Speldewinde v Medical Board of Australia (Occupational Discipline)

In this occupational disciplinary matter, the Medical Board of Australia applied to the Administrative Appeals Tribunal (AAT) to review an immediate action decision made under section 156 of the Health Practitioner Regulation National Law (ACT). The practitioner, a medical specialist, sought to challenge the Board’s decision to impose gender restrictions on his practice. The Tribunal was tasked with determining the legality and merits of the Board’s decision, including whether the decision to impose restrictions was appropriate in the circumstances.

The key legal issues for the Tribunal were whether the Board had correctly applied the principles of immediate action under section 156, whether the decision was based on a proper assessment of risk and protection of the public, and whether the Board's decision was supported by the evidence presented. The Tribunal also needed to consider the appropriate weight to give to evidence that was not adduced during the hearing and whether the decision was reasonable in the context of the public health and safety objectives.

In its reasoning, the Tribunal found that the Board had not correctly applied the principles of immediate action, as the decision to impose gender restrictions was not proportionate to the risk posed. The Tribunal concluded that the evidence did not support the Board's assessment of risk, and that the decision was not justified under the relevant legislation. The Tribunal also noted the importance of considering the probative value of the evidence, including the inference that could be drawn from evidence not presented. Ultimately, the Tribunal determined that the decision was not supported by the evidence and was therefore set aside.

The Tribunal substituted the Board's decision with its own orders, including that the practitioner must undertake educative courses and programs agreed upon by the parties. If the parties could not agree within 21 days, they were to list the matter for further directions. This decision was also classified as an immediate action decision.