr Shah in relying on evidence given by the AHPRA investigator of a discussion with the former practice manager of the Medical Practice.
4The Tribunal, in finding that no action other than suspension of Dr Shah’s registration could adequately address the risk he posed and that conditions on his practice could not adequately address the risk or satisfy the public interest, erred by:
(a)    failing to properly balance public interest considerations including fairness, proportionality, the requirement for area of need professionals to be able to practice, and public understanding of the difference between allegations and proven guilt (ground 4);
(b)    failing to give effect to the principle that immediate action should only be taken where necessary (ground 5).
Background
Dr Shah was born in 1965. In 1993 he obtained a Bachelor of Medicine/Bachelor of Surgery at the University of Punjab in Lahore Pakistan.
Between January 1995 and January 1996 Dr Shah undertook his Housemanship and Internship at Allama Iqbal Medical Services Hospital in Lahore. A reference from the Professor of Obstetrics and Gynaecology Dr Khan described him as a hard working intelligent doctor with a pleasant personality.
Between March 1996 and February 1998 Dr Shah worked as a House Officer at Sir Ganga Ram Hospital in Lahore. A reference from the Head of the Paediatrics Department Dr Izhar described him as an honest, very hard working doctor who was equally popular with patients and staff. A reference from the Professor of Surgery Dr Randhawa described him as an intelligent doctor and good in extracurricular activities.
Between March 1998 and July 2003 Dr Shah ran a general practice in Lahore. References by his Practice Manager Raja Akbar, a fellow general practitioner Dr Ghuman and a physician and paediatrician Dr Jamil described him as an efficient and capable doctor; with good relations with colleagues and allied health professionals; well respected by the nursing and paramedical staff; excellent interpersonal communication; and he could safely be trusted as a general practitioner.
Between August 2003 and March 2005 Dr Shah worked as a Casualty Medical Officer at the United Christian Hospital in Lahore. A reference by the Medical Director Dr Benjamin described him as knowledgeable and a gentleman, whose moral character and behaviour was much appreciated by all.
Between March 2005 and February 2008 Dr Shah worked as General Practice Registrar at the National Hospital & Medical Centre in Lahore. References by Professor Mumtaz, Dr Malik, Dr Javed, Dr Tasleem and the Administrator Asad Aqeel described him as possessing good medical counselling and communication standards, high standards of integrity and professional ethics, a pleasant personality, he got along well with colleagues and he was highly respected by nursing and paramedical staff.
Between March 2008 and June 2011 Dr Shah ran a general practice in Lahore. References by Professor Ayyaz, Dr Iqbal, Dr Toor, Dr Mirza and Dr Amir described him as a capable doctor with a pleasant personality and good working relations with medical, paramedical and nursing staff.
In 2011 Dr Shah emigrated to Australia. He was granted a working visa. In June 2011 he was registered by the Board as a health practitioner (medicine) and commenced working as a general practitioner at a suburban Adelaide clinic. A reference from the Chief Executive Officer of the clinic described him as having a strong relationship with patients, being much liked and valued by them.
In August 2018 Dr Shah commenced working at the Medical Practice. A letter sent to the Board on 19 April 2021 by Noah Jones (a pseudonym), the General Manager of the clinics of which the Medical Practice was one, said that he was aware of Dr Shah’s suspension by the Board; described him as a competent, diligent medical practitioner; and said that he was trustworthy, honest and ethical in his dealings with doctors, nurses, staff and patients.
There were approximately 14 doctors working at the Medical Practice. There was a Practice Manager, Olivia Smith (a pseudonym), who was responsible among other things for the reception and administrative staff.
In August 2020 the complainant commenced working as a receptionist at the Medical Practice. By that time Isabella Brown (a pseudonym) had replaced Ms Smith as Practice Manager. The complainant reported to the Practice Manager.
In her affidavit affirmed on 22 March 2021 (the complainant’s affidavit), the complainant said that in mid-September 2020 Dr Shah invited her to visit him at his house and she agreed to do so. She was there for about one hour. He showed her the rooms in the house. While she was sitting on the bed in his bedroom, Dr Shah put his hand inside her jacket and touched the top of her breast and attempted to lift up her shirt. She pulled it down again and said that he was making her feel uncomfortable.
In his police interview, as observed at [54] below, Dr Shah was largely asked open questions and invited to tell a story rather than respond to allegations being put to him. He said that in September 2020 the complainant visited him at his house for over an hour, although this was at her instigation rather than his. He kissed her a couple of times.
In her affidavit, the complainant said that sometime after her visit to Dr Shah’s house she asked Dr Shah to prescribe her Valium. He said that she could not be his patient because he could not have sexual relationships with patients but you can with colleagues. She did not say if or how she responded to this statement.
In her affidavit, the complainant said that after her visit to Dr Shah’s house things at work were not too bad with Dr Shah. He used to give her gifts, which she accepted. He used to message her quite a lot and she messaged him back. He spoke to her at work more than the other doctors and she talked back. He also telephoned her on numerous occasions and they had general conversations.
In his police interview, Dr Shah said largely the same things.
In her affidavit, the complainant said that after a time Dr Shah started to make complimentary comments to her, put his hands around her waist and kissed her on the side of her neck or on her face and occasionally on her lips. This occurred frequently each week over a two to three month period. This occurred either in the lunchroom, in the reception area opposite the fax machine, in the car park at work, inside her car or in her house. She generally said no and turned away when he tried to kiss her on her face or lips. She recalled one specific incident where Dr Shah grabbed her on the right side of her buttocks for one or two seconds. She does not recall if anything was said or what happened afterwards.
In his police interview, Dr Shah said largely the same things, although he said that all touching was consensual and was sometimes initiated by the complainant.
In her affidavit, the complainant said that she told Dr Shah that she was being faithful to her boyfriend. She did not say precisely when this was.
In his police interview, Dr Shah said that the complainant only told him that she had a boyfriend part way through the period of their interactions (to use a neutral term) from the end of September 2020 to mid-January 2021.
In her affidavit, the complainant said that on a number of occasions Dr Shah came around to her house. On two occasions he walked into the house (as she did not generally keep her front door locked when she was home). On one of these occasions, he kissed her on the side of her neck and grabbed her around the waist and pulled her into him, then stopped and talked, and then did it again. She did not recall if she told him to stop but she pulled away from him.
In her affidavit, the complainant said that on about four occasions Dr Shah touched her breasts over her uniform in the car or at work. It was only ever a short touch and she either pulled away or told him to stop.
In her affidavit, the complainant said that on one occasion Dr Shah replaced her handbag with an expensive maroon handbag, transferring the contents of her old handbag into her new handbag, except for her house and car keys. At the end of her shift, she asked him for her keys and he gave them to her. She told him that she liked black bags. Shortly after that, Dr Shah gave her a black bag of the same type to replace the maroon bag.
In her affidavit, the complainant said that on 19 January 2021 Dr Shah and she finished working on the late shift at 9.30 pm to 10.00 pm. Dr Shah got into the front passenger seat of her car. He sat there while she made telephone calls to her sister first and then to a family friend who lived with her mother. After waiting for a while, Dr Shah unzipped his pants and got out his penis, which she saw was erect. He grabbed her hand and tried to put it on his penis. She kept pulling her hand away. This conduct was the subject of count 3 of the original information.
In his police interview, Dr Shah said that, while they were sitting in the complainant’s car, she grabbed him by the penis.
In her affidavit, the complainant said that she telephoned her friend Emma (a pseudonym), who said that their friend Brett (a pseudonym) and she were on their way. When they arrived, Brett told Dr Shah that the complainant was a lost cause. Dr Shah responded that she was worth waiting for and he wanted to marry her. Brett had drinks with Dr Shah in the car. The complainant invited Brett and Emma to her house for a drink and Dr Shah simply assumed that he was also invited. The complainant did not say otherwise.
In Emma’s affidavit sworn on 4 March 2021, she said that she saw Dr Shah putting his arm around the complainant’s neck and the complainant continually shrugging him off. She heard the complainant ask Dr Shah on many occasions to get out of the car and on each occasion he changed the subject or laughed.

In his affidavit, Brett said that he saw Dr Shah leaning towards the complainant with his arm around her driver’s seat. He heard the complainant ask Dr Shah on many occasions to get out of the car and on each occasion he changed the subject or laughed. In his police interview, Dr Shah was not asked about such conduct.
In her affidavit, the complainant said that she arrived home first, followed by Dr Shah. While they were in the kitchen, Dr Shah several times touched her upper legs towards her vagina underneath her dressing gown, she kept pushing his hand down and stepping away. She said to him “if my friends were here would you be doing that?” and he said “no”. She did not recall if she told him to stop what he was doing.
In his police interview, Dr Shah was not asked about such an incident in the kitchen.
In her affidavit, the complainant said that Brett and Emma arrived five to 10 minutes after the complainant arrived at her house. They all sat around the kitchen bench for an hour to an hour and half or a bit longer. The complainant drank a third of a full-sized bottle of vodka and a beer. Dr Shah drank two beers. Brett was also drinking. Emma was not. Brett and Emma were ready to leave. Brett told Dr Shah that it was time for him to go. Dr Shah ultimately left after several requests.
In her affidavit, Emma said that, when she and Brett were not in the room, she saw Dr Shah take hold of the complainant’s bottom, touch her on the waist and attempt to kiss her neck on several occasions. They all tried to get Dr Shah to leave but he did not seem to get the hint.
In his affidavit, Brett said that, when he and Emma were outside and when they were in the lounge room, he saw Dr Shah take hold of the complainant’s bottom and touch her sides on multiple occasions. The complainant pulled away on each occasion. They tried to make it obvious that Dr Shah was not welcome but he did not seem to get the hint.
In her affidavit, the complainant said that at some time between 3.34 am and 7.00 am Dr Shah re-entered her house and came into her bedroom. The entry into the house was the subject of count 1 of the original information. The complainant said that she started yelling “fuck off” and told Dr Shah to leave. He lay on the bed and started groping her vagina area over her pyjama shorts for one to two minutes. This was the subject of count 2 of the original information. The complainant said that Dr Shah then got up and left.
In his police interview, Dr Shah said that he had left the complainant’s house to move his car and then returned. It was not put to him that he got into bed with the complainant or touched her while in bed. He said that the complainant told him that she was going to bed. She went to bed and he left.
On 20 January 2021 just after midday the complainant sent a text message to Dr Shah saying:
[Dr Shah], yesterday you sexually assaulted me in my car. And you broke and entered my premises. Other people are aware of this situation. From this point on if you are not 100% professional towards me in the workplace, I’ll be filing a police report and having you charged. Do not contact me again privately. Work related communication only at work. This is you first and final warning.
Later in January 2021 the complainant attended at a police station alleging sexual harassment by one of the general practitioners at the Medical Practice but left before completing a statement. She was later picked up by the police on 26 January 2021 and taken to the emergency department of Flinders Medical Centre, where she was detained on mental health grounds.
On 26 January 2021 a police officer telephoned Ms Brown and informed her of the matters referred to in the previous paragraph. The police officer asked her for CCTV footage of the clinic grounds on the evening of 19 January 2021, which she provided to them.
On 28 January 2021 a police officer again telephoned Ms Brown and said that the police planned to bring Dr Shah in for questioning under caution in the next few days.
As a result of her discussions with the police referred to in the previous two paragraphs, Ms Brown and the Medical Practice owner decided to ask Dr Shah not to attend the practice on 29 January 2021 or over the weekend of 30-31 January 2021. They informed him that an allegation had been made against him but (at the request of the police) not its nature or by whom.
On 1 February 2021 Ms Brown submitted to AHPRA a standard form online document entitled Summary of Complaint or Concern. She set out the matters referred to in the previous three paragraphs. She said that Dr Shah was due to return to work on that afternoon. She was unsure whether it was appropriate to permit that. She sought guidance on how they should manage the matter as a clinic.
On 11 February 2021 Detective Brevet Sergeant Thompson conducted a recorded interview of Dr Shah (Dr Shahs’s police interview). The interview was conducted by Detective Thompson asking open questions and asking Dr Shah to tell a story. In general, allegations made by the complainant were not put to him. Dr Shah was not asked questions about a number of the matters later addressed in the complainant’s affidavit that are summarised at [24] to [48] above.
Not later than 12 February 2021 AHPRA commenced an investigation into Dr Shah’s conduct and appointed Shannon Murphy (a pseudonym) as investigator pursuant to section 160 of the National Law. Subsections 161(1) and (2) of the National Law require AHPRA to give to a practitioner that it decides to investigate written notice of the investigation and the written notice must advise the nature of the matter being investigated as soon as practicable.[1] The Board did not include its resolution to commence the investigation or the section 161 notice in the section 35 documents produced to the Tribunal.
[1] Under subsection 161(4) notice is not required if the Board reasonably believes giving the notice may seriously prejudice the investigation, place a person's health or safety at risk or place a person at risk of harassment or intimidation. However, this cannot have been the case here given the police interview on 11 February 2021 and the AHPRA interview on 15 February 2021 of Dr Shah.
On 12 February 2021 Ms Murphy spoke to Detective Thompson. Ms Murphy made a file note of the conversation. Detective Thompson summarised statements made to the police by the complainant.
On 15 February 2021 Ms Murphy spoke to Dr Shah by telephone (Dr Shah’s AHPRA interview). She made a file note of the conversation. Dr Shah described his relationship with the complainant and in particular addressed what happened on the night of 19-20 January 2021. He said that all touching between him and the complainant was consensual. No allegations were put to him by Ms Murphy.
On 18 February 2021 Detective Thompson telephoned Ms Murphy. He informed her that he had now taken a statement from Brett. Ms Murphy made three different versions of a file note of the conversation.
In the original version (the original 18 February file note), paragraph 2 read (emphasis added to show words omitted in the subsequent edited version):
Brett said that [the complainant] has mental illness and “is not quite right in the head” but that he is legitimately petrified because she is worried about her job so she is nice to him. Her concern was who was going to believe a mentally ill, low income earning woman with criminal history — drink driving and assault police (throwing toilet water in the cells at police when being detained previously under mental health act).
In the second, edited, version (the edited 18 February file note), which was the version provided to the Board and in the third, edited and redacted version, included in the section 35 documents, paragraph 2 read (emphasis added to show words added to the original version):
Brett said that [the complainant] has mental illness but that she is legitimately petrified because she is worried about her job so she is nice to him. Her concern was who was going to believe a low income earning receptionist over a doctor. She was also worried about her employment.
In the original 18 February file note, paragraph 4 read (emphasis added to show the words omitted in the subsequent edited version):
GT states that he is inclined to believe Brett. It didn’t sound like he was just trying to back [the complainant] up. However, her credibility as a victim is not reliable but he thinks he can charge [Dr Shah] with Indecent assault based on the corroboration by Brett and maybe Emma (when he can speak with her).
In the edited 18 February file note that I infer was provided to the Board, paragraph 5 read:
GT states that he is inclined to believe Brett. It didn’t sound like he was just trying to back [the complainant] up.[2]
[2] The version provided to the Tribunal as part of the section 35 documents had the words redacted by a black block. I infer that the version provided to the Board was not so redacted. No explanation was given to the Tribunal for the redaction.
No explanation was given to the Tribunal for the editing of the original version in the version provided to the Board or the Tribunal.
On 4 March 2021 Emma provided a statement to Detective Thompson. She affirmed an affidavit prepared by Detective Thompson (Emma’s affidavit).
On 17 March 2021 Ms Murphy telephoned Ms Pierce. Ms Murphy made a file note of the conversation. Its contents are addressed below.
On 4, 11 and 15 March 2021 the complainant provided a statement to Detective Brevet Sergeant Spark. On 22 March 2021 she affirmed an affidavit prepared by Detective Spark (the complainant’s affidavit)
On 26 March 2021 the police arrested Dr Shah.
On 29 March 2021 a police officer filed in the Magistrates Court an information charging Dr Shah with one count of serious criminal trespass in a place of residence with the intention of committing an offence against the person allegedly committed on 20 January 2021,[3] one count of indecent assault allegedly committed on 20 January 2021[4] and one count of indecent assault allegedly committed on 19 January 2021.[5]
[3]     Criminal Law Consolidation Act 1935 (SA) section 170(1).
[4]     Criminal Law Consolidation Act 1935 (SA) section 56(1).
[5]    Criminal Law Consolidation Act 1935 (SA) section 56(1).
On 30 March 2021 Detective Thompson telephoned Ms Murphy. Ms Murphy made a file note of the conversation. Detective Thompson informed her of the matters referred to in the previous two paragraphs.
On 6 April 2021 the Medical Practice terminated Dr Shah’s employment.
On 7 April 2021 the Board resolved that it proposed to suspend Dr Shah’s registration pursuant to section 156 of the National Law.[6]
[6] The Board had earlier made a similar resolution on 23 March 2021. However, it did not act on that resolution and it was superseded by the 7 April 2021 resolution. The earlier resolution was not referred to by the Tribunal in its statement of reasons. The Board’s resolutions were not included in the section 35 documents but AHPRA’s letters referring to them were included.
On 7 April 2021 AHPRA sent a letter by email to Dr Shah’s solicitor. The letter said that the Board had resolved that it proposed to suspend Dr Shah’s registration pursuant to section 156 of the National Law. It set out reasons for the proposed action. It invited Dr Shah to make a written or verbal submission showing cause why the Board should not proceed to suspend his registration.
On 17 April 2021 an Adelaide doctor sent a letter to the Board. He said that he had known Dr Shah since his childhood and Dr Shah was a competent medical practitioner who had an unblemished medical practice record in Pakistan, with very sound ethics.
On 18 April 2021 an Adelaide doctor sent a letter to the Board. The letter was in part a character reference in which the doctor stated that he had known Dr Shah for 40 years, his character had always been good and commendable and he had no history of any criminal act in his life.
On 19 April 2021 Mr Jones (a pseudonym) sent a letter to the Board. He said that he was aware of the Board’s reasons for taking immediate action in respect of Dr Shah. He said that between February 2017 and April 2020 he was the General Manager of the company that operated, amongst others, the Medical Practice. He knew Dr Shah since early 2018, while in that role. Dr Shah competently managed the clinical and patient demands on him, was a competent general practitioner and was trustworthy, honest and ethical in dealings with doctors, nurses, staff and patients.
On 19 April 2021 Dr Shah’s solicitor sent a letter to the Board making detailed submission why the Board should not suspend Dr Shah’s registration. Amongst other things it attached the references referred to at [14] to [21] and [73] and [74] above.
On 20 April 2021 the Board decided to suspend Dr Shah’s registration pursuant to section 156 of the National Law effective immediately. No minutes of meeting or written resolution of the Board or any memorandum or report before the Board was included by the Board in the section 35 documents (other than AHPRA’s letter referred to in the next paragraph).
On 20 April 2021 AHPRA sent a letter by email to Dr Shah’s solicitor. The letter said that the Board had decided to suspend Dr Shah’s registration immediately pursuant to section 156 of the National Law. It set out reasons for the decision. At paragraphs 1 to 6 under the heading ‘Serious risk’, the Board relied on section 156(1)(a) of the National Law. Paragraph 3 identified the risk the subject of the Board’s belief under section 156(1)(a) as the risk of serious sexual boundary violations and sexual harassment. At paragraphs 7 to 15 under the heading ‘Public interest’, the Board relied on section 156(1)(e), identifying the public interest compelling suspension as the maintenance of public confidence in the medical profession. Paragraph 9 referred to a potential perception of a failure by the Board to act while Dr Shah is subject to serious criminal charges.
Paragraph 15 addressed the form of action:
15Having regard to the above and to the paramountcy of public protection, it is not appropriate to await the outcome of any substantive regulatory processes. It is in the public interest to take immediate action now in the form of suspending [Dr Shah]’s registration. Suspension is the minimum appropriate regulatory force because:
a [Dr Shah] is alleged to have behaved in an egregious manner that demonstrates a general absence of qualities essential for a medical practitioner, including the ethical exercise of judgment and integrity, and respect for the law; and
b this form of immediate action is proportionate to the alleged conduct underpinning the offences. Lesser forms of regulatory action would be insufficient to protect the public interest.
The letter did not identify the lesser forms of regulatory action that would be insufficient to protect the public interest or why they would be insufficient.
The letter did not inform Dr Shah of the further action the Board proposed to take under Part 8,[7] which was required by section 158(2)(c) of the National Law to be included in it. It is established by authority that this did not render the decision void. No point was taken by Mr Shah in this respect.
[7] It merely said that it would write separately on that topic.
The Board was required by subsection 161(3) of the National Law to give to Dr Shah written notice of the progress of the investigation at not less than 3 monthly intervals. No such notices given to Dr Shah were included in the section 35 materials.[8]
[8] Under subsection 161(4) of the National Law, notice is not required if the Board reasonably believes giving notice may seriously prejudice the investigation, place a person's health or safety at risk or place a person at risk of harassment or intimidation. While this might potentially affect the content of the notices, it could not obviate the need to give notices given the police interview on 11 February 2021 and the AHPRA interview on 15 February 2021 of Dr Shah.
On 18 May 2021 Dr Shah’s solicitor filed an application at the Tribunal for review of the suspension decision.
On 21 July 2021 a medical practice situated in metropolitan Adelaide (the Metropolitan practice) made a written offer of engagement to Dr Shah as a general practitioner. Mr Jones referred to at [75] above was the General Manager of that practice.
On 26 July 2021 Dr Shah completed a course entitled “Treating staff members, family and friends” conducted by Avant Mutual Group. On 2 August 2021 he completed a course entitled “Professional Boundaries” conducted by Dr McIntosh.
On 17 August 2021 Brett provided a statement to Detective Thompson and affirmed an affidavit (Brett’s affidavit).
On 19 August 2021 Dr Shah’s solicitor sent an email to the General Manager of the Metropolitan practice (referred to at [84] above). He referred to Dr Shah having notified the General Manager of the current criminal and Medical Board proceedings that had resulted in suspension of his registration. He provided copies of the Board’s notices, Dr Shah’s response and the section 35 materials. He set out suggested potential conditions (including some alternative conditions) if the Tribunal varied the Board’s decision so as to impose conditions on Dr Shah’s right to practice in lieu of suspension.
On 30 August 2021 Dr Shah’s solicitor sent an email in essentially the same terms to the Practice Principals of the Yorke Peninsula practice referred to at [91] below, the Iron Triangle practice referred to at [92] below and the Outer Metropolitan practice referred to at [97] below.
On 23 August 2021 the General Manager of the Metropolitan practice sent a letter to the Tribunal confirming that the practice’s offer was open to any alternative of the suggested conditions, understanding that they could remain in place for a lengthy period. On 14 September 2021 he sent a further letter to the Tribunal providing further information concerning the practice. He stated amongst other things that patient bookings for Dr Shah could be limited to bookings made through reception staff; reception staff could be informed of the conditions; all female staff could be informed about the allegations and the proceedings; a supervisor could be nominated to oversee compliance with conditions; and the supervisor could regularly make enquiries of reception staff and female staff about interactions with Dr Shah.
On 1 September 2021 a police officer filed in the Magistrates Court a fresh information (the substituted information) in substitution for the original information. The substituted information substituted a charge of trespass in a place of residence in contravention of subsection 170A(1) of the Criminal Law Consolidation Act 1935 (SA) for the original charge of serious criminal trespass in a place of residence with the intention of committing an offence against the person in contravention of section 170.
On 14 September 2021 the Practice Principal of a medical practice on Yorke Peninsula (the Yorke Peninsula practice) signed a letter stating that the practice was happy to offer employment to Dr Shah. He said that he had received the information from Dr Shah’s solicitor referred to at [88] above; and the practice was willing to employ him subject to conditions. He proposed that Dr Shah would initially consult exclusively by telephone or video. If a male patient needed to see a doctor in person and that was permitted, Dr Shah could see them in person. If a female patient needed to see a doctor in person, they could see another doctor at the practice.
On 14 September 2021 the Practice Principal of a medical practice in the Iron Triangle (the Iron Triangle practice) signed a letter addressed to the Tribunal stating that the practice was happy to offer employment to Dr Shah; he had received the information from Dr Shah’s solicitor referred to at [88] above; and the practice was willing to employ him subject to conditions.

On 14 September 2021 the solicitor acting for Dr Shah in the criminal proceeding sent a letter to the solicitor acting for Dr Shah in the Tribunal proceeding stating that he intended to write to police prosecution requesting that they withdraw the charges on the basis that there was no reasonable prospect of conviction. On 23 September 2021 he sent a letter to police prosecution as foreshadowed.[9]
[9] The email attaching the letter was tendered but not the letter itself.
On 15 September 2021 the Tribunal heard the review application. It reserved its decision.
On 22 October 2021 the police prosecutor sent an email to Dr Shah’s solicitor in the criminal proceeding stating that he now had authority to withdraw the charges. On 25 October 2021 Dr Shah’s solicitor sent an email to the police prosecutor agreeing to withdrawal of the charges. On 27 October 2021 the Police withdrew the charges.
On 27 October 2021 Dr Shah’s solicitor sent an email to the Tribunal by consent referring to the agreement by the Police to withdraw the charges and requesting a directions hearing in relation to further submissions.
On 11 November 2021 the Managing Director of a medical practice in an outer metropolitan area (the Outer Metropolitan practice) sent a letter to the Tribunal attaching a copy of a letter of offer confirming an offer of employment to Dr Shah as a general practitioner by the Practice Principal. She confirmed that she had read and considered the information provided by Dr Shah’s solicitor referred to at [88] above. She said that the practice was willing and able to consider the possible conditions placed on Dr Shah’s registration. Supervision was available by a GP Supervisor, Practice Manager and the Managing Director. They were happy for AHPRA to have full access to all records to ensure all conditions were being met. They had three nurses who were approved as AHPRA chaperones and were happy to continue to do this for Dr Shah. They could accommodate these conditions for the potentially considerable period of time required.
On 22 November 2021 the Managing Director of the Outer Metropolitan practice sent a further letter to the Tribunal providing further information concerning the practice. It contained similar provisions to the letter from the General Manager of the Metropolitan practice dated 14 September 2021 referred to at [89] above.
The combination of the conditions suggested by Dr Shah’s solicitor and other conditions that each of the four practices said that they were willing to accommodate was as follows (I have re-ordered and in some cases simplified the wording of the conditions but retained their substance).
1Dr Shah practise only at practice locations approved by the Board or its nominee.
2      One of the following alternative conditions:
a      Dr Shah have no contact with any female patient or female relative of a patient.
b      Dr Shah only consult female patients via telehealth medicine (as described at d below) and only in the presence of a chaperone (as described at c below).
c      Dr Shah only have contact with female patients or female relatives of patients in the presence of an approved chaperone.
d      Dr Shah only consult female patients via telehealth medicine, with patient contact limited to audio or video conferencing with all consultations conducted from the practice address.
3      Additional conditions, if considered necessary, that:
a      Dr Shah only consult male patients (or male patients under 18) via telehealth medicine or only in the presence of a chaperone;
b      Bookings for Dr Shah be made only by reception staff, ie no direct bookings such as via Hotdocs;
c      Every potential patient be first triaged by another staff member before being put in contact with Dr Shah, so as to ensure that the conditions are complied with.
4Dr Shah must engage respectfully with female staff and colleagues in accordance with the terms of the Good Medical Practice: a Code of Conduct for Doctors in Australia. That Code included a provision requiring practitioners not to engage in sexual harassment (see [144] below).
5      Receptionist staff and female staff be informed:
a      of the conditions;
b      of the allegations and proceedings that led to the imposition conditions; and
c      that any suspected breach of the conditions is to be immediately reported to the supervisor.
6A supervisor be appointed by the practice (and if at more than one location, for each location).
7      The supervisor:
a      be responsible for monitoring compliance with the conditions;
b      be available by telephone at all times to receive reports of concerns by staff;
c      at prescribed intervals (suggested either fortnightly or monthly) enquire of each female staff member about her interactions with Dr Shah and compliance with the conditions;
d      at prescribed intervals (suggested either fortnightly or monthly) enquire of each receptionist staff member about bookings for Dr Shah and compliance with the conditions;
e      at prescribed intervals (suggested either fortnightly or monthly) meet with Dr Shah to discuss what he is doing to ensure compliance with the conditions and to otherwise debrief;
f       immediately report any concerns to AHPRA;
g      at prescribed intervals (suggested quarterly) provide a written report to AHPRA concerning discussions with reception staff, female staff and Dr Shah.
8AHPRA have access to records, reports and information to allow it to monitor compliance with the conditions.
On 1 December 2021 the senior member of the Tribunal held a directions hearing via telephone. The other members of the Tribunal were not present. No transcript of the hearing was produced on the appeal to this Court. It is common ground that the senior member asked counsel for the Board whether enquiries had been made by the Board as to the reason for the withdrawal of the charges and counsel for the Board said that they had not. No evidence or information was provided by the Board to the Tribunal at any point about any discussions by the Board’s investigator with the police after 30 March 2021 or with the complainant at any point.
Directions were given for Dr Shah to file and serve further written submissions by 6 December 2021 and the Board to file and serve further written submissions by 16 December 2021. Unless the parties indicated otherwise by 20 December 2021, the Tribunal would then proceed to make its decision.
On 6 December 2021 and 16 December 2021 the Tribunal received written submissions from the parties respectively concerning developments since the hearing on 15 September 2021.
On 14 February 2022 the Australian Government Department of Home Affairs issued a letter to the Yorke Peninsula practice in relation to a visa application indicating that information that Dr Shah was suspended was adverse information under subregulation 2.72(4) of the Migration Regulations 1994 (Cth), which might adversely affect an application for a temporary skill shortage visa.
On 16 February 2022 Dr Shah’s solicitor sent a letter to the Tribunal attaching a copy of the Department’s letter and respectfully inquiring as to the status of the Tribunal’s decision.
On 29 April 2022 Dr Shah’s migration agent sent an email to his solicitor. He referred to Condition 8607 in Schedule 8 to the Migration Regulations 1994 (Cth).
·Condition 8607(1) requires a visa holder to work only in their nominated occupation. He said that this prevented Dr Shah working in any other occupation at all.
·Condition 8607(5) requires a visa holder not to cease work for longer than 60 consecutive days. He said that this specific paragraph enlivens the power to cancel Dr Shah’s visa.
·Section 116(1)(b) of the Migration Act 1958 (Cth) empowers the Minister to cancel a visa for breach of a condition. He said that this power is discretionary and reviewable.
On 2 May 2022 Dr Shah instituted a judicial review proceeding against the Tribunal seeking an order of mandamus that it make a decision on the review.
On 12 May 2022 the Tribunal delivered the statement of reasons confirming the Board’s decision.
On 13 May 2022 the judicial review proceeding was consequentially discontinued.
On 9 June 2022 Dr Shah filed a notice of appeal against the Tribunal’s decision.
On 28 June 2022 the Board decided under section 193(1)(a) of the National Law that it would refer the matter the subject of the investigation to the Tribunal. However, the Board did not refer the matter to the Tribunal under section 193 of the National Law at that point.
On 29 June 2022 AHPRA sent a letter to Dr Shah’s solicitor informing him of the Board’s decision referred to in the previous paragraph.
On 1 September 2022 the Board referred the matter subject of the investigation to the Tribunal under section 193 of the National Law by filing a complaint (initiating application) in the Tribunal.
Tribunal hearing
On 15 September 2021 each party tendered various documents and recordings, which were marked as exhibits. No oral evidence was adduced.
The documents tendered included the whole of the documents (section 35 documents) provided to the Board pursuant to its obligation under section 35(2)(b) of South Australian Civil and Administrative Tribunal Act 2013 (SA) (the SACAT Act). The section 35 documents included the Board’s publication Good Medical Practice: a Code of Conduct for Doctors in Australia (the Code of Conduct) issued under section 39 of the National Law referred to at [144].
No documents were tendered or evidence adduced by the Board relating to its investigation that postdated 20 April 2021 other than Brett’s affidavit. No progress reports about the investigation under subsection 161(3) of the National Law were tendered. No evidence was adduced by the Board as to the timing of a decision by it whether to take disciplinary action under Division 10, 11 or 12 of Part 8 of the National Law.
It is not known why the Board had not decided whether to take disciplinary action by the time of the Tribunal hearing. If it was awaiting the outcome of the criminal proceeding, it is to be noted that, in Kozanoglu v Pharmacy Board of Australia[10] referred to at [160], below the Victorian Court of Appeal had been critical of that occurring.
[10] [2012] VSCA 295, (2012) 36 VR 656.
Counsel for the Board informed the Tribunal of the existence of the original 18 February file note and drew attention to the fact that its contents differed from the redacted 18 February file note which was included in the section 35 documents and the edited 18 February file note. Counsel said that he could not explain why there were different version of the file note.
Submissions were made by counsel for the parties.
In his written outline of submissions, counsel for Dr Shah said that Dr Shah did not take issue with the Board’s finding that there were appropriate grounds under subsection 156(1) to take immediate action by the imposition of conditions but he took issue with the Board’s findings that suspension of his registration was necessary. Counsel for Dr Shah confirmed this in his oral submissions.
The Tribunal reserved its decision. No evidence was subsequently adduced by the Board as to its intentions as to future investigation (if any) since and in light of withdrawal of the criminal charges.
The Tribunal’s reasons
The Tribunal in its reasons summarised the legal principles governing the nature and scope of an appeal.
The Tribunal summarised the facts, summarising at some length the complainant’s affidavit, Emma’s affidavit, Brett’s affidavit, Dr Shah’s police interview, Dr Shah’s AHPRA interview and Ms Murphy’s file note of her discussion with Ms Pierce.
The Tribunal referred to the different versions of Ms Murphy’s 18 February 2021 file note of her telephone conversation with Detective Thompson referred to at [58] to [62] above. The Tribunal said:
81It is a concern that potentially relevant matters appear to be withheld from the Board in its consideration of the need to take immediate action. This affects the weight that can be given to the Board’s decision about that matter. When one is assessing in a general way the apparent strength of an untested case against a practitioner, the views of an experienced police officer as to reliability of a witness may well be of some significance.
The Tribunal referred to the references provided by Dr Shah, the letter from Mr Jones referred to at [75] above and the letters from the Metropolitan, Yorke Peninsula and Iron Triangle practices.
Under the heading “Legal Principles”, the Tribunal adopted the views expressed by the Tribunal at paragraphs 40 to 56 in Cheema v Medical Board of Australia[11] and emphasised six matters.
[11] [2020] SACAT 40.
Under the heading “Consideration”, at paragraphs 124 to 129 the Tribunal first addressed the alleged conduct, being the first component of the first limb of section 156(1)(a). The Tribunal concluded at paragraph 129:
129It is not our role in these proceedings to make any findings of fact. We do not do so. However, we make a general assessment that there appears to be a respectable evidentiary case against the applicant. That case is untested.
The Tribunal made the following observations about the conduct of Dr Shah if the allegations are true:
130If the evidence of the witnesses was accepted and the allegations proved, the conduct of the applicant would be extremely serious. The evidence before us suggests that [the complainant] was a vulnerable person. She was a person in respect of whom, in practical terms, the applicant occupied a position of power. She believed that her continued employment might depend on not upsetting him.
131If the allegations are true, the applicant sexually harassed her (including in the workplace) over a period of time…
132If the allegations are true, the most disturbing feature is the applicant’s total lack of insight. Obviously, he denies the most serious aspects of the allegation and thus has indicated no contrition concerning that alleged conduct. However, even on his own account, he persisted in pursuing [the complainant] when, on the evidence of [Brett] and [Emma], she had made it clear that his attentions and his continued presence in her home were unwelcome. He professes a belief that [the complainant] was at all times consenting to his intimate behaviour towards her, whereas the evidence of [Brett] and [Emma], if accepted, is to the contrary.
133If the allegations are true, the applicants behaviour was bizarre. The conduct alleged is, of course, inconsistent with a fitness to practise. Moreover, it would raise fundamental issues concerning the applicant’s character, interpersonal skills, and emotional intelligence. The evidence, if accepted, would cause us to seriously doubt the ability of the applicant to correctly judge whether another person was consenting to his conduct. It would cause us to doubt whether the applicant would be able to appropriately understand what behaviour is acceptable and what is not.
The Tribunal addressed Ms Murphy’s file note of her discussion with Ms Smith on 17 March 2021 in the following terms:
134We do not place as much weight as did the Board on the hearsay evidence from the practice manager. However, that evidence gives no reassurance as to the applicant’s interpersonal skills. It does suggest that the applicant was spoken to previously concerning his interactions with administrative staff. Yet this counselling did not prevent him pursuing a relationship with a vulnerable staff member which has resulted in these allegations. He appears to have modified his behaviour after the counselling by interacting with [the complainant] when others were not present rather than in the presence of others.
The Tribunal then said:
135We remind ourselves that risk should not be assessed solely on the basis of the evidence against the applicant. The assessment of risk must take into account the prospect that the allegations may be untrue. We must have regard to our general assessment of the strength of the evidence.
The Tribunal addressed the withdrawal of the criminal charges in the following terms:
136We accept the submission that the withdrawal of criminal charges is a “relevant and significant” factor in the context of a consideration of immediate action under s 156 [footnoting a reference to Sami]. We have had regard to this factor, both in our assessment of risk and in our consideration of the public interest.
The Tribunal then said:
137We have formed a belief, which we consider to be reasonable, that the applicant poses a serious risk to persons, such that it is necessary to take immediate action to protect public health and safety. We also consider that such action is necessary in the public interest. The applicant should not be held out to the public as a person who can be trusted with the responsibilities of a medical practitioner, whilst these allegations remain unresolved.
138We are concerned that the allegations against the applicant have still not been referred to the Tribunal under s 193 of the National Law. This gives added force to the applicants submission that the current suspension is indefinite, and unfair. We do not deny the force of that submission, but our ultimate concern must be the safety of the public. If the applicant was allowed to return to practice, we have no confidence in his behaviour towards patients, colleagues, or members of staff. The alleged conduct is extremely serious, and there is apparently credible evidence suggesting a fundamental lack of insight. Even if the applicant was attempting to do the right thing, we have insufficient confidence in his ability to understand what is appropriate. We have insufficient confidence in his ability to “read” the behaviour of other persons and regulate his behaviour accordingly. The particular concern in this case of course relates to the applicant’s interactions with females, but the evidence, if accepted, potentially gives rise to broader issues such as his ability to ensure that any patient is consenting to treatment.
139Suspension is a drastic step with extremely serious effects for the practitioner. It should only be imposed where no other action would be sufficient. We have carefully considered whether conditions of practice might adequately address the risk. We do not think so. Supervision is of limited effectiveness in the context of a busy medical practice. It is not feasible that a practitioner’s conduct be observed at all times. Gender-based restrictions and chaperone arrangements apply only to patients and do not address the risk to staff members or colleagues. The allegations in this case include taking [the complainant’s] keys from her handbag without consent, retaining them until the end of the working shift, and some time later entering [the complainant’s] house unexpected and unannounced in the early hours of the morning and sexually assaulting her. Until the allegations are resolved, we do not think it appropriate that any female staff member or colleague should be asked to work with the applicant. We do not consider it appropriate that the applicant be held out in any way or to any extent as fit to practice.
140We repeat that the allegations are completely untested. The applicant may be exonerated from any misconduct. Our present decision does not imply any conclusions concerning the disputed facts. We are concerned with what is necessary to maintain public safety and the public interest.
141For the reasons stated, our order will be that the decision subject to review is confirmed.
The appeal to this Court
I received an affidavit by John Edwards, Dr Shah’s solicitor, sworn on 29 August 2022. Mr Edwards primarily addressed developments since the Tribunal’s decision in May 2022. This included receipt of AHPRA’s letter dated 29 June 2022 stating that the Board had decided to refer the matter the subject of the investigation to the Tribunal. Mr Edwards had not yet received any proceeding instituted in the Tribunal.

Mr Edwards also exhibited recent correspondence with the four practices which had offered to engage Dr Shah subject to conditions. Three practices said that their offer is still open. One practice, the Metropolitan practice, said that its offer is no longer open.
I received an affidavit by Simon Ward, the Board’s solicitor, sworn on 6 September 2022. Mr Ward exhibited the complaint filed by the Board in the Tribunal on 1 September 2022.
It was agreed at the hearing of the appeal that, if I decided to allow the appeal and substitute for the suspension of Dr Shah’s registration an order imposing conditions, the parties should first be heard as to the conditions to be imposed.
The legislative regime
The National Law is enacted as Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (the National Law Act). The National Law was enacted by Queensland, which is the originating jurisdiction, and is adopted by other jurisdictions in Australia.
Guiding principles
Subsection 3(3) of the National Law relevantly provides:
(3)The guiding principles of the national registration and accreditation scheme are as follows—
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;
…
(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
National Boards
Section 31 of the National Law requires the regulations to provide for a National Health Practitioner Board for each health profession and section 31A gives each board corporate status.
Regulation 4 of the Health Practitioner Regulation National Law Regulation 2018 (Qld) creates amongst others the Medical Board of Australia for the medical profession.
Clauses 12 to 18 of Schedule 4 to the National Law govern meetings of national boards. Resolutions can be made at meetings or by majority written resolution (cause 16).
Registration and conditions
Part 7 of the National Law is entitled Registration of health practitioners. Section 83 empowers a national board to make registration subject to any condition that it considers necessary or desirable in the circumstances.
Divisions 1 and 2 of Part 7 address practitioner (general and specialist) registration. Division 7 addresses student registration. For ease of expression, because students are not relevant in the present case, in the balance of these reasons I refer only to practitioners (except in quotations).
Codes of conduct
Section 39 of the National Law empowers a national board to develop and approve codes and guidelines to provide guidance to practitioners. Section 41 provides that they are admissible in proceedings under the Law against a practitioner as evidence of what constitutes appropriate professional conduct or practice for the health profession.
As observed above, the Board issued the Code of Practice pursuant to section 39. Clause 5.4 addresses discrimination, bullying and sexual harassment. Clause 5.4.2 provides that good medical practice involves not discriminating against, bullying or sexually harassing others.
Sexual harassment is defined:
Sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.
Investigations
Part 8 of the National Law is entitled Health, performance and conduct.
Division 8 of Part 8 is entitled Investigations. Sections 160 to 162 and 166 to 167 provide:
160—When investigation may be conducted
(1)A National Board may investigate a registered health practitioner or student registered in a health profession for which the Board is established if it decides it is necessary or appropriate—
(a)     because the Board has received a notification about the practitioner or student; or
(b)     because the Board for any other reason believes—
(i)    the practitioner or student has or may have an impairment; or
(ii)     for a practitioner—
(A)the way the practitioner practises the profession is or may be unsatisfactory; or
(B)     the practitioner's conduct is or may be unsatisfactory; or
(c)     to ensure the practitioner or student—
(i)is complying with conditions imposed on the practitioner's or student's registration; or
(ii)     an undertaking given by the practitioner or student to the Board.
(2)If a National Board decides to investigate a registered health practitioner or student it must direct an appropriate investigator to conduct the investigation.
161—Registered health practitioner or student to be given notice of investigation
(1)A National Board that decides to investigate a registered health practitioner or student must, within as soon as practicable after making the decision, give the practitioner or student written notice about the investigation.
(2)The notice must advise the registered health practitioner or student of the nature of the matter being investigated.
(3)Also, the National Board must, at not less than 3 monthly intervals, give the written notice of the progress of the investigation to—
(a)     the registered health practitioner or student; and
(b)     if the investigation relates to a notification made about the registered health practitioner or student, the notifier.
(4)However, the National Board need not give the registered health practitioner or student a notice under subsection (1) or (3) if the Board reasonably believes giving the notice may—
(a)     seriously prejudice the investigation; or
(b)     place at risk a person's health or safety; or
(c)     place a person at risk of harassment or intimidation.
162—Investigation to be conducted in timely way
The National Board must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated.
166—Investigator's report about investigation
(1)As soon as practicable after completing an investigation under this Division, an investigator must give a written report about the investigation to the National Board that directed the investigator to carry out the investigation.
(2)The report must include—
(a)the investigator's findings about the investigation; and
(b)     the investigator's recommendations about any action to be taken in relation to the health practitioner or student the subject of the investigation.
167—Decision by National Board
After considering the investigator's report, the National Board must decide—
(a)to take no further action in relation to the matter; or
(b)to do either or both of the following—
(i)    take the action the Board considers necessary or appropriate under another Division;
(ii)     refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
Disciplinary action
Divisions 10, 11 and 12 of Part 8 of the National Law provide for three alternative courses of action that a national board may take under section 167(b)(i) after considering an investigator’s report. In ascending order, they are to:
1 deal with the matter itself under Division 10 (board determination);
2refer the matter to a health panel or performance and professional standards panel to be dealt with under Division 11 (health panel determination or standards panel determination respectively); or
3refer the matter to the applicable responsible tribunal, to be dealt with under Division 12 (tribunal determination).
A national board has power relevantly[12] under section 178(1) to deal with the matter by board determination if:
1it reasonably believes that the way the practitioner practises the health profession or their professional conduct is or may be unsatisfactory (section 178(1)(a)); and
2the matter is not required to be referred for tribunal determination (section 178(1)(b)) and it is not necessary or appropriate to refer it for panel determination (section 178(1)(c)).
[12] A board also has power under section 178(1)(a)(ii) to determine the matter itself if it reasonably believes that the practitioner has or may have an impairment.
A national board has power relevantly under section 182(1) to refer the matter for standards panel determination[13] if:
1it reasonably believes that the way the practitioner practises the health profession (section 182(1)(a)(i) or their professional conduct is or may be unsatisfactory (section 182(1)(a)(ii); and
2it is necessary or appropriate to refer the matter for panel determination (section 182(1)(b)).
[13] A board has power also under section 181(1) to refer a matter for a health panel determination primarily if the board reasonably believes that a registered health practitioner has or may have an impairment and it is necessary or appropriate to refer the matter to a panel.
A National Board relevantly[14] must under section 193(1)(a)(i) refer the matter for tribunal determination if it reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct.
[14] A board must under section 193(1)(a)(ii) refer a matter for tribunal determination if the practitioner’s registration was improperly obtained by the provision of information or a document was false or misleading in a material particular. A board must also under section 193(1)(b) refer a matter for tribunal determination if a panel established by the Board requires the Board to refer the matter for tribunal determination. Section 190(a)(i) requires a panel to stop hearing a matter and to require the relevant board to refer the matter for tribunal determination if the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct.
The terms “professional misconduct”, “unprofessional conduct” and “unsatisfactory professional performance” are defined by section 5 as follows:
professional misconduct, of a registered health practitioner, includes—
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes—
(a)a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b)a contravention by the practitioner of—
(i)a condition to which the practitioner's registration was subject; or
(ii) an undertaking given by the practitioner to the National Board that registers the practitioner; and
(c)the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being; and
(e)influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f)accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g)offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h)referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
A national board has power to give a caution, accept an undertaking or impose conditions on the practitioner’s registration (subsection 178(2)).
A standards panel has power to caution, reprimand or impose conditions on the registration of the practitioner (subsection 191(3)).
A tribunal has power to caution, reprimand, fine, impose conditions on registration, suspend registration or cancel registration of the practitioner (subsection 196(2)).
Immediate action
Division 7 of Part 8 of the National Law is entitled Immediate action. Sections 155 and 156 empower immediate action. They relevantly provide:
155—Definition
In this Division—
immediate action, in relation to a registered health practitioner or student, means—
(a)     the suspension, or imposition of a condition on, the health practitioner's or student's registration; or
(b)accepting an undertaking from the health practitioner or student; or
(c)accepting the surrender of the health practitioner's or student's registration; or
(d)     if immediate action has previously been taken suspending a health practitioner's or student's registration—the revocation of the suspension and the imposition of a condition on the registration; or
(e)     if immediate action has previously been taken imposing a condition on a health practitioner's or student's registration—the suspension of the registration instead of the condition.
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 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; 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.
(2)However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.
Sections 157 and 158 address procedure. They provide:
157—Show cause process
(1)If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156, the Board must—
(a)give the practitioner or student notice of the proposed immediate action; and
(b)     invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
(2)A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.
(3)The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.
158—Notice to be given to registered health practitioner or student about immediate action
(1)Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must—
(a)     give written notice of the Board's decision to the health practitioner or student; and
(b)     take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.
(2)The notice must state—
(a)the immediate action the National Board has decided to take; and
(b)the reasons for the decision to take the immediate action; and
(c)     the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
(d)     that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's or student's registration; and
(e)     how an application for appeal may be made and the period within which the application must be made.
Section 158(1)(b) imposes an obligation on the relevant national board, immediately after deciding to take immediate action, to take further action under Part 8 such as investigating the practitioner in question. Ordinarily, the board will either have already commenced an investigation before, or will be obliged to commence an investigation immediately on, deciding to take immediate action. Section 162 requires the board to ensure that an investigation is conducted as quickly as practicable. Section 158(2)(c) requires the board to inform the practitioner in the notice of immediate action of the further action the board proposes to take under Part 8.
The purpose of section 156 was summarised by Niall JA in Medical Board of Australia v Liang Joo Leow[15] in the following terms:
… The power to take immediate action is, as the Board correctly submitted, designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded. The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination. It is not an end in and of itself.[16]
and by the Victorian Civil and Administrative Tribunal (the Victorian Tribunal) in Sami v Medical Board of Australia[17] in the following terms:
In general terms … s 156 enables the Board to make quick decisions (‘immediate action’) to protect the public, and the public interest, pending further investigation by the Board/the bringing of disciplinary allegations against a health practitioner in the Tribunal.[18]
[15] [2019] VSC 532.
[16] At [78].
[17] [2021] VCAT 447.
[18] At [2].
In Kozanoglu v The Pharmacy Board of Australia[19] Weinberg, Harper JJA and Hargrave AJA said:
The IAC will generally be required to make quick decisions on the basis of limited information. When full information is later obtained, a belief which, on the limited information was reasonably based, may be shown to have been in error. Accordingly, the IAC and the board must always be conscious of the possibility of error. The consequences of that error may be serious. Two safeguards against such consequences should therefore be kept to the forefront. The first is the importance of a timely referral to a panel, or to VCAT. The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
It is arguable that neither of the two precepts mentioned above were fully observed in this case. Indeed, the real problem here lies in the fact that the board did not, immediately after the IAC finding, refer the appellant’s matter to a panel, or to VCAT as the responsible tribunal. Instead, it elected to await the completion of a police investigation. That investigation could well have been extremely protracted. In our opinion, there was no justification for the Board to have delayed referring this matter. Its failure to act in a timely fashion was unfairly prejudicial to the appellant and meant that he had little choice but to appeal against the immediate action decision. That in turn meant that he had to argue his case in a somewhat constrained manner, and did not confront the real issues of substance. It should be clearly understood that the entire scheme, under the National Law, contemplates that once it has been determined to take immediate action, the matter should ordinarily proceed, forthwith, to a panel or tribunal. The entire legislative scheme breaks down if there is a lengthy delay between an IAC decision and a complete hearing on the merits.[20]
[19] [2012] VSCA 295, (2012) 36 VR 656.
[20] At [126]-[127]. (Footnote omitted)

The Tribunal made no reference to Dr Shah’s submission that the Tribunal could not rely on the file note of her discussion with Ms Smith given Ms Murphy’s editing of her 18 February 2021 file note of her conversation with Detective Thompson. Before the Tribunal could rely on Ms Murphy’s file note of her discussion with Ms Pierce, it was necessary for it first to consider the impact of Ms Murphy’s editing of the earlier file note upon her reliability. It failed to do so.
The editing by Ms Murphy of her file note of her conversation with Detective Thompson is described at [58] to [62] above. That editing was a very serious matter that impacted directly on the reliability of Ms Murphy’s evidence. She must have known that the Board would rely on her file note in making a decision whether to take immediate action. She should have known that the Board would expect her to provide to it a balanced account of her conversation with Detective Thompson and not to edit out matters that weighed against the taking of immediate action or weighed in favour of Dr Shah.
Detective Thompson’s statements to Ms Murphy, as outlined in the original 18 February 2021 file note, that the complainant’s “credibility as a victim is not reliable”, that the complainant had been detained previously under the Mental Health Act 2009 (SA) and that the complainant had a criminal history including assault police were clearly matters that weighed in favour of Dr Shah. The position is exacerbated by the fact that no explanation was proffered to the Tribunal for the editing.
The conduct by Ms Murphy in editing the file note demonstrated that her “evidence” of her discussions with external parties in the course of the investigation could not be relied upon. This applied to her discussion with Ms Smith as much as to her discussion with other external parties. The Tribunal could have no confidence that Ms Murphy’s file note of her discussion with Ms Smith was a comprehensive, balanced or accurate note of the discussion.
The position is exacerbated by the fact that Ms Smith herself did not witness any of the impugned conduct of Dr Shah. Her “evidence” was itself hearsay evidence. It is not even apparent from the file note whether the person who informed Ms Smith of the conduct themselves was conveying hearsay statements by others. The “evidence” by Ms Murphy was not first hand hearsay evidence and it may not even have been second hand hearsay evidence.
Although evidence was not inadmissible in the Tribunal merely because it was hearsay (the Tribunal not being bound by the rules of evidence), it is common knowledge that hearsay evidence, particularly second or third hand hearsay evidence, is less reliable than direct evidence.
Ms Smith did have direct knowledge of her discussion with Dr Shah. However, that discussion was of no value to the Tribunal in isolation. It depended on having a reliable account of Dr Shah’s conduct that led to the discussion. In addition, the mere statement that Dr Shah apologised did not in itself convey that he had acted wrongly or that he accepted that he acted wrongly. Many people apologise for their conduct without accepting that it was wrong. One would need to know what was actually said between Dr Shah and Ms Pierce. This was not addressed in Ms Murphy’s file note. In any event, and more importantly, the Tribunal could not rely on Ms Murphy having comprehensively and accurately recorded what Ms Smith said about her conversation with Dr Shah.
The Tribunal erred in placing any weight on Ms Murphy’s file note of her conversation with Ms Pierce. This ground of appeal is established. This error vitiates the Tribunal’s conclusion that suspension was required.
Even if the Tribunal’s decision were properly characterised as discretionary, its decision would be vitiated. The Tribunal made process errors by mistaking the facts and allowing extraneous or irrelevant matters to affect it within the meaning of the House v The King principles. It made an outcome error because the result on the facts was unreasonable.
Findings that suspension required for public safety and public interest
Grounds 4 and 5 were argued together by both Dr Shah and the Board.
These grounds, as contained in the notice of appeal, are that the Tribunal, in finding that no action other than suspension of Dr Shah’s registration could adequately address the risk he posed and that conditions on his practice could not adequately address the risk or satisfy the public interest, erred by:
(a)failing to give effect to the principle that immediate action should only be taken where necessary;[84] and
(b)failing to properly balance public interest considerations including fairness, proportionality, the requirement for area of need professionals to be able to practise, and public understanding of the difference between allegations and proven guilt.[85]
[84] Ground 5.
[85] Ground 4.
The Tribunal in its reasons integrated addressing the public safety limb with addressing the public interest limb. It addressed both limbs in an integrated manner in paragraphs 137 and 139 reproduced at [131] above.
Likewise on appeal the parties integrated addressing both limbs when addressing grounds 4 and 5.
However, it is preferable that each limb be considered separately. Each limb gives rise to different considerations. The public interest limb under section 156(1)(e) only arises if the public safety limb under section 156(1)(a) does not justify immediate action or immediate action of a specific type.
The Board in its decision, insofar as it was communicated by AHPRA’s letter dated 20 April 2021, addressed each limb separately under its own heading. The Victorian Tribunal in Sami v Medical Board of Australia[86] did the same (see [178], [182] and [188] above).
[86] [2021] VCAT 447.
Accordingly, I address the public safety limb first. I then address the public interest limb.
Public safety findings
In broad terms, Dr Shah makes four contentions under these grounds of appeal.
First, Dr Shah contends that the Tribunal failed to identify the risk, arising out of his conduct, posed by him and to whom he posed that risk.
Secondly, Dr Shah contends that the errors made by the Tribunal the subject of the earlier grounds had a consequential effect on the Tribunal’s consideration of whether immediate action in the form of suspension was required.
Thirdly, Dr Shah contends that the Tribunal erred by failing to take into account several matters that it was required to take into account.
Fourthly, Dr Shah contends that, on the evidence adduced, it was not open to the Tribunal to conclude that suspension was required.
Identification of risk of what to whom
There is a degree of overlap, or interrelationship, between this contention advanced under grounds 4 and 5 and the specific contentions under ground 2 relating to risks in respect of patient consent and risks to fellow general practitioners.
In relation to the need to identify the subject matter of the risk and persons at risk as a result of the practitioner’s conduct, in Sami v Medical Board of Australia[87] the Victorian Tribunal said:
[I]n determining whether it holds a reasonable belief that — because of the practitioner’s conduct, performance or health — the practitioner poses a serious risk to persons, the Board (and the Tribunal on review) should consider these questions:
1 what serious risk does the practitioner pose (in short: “serious risk of what”)?; and
2to whom does the practitioner pose that serious risk (in short: “serious risk to whom”)?[88]
[87] [2021] VCAT 447.
[88] At [30].
Considering these two questions is an essential prerequisite to evaluating whether the risk posed by the practitioner is a “serious risk” and in turn whether the risk posed to public health or safety requires immediate action and, if so, what immediate action.
The Tribunal in the present case did not identify the risk that Dr Shah posed, that is the risk of what. Although the Tribunal identified the persons the subject of the risk effectively as all persons with whom he may deal in the course of his practice (patients, colleagues and members of staff), it failed to differentiate between different categories of persons in relation to the risks.
The Tribunal addressed future risk at paragraphs 137 to 139 of its statement of reasons. It used generic terms:
·“the applicant poses a serious risk to persons” (paragraph 137);
·“we have no confidence in his behaviour towards patients, colleagues, or members of staff” (paragraph 138);
·“we have insufficient confidence in his ability to understand what is appropriate” (paragraph 138);
·“we have insufficient confidence in his ability to “read” the behaviour of other persons and regulate his behaviour accordingly” (paragraph 138);
·“the applicant’s interactions with females” (paragraph 138);
·“we do not think it appropriate that any female staff member or colleague should be asked to work with the applicant” (paragraph 139).
The Tribunal described in detail Dr Shah’s alleged conduct in respect of the complainant but did not identify the risk posed to other persons in future arising out of that alleged conduct.
If the Tribunal’s approach and reasons had been different, it might have been possible to infer that the risk was confined to sexual harassment. However, not only did the Tribunal choose to use generic language rather than confining itself to sexual harassment, but it also referred to risks that patients would be subjected to treatment to which they were not consenting.
What the Tribunal failed to do can be illustrated by what it should have done. It should have identified that Dr Shah’s alleged conduct (if established and taken at its worst) was in the nature of cultivating a friendship with the complainant over several months to which she reciprocated to a degree; in the course and context of that friendship making sexual and romantic advances towards her which she discouraged but due to which she did not terminate the friendship; and culminating in his committing sexual assaults against her. The complainant was vulnerable both in tolerating (or suffering) continuance of the friendship, in her position at work, and in her own personality.
Taken at its worst, Dr Shah’s conduct can be characterised as sexual harassment of a vulnerable person over a prolonged period, culminating in sexual assault. His alleged conduct was very different to a non-contextual, one off sexual assault such as in some of the other cases referred to above.
On her own evidence, the complainant voluntarily engaged in social interaction with Dr Shah over and above their professional relationship in the context of the practice. She visited him in his house and acquiesced in him visiting her in her house. She accepted gifts from him. She exchanged text messages with him. There was some form of relationship between them which, on the complainant’s evidence, might be characterised as a friendship or a social relationship.
On the complainant’s own evidence, there were occasions when she tolerated (or suffered) Dr Shah’s conduct and interest in her without clearly communicating to him that she was not interested.
Of course, these aspects in no way excuse sexual harassment of or sexual offences committed against the complainant (if they occurred), but it is a completely different context to committing a non-contextual sexual assault on a patient or staff member with whom Dr Shah had not cultivated such a relationship.
Dr Shah’s alleged conduct, if it occurred, entailed that there was a significant risk that, in the absence of immediate action, Dr Shah would attempt to cultivate such a relationship with, and engage in sexual harassment (encompassing sexual assault) of, females who were vulnerable with whom he may deal in the course of his practice in a medical practice in which he was engaged. That is, the class of persons at risk comprised female members of staff or female patients who were vulnerable to cultivation of some form of relationship and to sexual harassment. The subject of the risk was sexual harassment. The risk was serious.
For the reasons given above, there was no basis in Dr Shah’s conduct or otherwise to form a reasonable belief that there was a serious risk of sexual or other harassment by Dr Shah of fellow doctors or a serious risk of harm to patients in connection with medical treatment administered by Dr Shah. Nor was there any basis to form a reasonable belief that there was a serious risk of Dr Shah committing a non-contextual sexual assault of a staff member or patient outside the context of his first cultivating some form of relationship with the staff member or patient.
What the Tribunal ought to have done, and what it was required to do, was to consider whether, if appropriate conditions were imposed, Dr Shah would pose a serious risk of sexual harassment of staff members or patients. I address that question below, but the failure of the Tribunal to identify the risk posed or to differentiate between the persons in respect of whom that risk was posed vitiates the Tribunal’s conclusions.
Even if the Tribunal’s decision were properly characterised as discretionary, its decision would be vitiated. The Tribunal made process errors by acting upon a wrong principle within the meaning of the House v The King principles. It made an outcome error insofar as it found that Dr Shah’s conduct posed a serious risk other than a risk of sexual harassment of female patients or staff members because the result on the facts was unreasonable.
Matters not taken into account
Dr Shah contends that the Tribunal failed to take into account his good record, as attested by the various references produced by him, or the fact that he had no prior convictions and no prior complaints of misconduct.
The only reference made by the Tribunal in its statement of reasons to any of the references in respect of Dr Shah summarised at [14] to [21] above was at paragraph 124 of its statement of reasons, where it recorded merely that there are references suggesting that Dr Shah is of good character.
These references went beyond references to Dr Shah’s character and were highly relevant to the Tribunal’s consideration later in its reasons whether suspension was required. Many of them referred to the very good relationship that Dr Shah had with patients and staff. They demonstrated that, over 25 years of practice, not only had there been no previous concerns expressed in relation to Dr Shah’s interactions with patients or staff but also those interactions were universally described as positive. This was a factor that mitigated future risk and the Tribunal was required to take it into account in its assessment of risk but failed to do so.
Dr Shah contends that the Tribunal failed to take into account the fact that four practices were willing to engage him subject to conditions in the knowledge of the allegations.
The Tribunal’s summary of the evidence in the earlier section of its reasons made reference to letters from the Metropolitan, the Yorke Peninsula and Iron Triangle practices confirming offers of employment to Dr Shah and ability to accommodate conditions. However, under the heading Consideration, the Tribunal made no reference to these letters.
The Tribunal made no reference to the fact that four separate medical practices in South Australia were willing to engage Dr Shah as a general practitioner in the knowledge of the allegations that had been made. Those practices owed clear duties of care to all persons working in their practice and to their patients to protect them against risk. The fact that they were willing to engage Dr Shah had probative value in assessing whether patients or staff would be at serious risk if Dr Shah were permitted to practice subject to conditions. The Tribunal was required to take this into account but failed to do so.
The Tribunal failed to take into account each of the above matters that it was required to take into account and this vitiates its decision.
Even if the Tribunal’s decision were properly characterised as discretionary, the Tribunal made process errors in that it failed to take into account material considerations within the meaning of the House v The King principles.
Remaining matters
I have concluded above that the Tribunal erred by failing to identify (other than in generic terms) the nature of the risk posed by Dr Shah or to differentiate between the persons in respect of whom that risk was posed. I have also concluded that the Tribunal erred by concluding that Dr Shah posed a risk to fellow general practitioners and a risk to patients in respect of consent to the medical treatment.
These errors have a direct consequential effect upon the evaluation by the Tribunal whether suspension was required to protect public safety.
The assessment of risk that the Tribunal was called on to undertake could only be undertaken after the Tribunal had identified conditions that might be imposed. This is because it was necessary for the Tribunal to consider whether the imposition of conditions would adequately protect public safety.
Dr Shah had himself identified various topics that might be the subject of conditions (and some proposed wordings of conditions). In that respect, the Tribunal (like the Board before it) was not confined to the conditions (or the topics of the conditions) suggested by Dr Shah, but was obliged to give its own consideration to conditions that might be imposed that would adequately protect public safety before determining that their imposition would not adequately protect public safety.
The Tribunal’s consideration of the potential adequacy of conditions was confined to paragraph 139 of its statement of reasons, which is reproduced at [131] above. The Tribunal’s reasons for concluding that the imposition of conditions would not adequately protect public safety were limited to the following:
1gender-based restrictions and chaperone arrangements apply only to patients and do not address the risk to staff members or colleagues;
2supervision is of limited effectiveness in the context of a busy medical practice: it is not feasible that a practitioner’s conduct be observed at all times.
The first half of the first statement suggests on its face that the Tribunal accepted that conditions involving gender-based restrictions or chaperone arrangements in respect of patients would be adequate to protect patients against serious risk. Insofar as the serious risk comprised a risk of sexual harassment of patients, this was in any event inevitable because, given that Dr Shah did not pose a risk of sexual harassment to male patients, a gender-based restriction limiting him to treating only male patients or a chaperone arrangement requiring a chaperone in the presence of female patients would eliminate any risk of sexual harassment of patients.
The Tribunal said at paragraph 138 of its reasons that the evidence, if accepted, potentially gave rise to broader issues such as Dr Shah’s ability to ensure that any patient was consenting to treatment. The Tribunal did not address the question whether the risk in respect of patient consent was a “serious” risk within the meaning of section 156(1)(a). In any event, I have concluded above that there was no basis for any finding that Dr Shah posed a risk, or a serious risk, to patients in respect of consent to treatment.
The second half of the first reason addressed the risk to staff members or colleagues. It was in effect that the conditions proposed by Dr Shah relating to gender-based restrictions or chaperone arrangements did not apply to staff members or colleagues. Insofar as it referred to colleagues, I have concluded above that there was no basis for any finding that Dr Shah posed a risk, or a serious risk, to colleagues in the sense of fellow general practitioners.
In respect of staff members, the Tribunal addressed the adequacy of conditions to protect staff members against risk in the second statement, namely in effect that it was not practical to supervise Dr Shah continuously. The Tribunal made no reference to the condition suggested by Dr Shah that he must engage respectfully with female staff in accordance with the Code of Conduct (which included a requirement not to engage in sexual harassment). Nor did the Tribunal refer to any other potential conditions that might mitigate the risk of sexual harassment by Dr Shah of female staff members.

Conditions could easily be formulated to protect female staff members (or colleagues, if thought necessary) against sexual harassment by Dr Shah. For example, a condition could be formulated preventing him from having any social interaction with any female staff member other than in prescribed circumstances (such as the presence of a third party). A condition could be formulated preventing him from seeking or obtaining the phone number, address or other personal details of a female staff member. A condition could be formulated preventing him from communicating or interacting with a female staff member other than in the course and for the purposes of his professional practice other than in prescribed circumstances. The Tribunal simply gave no consideration to the potential formulation of any such conditions.
It necessarily follows that the Tribunal gave no consideration to the efficacy of such conditions. If it had done so, it would necessarily have concluded that imposition of such conditions would be very likely to be efficacious.
First, a system of regular feedback being sought by the appointed supervisor from staff members (of the type proposed in the conditions suggested by Dr Shah) would ensure that, if Dr Shah breached the conditions, not only would they be reported and his registration would likely be suspended, but he would know this in advance.
Secondly, in any event, regardless of the system of regular feedback, Dr Shah would know that his continuing entitlement to practice (subject to the conditions and pending the determination of the substantive disciplinary proceeding in the Tribunal) was dependent on his compliance with the conditions. The deterrent effect recognised by the Queensland Court of Appeal in Health Ombudsman v Harirchian[89] in the passage reproduced at [183] above and the Victorian Tribunal in Sami v Medical Board of Australia[90] in the passage reproduced at [182] above is self-evident and applicable in the present case.
[89] [2021] QCA 141.
[90] [2021] VCAT 447.
The Tribunal expressed a lack of confidence in the ability of Dr Shah to judge whether another person was consenting to his conduct. That conclusion was vitiated for the reasons given above. In any event, the Tribunal did not say that it considered that Dr Shah would have any difficulty in understanding conditions that might be imposed on his registration.
There was in any event no basis in the evidence to doubt Dr Shah’s ability to understand conditions that might be imposed on him in respect of interactions with staff members. On the contrary, the fact that he has practised as a doctor for 25 years without apparently attracting any complaints, and the positive references provided in respect of his practice, demonstrate that he has more than adequate ability to understand conditions and the consequences of his breaching them.
The failure of the Tribunal to consider potential conditions that might be imposed and their efficacy in mitigating the risks to female staff members vitiates its conclusion. In addition, the Tribunal’s conclusion that the imposition of appropriate conditions would not adequately protect female staff members and public safety was wrong on the evidence before it. There was no reasonable basis for a belief that, on the imposition of appropriate conditions, Dr Shah’s conduct gives rise to a serious risk to persons or that suspension is required to protect public safety. These errors, and the other errors identified in this section, vitiate the Tribunal’s conclusion.
Even if the Tribunal’s decision were properly characterised as discretionary, the Tribunal’s decision would be vitiated. The Tribunal made process errors by acting upon a wrong principle, failing to take into account material considerations and allowing extraneous or irrelevant matters to guide or affect it within the meaning of the House v The King principles. It made an outcome error insofar as it found that the imposition of appropriate conditions would not adequately protect female staff members and public safety because the result on the facts was unreasonable.
Conclusion
For the reasons given above, grounds 4 and 5 are established insofar as they relate to the public safety limb under subsection 156(1)(a).
Public interest findings
I here address the public interest limb under section 156(1)(e), dealing with both grounds 4 and 5 insofar as they deal with that limb.
In broad terms, Dr Shah makes three contentions under these two grounds of appeal.
First, Dr Shah contends that the errors made by the Tribunal the subject of the earlier grounds had a consequential effect on the Tribunal’s consideration of whether immediate action in the form of suspension was required.
Secondly, Dr Shah contends that the Tribunal erred by failing to take into account several matters that it was required to take into account.
Thirdly, Dr Shah contends that, on the evidence adduced, it was not open to the Tribunal to conclude that suspension was required.
The Tribunal’s reasons for concluding that the public interest limb required suspension of Dr Shah’s registration and not merely the imposition of conditions were, as observed above, very brief and were integrated with its reasons in respect of the public safety limb.
The Tribunal’s reasons comprised the following sentences from paragraphs 137 and 139 of its statement of reasons:
137…We also consider that such action is necessary in the public interest. The applicant should not be held out to the public as a person who can be trusted with the responsibilities of a medical practitioner, whilst these allegations remain unresolved.
139…We do not consider it appropriate that the applicant be held out in any way or to any extent as fit to practice.
The sentence in paragraph 139 is essentially a repeat of the second sentence in paragraph 137. The reason given by the Tribunal under the public interest limb was therefore that Dr Shah should not be held out to the public as a person who can be trusted with responsibilities of a practitioner or who is fit to practice as a practitioner until the allegations have been heard and determined.
Matters not taken into account
When it comes to the public interest limb, as observed at [184] above, it is necessary to take into account not only any public interest considerations pointing towards a requirement for suspension but also any public interest considerations pointing against such a requirement.
Dr Shah contends that there were several factors identified by him in his submissions to the Tribunal that the Tribunal failed to take to account.
First, Dr Shah placed evidence before the Tribunal that, under the conditions of his visa, he was prevented from working and that his visa was liable to cancellation in the discretion of the Minister if he was unable to work as a doctor for the period stipulated in his visa conditions.
The Tribunal made no reference to that evidence or to this prejudice that would result from suspension. It is true that the Tribunal said that “Suspension is a drastic step with extremely serious effects for the practitioner”, which is true of any suspension of a medical practitioner. However, the Tribunal did not take into account the particular prejudice that would be suffered by Dr Shah. The Tribunal was required to take this into account.
Secondly, Dr Shah submitted to the Tribunal that the Yorke Peninsula and Iron Triangle practices were “areas of need” practices in terms of attracting doctors and there was a public interest in doctors working in areas of need, as recognised by the Victorian Tribunal in Farshchi v Medical Board of Australia[91] in the passage reproduced at [186] above. There is also a public interest in practitioners, in whom training and expenditure has been made, being able to practice as also recognised in that case. The Tribunal made no reference to these public interests and failed to take them into account.
[91] [2018] VCAT 1618.
Thirdly, as recognised in Farshchi v Medical Board of Australia, there is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly. The Tribunal made no reference to proportionality and failed to take it into account.
Fourthly, there is a very large difference in the public perception of a practitioner being permitted to practice while the subject of criminal proceedings for a serious criminal offence compared to the public perception of a practitioner being permitted to practice while the subject of an investigation by the Board when there have been no disciplinary proceedings instituted. This distinction, and the necessity to take it into account, was recognised by the Victorian Tribunal in Sami v Medical Board of Australia[92] in the passage reproduced at [188] above. The Tribunal failed to take this into account.
[92] [2021] VCAT 447.
Fifthly, the Tribunal made no reference in its consideration of the public interest to the fact that Dr Shah had practised as a doctor for 25 years without having attracted any complaints, having attracted very favourable references in respect of his dealings with fellow practitioners and staff members, and without having been convicted of any criminal offence. This is a matter that the public would necessarily take into account in its confidence in the medical profession and the regulation of practitioners. The Tribunal made no reference to this factor in its consideration of the public interest and failed to take it into account.
The Tribunal failed to take into account several matters that it was required to take into account and this vitiates its decision.
Even if the Tribunal’s decision were properly characterised as discretionary, the Tribunal made process errors in that it failed to take into account material considerations within the meaning of the House v The King principles.
Remaining matters
The Tribunal concluded that Dr Shah should not be held out to the public as a person who can be trusted with responsibilities of a practitioner or who is fit to practice as a practitioner until the allegations have been heard and determined.
Consideration of suspension being required under the public interest limb only arises if it has first been concluded that suspension is not required under the public safety limb. Further, I have concluded above that there was no reasonable basis for a belief that suspension was required to protect public safety.
Although the Tribunal in the passage at paragraph 137 of its statement of reasons identified the undesirability of Dr Shah being held out as a practitioner under the public interest limb, it is not clear that it was not conflating consideration of the public interest limb with the public safety limb. Assuming that it was referring only to the public interest limb, for the reasons given above, there was no basis for any public interest concern about Dr Shah’s abilities to practice as a medical practitioner. The only public interest concern was about the public perception of the risk of his sexually harassing female staff members or patients if permitted to practice.
The public would take into account conditions imposed to mitigate the risk of sexual harassment. It would take into account that the sexual assault charges had been withdrawn by the Police. It would take into account that Dr Shah denied the conduct. It would take into account that the Board was only investigating the conduct and, when the Tribunal delivered its statement of reasons, had been investigating that conduct for more than 15 months without having instituted a substantive disciplinary proceeding. The public would take into account the public interests referred to above in Dr Shah being permitted to practice.
In the circumstances, public confidence in the medical profession and its regulation would not be adversely affected in the event that the immediate action taken comprised the imposition of appropriate conditions and did not extend to suspending Dr Shah’s registration.
The Tribunal’s conclusion that the public interest required the suspension of Dr Shah’s registration, as opposed to the imposition of appropriate conditions, was wrong on the evidence before it. There was no reasonable basis for a belief that, on the imposition of appropriate conditions, that suspension was required in the public interest. These errors, and the other errors identified, vitiate the Tribunal’s conclusion.
Even if the Tribunal’s decision were properly characterised as discretionary, its decision would be vitiated. The Tribunal made process errors by acting upon a wrong principle, failing to take into account material considerations and allowing extraneous or irrelevant matters to guide or affect it within the meaning of the House v The King principles. It made an outcome error insofar as it found that there was a reasonable basis for a belief that suspension was required in the public interest because the result on the facts was unreasonable.
Conclusion
For the reasons given above, grounds 4 and 5 are established insofar as they relate to the public interest limb under subsection 156(1)(e).
Leave to appeal
The first criterion for leave to appeal is that the appeal is reasonably arguable. That criterion is plainly satisfied for the reasons given above.
The second criterion is, relevantly, that the refusal of leave will result in substantial prejudice to the appellant if the decision below is wrong. If leave to appeal is refused, Dr Shah will remain subject to suspension of his registration until the hearing and determination of the substantive disciplinary proceeding. That will be at a minimum several months. In the meantime, Dr Shah will continue to be prevented from working as a doctor or otherwise earning an income and will be subject to revocation of his visa. This amounts to severe prejudice.
Leave to appeal should be granted.
Redetermination
The decision of the Tribunal is vitiated by the various errors that I have concluded that it made.
It is appropriate, and necessary to avoid further delay, that I determine the review against the decision of the Board rather than returning the matter for reconsideration by a differently constituted Tribunal.
There have been two changes since the Tribunal delivered its statement of reasons in May 2022. First, the offers of engagement by the Iron Triangle, the York Peninsula and the Outer Metropolitan practices remain open but the offer by the Metropolitan practice is no longer open. This is not a material change given that there are still three practices ready, willing and able to engage Dr Shah subject to conditions.
Secondly, the Board has now instituted a substantive disciplinary proceeding in the Tribunal. I take that into account in relation to my consideration of both the public safety limb and the public interest limb. I observe that no information was provided by the Board as to the likely progress of that proceeding. Dr Shah’s solicitor estimated that it would take between 6 and 18 months, to be heard and determined. Depending on the result, there is a prospect of an appeal.
For the reasons given above and taking into account the above developments since the Tribunal’s decision (particularly the fact that a disciplinary proceeding has now been instituted), applying section 156(1)(a), the imposition of appropriate conditions will adequately protect persons working in a medical practice in which Dr Shah is engaged. It is not necessary, and there are no reasonable grounds to believe that it is necessary, to protect public health and safety that Dr Shah’s registration as a practitioner be suspended. It was agreed that, if I reached this conclusion, the parties would be heard as to the appropriate conditions to be imposed.
For the reasons given above and taking into account the above developments since the Tribunal’s decision, applying section 156(1)(e), it is not in the public interest that Dr Shah’s registration as a practitioner be suspended. The imposition of appropriate conditions is sufficient in the public interest. There are no reasonable grounds to believe that suspension is necessary in the public interest. Again, I will hear the parties as to the appropriate conditions that should be imposed.
Conclusion
I propose to make the following orders:
1      Leave to appeal granted.
2      Appeal allowed.
3Vary the decision of the Tribunal by substituting the following order for the order confirming the decision of the Board:
(a)    allow the appeal against the decision of the Board;
(b)    set aside the suspension of Dr Shah’s registration;
(c)    order that conditions be imposed on Dr Shah’s registration.
I will hear the parties on the conditions that should be imposed on Dr Shah’s registration and any other orders to be made.