Appellant v Respondent

STATUTORY INTERPRETATION - Statutory obligation to register medical practitioner unless ground of disqualification established - Whether residual discretion to register even where disqualifying ground established - Whether 'may' means 'must' in Health Professions Registration Act s 6(2).

1 On 10 October 2008, the Victorian Civil and Administrative Tribunal ('Tribunal') made an order granting general registration as a medical practitioner to the respondent in this appeal, Sabi Lal ('SL'), subject to certain stringent conditions.[1] The Medical Practitioners Board (the 'Board') had refused to register SL.

2 What has prompted this appeal is that the Tribunal granted registration despite the fact that the County Court had on 20 December 2002 found SL guilty of five offences committed while he practised as a medical practitioner. The offences were: indecent assault of a female patient in 1997; digital rape of the same patient in 1998; attempting to pervert the course of justice in 1998; and two counts of assault of two female pharmaceutical representatives in separate incidents in 2001. The conditions imposed by the Tribunal included that SL not consult with women or with children under 16 years of age as patients.

3 In its reasons for decision, the Tribunal drew attention to the unusual circumstances surrounding the offences. First, the digital rape was constituted by SL's performance of a pap smear and internal examination. These procedures were medically necessary and were conducted properly, without any intent on SL's part to seek sexual gratification. The offence was only made out because SL had falsely informed the patient that the procedure would be performed by a female doctor at the clinic, for which he said he was simply preparing her.

4 Secondly, when SL committed the offences he was suffering from Obsessive Compulsive Disorder ('OCD'). It has been accepted at every stage that this mental illness diminished SL's ability to control his actions. A panel appointed by the Board had investigated the circumstances of the first three offences in 1999 and 2000, and accepted that SL had diminished responsibility as a result of the OCD. As a result, SL received only a reprimand, rather than having his then current registration as a medical practitioner cancelled. The County Court judge who sentenced SL also accepted that he had diminished responsibility for all five offences. This was reflected in the sentence imposed. SL was sentenced to two and a half years' imprisonment for the first three offences, but the sentence was wholly suspended. For each of the fourth and fifth offences, he was fined $1,000.

5 This was a very lenient sentence. Ordinarily, a conviction for rape results in an immediate custodial sentence because of the serious nature of such an offence.[2] Every rape is a serious matter but, having regard to the quite exceptional circumstances, it is understandable that the sentencing judge viewed this as being at the lowest end of the scale of seriousness. Importantly, the Crown did not oppose the custodial sentence being suspended, and did not appeal against any aspect of the sentence.

6 The Board suspended SL's registration on 16 January 2003, following the findings of guilt in relation to the five offences. On 8 December 2003, the Board cancelled his registration. SL subsequently applied to be re-registered. He has not practised medicine since 16 January 2003.[3] The Board decided on 5 July 2007 to refuse his application for registration.

7 The Tribunal upheld SL's application for review of the Board's refusal to register him. The Tribunal found that SL had suffered from OCD and that his mental illness contributed to the offences that had led to his registration being suspended and later cancelled. The Tribunal considered that the illness reduced SL's moral culpability for the offending. It also found that he no longer suffered from the illness.

8 The Board has appealed to this Court (by leave) from the Tribunal's order under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'). Because the Tribunal was constituted by a Vice President,[4] the appeal is to the Court of Appeal, but it involves nevertheless an exercise of original jurisdiction, in the nature of judicial review, to determine whether the Tribunal made errors of law that vitiated its order.[5]

9 For reasons which follow, we have concluded that the Tribunal did not err in law and that the appeal should be dismissed.

10 The key provision is s 6 of the Health Professions Registration Act 2005 (Vic) ('HPR Act'), which relevantly provides:

(1) A responsible board must grant general registration as a health practitioner to an applicant if -

(a) the applicant -

(i) is qualified for registration under section 5; or

(ii) had general registration under this Act or a corresponding previous enactment as a health practitioner of that kind not more than 2 years before the application was made; or

(iii) has registration as a non-practising health practitioner of that kind and was, under section 170, deemed to have general registration as that kind of health practitioner under this section; and

(b) there are no grounds under subsection (2) under which the responsible board may refuse to grant registration to the applicant;

...

(2) The responsible board may refuse to grant general registration to an applicant on any one or more of the following grounds -

(a) that the character of the applicant is such that it would not be in the public interest to allow the applicant to practise as a registered health practitioner;

(ab) if the applicant is applying for registration based on previous registration mentioned in subsection (1)(a)(ii) or (iii), that the applicant -

(i) is not, in the board's opinion, competent to practise as that kind of health practitioner; or

(ii) has not, in the board's opinion, had sufficient recent practise as that kind of health practitioner;

(b) that, in the opinion of the responsible board, the applicant is unfit to practise as a health practitioner because he or she is an alcoholic or drug-dependent person which impairs his or her ability to practise as a registered health practitioner;

(c) that, in the opinion of the responsible board, the applicant is unfit to be registered because he or she has a physical or mental impairment which impairs his or her ability to practise as a health practitioner;

(d) that the applicant has been found guilty of an offence where the suitability of the applicant to practise as a health practitioner is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the applicant to practise because of the finding of guilt;

...

(f) that the applicant's competency in speaking or communicating in English is not sufficient for that person to practise as a health practitioner;

...

(h) that, in the opinion of the responsible board, the health practitioner does not have adequate arrangements for professional indemnity insurance that meet the minimum terms and conditions set out in the guidelines of the responsible board;

(i) that the applicant is disqualified from applying for registration under this Act.

(3) A grant of registration under this section is subject to any condition that the responsible board thinks fit including conditions as to professional indemnity insurance.

(4) The responsible board may, upon application by the registered health practitioner or with the agreement of the registered health practitioner, amend, vary or revoke any condition imposed on the registration under this Part.

11 The Board is one of a number of responsible boards for the purposes of the HPR Act.[6] The correctness of the Tribunal's interpretation of s 6 is therefore relevant not only for the Board but also for all other responsible boards empowered to grant registration to health practitioners.

12 The appeal centred on the interpretation of s 6(2)(d) of the HPR Act. It was common ground that the provision contained two distinct limbs. That is, the power under s 6(2) to refuse registration will be enlivened by either of the defined circumstances, namely, where the applicant has been found guilty of an offence and either:

(a) his or her suitability to practise as a health practitioner is likely to be affected because of the finding of guilt ('first limb'); or

(b) it is not in the public interest to allow the applicant to practise as a health practitioner because of the finding of guilt ('second limb').

(a) a preliminary issue as to whether this Court should permit the Board to adopt a different position on appeal from that adopted in the Tribunal;

(b) subject to the resolution of the preliminary issue, whether the Tribunal erred in:

(ii) failing to take into account what is said to be the likely adverse effect on public confidence in the medical profession of SL being permitted to practise;

(c) whether, if one of the grounds set out in s 6(2) of the HPR Act is made out, there is a residual discretion to grant registration; and

(d) whether the conditions imposed by the Tribunal on SL's registration were such as to negate the very act of registration or else to vitiate the grant on the basis of Wednesbury[7] unreasonableness_._

14 The matter raised in paragraph (c) is not, strictly speaking, a question of law relating to the decision under the appeal. While the Tribunal expressed the opinion that it had a residual discretion, it did not purport to exercise that discretion, so its expression of opinion did not affect the outcome.[8] Nevertheless, we deal with the issue of the existence of a residual discretion as it was fully argued before us.

15 'Moral culpability' in the context of the commission of an offence was treated on the appeal as a comprehensive expression covering the nature of the offending behaviour, the offender's moral culpability for the offending and the offender's rehabilitation and remorse. For convenience, we have adopted that meaning for the purposes of this judgment.

16 On 3 June 1999, the Board suspended SL's registration as a medical practitioner under a predecessor to the HPR Act, the Medical Practice Act 1994 (Vic) ('Medical Practice Act').[9] SL was suspended pending a hearing, by a panel appointed by the Board, into allegations that SL had engaged in unprofessional conduct in relation to seven female patients. There were 43 separate charges, concerning conduct during the period from 7 November 1996 to May 1999.

17 The conduct was summarised by the Tribunal as follows:

• • inappropriate comments of a social, personal and/or sexual nature during consultations;

• inappropriate personal contact outside attendance for consultations;

• inappropriate conduct during consultations;

• misuse of information obtained in consultations;

• attending uninvited upon a patient at her home; and

• breach of an undertaking made to the Board.[10]

18 SL did not contest the allegations. The panel found that his conduct constituted unprofessional conduct of a serious nature, but accepted that he suffered a serious mental illness which provided an explanation for the behaviour and diminished his personal responsibility for the offences. The panel reprimanded SL and various conditions were subsequently imposed on his registration.

19 As noted earlier, SL subsequently pleaded guilty to and was convicted in the County Court of five offences. The conduct constituting the first three offences was taken into account by the panel in deciding to reprimand SL. The incidents giving rise to the fourth and fifth offences post-dated the panel's decision.

20 The complainant in the first three offences was the same female patient of SL. The circumstances were as follows:

(a) The indecent assault occurred on 31 December 1997 when SL arrived at the patient's home, entered the residence uninvited, and after some attempt at social interaction, took hold of her arms. He pushed her against a bench and tried to push his body against hers. She was distressed and told him to stop and leave. He apologised and left.

(b) The digital rape occurred on 8 January 1998, at SL's clinic. The patient had agreed that a pap smear and internal examination was necessary but only agreed to the procedure on the basis that it would be performed by a female doctor at the clinic. At the clinic, SL prepared the patient for the procedure and informed her that the female doctor would be coming in to take over. In fact, the female doctor was not at the clinic that day and SL had made no arrangement for her to be there. While informing the patient that the female doctor would be coming in, SL performed the procedure himself, including an internal examination which involved the insertion of a speculum and his fingers into the complainant's vagina. At the conclusion of the procedure the complainant was upset. She got up, dressed and left. During the course of the plea, the Crown conceded that, apart from the subterfuge involved, the procedure was properly undertaken and necessary. The County Court judge was not satisfied beyond reasonable doubt that SL had conducted the procedure for sexual gratification, and sentenced him on the basis that he had not done so.

(c) On 25 November 1998, the patient made a formal complaint to the Board. When SL became aware of the complaint, he telephoned the patient and threatened her, in an attempt to cause her to withdraw the complaint. The threats included that she would lose her home and that her children would suffer. They formed the basis of the charge of attempting to pervert the course of justice.

21 The fourth offence (assault) occurred on 16 March 2001, when a female pharmaceutical representative attended SL's premises in the course of her business activities. SL initiated a conversation about relationships and asked her whether she would like to go out with him. He persisted after she rejected the invitation. When she got up to leave the room, SL grabbed her right hand with both his hands. He asked her not to mention to anyone that he had asked her out, and then grabbed her shoulders and kissed her on the right cheek. She felt shocked and shaken. She told him he was unprofessional. She pulled away from him and took the door handle, but he grabbed her hand and pulled it off the handle, holding the door closed. She became anxious, grabbed the door handle and pulled it, and SL stepped away and she left the room. She was distressed by the incident.

22 The fifth offence (assault) took place on 23 April 2001, when a different female pharmaceutical representative attended SL's premises in the course of her business activities. SL again initiated a conversation about relationships and asked to take the representative out, persisting after she rejected the request. When she stood up to leave, SL grabbed her around her upper arms or waist and continued to persist with the suggestion about taking her out for a drive. She walked out through a meeting room to her car in the car park. SL followed her there and repeated his request. She was distressed by his behaviour, got into her car and drove off.

23 The County Court judge in his sentencing remarks said to SL:

[Y]ou did suffer from OCD at the relevant time and ... this condition does affect your judgment and decision making and does result in pressures to react in a compulsive way to certain obsessive thoughts, and to some extent perhaps not insignificant ... it does diminish your responsibility for your actions ... [T]he Crown accept[s] that [OCD] did exist and did have an effect on your culpability ...

...

In this case, perhaps at a greater length than usual, I have attempted to outline all the relevant surrounding circumstances. In a nutshell, the somewhat unusual formulation of the rape offence ..., the facts mitigating the other offences, the underlying psychiatric illness, diminishing your culpability as it is said to have done, the delay that has taken place since 1998 and the efforts you have made at rehabilitation in the meantime, your plea of guilty and the other mitigatory considerations ...; all of this together with the Crown's concession to me by way of submission that while a gaol term should be imposed at least for Count 2, it need not be served immediately, a combination of all of those matters leads me to conclude [that] this case does constitute an exceptional one where a wholly suspended sentence can pay proper regard to sentencing principles including denunciation, deterrence and rehabilitation.

...

I should perhaps conclude by saying mindful as I am of the position of those [affected] by the offending behaviour and mindful as I am of public opinion about sentencing matters, that I found this a very complex matter. It is by no means as simple as saying or reporting "rapist not gaoled". As is evident, there are a large number of important considerations that have been dealt with in this sentence and they should be fully kept in mind when balancing and analysing this matter.[11]

24 A panel was appointed by the Board to determine whether SL had engaged in unprofessional conduct by reason of the conduct leading to the convictions for assault on 20 December 2002. On 16 January 2003, the Board suspended SL's registration pending the hearing into his conduct. On 8 December 2003, following the hearing, the panel decided to cancel SL's registration. In addition to the convictions on the two counts of assault which had given rise to the convening of the panel, the panel also took into account SL's convictions for indecent assault, digital rape and attempting to pervert the course of justice.[12]

25 The panel found that SL had engaged in unprofessional conduct of a serious nature within the meaning of the Medical Practice Act. There was expert medical evidence that SL suffered from a medical condition which may have been at least partly responsible for his acts of misconduct.[13] The panel acknowledged that evidence but decided to cancel SL's registration. The panel acknowledged that SL was, at the time of its decision, actively engaged in treatment and rehabilitation and did not impose a specific period within which he was disqualified from applying for registration in the future.[14]

26 On 20 September 2006, SL applied to the Board for general registration as a medical practitioner. On 5 July 2007, the Board decided to refuse the application and later provided written reasons for its decision dated 6 September 2007. The refusal was based on the grounds set out in ss 6(2)(a) and (d) of the HPR Act.

27 As to s 6(2)(a), the Board considered that SL's character was such that it would not be in the public interest to allow him to practise as a registered health practitioner. Further, the Board considered that both limbs of s 6(2)(d) were applicable. Because of the findings of guilt, the Board decided, his suitability to practise as a health practitioner was likely to be affected and it was not in the public interest to allow him to practise.

28 On 20 July 2007, SL applied to the Tribunal for review of the Board's decision. Pursuant to s 51(1)(a) of the VCAT Act, in exercising its review jurisdiction, the Tribunal had all the functions of the Board as the original decision-maker. On 10 October 2008, the Tribunal decided to grant registration subject to certain stringent conditions.

29 The Tribunal set out SL's history of 'boundary issues' with female patients and the criminal convictions and disciplinary action to which he had consequently been subject.[15] The Tribunal heard expert medical evidence regarding SL's medical condition. He was initially diagnosed in mid 1999 as having OCD of an extreme severity, a major depressive episode of a moderate to severe nature, and significant levels of anxiety. The OCD led to SL experiencing recurrent unwanted and personally repugnant sexual thoughts or images, which were described as 'sexual obsessions'. These obsessions were triggered by events such as being in the presence of female patients reporting their medical histories. SL sometimes responded by repeatedly asking female patients about sexual matters, in order to reassure himself that he had not been involved in any unwanted events. SL's condition had significantly improved by December 1999, but there was a relapse in March-April 2001 (when the pharmaceutical representatives were assaulted) precipitated by marital problems, financial difficulties and problems with the practice. At the time of the Tribunal's hearing, SL's clinical symptoms were in remission.

30 On the basis of the - sometimes conflicting - expert medical evidence, the Tribunal made the following findings:

(a) 'the risk of [OCD] relapse is low';[16]

(b) 'there is a significant risk that if Mr Lal has a relapse it will be characterised by sexual obsessions';[17] and

(c) 'there is a risk that in the event of a relapse Mr Lal will not take appropriate action' (such as informing his treating therapists of any incidents or misconduct).[18]

31 It was not in dispute before the Tribunal that the only grounds for refusing registration which were relevant to SL were those in ss 6(2)(a), (c) and (d) of the HPR Act. We will refer to those grounds, as did the Tribunal, as the 'character ground', the 'impairment ground' and the 'offence ground' respectively.

32 In relation to the character ground, the Tribunal said that '[t]he applicant's insight into his past wrongdoing and the extent to which he exhibits remorse towards those who have been affected by that wrongdoing are relevant'.[19] The Tribunal accepted expert evidence that SL had a diminished capacity for interpersonal empathy and demonstrated a lack of remorse or empathy, but also referred to evidence of matters which spoke well of SL's character. The Tribunal's conclusion was as follows:

Having regard to all of the circumstances we are not persuaded that Mr Lal's character is such that it would not be in the public interest to allow him to practise. We acknowledge Mr Lal's character flaws - in terms of his deficits in empathy and remorse - but in our view these can be addressed by the imposition of a range of conditions on his registration and do not warrant the denial of registration.[20]

33 In relation to the impairment ground, it was common ground before the Tribunal that SL no longer had a mental illness and at the time of the Tribunal hearing was not suffering from OCD. The Board contended instead that he had a less serious condition, namely obsessive compulsive personality disorder ('OCPD'). That condition, combined with the risk of OCD relapse, was said to constitute a 'mental impairment' within the meaning of s 6(2)(c). There was a conflict in the expert evidence as to whether SL in fact had OCPD but, as there was no evidence that this disorder would impair his ability to practise, the Tribunal found it unnecessary to decide the issue. The Tribunal also rejected the Board's submission that the risk of an OCD relapse, either on its own or in combination with OCPD, could establish the impairment ground. That was because s 6(2)(c) was expressed in the present tense.[21] The Tribunal therefore rejected the impairment ground.

34 The Tribunal's findings on the character and impairment grounds are not challenged in the current appeal. We need say nothing more about them.

35 The critical conclusion of the Tribunal for present purposes was that neither limb of s 6(2)(d), the offence ground, was made out. The following parts of the Tribunal's reasons explain that conclusion:

In considering whether the 'offence ground' is made out it is relevant to consider the nature of the offending behaviour; the applicant's moral culpability for the offending; and the applicant's rehabilitation and remorse for the offending behaviour.

The offences committed by Mr Lal are manifestly very serious. The complainant in respect of the first three offences was a patient of Mr Lal's. Members of the public have a right to expect that the trust they repose in medical practitioners is not breached in such an egregious way.

The two assaults did not involve patients, but did occur in the course of Mr Lal's professional duties.

It is also relevant to note that Mr Lal's offending conduct occurred in two discrete periods. The repetition of what may euphemistically be called 'boundary issues' with women is particularly serious.

Mr Lal's moral culpability for the offences to which he pleaded guilty is a relevant consideration.

Impaired mental functioning may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility.

...

Mr Lal suffered from a mental illness (OCD) at the time he committed these offences and the weight of expert opinion supports a finding that his offending was largely the product of his illness. As a consequence Mr Lal's moral culpability for the offending conduct is substantially reduced.

Mr Lal's rehabilitation in respect of the offences is less than complete. This is manifested by a deficit in empathy with respect to the victims of his offending and in a lack of insight into his wrongdoing. We have already made mention of these matters in the context of the character ground.

The serious nature of the offences and the limited extent of Mr Lal's rehabilitation would ordinarily warrant findings that:

• the offences are likely to affect the applicant's suitability to practise; or

• it is not in the public interest to allow the applicant to practise.

Absent our conclusion in relation to Mr Lal's moral culpability we would have made such findings in this case.

But these offences were largely the product of the mental illness from which Mr Lal suffered at the relevant time and accordingly Mr Lal's moral culpability for the offending conduct is substantially reduced.

Having regard to all the circumstances we are not persuaded that Mr Lal's suitability to practise is likely to be affected because of the offences of which he has been found guilty. Nor are we persuaded that it is not in the public interest to allow Mr Lal to practise because of these findings of guilt. Accordingly, we are not satisfied that the offence ground is made out.[22]

36 As noted earlier, the Tribunal also considered whether, if one or more of the grounds in s 6(2) were established, there was nevertheless a residual discretion to grant registration.[23] The Tribunal concluded that there was such a discretion. Since, however, none of the grounds in s 6(2) was established in SL's case, there was no occasion for the Tribunal to consider the exercise of that discretion.[24]

37 The Tribunal imposed a number of conditions on SL's registration. These were identified variously as 'health related conditions', 'employment related conditions', 'monitoring related conditions' and conditions related to 'counselling'. There was also a condition that the conditions be reviewed after three years. The employment-related conditions required SL:

• 'to work only in a group practice or public hospital approved by the Health Committee [established by the Board under the HPR Act] with one other medical practitioner always in attendance';[25]
• 'not to work after hours without another medical practitioner in attendance';
• 'not to consult with any female patients'; and
• 'not to consult with any children under 16 years of age, as patients'.

38 The Tribunal rejected a submission by the Board that the conditions were inconsistent with the true nature of medical practice. It said:

The gravamen of this submission was that any finding as to the need for conditions excluding the applicant from examining female patients or requiring a chaperone to be present, demonstrated that he was in fact unfit to practise. In support of this proposition the Board relied on [Pettiford v Medical Practitioners Board of Victoria [2003] VCAT 940] ...

...

[T]he circumstances in the present matter are quite different [from those in Pettiford]. There is no suggestion that Mr Lal is usually disposed to boundary violations with female patients. Rather there is a risk that he may have a relapse of a mental illness which may result in aggressive and inappropriate behaviour towards women. It is that risk to the public to which the conditions we propose are directed; not to any inherent weakness in Mr Lal's character.[26]

As noted, that is one of the issues raised by the Board on this appeal.

39 We deal first with the preliminary issue, which has two aspects. First, before the Tribunal the Board accepted that SL's moral culpability was relevant to the application of s 6(2)(d). In its written submissions to this Court, however, the Board advanced the opposite contention, namely that moral culpability was irrelevant to s 6(2)(d) and relevant only to s 6(2)(a).

40 Secondly, the Board did not present any evidence to the Tribunal on the effect on public confidence in the medical profession of SL's being permitted to practise. Nor did the Board advance any submission that the effect on public confidence was a matter that the Tribunal had to take into account for the purposes of s 6(2)(d).[27] Before this Court, however, the Board sought to argue that the Tribunal had erred in failing to take that matter into account.

41 It is necessary to restate briefly the principles to be applied in determining whether to permit a party to raise on appeal a ground not raised in the court or tribunal at first instance. They are as follows:

(a) the substantial issues between the parties are ordinarily settled at the trial;[28]

(b) where, had the issue been raised below, evidence could have been given which possibly could have prevented the point from succeeding, the point cannot be taken afterwards;[29]

(c) where all the facts have been established beyond controversy or where the new point is one of construction or of law, it may be expedient and in the interests of justice for an appellate court to entertain the point;[30]

(d) even when no question of further evidence arises, it may still not be in the interests of justice to allow a new point to be raised on appeal;[31] and

(e) where a tribunal is bound to take into account a matter that is material to its decision, but does not do so, that failure may be raised on appeal as a question of law even if it was wrongly conceded before the tribunal that the matter was not relevant and no submissions were directed to the point.[32]

42 In our view, it was clearly in the interests of justice for the Board to be permitted to advance the new arguments. That this would work no injustice to SL was confirmed when his counsel conceded that the course of evidence before the Tribunal would have been no different had the Board advanced those arguments at that time. These are important questions of law about the interpretation of provisions which apply to registration procedures in a range of health professions. It was obviously in the public interest for those questions to be answered.

43 According to the Board's submission, the applicability of s 6(2)(d) is determined by the finding of guilt which triggers its operation - and nothing else. The circumstances of the commission of the offence are irrelevant, beyond the identification of the victim and the date of the offence. In the case of the first limb, the question is simply whether the finding of guilt is likely to affect the suitability of the applicant to practise as a health practitioner; in the case of the second limb, the question is simply whether the finding of guilt renders it not in the public interest to allow the applicant to practise. The answers to those questions depend, in turn, upon the type of offence committed.

44 As senior counsel for the Board accepted, it was implicit in this submission that certain types of offences were so serious that - whatever the particular circumstances - a finding of guilt of such an offence was sufficient by itself to make both limbs of s 6(2)(d) applicable. Hence, for the purposes of the argument, they were referred to as 'per se' offences. Senior counsel acknowledged that s 6(2)(d) did not contain any list of such offences. He argued, however, that the Board could decide whether an offence was a 'per se' offence by asking whether a finding of guilt against a medical practitioner in respect of that offence would undermine the trust that is vital in the health professional-patient relationship in respect of the applicant and the medical profession generally. When asked to identify the types of offences which would qualify under that test, counsel said that they would include rape, murder, manslaughter, genocide, theft, tax evasion, people smuggling and child sex offences. In fact, the Board did not concede that any particular offence would escape the 'per se' net.

45 The submission relied on s 1(a) of the HPR Act, which identifies the protection of the public as one of the main purposes of the Act. For this purpose to be achieved, so it was said, the public must have confidence in the medical profession. The maintenance of this public confidence was a facet of the public interest relevant to both limbs of s 6(2)(d).[33]

46 According to the submission, if an individual who had been found guilty of an offence such as rape were granted registration then, irrespective of the circumstances in which the offence was committed, the public would lose confidence in the medical profession and hence be less willing to seek medical advice or treatment. This would have adverse consequences for the health and well-being of the community. It was said that the circumstances in which an offence was committed were often not reported in the media. Accordingly, since the public's judgments about the matter would not be informed by those circumstances, they could not be taken into account by the Board in applying s 6(2)(d). The circumstances of the offence were relevant only to the character ground in s 6(2)(a).

47 The Board's submission must be rejected. There is simply nothing in the language of s 6(2)(d) or in the context in which it appears or in the purposes of the HPR Act which supports the construction contended for. If Parliament had intended to specify classes of offences where a finding of guilt would constitute an automatic ground of disqualification, it would have said so expressly. Plainly, a quite different provision would have been required had that been the intention. Either the relevant offences would have been specified or the Act would have defined a clear criterion for identifying such offences.[34] We reject the submission that one can distil from s 6(2)(d) an implied test of 'maintenance of the trust in the health professional-patient relationship' for identifying such offences.

48 The very language of s 6(2)(d) demonstrates the fallacy in the submission. The first limb requires the Board to determine whether the suitability of the applicant to practise as a health practitioner is likely to be affected by the particular finding of guilt. Self-evidently, that question can only be answered after examining the nature and circumstances of the offence, including in particular the moral culpability of the applicant and the presence or absence of aggravating and mitigating circumstances. With almost every offence, there are so many factual situations that could give rise to a finding of guilt, ranging from the minor to the very serious, that the offender's suitability to practise medicine (including the question whether the trust between health professionals and patients would be undermined) could not sensibly be assessed by reference to the finding of guilt alone. The point is even clearer in relation to offences involving strict or vicarious liability, where there may be no personal moral culpability at all.

49 The same analysis applies to the second limb. The variety of circumstances in which most offences come to be committed makes it impossible to determine by reference to the finding of guilt alone whether or not it is in the public interest to allow the applicant to practise medicine. What is required is an assessment of all of the circumstances of the offence, including the moral culpability of the applicant. It would be wholly inappropriate for a responsible board simply to rely on the finding of guilt and ignore - for example - what was said by the sentencing court. To ignore those matters would be to fail to perform the statutory task.

50 This conclusion is consistent with the decision of Ashley J in Domburg v Nurses Board of Victoria.[35] In that case, the Tribunal had suspended a nurse's registration under the Nurses Act 1993 (Vic).[36] The definition of 'unprofessional conduct' included - in similar terms to s 6(2)(d) - 'a finding of guilty of ... an offence where the nurse's ability to continue to practise as a registered nurse is likely to be affected because of the finding of guilt, or where it is not in the public interest to allow the nurse to practise because of the finding of guilt'. The key part of Ashley J's judgment is as follows:

The Tribunal, against the background of evidence, submissions and conclusions to which I have referred, concluded that the Appellant had been found guilty of offences "whereby it is not in the public interest to allow the Appellant to continue to practise because of the finding of guilt".

It prefaced that conclusion by referring to "the nature and circumstances of the offences committed by the Applicant" which "involved a course of dishonesty perpetrated over about two and a half years and repeated at regular intervals".

It appears to me that the Tribunal reached its conclusion by asking itself whether, in the circumstances of the particular convictions, there was a risk that public confidence in the nursing profession could be damaged, this potentially impacting upon the ability of nurses to deliver effective care. On the evidence, an available answer to that question was "yes". That made relevant the maintenance (or restoration) of trust in the nursing profession. From there it was but a short step to conclude that it was not in the public interest to allow the Appellant to continue to practise because of the finding of guilt. Once such a finding was made, it may be added, steps could be taken, by way of appropriate determinations, to maintain (or restore) public confidence in the profession.

Taking the route described, the Tribunal's ultimate conclusion did not depend upon it finding that the particular nurse was, by reference to the conduct reflected in the finding of guilt, a threat to the public requiring its protection from her. I consider that the making of a finding under the second limb of paragraph (c)(ii) and then the imposition of an appropriate determination in respect of the particular nurse was apt to protect the public - being action that would tend to reinforce within the nursing profession generally the need for maintenance of high standards of ethics, honesty and trustworthiness.

...

... The essential point which the Tribunal made was that the nature and circumstances of the offences, involving a prolonged and repeated course of dishonesty, were pertinent to the public interest. How that could be so is a matter which I have already explained. ...[37]

51 As can be seen, his Honour implicitly accepted the correctness of the approach there taken by the Tribunal, of treating as relevant considerations the nature and circumstances of the offences committed. In that case, the offending involved repeated acts of dishonesty. His Honour did not specifically refer to moral culpability but it is apparent that he would have regarded that as one of the relevant circumstances.

52 We regard as untenable the Board's submission that any deficiency in the public's knowledge of the circumstances in which an offence came to be committed at the time the finding of guilt is made (for example, through selective media reporting) can affect whether s 6(2)(d), on its proper construction, requires or permits those circumstances to be taken into account.

53 It follows that the Tribunal did not err in law in construing s 6(2)(d). Nor was the moral culpability of SL an irrelevant consideration. For the reasons we have given, his culpability for the offending was squarely relevant and it would have been an error of law to ignore it.

54 Before leaving this ground, we wish to emphasise that in the overwhelming majority of cases a recent conviction for rape or other serious sexual offence involving a patient would warrant the refusal of an application for registration to practise medicine. The Tribunal's conclusion that s 6(2)(d) was not satisfied in relation to SL underlines just how atypical these circumstances were.

Relevance to s 6(2)(d) of public confidence in the medical profession

55 The second limb of s 6(2)(d) requires a determination of whether, because of the finding of guilt, it would be against the public interest for the person to be allowed to practise.

56 The public interest is a protean concept. What is relevant to the public interest depends on the statutory context in which the concept is used. Its content cannot be confined by reference to any predetermined generic criteria.[38]

57 In the context of the HPR Act, the protection of the public is a key aspect of the public interest. As noted earlier, it is one of the Act's chief purposes. The registration processes are designed to ensure that the privilege of registration is conferred only on those who are appropriately qualified, competent and trustworthy. By this means, individual members of the public are protected against the risk of medical malpractice.

58 Sound registration practices also confer an indirect form of public protection, through the establishment and the maintenance of public confidence in the medical profession. If the public at large have confidence in doctors, they are more likely to seek medical advice and treatment when the need arises. This is conducive to the general health of the community.

59 Like the goodwill which attaches to a business, however, public confidence in the medical profession is not turned on and off like a switch. Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high.

60 This may well explain why the Board's representatives made no reference to public confidence in their arguments - or their evidence - before the Tribunal. It seems inconceivable that this could have occurred had the issue of public confidence truly been as compellingly relevant as the Board sought to argue on the appeal.

61 As articulated for the first time on the appeal, the Board's concern about the impact on public confidence appeared to be, in large measure, a concern about how a decision to register SL would be reported in the media. We rejected earlier the Board's submission that, because the media could not be expected to report the (mitigating) circumstances of the offending, the Board itself was precluded from taking those circumstances into account. The argument about public confidence proceeded from a similar premise. That is, the decision-maker had to judge the likely impact on public confidence on the basis that media reports of a decision to register SL would highlight his conviction for rape without identifying the important matters which reduced his culpability.

62 This submission must be rejected also. It would be quite wrong, in our view, for a registration decision to be influenced by a concern about the likely media reaction to the decision. There is a useful analogy with the sentencing function performed by the courts. As appears from the remarks of the sentencing judge set out above, his Honour was alive to the possibility of a simplistic headline 'Rapist Not Gaoled', but was not diverted from his task of sentencing according to law on the basis of the particular circumstances of the case. So too with the Board. If the Board is satisfied that, although the applicant has a prior conviction, his/her registration as a practitioner is consistent with protection of the public, it would be wrong for the Board to refuse registration because the decision might be (mis)reported in such a way as to expose the profession or the Board to criticism.

63 The maintenance of public confidence in the medical profession is a proper concern of the Board. But, for the reasons we have given, we reject the argument that the Board must, in every case, consider the likely effect on public confidence of the particular registration decision at hand. There is nothing in s 6(2), or in the Act as a whole, which suggests that the possible impact on public confidence was a matter which the decision-maker was bound to take into account in assessing the public interest under s 6(2)(d).[39]

64 In any case - as counsel for SL pointed out - the Tribunal appeared to be cognisant of the issue of public confidence. We have previously set out the relevant section of the Tribunal's reasons.[40] The Tribunal also referred to the comments by the County Court judge about trust between doctors and female patients,[41] and to the panel's comments about 'public confidence in the profession and its regulatory body' in the decision made on 8 December 2003.[42]

65 In evaluating for the purposes of s 6(2)(d) the significance of the findings of guilt against SL, the Tribunal was not only entitled but was bound to consider all of the circumstances of the offending, including SL's moral culpability and the extent to which it was mitigated by the mental illness from which he was then suffering. On the other hand, the Tribunal was not bound to consider the effect on public confidence in the medical profession of registering SL notwithstanding those findings.

66 We turn to deal with the conditions which the Tribunal imposed.

Did the Tribunal err in granting registration upon the conditions that it imposed?

67 The Board submitted that the Tribunal erred because the conditions that it considered necessary to impose demonstrated that it should have found SL unfit to practise. Counsel for the Board relied upon Health Care Complaints Commission v Litchfield[43] and Pettiford v Medical Practitioners Board of Victoria.[44] In the course of argument before us, this argument was put on two bases: first, that the imposition of the conditions was indicative of 'Wednesbury unreasonableness', in that no reasonable Board could ever have decided to grant a registration on such conditions; and secondly, that compliance with such conditions was incompatible with the practice of medicine.

68 We reject both propositions. As to the first, this is not a case of Wednesbury unreasonableness. It cannot be said that there was no logical basis for the grant of registration to SL upon the conditions imposed. The Tribunal's reasons make it clear that it carefully fashioned the conditions it imposed in order to protect patients consulting SL, particularly women, who might be at risk if there were to be a recurrence of the OCD.[45]

69 As to the second, the New South Wales Court of Appeal in Litchfield overruled its earlier decision in Richter v Walton[46] in which the Court, by majority, set aside an order removing a medical practitioner's name from the register and substituted an order imposing a condition that, for a period of two years, he be prohibited from treating female patients except in the continuous presence of a female chaperone. The Court in Litchfield commented, in obiter, that the necessity for imposing such a condition - because the medical practitioner could not otherwise be trusted to observe proper professional standards in his conduct towards female patients - demonstrated that he was unfit to practise medicine.[47]

70 In Pettiford, the Tribunal was dealing with a proposal that a psychiatrist remain registered under the Medical Practice Act subject to a condition that he only treat male patients. After referring to Litchfield, the Tribunal commented that to impose that condition would clearly demonstrate that the psychiatrist was unfit to practise as a medical practitioner.[48] In that case, the Tribunal found that the psychiatrist had not only engaged in inappropriate sexual activities with two female patients but had also been professionally incompetent and that his conduct indicated that he had a pre-disposition to further offending.[49]

71 In our view, the conditions imposed by the Tribunal on SL's registration neither negate the grant of registration nor demonstrate that SL was not fit to be granted registration. The Tribunal did not find that any inherent character or personality trait of SL satisfied the character ground. Rather, it found that, by virtue of the OCD, SL had committed acts in relation to female patients, and females visiting his premises for business purposes, which rendered it unsafe for him to be left alone with women. The Tribunal found that, although SL no longer suffered from that mental illness, there was a low but significant risk of the illness recurring. If the illness recurred, SL could once again pose a risk for women who are alone with him. The conditions imposed by the Tribunal were appropriately directed at preventing that risk from materialising. The prohibition on seeing children under 16 years recognises that young patients are often accompanied by their mothers.

72 There is nothing in SL's medical or personal history that suggests that, if the OCD were to recur, he would pose a risk to males of any age. There are a large number of male patients over the age of 16 who may choose to seek medical advice or treatment from SL. While a medical practice that caters only for males over 16 has a much narrower scope than a practice that caters for all types of patients, the former practice can nevertheless be properly characterised as a medical practice. The scope limitation certainly does not indicate that the medical practitioner is unfit to practise.

Is there a discretion to grant registration where a ground in s 6(2) is established?

73 We deal finally with the question whether, if a disqualifying ground in s 6(2) is established, the decision-maker nevertheless has a residual discretion to register the person.

74 The Tribunal's reasoning on this point was as follows:

In our view s 45(1) of the [Interpretation of Legislation Act 1984 (Vic)] makes it clear that the word 'may' in s 6(2) means that the power to refuse to grant registration is discretionary even if one or more of the grounds specified is established.

For completeness we note that even if s 45(1) did not apply the application of the general principles of construction would yield the same result.

Subject to the relevant context, the natural and ordinary meaning of 'may' is permissive and suggests the conferral of a discretion. In this case that construction is supported by the immediate context in which the word appears.

... s 6(1) provides that in certain circumstances a board 'must' grant registration. The legislature chose different language in s 6(2), which provides that a board 'may' refuse registration in certain circumstances. The use of the words 'may' and 'must' within the same section is telling. The legislature could have used the same word ('must') in s 6(2) but chose to use a different word. This suggests that it was intended that the words have a different meaning. ...

We accept the Board's submission that the consequence of interpreting a provision one way or the other is relevant to the determination of whether a provision imposes a duty or confers a discretion. In this context, reference was made to one of the main purposes of the [HPR Act] being to 'protect the public by providing for the registration of health practitioners' (s 1(a)).

But in our view that purpose would not be defeated by construing s 6(2) as conferring a discretion.

The Board submitted that the nature of the grounds specified in s 6(2), are of such seriousness that the presence of one or more of them must inevitably result in a refusal of registration. We disagree not all of the grounds specified necessarily warrant the refusal of registration. ...[50]

75 On the appeal, the Board maintained the argument put to the Tribunal, that the grounds specified in s 6(2) were such that it would never be appropriate to register a person as a medical practitioner if one (or more) of the disqualifying grounds existed. It was said that it would be contrary to the entire scheme of the HPR Act to treat the word 'may' in s 6(2) as conferring a discretionary power to register in the circumstances.

76 This submission, too, must be rejected, for the following reasons. The ordinary and natural meaning of the word 'must' is obligatory, while that of the word 'may' is permissive or facultative and not obligatory.[51] There are, of course, exceptions, where what appears to be a permissive conferral of power may in fact be obligatory.[52] But the statutory context here shows decisively that 'may' was intended to confer a discretion, not to impose a duty.

77 This conclusion follows from the nature of certain of the disqualifying grounds. First, s 6(2)(h) provides that registration may be refused if an applicant has inadequate professional indemnity insurance. But s 6(3) empowers a responsible board to grant registration subject to any condition the responsible board thinks fit 'including conditions as to professional indemnity insurance'. Plainly enough, therefore, it was not intended that the board must refuse to register an applicant who did not have adequate professional indemnity insurance. Instead, the board has a discretion to grant registration subject to the obtaining of adequate insurance. This conclusion is reinforced by s 13(1) of the HPR Act, which expressly contemplates the granting of registration subject to meeting the board's requirements in relation to professional indemnity insurance.

78 Secondly, we refer to s 6(2)(f), which provides that the board may refuse to register an applicant whose competency in speaking or communicating in English is not sufficient for that person to practise as a health practitioner. In our opinion, there are likely to be circumstances where it would be appropriate for a responsible board to grant registration to such an applicant subject to appropriate conditions. For example, the applicant might be undertaking an English proficiency course. If the responsible board considered that the applicant's English language skills were just short of the requisite standard, it could grant registration subject to the applicant completing the course satisfactorily and producing to the board a certificate of satisfactory completion.

79 Once it is recognised that a residual discretion exists, it matters not that there may, for practical purposes, be no circumstances in which the discretion could sensibly be exercised if certain other disqualifying grounds were made out. If, for example, the registering authority concluded under the first limb of s 6(2)(d) that the applicant was not 'suitable to practise', it is difficult to conceive of any circumstances in which it would be appropriate to exercise the discretion to register. But the fact that the discretion will never, or rarely, be exercised in relation to particular grounds of disqualification does not deny its existence.

80 This conclusion is supported by other provisions of s 6 of the HPR Act. The word 'may' is also used in s 6(4). Given the subject matter - the conferral of a power to amend, vary or revoke a condition of registration - it is clear that the Board is there given a discretion. It is unlikely that a different meaning of 'may' was intended in s 6(2). The juxtaposition of the word 'must' in s 6(1) with the word 'may' in s 6(2), in our opinion, strongly supports a construction of the word 'may' as conferring a discretion.

81 Our analysis is also consistent with Medical Practitioners Board of Victoria v McGoldrick, where the Court made comments that appear to accept the existence of a residual discretion.[53]

82 As the Board has not established any error of law on the part of the Tribunal, we will order that the appeal be dismissed. We will hear from the parties on the question of costs.

[1] Lal v Medical Practitioners Board of Victoria [2008] VCAT 2077 ('Reasons').

[2] See R v Schubert [1999] VSCA 25, [16], [20]; DPP v Sims [2004] VSCA 129, [20], [32], [34].

[3] As discussed later in this judgment, this Court has stayed the Tribunal's decision pending the hearing and determination of this appeal.

[5] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72, 79 [15].

[6] HPR Act, s 3(1) (definition of 'responsible board') and Sch 1 item (d).

[7] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[8] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 384; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207, 256 [163].

[9] The Medical Practice Act was repealed and replaced by the HPR Act on 1 July 2007.

[11] Transcript of Proceedings, R v Lal (County Court of Victoria, 20 December 2002) 12, 17-18.

[12] Re Lal [2003] MPBV 32, [95].

[13] The Board's reasons do not describe that medical condition in detail. This may reflect the fact that it acceded to the request made by SL's counsel for the hearing to be intermittently closed on the basis that the evidence included intimate and personal information relating to SL and then prepared its reasons to reflect that ruling: see Re Lal [2003] MPBV 32, [21].

[14] Re Lal [2003] MPBV 32, [99].

[15] See [16]-[23] of this judgment.

[22] Reasons [148]-[162] (citations omitted).

[25] It appears that the reference to the 'Health Committee' is a reference to a committee established by the Board pursuant to ss 134 and 136 of the HPR Act.

[27] In paragraph 21 of its written submissions to the Tribunal, the Board submitted that 'in the eyes of the public and/or the medical profession [SL's] offending is such that his suitability to practise is likely to be affected because of the findings of guilt, and/or it is not in the public interest to allow him to practise because of the finding of guilt'.

[28] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7.

[29] Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497; Coulton [1986] HCA 33; (1986) 162 CLR 1, 7-8; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 461 [51].

[30] Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497.

[31] Whisprun [2003] HCA 48; (2003) 200 ALR 447, 461 [51].

[32] Transport Accident Commission v Bausch [1998] 4 VR 249, 263; Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, [40]-[41].

[33] Domburg v Nurses Board of Victoria (2000) 16 VAR 305; [2000] VSC 369, [25]-[26]; Chan v Nurses Board of Western Australia [2007] WASCA 123, [41].

[34] This is the approach that Parliament has adopted in s 132D of the Transport Act 1983 (Vic), which provides that an application for a taxi-cab operator accreditation must be refused where the applicant has been found guilty of murder and certain other offences.

[35] (2000) 16 VAR 305; [2000] VSC 369.

[36] That Act has since been repealed and replaced by the HPR Act.

[37] (2000) 16 VAR 305; [2000] VSC 369, [23]-[26], [33] (emphasis added).

[38] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216; East Melbourne Group Inc v Minister for Planning [2008] VSCA 217, [126].

[39] Cf Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

[40] Paragraph 149 of the Tribunal's reasons appears in paragraph 35 above.

[43] [1997] NSWSC 297; (1997) 41 NSWLR 630 ('Litchfield').

[44] [2003] VCAT 940 ('Pettiford').

[46] (Unreported, New South Wales Court of Appeal, Kirby P, Priestley JA and O'Keefe AJA, 15 July 1993).

[47] [1997] NSWSC 297; (1997) 41 NSWLR 630, 639.

[48] [2003] VCAT 940, [62].

[49] [2003] VCAT 940, [55], [58].

[51] Ward v Williams [1955] HCA 4; (1955) 92 CLR 496, 505-6.

[52] Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106, 134-5; Encyclopaedia Britannica (Australia) Inc v Director of Consumer Affairs [1988] VicRp 82; [1988] VR 904, 913; Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1, 17 [38]; DPP v Le [2007] VSCA 18; (2007) 15 VR 352, 358 [16].

[53] (1999) 15 VAR 462; [1999] VSCA 215. The comments are (at [20]): '[t]he only questions were whether the Tribunal considered that any of the admitted facts fulfilled the description of one or more of the grounds set out in s 7(2) [of the Medical Practice Act] and, if they did, whether on that account the application for registration should be refused' and (at [22]) '[i]n dealing with grounds (c), (d) and (e) the Tribunal separately considered the facts advanced by the Board in respect of each ground and determined that although the grounds were established, none of them, considered discretely, warranted the exercise of the power to refuse the application for registration'. Section 7 of the Medical Practice Act was relevantly in similar terms to s 6 of the HPR Act.