SOUTORINE and THE MEDICAL BOARD OF AUSTRALIA - [2020] WASAT 5

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   SOUTORINE and THE MEDICAL BOARD OF AUSTRALIA [2020] WASAT 5
MEMBER:   JUSTICE P A TOTTLE (SUPPLEMENTARY PRESIDENT)
HEARD:   13 AND 20 DECEMBER 2019
DELIVERED          :   20 DECEMBER 2019
PUBLISHED           :   8 JANUARY 2020
FILE NO/S:   VR 161 of 2019
BETWEEN:   MIKHAIL SOUTORINE
Applicant
AND
THE MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Vocational regulation - Medical practitioner - Where medical practitioner suspended by immediate action decision of board - Where practitioner applies for interim stay of immediate action - Principles relevant to application for interim stay - Whether circumstances satisfy Tribunal that stay should be granted - Turns on own facts

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010, s 155, s 156, s 157, s 160(1), s 199(1)(h)
State Administrative Tribunal Act 2004 (WA), s 25(2), s 25(4)

Result:

Application for interim stay granted

Summary of Tribunal's decision:

On 7 November 2019 the applicant's registration as a medical practitioner was suspended by resolution of the Medical Board of Australia (the Board), pursuant to s 156 of the Health Practitioner Regulation National Law (WA) Act 2010.
On 19 November 2019 the Tribunal received an application for an order setting aside the Board's decision. On 5 December 2019 the applicant filed an amended interim application for a stay of the Board's decision pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) pending the outcome of the primary application.
The Tribunal heard the interim application for a stay at a hearing on 13 and 20 December 2019. At the hearing on 20 December 2019 the Tribunal concluded that it was desirable to make an order staying the operation of the Board's decision to suspend the applicant's registration as a medical practitioner. The stay is to take effect 14 days from the date on which the applicant files an undertaking in the form attached to the stay order, which has the effect of prohibiting the applicant from undertaking surgery and enabling the Board to monitor the applicant's practice closely.

Category: B

Representation:

Counsel:

Applicant	:	Mr J D MacLaurin SC & Mr R A Blow
Respondent	:	Ms F Stanton & Ms J M McKenzie

Solicitors:

Applicant	:	Cove Legal
Respondent	:	Minter Ellison

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

Bernadt v Medical Board of Australia [2013] WASCA 259
Cuddles Group Pty Ltd and Director General, Department for Community Development [2006] WASAT 114
D'Ambrosia and Demarte [2014] WASAT 89
Fero Group Pty Ltd and City of Nedlands [2018] WASAT 78
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
Harvey and Dekoning [2011] WASAT 209
Liu v Chinese Medical Council of NSW [2019] NSWCATOD 13
Medical Board of Australia v Naim [2013] VCAT 1006
PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57
Phoenix Timber Products t/as Vintage Hardwoods and Skinner [2005] WASAT 315
Piesse v Medical Board of Australia [2017] VCAT 1615

REASONS FOR DECISION OF THE TRIBUNAL:

Background

By letter dated 7 November 2019 the Australian Health Practitioner Regulation Agency (AHPRA) on behalf of the Medical Board of Australia (the Board) gave notice to a medical practitioner, Dr Mikhail Soutorine, that the Board had resolved to take immediate action under s 156 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) by suspending Dr Soutorine's registration as a medical practitioner.
Relevantly, s 156 of the National Law confers power on the Board to take immediate action in relation to a registered medical practitioner if it 'reasonably believes' that because of the medical practitioner's 'conduct, performance or health, the practitioner poses a serious risk to persons' and it is necessary to take immediate action to protect public health or safety. 'Immediate action' is defined by s 155 of the National Law and includes, among other forms of action, suspending a practitioner's registration, and accepting an undertaking from a medical practitioner.
By an application filed on 19 November 2019 Dr Soutorine applied to this Tribunal pursuant to s 199(1)(h) of the National Law for an order setting aside the Board's immediate action decision and by an (amended) interim application filed on 5 December 2019 Dr Soutorine applied for a stay of the immediate action decision pursuant to s 25(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The immediate action decision was preceded by a letter dated 1 November 2019 (the show cause letter) from AHPRA informing Dr Soutorine of the Board's proposed immediate action and inviting him to make a submission to it about the proposal.[1] In the show cause letter AHPRA referred to three notifications it received concerning surgical procedures undertaken by Dr Soutorine on two patients in July and August 2019 respectively. The patients lived in Western Australia. Dr Soutorine had travelled from his home State of Victoria to undertake the procedures in clinics in Western Australia. Each patient submitted a notification to AHPRA and the third notification was made by a specialist plastic surgeon who had been consulted by one of the patients for a second opinion following the onset of complications.
[1] The notice was given pursuant to s 157 of the National Law which sets out a 'show cause process' that must be complied with before the Board can take immediate action.
In the case of one patient the procedure was an abdominoplasty and in the case of the other, the procedures were an abdominoplasty and liposuction. In each case the patients experienced complications.
Based on the information provided, the Board considered that there were objective circumstances supporting a reasonable belief that Dr Soutorine's performance of cosmetic surgical procedures on the two patients was deficient with respect to the following matters:
a.appropriate counselling of potential and actual risk and outcome of the procedures performed;
b.the premises on which the procedure was performed;
c.the duration and timing of the procedure;
d.pre, intra and post surgery management;
e.surgical outcome, as both patients suffered complications and/or un-aesthetic outcomes and adverse outcomes as a result.
A matter of particular concern to the Board was that Dr Soutorine appeared to the Board to be administering sedation and/or analgesia in breach of guidelines published by the Australian and New Zealand College of Anaesthetists (ANZCA) on sedation and/or analgesia.[2]
[2] PS55: ANZCA Recommendations on Minimum Facilities for Safe Administration of Anaesthesia in Operating Suites and Other Anaesthetising Locations (2012).
The show cause letter also gave Dr Soutorine notice that the Board intended to commence an investigation under s 160(1) of the National Law into the matters that were the subject of the notifications.
Dr Soutorine had corresponded with AHPRA prior to receiving the show cause letter and in that correspondence he had set out his response to the concerns about his performance that were contained in the notifications.
Dr Soutorine responded to the show cause letter of 1 November 2019 in detail setting out once again his account of his management of the two patients. He vehemently denied any lack of competence and any breach of the ANZCA Guidelines. In his response Dr Soutorine emphasised his contention that the notifications were based on factual allegations that were demonstrably false when regard was had to the clinical records.
As is apparent from its decision to take immediate action, the Board was not satisfied with Dr Soutorine's response to the show cause letter. In its letter of 7 November 2019 the Board recorded that it continued to consider Dr Soutorine's practice as a medical practitioner posed a serious risk to persons and continued to hold a reasonable belief that suspending Dr Soutorine's registration was necessary to protect public health or safety. The Board expressed its reasons for coming to this decision in the following terms:
a.The notifications raise serious concerns about your performance deficiencies in your practice.
b.Your submission to AHPRA in relation to Notification 00422377, lacks any concern and insight into the nature, extent and seriousness of your performance deficiencies. You appear to have limited insight into any performance deficiencies and/or accountability to the complications suffered by the patient, stating that non-compliance of post-operative orders were a direct cause of any complications experienced. In your submission to the proposed immediate action, you continue to have the opinion that both patients were sufficiently counselled as to pre and post-operative orders and the importance of compliance and that their non-compliance resulting in dehiscence was self-inflicted.
c.Your registration is unrestricted and you appear to undertake cosmetic surgical procedures in a facility [clinic name], where there is limited oversight of your surgical technique or supervision. Further, it is noted that you practice as an independent practitioner at [clinic name], [clinic name], [clinic name], [clinic name], and [clinic name]. Given your limited insight into the performance deficiencies and lack of accountability, there is a real and tangible risk of these deficiencies recurring.
d.In the light of the above, the level of risk associated with your performance is sufficiently serious and imminent that the Board considered that it should not await the outcome of any substantive regulatory processes and that it is necessary to take immediate action now in order to protect public health or safety. The Board continued to consider that, suspension is the minimum regulatory force appropriate to mitigate the identified serious risk being posed by you as a result of your performance.
e.The Board noted that on 6 November 2019, you provided a written undertaking not to perform abdominoplasty procedures until the completion of the investigation, however considered that the undertaking was not sufficient in mitigating the serious risk posed by you as a result of your performance, as it contained to one type of cosmetic surgical procedure and the identified serious risk is across your practice as a whole. The Board considered that any lesser forms of action, such as limitations on your practice would not be sufficient to mitigate the identified serious risk because:
i.The identified performance deficiencies are significant and fundamental to the provision of surgical treatment, including your clinical decision making, judgement and management of patients; and
ii.Such conditions would not address or identify areas of concern contemporaneously with practice.

The power to stay the immediate action decision

There was no dispute about the Tribunal's jurisdiction to review the immediate action decision and it is unnecessary to refer in detail to the statutory provisions by which the present application comes before the Tribunal (s 199(1)(h), s 202(1) read with s 11 of the National Law and s 17, s 18 and s 27 of the SAT Act).
Nor was the existence of the Tribunal's power to stay the Board's decision in dispute. It is conferred by s 25(2) of the SAT Act that provides:
(2)The Tribunal, on the application of a party or on its own initiative, may make an order staying the operation of a decision that is the subject of a proceeding for review.
There was, however, a dispute between the parties about the principles applicable to the determination of an application for a stay. The dispute centred on the extent to which the principles applicable to stay applications in civil litigation are relevant to an application for a stay order sought under s 25(2) of the SAT Act.
Section 25(4) of the SAT Act provides:
(4)The Tribunal may make an order under subsection (2) only if it considers that it is desirable to do so after taking into account -
(a)the interests of any person whose interests may be affected by the order; and
(b)any submission made by or on behalf of the decision-maker; and
(c)the public interest.
In its submissions the Board made no reference to s 25(4) of the SAT Act but submitted that the principles applicable to an application for a stay pending appeal, recently restated in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd,[3] applied to an application for a stay pending the outcome of review proceedings.
[3] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [47] (Quinlan CJ & Vaughan JA).
The Board also relied upon a decision of the Victorian Civil and Administrative Tribunal - Medical Board of Australia v Naim. [4] This decision concerned an application for a stay, pending appeal, of orders made by the Tribunal following an adverse disciplinary finding. The application was made under s 149 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act) which provided that the Tribunal might stay the operation of any order made by it pending the determination of an appeal. Section 149 of the VCAT Act does not specify the matters to be taken into account in exercising the discretion to grant a stay.
[4] Medical Board of Australia v Naim [2013] VCAT 1006.
On Dr Soutorine's behalf it was contended that the principles discussed in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd were not apt to apply to a stay application made under s 25(2) of the SAT Act. Dr Soutorine's counsel also placed reliance on decisions on stay applications made in other jurisdictions: Piesse v Medical Board of Australia[5] and Liu v Chinese Medical Council of NSW[6] and certain other decisions of the New South Wales Civil and Administrative Tribunal - Occupational Division.
[5] Piesse v Medical Board of Australia [2017] VCAT 1615.
[6] Liu v Chinese Medical Council of NSW [2019] NSWCATOD 13.
Piesse v Medical Board of Australia concerned an application for a stay of a decision to take immediate action. The application for a stay was made under s 50(3) of the VCAT Act which conferred power on the Tribunal to make an order for a stay but unlike s 25(4) of the SAT Act it does not specify the matters to be taken into account in exercising the discretion to grant a stay.
The application for a stay in Liu v Chinese Medical Council of NSW and the applications made in the other decisions of the New South Wales Civil and Administrative Tribunal were made in the context of a legislative framework that differs significantly from the SAT Act. One of the differences, among others, is that the applicable statutes in New South Wales do not contain a provision equivalent to s 25(4) of the SAT Act.
Neither party referred to the decisions of this Tribunal on the principles applicable to an application for a stay pending the hearing of an application for review: Phoenix Timber Products t/as Vintage Hardwoods and Skinner,[7] Harvey and Dekoning,[8] (both cases involved applications to stay orders to pay made by the Building Disputes Tribunal pending applications to review the Tribunal's decision), D'Ambrosia and Demarte,[9] (an application to stay a Building Remedy Order made by the Building Commission), Fero Group Pty Ltd and City Of Nedlands,[10] (an application to stay a decision to refuse to extend building permits), and, PAG (WA) Pty Ltd and Commissioner for Consumer Protection,[11] (an application to stay the operation of a condition imposed on a motor vehicle dealer's licence pending an application to review the decision imposing the condition).
[7] Phoenix Timber Products t/as Vintage Hardwoods and Skinner [2005] WASAT 315 [10]-[13].
[8] Harvey and Dekoning [2011] WASAT 209 [32].
[9] D'Ambrosia and Demarte [2014] WASAT 89 [10]-[16].
[10] Fero Group Pty Ltd and City of Nedlands [2018] WASAT 78 [25] - [27].
[11] PAG (WA) Pty Ltd and Commissioner for Consumer Protection [2018] WASAT 57.
In each of Phoenix Timber Products t/as Vintage Hardwoods and Skinner, Harvey and Dekoning, D'Ambrosia and Demarte, and Fero Group Pty Ltd and City Of Nedlands, reference was made to the principles applicable to stay applications pending appeal in civil litigation and the application of those principles was significant in the determination of the applications.
In PAG (WA) Pty Ltd and Commissioner for Consumer Protection Curthoys J referred to the decision in D'Ambrosia and Demarte and expressed the view that: [12]
Despite what the Tribunal stated in D'Ambrosia and Demarte [2014] WASAT 89, the analogy of a stay pending an appeal is not helpful. An appeal is premised on a decision made after a hearing. The Commissioner is not the 'successful party' in any sense compared to a party who is successful after contested proceedings.
Each of the factors identified, such as an arguable case, delay etc., fall to be considered under s 25(4)(a) to (c) of the SAT Act rather than by reference to appeals.
[12] PAG (WA) Pty Ltd and Commissioner for Consumer Protection [25]-[26].
In an earlier passage Curthoys J recorded that he did not accept that there was an onus on either party to a stay application, his Honour said it was for the Tribunal to review the evidence before it and to make a decision as to whether a stay was appropriate.[13]
[13] PAG (WA) Pty Ltd and Commissioner for Consumer Protection [20].
The analysis of the Tribunal's discretion to make an order staying the operation of a decision that is the subject of a proceeding for review must begin with the terms of the statute. The discretion to make a stay order is conditioned by the Tribunal forming the opinion that it is desirable to order a stay having regard to the matters specified in subparagraphs (a), (b) and (c) of s 25(4). The language used in the subsection makes it clear that the discretion conferred by s 25(4) is a wide statutory discretion to be exercised judicially. Its exercise is not confined by the principles stated in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd. Those principles do not displace the statutory considerations and nor should they be grafted on to the statutory provision.
The matters specified in subparagraphs (a), (b), and (c) of s 25(4) do not constitute an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision. The considerations that guide the exercise of the discretion to grant a stay pending an appeal in curial proceedings may provide some guidance when determining whether to grant a stay pending the determination of a review application - the relevance of those principles will vary according to the nature of the decision giving rise to the order in respect of which a stay is sought.
I agree with respect with Curthoys J's observations in PAG that, in the context of a stay application brought within an application to review an administrative decision, a regulatory decision-making authority is not to be equated with the successful party in proceedings in which the issues have been contested and determined by a court or tribunal.
Similarly the decisions on applications to stay immediate action decisions in other jurisdictions may provide some guidance as to the considerations bearing upon the discretion to grant a stay but care must be taken to recognise any relevant differences in the legislative frameworks in which the interstate decisions were made and the nature of the decision that gave rise to the order the subject of the stay application.

An outline of the parties' principal submissions

In many respects the parties approached the application for the stay as if it were the substantive hearing of the review application. A large volume of evidentiary material was placed before the Tribunal. Dr Soutorine relied on four affidavits.[14] The Board relied upon four affidavits.[15] In addition the board filed a three volume book of documents that extended to over 500 pages.
[14] Affidavit of Mikhail Soutorine sworn 2 December 2019, Affidavit of Melissa Cherie Geldert sworn 11 December 2019, Affidavit of Roger Blow sworn 12 December 2019 and Affidavit of Mikhail Soutorine sworn 20 December 2019.
[15] Affidavit of Jenny Maree McKenzie sworn 10 December 2019, Affidavit of Jenny Maree McKenzie sworn 13 December 2019, Affidavit of [patient] sworn 19 December 2019 and Affidavit of Jenny Maree McKenzie sworn 19 December 2019.

The evidence relied upon by the Board included an expert report prepared by Mr Rodney Cooter AM, a plastic surgeon, (the positions held by Mr Cooter included the position of Clinical Associate Professor of the Department of Surgery at the University of Adelaide).
Each side filed lengthy written submissions. Dr Soutorine made allegations concerning the credit of the patients and challenged the impartiality and reliability of the expert opinions relied upon by the Board. The Board made serious allegations concerning Dr Soutorine's credit.
It is convenient to begin by outlining the principal submissions made by the Board.

The Board's principal submissions

The Board's submissions were directed to establishing that Dr Soutorine's application for a review of the immediate action decision did not have good prospects of success.
The Board relied upon a number of allegations concerning Dr Soutorine's management of the two patients and the surgical procedures undertaken by him on those patients set out in Mr Cooter's report, as support for its reasonable belief that Dr Soutorine posed a serious risk to persons. Those allegations were as follows:
(a)Dr Soutorine failed to exclude the presence of hernias in the abdominal wall of the patient before booking and proceeding with the abdominoplasty and liposuction procedures.
(b)Dr Soutorine used unsafe intraoperative sedation - in particular he administered a sedative agent midazalom in the absence of an anaesthetist and any equipment for monitoring the condition of the patients while sedated.
(c)Dr Soutorine operated on one patient late at night and into the early hours of the next morning.
(d)Dr Soutorine discharged the patients just one hour after completion of the surgical procedures and this period of post‑procedure observation was inadequate and 'could only be described as a very dangerous practice'.
(e)Dr Soutorine's post-operative care was inadequate.
(f)Dr Soutorine performed the procedures in a manner that was unorthodox - the patients had a 'very poor aesthetic outcome'.
The Board also relied on the existence of two notifications received on 11 October 2019 and 26 November 2019 respectively. One notification concerned a threadlift procedure carried out on a patient in Victoria. The second notification concerned a complaint referred to AHPRA by the Health Complaints Commissioner of Victoria relating to a liposuction procedure undertaken in July 2019. In the latter notification the patient had specific concerns about Dr Soutorine's alleged failure to keep patient records.
The Board attacked Dr Soutorine's credit. The attack was based, in part, on alleged discrepancies in the clinical records produced by Dr Soutorine, in part, on differences between the patients' accounts of their treatment and management and the account given by Dr Soutorine, and in part, on discrepancies that the Board contended existed in Dr Soutorine's description of his professional history and memberships of professional bodies. There was also a dispute about whether Dr Soutorine had attempted to contact one of the patients - the patient maintained he had done so - Dr Soutorine admitted to dialling the patient's mobile telephone number by mistake but says he terminated the connection when he realised the mistake and did not speak to the patient. (This outline of the basis upon which the Board attacked Dr Soutorine's credit is not exhaustive.)
The purpose of the attack on Dr Soutorine's credit was twofold. First, the Board sought to undermine the strength of Dr Soutorine's own attack on the reliability of the patients' accounts of events. Secondly, the Board used the attack on credit as a foundation for the submission that Dr Soutorine could not be relied upon to be honest with the Board and with the Tribunal. The Board submitted that a serious risk to persons would remain even if conditions were imposed on Dr Soutorine's registration that prevented him from undertaking any surgical procedures because, in effect, there was a risk that Dr Soutorine would not comply with the conditions.
The Board submitted that a refusal to grant a stay would not render the application for review nugatory.
The Board submitted that Dr Soutorine's evidence of the financial consequences of the suspension of his registration - being deprived of a monthly income stream of between $90,000 and $100,000 and facing bankruptcy - was (in effect) unreliable and, in any event, any financial hardship suffered by Dr Soutorine was (as it was put on the Board's behalf) outweighed by the 'imperative to protect the public from further misconduct on the part of Dr Soutorine'.
As is explained below the hearing of the stay application took place over two hearing days separated by a seven day adjournment. At the adjourned hearing the Board submitted that the Tribunal did not have the power to impose conditions on Dr Soutorine's registration when exercising the power to stay proceedings under s 25(2) of the SAT Act. The Board's submission was to the effect that the imposition of conditions would constitute a variation of the Board's decision within the contemplation of s 29(5) of the SAT Act and the Tribunal's power to review the Board's immediate action decision would be exhausted because of the operation of s 29(7) of the SAT Act. Section 29(7) provides as follows:
(7)Despite subsection 5(a) the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision-maker.
In support of its submission that the Tribunal did not have power to impose conditions on Dr Soutorine's registration the Board relied on the Tribunal's decision in Cuddles Group Pty Ltd and Director General, Department for Community Development.[16]

Dr Soutorine's principal submissions

[16] Cuddles Group Pty Ltd and Director General, Department for Community Development [2006] WASAT 114.

Dr Soutorine's application to review the immediate action decision is founded on the proposition that on a proper assessment the subject matter of the notifications are an insufficient basis for the Board to have formed a reasonable belief that because of his conduct and performances he posed a serious risk to persons and that immediate action in the form of suspension of his registration was necessary to protect public health or safety.
Whilst maintaining his strong denials of the allegations made against him Dr Soutorine volunteered undertakings which he submitted were sufficient to protect public health or safety from the risk identified by the Board. The undertakings were at the forefront of Dr Soutorine's submissions and were as follows:
(a)an undertaking not to conduct any abdominoplasty procedures within any medical facility of a lower standard than a Day Hospital Class B facility and without the use of sedation/general anaesthetic;
(b)an undertaking not to conduct any liposuction procedures involving the removal of more than 1000ml of fat within Western Australia in any medical facility of a lower standard than a Day Hospital Class B Facility;
(c)an undertaking not to commence any surgical procedure on any patient after 6.00 pm;
(d)an undertaking to remain in Western Australia for a minimum of 48 hours following the completion of any surgical procedure undertaken in the State.
Dr Soutorine submitted that he had not had an adequate opportunity to respond to Mr Cooter's evidence and that Mr Cooter's evidence significantly expanded the allegations made against him as detailed in the letters of 1 and 7 November 2019.
Dr Soutorine relied upon public statements attributed to Mr Cooter to suggest that Mr Cooter held the view that cosmetic surgery should only be undertaken by medical practitioners who held a Fellowship of the Royal Australasian College of Surgeons and that cosmetic surgical procedures should only be carried out in a hospital. In essence Dr Soutorine contended that Mr Cooter approached the review of the two cases in question from a biased perspective.
Dr Soutorine addressed 'the essential allegations and assertions put against him' by pointing to the responses which he had previously given to the Board and which he said were supported by documentary evidence. Dr Soutorine summarised those responses as follows:
(a)neither patient was sedated at any time - a sedative, midazalom, was administered solely to ease the patients' anxiety;
(b)the extensive advice given to the patients concerning the procedures for the purposes of informed consent had been 'confirmed to the Board' and it consisted of detailed advice forms provided to the patients and contemporaneous notes made by health practitioners including Dr Soutorine;
(c)he had provided evidence that both patients had admitted to engaging in post-procedure activity that was contrary to the advice given to them about that post-procedure conduct;
(d)whilst one procedure was completed in the early hours of the morning the evidence provided to the Board was to the effect that the late commencement of that procedure was undertaken at the patient's own request and, further, that commencing one procedure at a late hour could never reasonably justify the immediate suspension of a medical practitioner.
The credit issues raised by the Board could not be determined in the course of the stay application.
The effect of the suspension of his registration was that he was prevented from undertaking medical practice of any nature. One consequence of the suspension was that it prevented Dr Soutorine from fulfilling this commitment to a research project at the Royal Melbourne Hospital involving medical robotics technology focused on the diagnosis and treatment of gastro-intestinal cancers.
The suspension deprived Dr Soutorine of his ability to earn any income. This inability is not subject to any identified end date. No date had been set for the substantive review application. The Board's investigation might take over six months.

Relevant procedural history

The hearing of the stay application began on 13 December 2019. In the course of the hearing I expressed the tentative view that the undertakings proffered by Dr Soutorine might be considered to be inadequate because they did not include any provision for the supervision or oversight of procedures undertaken by him. I suggested that Dr Soutorine reflect further on the undertakings he was prepared to give and that this should be done in a considered way and should involve conferral with the Board's solicitors. I adjourned the hearing until 20 December 2019 and referred the parties back to mediation (an earlier mediation had not been successful). A mediation was held on 19 December 2019 but it too was unsuccessful.
At the commencement of the adjourned hearing on 20 December 2019 a substantially revised set of undertakings to be given by Dr Soutorine was provided. The revised undertakings were different in effect from the undertakings previously proffered by Dr Soutorine. The essential features of the revised undertakings were first that Dr Soutorine would undertake not to carry out any form of surgery and he would confine his practice of cosmetic medicine to procedures that involved the injection of substances and to a procedure known as threadlifting (the undertakings included a list of procedures) and to Dr Soutorine's research activities. Secondly, Dr Soutorine proposed that his practice be monitored and the monitoring be done by an auditor appointed by the Board.
The Board's counsel said that the undertakings offered by Dr Soutorine were not acceptable to the Board. Two reasons for the Board's position may be distilled from the submissions made on its behalf: first, the concerns about Dr Soutorine's competence and his honesty were such that only a suspension of his registration would be sufficient to protect the public from the serious risk of harm, and, second, the terms of the undertaking were problematic - a number of specific difficulties with the form of the undertakings were identified. Additionally it was said on the Board's behalf that the list of procedures to which Dr Soutorine was prepared to confine his practice had only been provided to the Board on the morning of the hearing and the Board had not had adequate time to consider them.
Both the Board and Dr Soutorine sought to rely on further affidavit evidence.[17] The focus of this evidence was the credit issues that had been raised at the earlier hearing.
[17] Affidavit of Mikhail Soutorine sworn 20 December 2019; Affidavit of [patient] sworn 19 December 2019 and Affidavit of Jenny Maree McKenzie sworn 19 December 2019.
I canvassed the possibility that the hearing be adjourned to 23 December 2019 to enable the specific difficulties with the form of the undertakings to be addressed by conferral between the parties. The unavailability of the Board's counsel, and the primary instructing solicitor on 23 December 2019 effectively foreclosed this possibility. The difficulties with the form of the proposed undertakings were the subject of submissions in the course of the hearing. This was an unsatisfactory procedure for addressing what were essentially drafting issues that should have been capable of being resolved between the parties by reference to standard documents available on the AHPRA website.[18] I should record that from the Board's perspective the submissions made as to the form of the undertaking were made without any derogation from its primary position that undertakings were inadequate to protect the public and that only a complete suspension of Dr Soutorine's registration would provide the necessary protection to the public.
[18] >
At the conclusion of the hearing on 20 December 2019 I made an order that the immediate action decision be stayed with effect from the expiration of 14 days from the filing of undertakings in a form approved by me in the course of the hearing and which are reproduced in the appendix to these reasons for decision. I granted leave to the parties to apply on short notice. In the next section of these reasons I explain why I considered it desirable to make an order staying the immediate action decision.

Reasons for granting the stay

At the outset I record that central to my reasoning was my view that the provision by Dr Soutorine of undertakings in the form settled in the course of the hearing on 20 December 2019 meant that the suspension of his registration as a medical practitioner would no longer be necessary to protect public health and safety.
The legislative context in which the application for a stay was made is of particular importance. One of the statutory objectives of the national registration and accreditation scheme established by the National Law (and equivalent statutes in other participating jurisdictions) is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.[19] This statutory objective is achieved by s 156 of the National Law (among other provisions) which, as noted earlier, is directed specifically to empowering the Board to take immediate action to protect public health and safety. The power to take immediate action is conditioned by the required 'reasonable belief' on the part of the Board that a medical practitioner 'poses a serious risk to persons' and that immediate action is necessary.
[19] National Law s 3(2)(a).
Before making any comments on the merits of the stay application I should make it clear that none of the statements made in the balance of these reasons should be construed as findings of fact. On an application of this nature it is impossible to make any factual findings, let alone try to resolve any credit issues, and it would be wrong to attempt to do so. In so far as I express views on the relative strength of the parties' positions on various issues they are no more than tentative impressions based on the untested evidence adduced on the application.
As McLure P observed in Bernadt v Medical Board of Australia[20] there are three components to subparas (i) and (ii) of s 156(1)(a) of the National Law, one factual and two evaluative. They are:
(a)(1) because of (that is, by reason of) the practitioner's conduct, performance or health
(2)the practitioner poses a serious risk to persons; and
(b)it is necessary to take immediate action to protect public health or safety.
[20] Bernadt v Medical Board of Australia[2013] WASCA 259 [65].
I will deal with these components in reverse order. My assessment is that Dr Soutorine has raised a serious question to be resolved as to whether it is reasonable to believe that a suspension of his registration is necessary to protect public health or safety or whether some form of immediate action less restrictive of his practice would be sufficient for this purpose. In this respect the ultimate success of his application for review may depend on whether Dr Soutorine is prepared to offer any undertakings and the extent to which those undertakings address the concerns that have been raised by the Board.
My assessment, however, is that whilst Dr Soutorine has raised a serious question as to whether it is reasonable to believe that his conduct or performance poses a serious risk to persons, his case in this respect does not have the same degree of strength as his case in respect of the 'reasonable belief' as to the necessity for immediate action in the form a suspension of his registration. In making this preliminary assessment I bear in mind what was said by McLure P in Bernadt v Medical Board of Australia to the effect that the facts in issue concerning a practitioner's conduct performance or health do not have to be proven on the balance of probabilities - what must be proven is objective circumstances sufficient to justify the belief. [21]
[21] Bernadt v Medical Board of Australia [66].
The serious risk to persons identified by the Board in the immediate action decision was a serious risk '[t]o: all patients for whom he undertakes surgical procedures' (my emphasis). The undertaking to be provided by Dr Soutorine expressly prohibits him from carrying out surgical procedures and confines his practice to the specific procedures and activities listed in paragraph 6 of the undertaking. The undertaking enables the Board and AHPRA to monitor Dr Soutorine's practice closely to ensure compliance. This includes 'real time' access to his medical records. If the Board has particular concerns in relation to the procedures to which Dr Soutorine's practice will be confined, about which it was unable to make submissions at the hearing on 20 December 2019 it may make an application to vary the order of 20 December 2019.
I do not accept the Board's submission to the effect that the risk that Dr Soutorine cannot be trusted to comply with the terms of his undertaking, especially if the possibility of Dr Soutorine practising from a clinic other than one owned by a third party, (that is, practising from his own clinic or rooms) was left open, means a stay should not be granted. The submission depends to a significant degree on accepting that the credit issues raised by the Board will be resolved adversely to Dr Soutorine. For the reasons already stated those credit issues cannot be resolved on this application. I am not satisfied that the existence of those unresolved issues is a basis upon which I should conclude that there is a risk of non-compliance that justifies a refusal of a stay. In assessing the degree of risk of noncompliance account must be taken of the close scrutiny to which Dr Soutorine's practice will be subject. That scrutiny and the ongoing investigations into his conduct and performance will provide a very strong incentive to Dr Soutorine to ensure that he complies strictly with the terms of his undertaking. Futhermore, a breach of the undertaking would be a serious disciplinary infraction that would of itself jeopardise his registration as a medical practitioner. A breach of his undertaking would also give rise to the prospect of Dr Soutorine being punished for being in contempt.[22]
[22] SAT Act s 100.

It cannot be said that a refusal of the stay application would render Dr Soutorine's substantive review application nugatory. Suspending Dr Soutorine's registration is, however, a draconian step and I accept that it has the capacity to cause severe financial hardship to him pending the hearing of the review application. Whilst it is hoped that the hearing of the review application may be expedited, at present the period over which Dr Soutorine will be unable to earn an income as a medical practitioner, if a stay is not granted, is unknown. These are matters that weigh in the balance in favour of the grant of a stay. The capacity for Dr Soutorine to suffer financial hardship as a result of the immediate action decision would not alone have been sufficient to persuade me to grant a stay. As indicated above the decisive factor was my assessment that in the light of the undertaking to be provided by Dr Soutorine a stay would not jeopardise public health or safety.
As the application was resolved on the basis of the provision of an undertaking by Dr Soutorine it is not necessary for me to address the Board's submission that the Tribunal cannot impose conditions on a practitioner's registration in the course of making a stay order. I have reservations about the correctness of this submission. In particular, contrary to the Board's submission this proposition does not appear to me to be supported by the Tribunal's decision in Cuddles Group Pty Ltd and Director General, Department for Community Development.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

AS
Associate to the Honourable Justice Tottle

8 JANUARY 2020

Appendix

UNDERTAKING

General Restriction

a.I will forthwith notify AHPRA of all clinics at which I intend to practise together with particulars of the owners of such clinics; and
b. I will forthwith provide to AHPRA on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Owner, or equivalent (the senior person) at each place I currently practise. In providing this form, I acknowledge that AHPRA will contact the senior person and provide them with a copy of the undertaking or confirm that the senior person has received a copy of the undertaking from me. I will provide the same form:
i.Within seven days of the commencement of practice at each and every subsequent place of practice, and
ii.Within seven days of each and every notice of any subsequent alteration of the undertaking.

All costs including all audit and monitoring expenses associated with compliance with the undertaking will be at my own expense.

Ongoing audit

I will submit to an ongoing audit of my practice (the Audit), including any metadata, electronic and paper records in respect of all procedures undertaken by me following the giving of this undertaking, by permitting an auditor (the Auditor) approved by the Medical Board of Australia (the Board) (in accordance with the procedure described in the National Restrictions Library – Undertakings addressing health conduct or performance concerns maintained by AHPRA and entitled ‘Auditor chosen by practitioner and approved by Board/AHPRA’ insofar as that procedure is consistent with this undertaking) to attend any and all places of practice (public and private), without prior notice, for the purpose of the Audit and by permitting the Auditor to provide a report in relation to the findings of the Audit. The Audit and the Audit report will focus on the Board’s concerns regarding my treatment of patients and the procedures undertaken on patients, without limitation but specifically:
a.patient consents;
b. pre procedure advice to patients including risks, options, costs and clinical locations;
c.post procedure (recovery) advice and guidance to patients; and
d. medical notes and records of procedures.
Upon approval by the Board of an Auditor I will forthwith:
a.Make contact with the Auditor and establish an audit plan outlining the form the Audit(s) will take and how the areas of concern for the Board will be addressed. The Auditor determines the form of the Audit.
b. Provide the Board approved Auditor with a copy of this undertaking.
c.Provide to AHPRA, on the approved form (HP8), acknowledgement that AHPRA will seek reports from the Auditor.
d. Provide to AHPRA copy of the audit plan, together with written acknowledgement on the approved form (HPNA8), from the approved auditor.
e.Allow the AHPRA approved auditor to conduct an audit on a without notice basis.

I will forthwith install and begin using the ‘BP Premier’ (Best Practice Premier) software package for the recording of all medical notes and records that will allow the Auditor and, pending the appointment of an Auditor, a person nominated by the Board/AHPRA, to review ‘real time’ electronic data concerning those notes and records.

Not to undertake particular types of procedures

a.I will not carry out any procedures that involve the use of a scalpel, stitches, cutting or the piercing of the skin with any instrument other than a needle. I will limit my practice to the following procedures and activities.

Dermal therapy which includes:
i.Chemical face peels (medium/deep)- Administration of dermal peels to the skin. This treatment does not require medical qualification. iv. Dermabrasion - Mechanical abrasion of the epidermal layer of the skin. This treatment does not require medical qualification.
ii.Laser therapy and plasma pen- Energy based device to manage skin and pigmentation concerns.
iii.Microneedling- Use of microneedles to breach the epidermal layer of skin. Also called dermal roller. This treatment does not require medical qualification.
iv.PRP (platelet rich plasma)- injection of platelets, usually into the skin to improve collagenation.

Cosmetic procedures which includes:
v.Wrinkle relaxers- Botulinum Toxin Type A injections which work on the neuromuscular junction to address dynamic lines on the skin.
vi.Dermal fillers- Hyaluronic acid treatment (dermal fillers) are injected into volume deficient regions under the skin and into lips. The syringes contain very small amounts of local anaesthesia.
vii.Threadlifting- Threads are passed under the skin with the help of a needle to provide further volume and lift. The treatment requires administration of very small volume of local anaesthesia at the site of needle entry.
viii.Mesotherapy- Deoxycholic acid and other such S4 drugs (as are required for the purposes of mesotherapy) are injected into the skin to help address cosmetic concerns. Some patients may request a small dose of local anaesthesia at the injection site.

Medical Research
xii.All incidental (non-clinical) duties concerning clinical research into medical robotics with Endogene Pty Ltd and Melbourne University.
xiii.Participation in clinical trials associated with that medical robotics research where all clinical procedures will be performed by other health practitioners (i.e. I will not be ‘hands on’ with respect to those trials).
b.I will forthwith provide AHPRA with a list of all S4 and S8 drugs and the quantities thereof routinely administered, prescribed and/or used by me for the purposes of the procedures listed above.

I will forthwith provide to AHPRA, on the approved form (HP7), acknowledgement that AHPRA may:
a.Seek reports from the Director of Medical Services/Director of Nursing/Senior Practice Manager/Senior Manager/Senior Partner/proprietor/owner/partner in ownership (the senior person) at each place of practice on at least a weekly basis, or as otherwise required.
b. Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.
c.Have contact with and access information from, where relevant, Medicare Australia, private health insurers and/or practice billing data.
I will forthwith provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they are aware AHPRA will seek reports from them.

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: SOUTORINE and THE MEDICAL BOARD OF AUSTRALIA [2020] WASAT 5 (S)
MEMBER:   JUSTICE P A TOTTLE (SUPPLEMENTARY PRESIDENT)
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   12 NOVEMBER 2020
FILE NO/S:   VR 161 of 2019
BETWEEN:   MIKHAIL SOUTORINE
Applicant
AND
THE MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Vocational regulation - Medical practitioner - Costs - Where medical practitioner suspended by immediate action decision of board - Where practitioner applies for review of immediate action decision and stay of decision - Where stay granted on conditions - Where application subsequently withdrawn - Where stay order set aside - Where practitioner and board make competing applications for costs - Whether order as to costs appropriate - Turns on own facts

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87

Result:

No order as to costs

Summary of Tribunal's decision:

The applicant and respondent each sought an order for costs following the applicant's withdrawal of his application for review of a decision made by the respondent.

Each party contended that they were the successful party and should have an order for costs. The Tribunal considered that there was nothing about the circumstances of this case that warranted a departure from the established practice in the review jurisdiction of the Tribunal that there should be no order as to costs.

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Cove Legal
Respondent	:	Minter Ellison

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

Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206
Soutorine and The Medical Board of Australia [2020] WASAT 5

REASONS FOR DECISION OF THE TRIBUNAL:

Background

The applicant applied to the Tribunal to review an immediate action decision of the respondent (the Board) (pursuant to which the applicant's registration as a medical practitioner was suspended) and for a stay of the decision pending the determination of the review.
On 20 December 2019 the Tribunal made an order staying the Board's decision conditional on the applicant filing an undertaking limiting his practice of medicine. On 14 January 2020 the applicant filed the undertaking required by the order but at a directions hearing on 28 January 2020 the applicant informed the Tribunal that he did not intend to pursue his review application. The Tribunal ordered that the stay order be set aside and the proceeding withdrawn.
The circumstances that gave rise to the immediate action decision are set out in the Tribunal's reasons for decision in respect of the stay application.[23] The circumstances have given rise also to an investigation by the Australian Health Practitioner Regulation Agency (AHPRA) into the applicant's conduct and his professional competence.
[23] Soutorine and The Medical Board of Australia [2020] WASAT 5.
The applicant and the Board have made cross-applications in respect of the costs of the review proceedings, that is, the applicant contends the Board should pay his costs of the review proceedings and vice versa. The written submissions filed by the parties are extensive and the applications are supported by affidavits sworn by the respective solicitors.

Applicable statutory provisions and principles

The starting point in relation to costs in the Tribunal is that the Tribunal provides a 'no costs' jurisdiction - see s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Section 87(2) of the SAT Act gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party.
In review proceedings the Tribunal's established practice in relation to the exercise of the discretion conferred by s 87(2) of the SAT Act is that, normally, each party should bear its own costs of the proceedings.[24]
[24] Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 [36] (Barker J).
Section 87(4) of the SAT Act provides that without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to -
(a)whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.

Overview of the parties' contentions

The Board contended:
(a)It was the successful party and as such was entitled to have its costs paid by the applicant. It claimed costs of approximately $74,000. The basis on which the Board contended it should be regarded as the successful party was that the review proceedings were dismissed and even though the applicant obtained an order staying the immediate action decision the terms of the undertaking he was required to provide to the Tribunal severely restricted his right to practise medicine and it was not the outcome the applicant had set out to obtain.
(b)The applicant made procedural errors which caused AHPRA and the Board to incur costs which were wasted. The errors were that the applicant had initially sought an injunction restraining the operation of the immediate action decision and had named AHPRA rather than the Board as the respondent to the application.
(c)No costs order should be made against it as it was a vocational regulatory body that had acted reasonably and properly in discharging its statutory duties.
The applicant contended:
(a)The customary position is that costs should follow the event and as his application for a stay was successful he is entitled to have his costs paid by the Board.
(b)The Board refused to engage in constructive discussions that might have led to a compromise of the stay application.
(c)The Board adduced a substantial amount of evidence, which the applicant contended, was unnecessary for the purposes of disposing of the stay application. The applicant contended the Board approached the hearing of the stay application as if it were the hearing of the substantive review application.

Consideration

The parties' focus on who should be regarded as the successful party is misplaced. Whilst in civil litigation the governing principle is that costs should follow the event, as recorded earlier this principle does not govern the exercise of the discretion in respect of costs in the Tribunal's review jurisdiction in which the established practice is that each party should bear its own costs. Thus, it is unnecessary to engage in the exercise undertaken by the parties in their submissions of determining who should be regarded as the successful party.
The applicant acknowledges that naming AHPRA as the respondent to his application and seeking an injunction were procedural errors. In my view the errors were not such as to warrant a departure from the usual practice in respect of costs in the review decision. The substance of the applicant's case was plain from the outset - he wanted the Tribunal to make an order which had the effect of permitting him to resume practice as a medical practitioner. I am not persuaded that the applicant's failure to formulate his case from its inception as an application for review with an interim application for a stay caused either AHPRA or the Board to incur costs that are to be regarded as 'thrown away'.
That the applicant discontinued his review application is not a basis for inferring that the review application was without merit and, on this basis, order that the applicant pay the respondent's costs. The tentative impression formed by the Tribunal on the stay application was that the ultimate success of the review application depended on the applicant's willingness to offer undertakings limiting his practice and the extent to which those undertakings addressed the Board's concerns.
I do not accept the applicant's criticisms of the Board's approach to the adducing of evidence on the stay application. One of the grounds upon which the applicant sought to impugn the Board's immediate action decision was by arguing that the Board had relied on evidence from patients and a medical practitioner which was unreliable. The applicant attacked the credit of the patients and the medical practitioner. Having taken this approach it was inevitable that the Board would respond by adducing evidence that undermined both the applicant's attack on the credit of the Board's witnesses and the applicant's own credit.
In their submissions both parties commented on without prejudice discussions that had taken place and the conduct of the mediation conferences in an effort to demonstrate that they had acted reasonably and the other party had acted unreasonably. Such disclosure has real potential to undermine both the mediation process and the rationale for without prejudice discussions. It was unfortunate that the two mediation conferences and the without prejudice communications which preceded the final hearing of the stay application did not bring about a negotiated outcome. There was nothing, however, in the conduct of the mediations or the without prejudice communications that warrants a departure of the usual practice in the review jurisdiction of making no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

AS
Associate to the Honourable Justice Tottle

12 NOVEMBER 2020