Ahmad v Medical Board of Australia (Review and Regulation) [2017] VCAT 1646 (11 October 2017)

1. From Kozonoglu v The Pharmacy Board of Australia [2012] VSCA 295
   1. It should be noted that the National Law does not provide any clear indication of the nature of an appeal under s 199(1)(e). In particular, it says nothing about whether the appeal is to be an appeal in the strict sense, based upon error, or a rehearing of some kind. If it is to be a rehearing, is it to be confined to the material that was before the original decision-maker (i.e. the Board), or can that material be supplemented? Alternatively, is it a rehearing de novo, with no restrictions of any kind upon the material that can be placed before VCAT? The appeal to this Court turns primarily upon that question.
   2. In our opinion, the appeal to VCAT, under the National Law, was not, as Senior Counsel for the respondent at one point submitted, a rehearing de novo in the widest sense of that term. It would not have been permissible, for example, for the respondent to adduce evidence of facts and matters that had occurred after the notification had been provided to the IAC to justify, retrospectively, the decision to take immediate action.
   3. Nonetheless, VCAT was entitled, in our view, to receive any evidence that bore upon the decision that was actually taken by the IAC at the time that decision was taken.
   4. In our respectful opinion, both the approach taken in South Australia, and that taken in Tasmania, are erroneous. The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not 'open slather', but nor is it an appeal confined to error.

1. The scope of s. 156(1)(d) of the National Law has not been considered at length by courts and tribunals in Australia. However the section is referred to in Bernardt v Medical Board of Australia [2013] WASC 259 (18 November 2013), where President McClure stated that the ground to take immediate action pursuant to s 156(1)(d) is a jurisdictional fact which must objectively exist and be proven to exist, and that immediate action might be taken under s 156(1)(d) pending various decisions, such as whether to renew the practitioner's registration or review the practitioner's health, performance or conduct.
2. Dr Ahmad contended that because the Alaskan decision was to summarily suspend his medical licence, it is not suspension within the meaning of s. 156(1)(d).
3. We agree with the following submissions of the Board:
   • Nothing in s. 156(1)(d) limits the power of a National Board to take immediate action only to the situation where a practitioner's registration is suspended following a final hearing in a non-participating jurisdiction.
   • The terms 'suspended' or 'suspension' are not defined in the National Law. However, they are ordinary English words and can readily be understood. 'Suspend' is defined in the Australian Concise Oxford Dictionary, fourth edition, to mean 'debar temporarily from a function, office or privilege'. Summary suspension meets that definition.
   • The National Law itself provides for suspension as a form of immediate action, which will necessarily be an interim suspension pending a further process or hearing.
   • Limiting the power in the ways submitted by Dr Ahmad would run contrary to the purposes of the National Law, which is to provide for the protection of the public. As submitted, if a National Board had to wait until final judgment in another jurisdiction before taking immediate action, the safety of the public might be placed at risk.
   • The Alaskan judgment refers to the relevant statutes under which Dr Ahmad's license was suspended by the Alaskan Board, including (AS) 08.64.331(c), under which he appealed to the Office of Administrative Hearings, and under which the summary suspension was upheld. It is clear that the suspension was imposed under the law of the State of Alaska, which is a non-participating jurisdiction.
   • There is no requirement for the Board to establish that the legislative test or criteria in Alaska are the same as that under the National Law. The Alaskan statute requires proof that a doctor's conduct constitutes a clear and immediate danger to the public health and safety. This is similar to but not identical to the requirement in s 156(1)(a) of the National law (and in our view is a higher threshold) but in any event whether or not the tests are similar is irrelevant to a decision as to whether s 156(1)(d) of the National Law is engaged.