Applicant v Respondent

Supreme Court of Victoria|2008-09-12|Before: Hollingworth J

Administrative law - Suspension of medical practitioner - Whether disproportionality an independent ground of judicial review - Whether failure to apply proper statutory test - Whether failure to apply relevant considerations - Whether Board applied irrelevant considerations - Administrative Law Act 1978 ss 7,10 - Health Professions Registration Act 2005 ss 3, 40, 59

Charter - Whether Board a "public authority" - Whether Board exercising administrative or judicial power - Whether presumption of innocence applies at hearing before the Board - Whether any limitation on the presumption of innocence - Whether any such limitation reasonable - Charter of Human Rights and Responsibilities Act 2006 ss 4, 7, 25, 34, 35, 38, 39

For the Attorney-General for Victoria (intervening)

Ms P Tate S.C., the Solicitor-General for Victoria with

1 The Medical Practitioners Board of Victoria is a statutory authority, which regulates the medical profession. The Board can suspend the registration of medical practitioners under s 40 of the Health Professions Registration Act 2005 ("the HPRA").

2 Since 2000, Dr Ahmed Sabet has been registered as a medical practitioner in Victoria. In April 2008, the Board suspended Dr Sabet's registration, due to allegations made against him by two female patients.

3 Dr Sabet challenges the Board's decision to suspend him. He seeks judicial review of the decision under the Administrative Law Act 1978 ("the ALA") on a number of grounds. He also relies upon the recently-enacted Charter of Human Rights and Responsibilities Act 2006 ("the Charter"). Specifically, Dr Sabet now alleges[1] that, in deciding to suspend him, the Board:

(b) Failed to comply with the statutory test which granted it the right to suspend his registration;

(d) Took into account irrelevant considerations; and

(e) Failed to comply with the Charter, in that it failed to give proper consideration to the presumption of innocence afforded by s 25(1) of the Charter.

4 It is alleged that, on 20 July 2006, Dr Sabet conducted an unnecessary and inappropriate vaginal examination on a female patient, Ms AB, and did not provide her with his clinical finding of the examination ("the AB allegations").

5 On 7 August 2006, a forensic physician at the Victorian Institute of Forensic Medicine ("VIFM") notified the Board of the AB allegations. The notification included an opinion from the physician, and a copy of Ms AB's statement to police made two days after the consultation.

6 The Board began an investigation into the AB allegations.[2] Ms AB was interviewed by one of the Board's investigating officers on 6 June 2007, and subsequently provided a further written statement.

7 By letter dated 9 July 2007, the Board sought Dr Sabet's written response to the AB allegations. Dr Sabet responded on 9 August 2007, denying any wrongdoing. Over the next few months, the Board communicated further with Dr Sabet and Ms AB, and sought information from Ms AB's previous doctor.

8 At a special meeting of the Board held on 1 November 2007, the Board resolved to conduct a formal hearing into the AB allegations, during which it would consider whether to suspend Dr Sabet's registration.

9 At the special meeting, the Board was aware that VIFM had verbally informed a Board officer that police were investigating a complaint against Dr Sabet by another patient, Ms YZ, concerning her consultation with him on 20 October 2007, when she had gone to see him for the "morning after" pill ("the YZ allegations"). The officer told the Board that Ms YZ had made a complaint to the police, but her police statement was not available to the Board at that time. The Board did not begin an investigation into the YZ allegations at that time, because its usual practice is to suspend its own investigations until the completion of any police investigation.

10 On 2 November 2007, Dr Sabet was given notice of a formal hearing, to be held on 8 November 2007 ("the November hearing"), regarding the AB allegations. He was told he could make submissions as to why the Board should not suspend his registration. The Board also told him what little it knew about the YZ allegations.

11 Dr Sabet was legally represented at the November hearing. The Board provided Dr Sabet with copies of documents relating to its investigation. Dr Sabet's counsel made written and oral submissions to the Board. Dr Sabet denied any misconduct, however, during the course of submissions, offered to restrict the manner in which he practised.

12 The Board accepted Dr Sabet's offer of restricted practise, as it was permitted to do under s 40(5) of the HPRA. The offer was reduced to writing, in substantially the form that had been proposed by Dr Sabet, and was signed by him on 14 November 2007 ("the initial agreement"). The initial agreement prevented Dr Sabet from:

(a) Consulting with any female patient under 14 years of age without the child's parent or guardian being present;

(b) Consulting with any female patient without a chaperone being present; and

13 The initial agreement also permitted the Board to conduct random audits of patient records, and required Dr Sabet to provide monthly statutory declarations confirming his ongoing compliance with the agreement.

14 On 26 March 2008, Dr Sabet was charged by summons with three counts of rape and five counts of indecent assault in relation to Ms YZ ("the charges"). He has not been charged with any offence relating to Ms AB.

15 On 28 March 2008, police advised the Board of the charges, providing copies of two statements Ms YZ had made to the police, and a request from the police to VIFM to investigate the YZ allegations.

16 The Board held a special meeting on 3 April 2008, to determine whether, in light of the charges and the further information about the YZ allegations, the Board should consider suspending Dr Sabet's registration.

17 The Board resolved to conduct another hearing and, by letter of the same date, notified Dr Sabet of his right to appear at the hearing, to be held on 10 April 2008 ("the April hearing"), and sent him the material it had considered at the 3 April meeting.

18 On 8 April 2008, two employees of the Board attended Dr Sabet's clinic, to determine whether he had been complying with the initial agreement. They reported that there was no evidence to suggest Dr Sabet had not done so ("the compliance report").

19 Dr Sabet was legally represented at the April hearing, and made written and oral submissions to the Board. Through his counsel, Dr Sabet said he was innocent and intended to defend the charges. However, in order not to prejudice his criminal defence, he did not put forward material as to the substance of the YZ allegations.

20 During the April hearing, Dr Sabet offered to amend the initial agreement, so as to provide that he would not consult with any female patients except:

(a) To undertake cosmetic procedures on the face and neck, and then only with a chaperone; and

(b) To see female patients under 12 years of age, and then only with the child's parent or guardian being present,

21 The Board rejected the offer of the proposed modified agreement. It determined at the April hearing to suspend Dr Sabet's registration, effective from 5:00 pm on 11 April 2008 ("the decision"). It provided written reasons for the decision in a letter sent to Dr Sabet's solicitors on 22 April 2008 ("the reasons").

22 The reasons form part of the decision and are incorporated in the record for the purposes of the ALA.[3]

23 The reasons are six pages long. They begin with a reasonably-detailed description of the nature and history of the AB and YZ allegations, the November hearing, the initial agreement, the charges, the 3 April meeting and the compliance report. Because of the pending charges, I will not set out the details of the two women's specific allegations, other than as already disclosed in open court.

24 On the second last page, the Board deals with the April hearing, specifically noting that:

(a) Dr Sabet had offered to restrict his general practice to male patients only;

(b) Dr Sabet's counsel had advised him not to comment on the YZ allegations because of the charges; and

(c) The Board acknowledged that, at that stage, there had been no finding of guilt against Dr Sabet with respect to the charges.

25 The reasons then state that the Board decided to suspend under s 40(1)(c), as it was of the opinion that it was necessary to do so, because there was a serious risk that the health and safety of the public would be endangered, because the Board believed, on reasonable grounds, that Dr Sabet had or may have engaged in unprofessional conduct or professional misconduct.

26 The last page of the reasons is headed "The Board's reasons." Notwithstanding the heading, the last page should not be read in isolation from the earlier pages of the document, upon which it is clearly based.[4]

27 As the last page was scrutinised at some length by counsel, I will set it out in full in so far as it was referred to in open court:

In making its determination the Board noted, and expressed significant concern about the similarity of the circumstances in each separate incident, as provided to the Board and the police.

[The Board then referred to some factual similarities between the two women's allegations]

The circumstances of the separate consultations were disturbingly similar and the Board did not consider such similarities could be contrived.

The Board also expressed concern that the second notification had resulted from Dr Sabet's professional conduct at a time when he was aware that an investigation into his professional conduct was underway.

Against these significant concerns and the Board's charter to protect the public, the Board had to weigh the information provided to it through the compliance assessment and the further offer of Dr Sabet to restrict his consultations to male patients only at the general practice location.

When the Board considered its statutory responsibility, the disturbing nature of the notifications, the similarities in the circumstances of the two separate notifications and the fact that the second notification occurred whilst Dr Sabet was aware his professional conduct was being scrutinised, the Board determined that an Agreement did not adequately protect the public.

The Board therefore determined to suspend Dr Sabet's medical registration pursuant to s 40(1)(c) of the Act.

28 The matter first came before a master on 5 May 2008, by way of ex parte oral application for an order nisi for review. The master ordered the Board to show cause before a judge on 19 May 2008, as to why the decision should not be reviewed.[5] He ordered a stay of the decision until that time.

29 On 15 May 2008, Dr Sabet's solicitor gave notice to the Attorney-General for Victoria and the Victorian Equal Opportunity and Human Rights Commission, under s 35 of the Charter, advising that a question of law arose under the Charter. The Attorney-General chose to intervene in the proceeding.[6]

30 The matter came before me in the Practice Court on 19 May 2008. Dr Sabet, the Board and the Attorney-General were represented. Orders were made by consent between all parties for the delivery of submissions and the matter was fixed for trial.

31 Dr Sabet and the Board then addressed me as to whether the stay of the decision ought to continue until trial. Following argument, I extended the stay until the trial date, and required Dr Sabet to provide an undertaking to the court to enter into and comply with the proposed modified agreement. At trial, I further extended the stay until the publication of my reasons for decision.

32 In suspending Dr Sabet, the Board acted under s 40(1)(c) of the HPRA, which provides:

(1) A responsible board may, at any time, suspend the registration of a health practitioner if the responsible board is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered because the responsible board believes, on reasonable grounds, that -

33 Section 40(5) is also of some importance in this case. It provides as follows:

In place of suspending the registration of a health practitioner ... under this section, the responsible board may seek and accept an agreement in writing from the health practitioner to alter the way in which he or she practises as a health practitioner ...

34 The Board is a "responsible board", and Dr Sabet a "health practitioner", within the meaning of the section.

35 "Unprofessional conduct" and "professional misconduct" are defined by s 3 of the HPRA. Unprofessional conduct relevantly includes:

(a) conduct of a health practitioner occurring in connection with the practice of the health practitioner's profession that is of a lesser standard than a member of the public or the health practitioner's peers are entitled to expect of a reasonably competent health practitioner of that kind;

(b) professional performance which is of a lesser standard than that which the registered health practitioner's peers might reasonably expect of a registered health practitioner.

(a) unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and

(c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession.

37 Suspension under s 40(1) is an interim measure. It operates until "any investigation or any hearing into the matter is completed and [the Board] is of the opinion that there is no serious risk that the health and safety of the public will be endangered as a result of the health practitioner practising as a health practitioner," or until the suspension is otherwise revoked.[7]

38 Preparations for the Board's formal hearing of the AB allegations are underway. However, as mentioned earlier, the Board's investigation with respect to the YZ allegations has been put on hold, pending the determination of the charges.

39 At the conclusion of any investigation, the Board has a number of options open to it, including: referring the matter to the Health Services Commissioner or to VCAT; resolving the matter by agreement between the Board and the health practitioner and/or the notifier; or taking no further action.

40 It is important to note that in making a preliminary or interim decision to suspend, a body such as the Board does not embark on any fact-finding exercise; in particular, it makes no decision as to the guilt or innocence of the practitioner.[8] That has a number of consequences in terms of how such a hearing is conducted. The strict rules of evidence will not apply, and the Board may have to make a decision based, at least in part, on untested complaints and allegations.

41 The main purposes of the HPRA include "the protection of the public" by the registration of health practitioners, and by a common system of investigations into professional conduct and performance.[9] Under s 118 of the HPRA, the Board's functions include the registration of persons, the regulation of professional standards and the investigation of professional conduct under the HPRA. Section 40(1) itself requires the Board to consider whether the "health and safety of the public" will be endangered. The effect of such provisions is that the Board undoubtedly has a role to play in the protection of the public, through the exercise of its powers under the HPRA.

42 Dr Sabet argues that if any of the non-Charter grounds of judicial review is made out, the Board will have acted contrary to the principles of natural justice and he will be entitled to relief in the nature of certiorari and an injunction, under s 7 of the ALA.

43 It is important to note that this is not a review of the merits of the Board's decision. A court's role in a judicial review case such as this is limited. It is not the function of the court to substitute its own decision for that of the Board, by exercising the very discretion which parliament has vested in the Board. The question is not whether the court would have exercised the discretion in the same way as the Board did and decided to suspend Dr Sabet. Rather, the court's role is to supervise the exercise of the statutory discretion, including by ensuring that the Board had regard, and only had regard, to relevant considerations.

44 There is no dispute that, as a matter of principle, the reasons should be read as a whole and are entitled to a beneficial construction. They are not to be read as if they were the judgment of a court. The reasons of an administrative decision-maker such as the Board should not be scrutinised minutely or over-zealously, with an eye keenly attuned to the perception of error, looking for some looseness of language or inadequacy in the way the reasons are expressed.[10]

45 Dr Sabet argues that the Board acted disproportionately in determining to suspend his registration, because it cannot demonstrate that it was "necessary" to do so.

46 There is a dispute as to whether, as a matter of law, disproportionality can be relied upon as a discrete ground of judicial review.

47 The parties accept for present purposes that a complete lack of proportion between the consequences of a decision and the conduct upon which it operates may demonstrate what is often referred to as "Wednesbury unreasonableness".[11] "Wednesbury unreasonableness" arises where the decision maker has come to a conclusion so unreasonable that no reasonable decision maker could ever have come to it. Dr Sabet does not argue that Wednesbury unreasonableness could be established on the facts of this case.

48 However, Dr Sabet argues (and the Board disputes) that acting disproportionately constitutes an independent ground of judicial review in Australia, quite apart from Wednesbury unreasonableness. Whilst conceding that the existence of such a ground is not "free of doubt", Dr Sabet nevertheless argues that there is no binding authority to say that he cannot rely on disproportionality as a separate ground of review. He seeks to draw comfort from developments in English law, as well as some obiter dicta remarks made in a handful of recent Australian cases.

49 In Council of Civil Service Unions v Minister for the Civil Service[12], Lord Diplock made a passing reference to the "possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community."[13] The development of such a principle was further discussed by the House of Lords in later cases such as R v Secretary of State for the Home Department ex parte Brind,[14] R v Shayler,[15] and R (Prolife Alliance) v British Broadcasting Corporation,[16] based on importing European concepts of proportionality into English domestic law. Although the scope and content of such a concept has yet to be fully worked out, it involves moving away from traditional principles of administrative law (including Wednesbury principles, which still apply in Australia) towards principles of constitutional or human rights law.

50 The development of this principle in the United Kingdom was discussed at some length in Aronson and Dyer's textbook, Judicial Review of Administrative Action.[17] In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam[18], McHugh and Gummow JJ noted in a footnote[19] that the debate as to the existence of a proportionality ground of judicial review was "usefully described" in that textbook; however, their Honours said nothing as to whether they thought that such a ground should be imported into Australian law.

51 In Bruce v Cole[20], Spigelman CJ described such a ground as being "at the boundaries of accepted administrative law" and said:

Proportionality has not been adopted as a separate ground for review in the context of judicial review of administrative action, notwithstanding a considerable body of advocacy that it be adopted: see State of New South Wales v Macquarie Bank Ltd (1991) 30 NSWLR 307 at 321-325; Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 43 FCR 565 at 575-578; R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696 at 762, 766-767, 756, 750; New South Wales v Law (1992) 45 IR 62 at 63; Craig, Administrative Law, 3rd ed (1994) at 411-421; Aronson and Dyer, Judicial Review of Administrative Action (1996) at 375-379.

The concept of proportionality is plainly more susceptible of permitting a court to trammel upon the merits of a decision than Wednesbury unreasonableness. This is not the occasion to take such a step in the development of administrative law, if it is to be taken at all.[21]

52 Dr Sabet argued that the court in Andary v Minister for Immigration & Multicultural Affairs[22] said it was an "open question" whether such a discrete ground exists. However, after referring to the comments of Keane J in Radio Limerick One Ltd v Independent Radio and Television Commission[23] (in which his Honour said that disproportionality could be so gross as to render the decision unreasonable in the Wednesbury sense), the Full Federal Court in Andary actually said:

It seems to be an open question in Australia whether such a test can have application in determining whether a decision is unreasonable in the Wednesbury sense.[24]

53 Accordingly, the court in Andary does not appear to support the availability of disproportionality other than as part of Wednesbury unreasonableness.

54 The same may be said of the comments of Callinan J in Minister for Immigration and Multicultural Affairs v Eshetu,[25] where his Honour quoted the following passage from Deane J in Australian Broadcasting Tribunal v Bond[26]:

In so doing, I have treated what are sometimes referred to as "Wednesbury principles" ... as encompassed by the obligation to act judicially in cases where the obligation exists (but cf., for a contrary approach, Council of Civil Service Unions v Minister for the Child Service)...

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of "proportionality".

55 Callinan J said that it was unnecessary to consider whether Deane J's "arguably broader statement of the principle of 'unreasonableness'" had attracted the support of other members of the High Court.[27] But it is not clear to me that the matters referred to in Deane J's second paragraph were meant to be anything more than a clarification of the Wednesbury principles, to which he referred in the first paragraph of the quote. That is to say, I do not read Deane J's comments as support for an independent requirement of proportionality; certainly not one based on English law such as Council of Civil Service Unions v Minister for the Child Service.

56 Finally, Dr Sabet referred to the comments of Kirby J in Levy v The State of Victoria[28], where his Honour described the concept of proportionality as a guide to the limits of powers as "a useful concept."[29] However, that was a constitutional law case, and his Honour's comments appear to have been limited to the concept of proportionality in the constitutional context.

57 Therefore, the cases relied upon by Dr Sabet and discussed above do not support the conclusion that disproportionality provides an independent ground of judicial review in Australia. Nor is it clear from Dr Sabet's submissions precisely what the scope or limits of such a ground of review are said to be. It is not sufficient for Dr Sabet simply to say that there is no contrary authority. If such a ground of review is now to form part of the law of Australia, that is a decision which ought be made by an appellate court, not by a judge at first instance.

58 It follows that the argument that the decision should be set aside on this ground of disproportionality must fail as a matter of law.[30]

59 A statutory decision-maker such as the Board is required to comply with any relevant statutory test.

60 Here, the relevant statutory test is contained in s 40(1)(c) of the HPRA.[31] The statute permits the Board to suspend a practitioner if the Board:

(a) Is of the opinion that it is necessary to suspend, because there is a serious risk that the health and safety of the public will be endangered;

(b) Because it believes on reasonable grounds that the practitioner has or may have engaged in unprofessional conduct or professional misconduct.

61 Dr Sabet argues that the Board failed to identify the elements of, and failed to comply with, the statutory test set out in s 40(1). Dr Sabet's argument focussed primarily on the question of whether it was necessary to suspend him.

What does "necessary" mean in s 40(1)?

62 The meaning of "necessary" is a flexible one, and may vary according to the nature of the case. In Thomas v Mowbray[32], the High Court had to consider whether it was "reasonably necessary" to impose an interim control order on the plaintiff. Gummow and Crennan JJ referred with approval to the observations of the Supreme Court of the United States in McCulloch v Maryland[33] as to the flexible meaning of "necessary":

Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without the other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. ... [The word "necessary"] has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.

63 Dr Sabet accepts that the meaning of "necessary" must vary depending on the context. But he argues that, in the context of s 40(1), "necessary" has a degree of urgency and must be construed as meaning "essential", alternatively, that no remedy short of suspension would be sufficient to protect the health and safety of the public.

64 The context here must include the fact that the Board is essentially undertaking a provisional risk-assessment exercise, on an interim basis, based on such material as is known to it at the time. The context also includes the possible consequences of suspending or not suspending, on the practitioner and the public.

65 Given the serious consequences of a decision to suspend a health practitioner, I accept that "necessary" should be construed as meaning more than simply "convenient" or "useful". But it does not follow that it must be construed with quite the degree of urgency that Dr Sabet suggests.

66 Section 40(5) provides that, "in place of suspending the registration", the Board may seek and accept a written agreement to alter the way the practitioner practises. In its ordinary and natural meaning, "in place of" means "instead of" or "in exchange for".[34] So, even if the Board is of the opinion that it is necessary to suspend the practitioner, it may nevertheless choose to accept an agreement instead of, as an alternative to, suspension. If (as Dr Sabet asserts) "necessary" means essential to protect the public, or that no remedy short of suspension is sufficient to protect the public, then s-s (5) would seem to have no role to play.

Did the Board fail to identify and apply the relevant test?

67 On the last paragraph on page 5 of the reasons, the Board says that it decided to suspend Dr Sabet under s 40(1), as it was of the opinion it was necessary to do so, because there was a serious risk that the health and safety of the public would be endangered, because the Board believed, on reasonable grounds, that Dr Sabet had or may have engaged in unprofessional conduct or professional misconduct. The Board thereby correctly identifies the requisite statutory elements of s 40(1).

68 In arguing that the Board failed to comply with the statutory test, Dr Sabet relies in particular on the following matters. The initial agreement was acceptable to the Board at the November hearing. At that time, the Board knew that Ms YZ had made a complaint to the police about Dr Sabet's conduct. Dr Sabet says that by the time of the April hearing, the only new information before the Board in relation to the YZ allegations was that the Board had received a copy of Ms YZ's police statements and knew that Dr Sabet had been charged with offences against Ms YZ. The Board determined at the April hearing that the initial agreement and the proposed modified agreement were not sufficient to protect the public. Dr Sabet says that such matters do not demonstrate a necessity to suspend his registration.

69 Dr Sabet asks rhetorically: if it was not necessary to suspend him in November, why was it necessary to do so in April? His question (and indeed his entire argument) proceeds on a premise which has not been established, namely, that it was not necessary to suspend him in November. In fact, there is simply no evidence as to the Board's opinion and belief in November. All the court knows is that the Board was prepared to accept the initial agreement in November, instead of suspending him.

70 Even assuming the Board had decided that it was not necessary to suspend Dr Sabet in November, it is not clear why the Board's later decision to suspend is said to demonstrate a failure to apply the relevant statutory test. Much of Dr Sabet's criticism seems to involve an attack on the merits of the April decision (essentially, by saying that the decision to suspend was wrong), rather than providing a ground for judicial review.

71 Dr Sabet's characterisation of what occurred minimises the importance of a number of matters which had changed between November and April, and which the Board identifies in the reasons as relevant to its decision to suspend. At the November meeting, the Board had only very sketchy details of the YZ allegations. By the April meeting, it had before it two statements by Ms YZ to the police, Ms YZ's medical records and a statement by a VIFM forensic physician about Ms YZ.

72 Based on those detailed materials, it was able to form certain beliefs and opinions, which it was unable to do in November, including as to:

(a) The similarity of the circumstances giving rise to the two notifications;

(b) The fact that the YZ notification had resulted from Dr Sabet's conduct at a time when he was aware that an investigation into his professional conduct was underway; and

73 Dr Sabet does not really explain why considering those matters or forming such beliefs demonstrates a failure to apply the correct statutory test. In deciding to whether it is necessary to suspend, the section requires the Board to have regard to risks to public health and safety, as well as forming a belief that the practitioner may have engaged in unprofessional conduct or professional misconduct.

74 Finally, there is no dispute that "necessary" had to be construed in the same way at the November and April hearings. Dr Sabet does not point to anything which suggests that the Board applied a different meaning at the two hearings, and thereby failed to apply the right test.

75 It follows that Dr Sabet has not established that the Board failed to identify or apply the correct statutory test.

76 An administrative decision may be reviewed by a court if the decision-maker failed to take into account a relevant consideration (being one which it was bound to take into account), or took into account an irrelevant consideration (being one which it was forbidden to take into account). Whether something is relevant or irrelevant is to be determined by construing the relevant statute.[35]

77 Furthermore, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker, and not the court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[36]

Failure to take account of relevant considerations

78 Dr Sabet alleges that the Board failed to take proper account of the following relevant considerations:

(a) His complete compliance with the initial agreement;

79 There can be no dispute that each of the elements required to comply with the statutory test under s 40(1) must be a relevant consideration. But Dr Sabet did not explain why compliance with the initial agreement and his presumed innocence are considerations which the Board was "bound" to take into account.

80 Even assuming for present purposes that all of the above matters are relevant considerations, Dr Sabet has not established that the Board failed to take proper account of them.

81 Dr Sabet says that there is no indication on the face of the reasons how the Board weighed the information available to it through the compliance report, and why, notwithstanding that Dr Sabet had complied with the initial agreement, the Board determined it was necessary to suspend his registration.

82 The Board noted in the reasons that, based on the compliance report, there was no evidence of non-compliance with the initial agreement. But Dr Sabet's previous compliance with the initial agreement was not the only relevant consideration. It was one of a number of matters which the Board was entitled to consider in undertaking the risk-assessment exercise required by s 40(1). The Board said it had to "weigh the information available to it through the compliance [report] and the [proposed modified agreement]" against its significant concerns about the serious nature of the allegations, the similarities between them, the timing of YZ incident and its charter to protect the public.

83 The Board clearly did have regard to Dr Sabet's compliance with the initial agreement. But, as mentioned earlier, in the absence of any statutory indication of the weight to be given to the various considerations, it is for the Board, and not the court, to determine the appropriate weight to be given to that and other matters.

84 The Board did not purport, and was not required, to make any finding of guilt or innocence in deciding to suspend.

85 The Board expressly noted in the reasons that there had been no finding of guilt against Dr Sabet with respect to the charges.

86 Dr Sabet has not demonstrated that the Board failed to have any regard to the presumption of innocence. The mere fact that the Board decided to suspend him does not establish that it had no regard to the presumption of innocence (any more than the fact that the conviction of an accused person does not demonstrate that the criminal court had no regard to the presumption).

87 In so far as this is an attack on the weight given to the presumption, or the merits of the decision, it must fail for the reasons previously given.

The elements under s 40

88 Apart from his argument about "necessity", which has already been considered, Dr Sabet does not really explain how it is said that the Board failed to take proper account of each and every element under s 40(1).[37]

89 I have already found that the Board applied the relevant statutory test and was entitled to determine the weight to be applied to relevant considerations.

90 It follows that I am not persuaded that the Board failed to have regard to any relevant consideration.

Taking into account irrelevant considerations

91 Dr Sabet's written submissions assert that the Board took into account the following irrelevant considerations, which it was prohibited from considering on a proper construction of s 40:

(a) Its view, being "a significant concern", of the untested evidence as to the similarity or otherwise of the complaints (pointing to prejudgment);

(b) Its view of the untested evidence and its conclusion that such similarity could not be contrived (pointing to prejudgment);

(c) Its view of the untested evidence and its conclusion that the circumstances of the separate consultations showed "disturbing similarity" (pointing to prejudgment);

(d) Its view of the untested evidence and its conclusion as to the "disturbing nature" of the notifications;

(e) Its view as to the timing of each notification;

(f) Its view that its "charter" was to protect the public without regard to the functions and powers actually conferred upon it by statute; and

(g) The mere fact of the applicant being charged with criminal offences.

The Board's views of the evidence_[38]_

92 The Board was required to make an interim decision based on such information as was available to it at the time. That information included the fact that there was more than one notification - that is, that the AB allegations were not an isolated incident. It was also appropriate for it to have regard to: the nature and seriousness of the allegations; any similarities and differences between the allegations made by the two women; and the timing of the two incidents[39]. Those matters are all clearly relevant to the formation of a belief that Dr Sabet may have engaged in unprofessional conduct or professional misconduct, as well as being relevant to an evaluation of the risk to public health and safety.

93 In oral submissions, Dr Sabet did not seriously press the argument that those matters were not relevant considerations at all. Rather, the argument focussed on the language used by the Board - expressions such as "significant concern", "disturbingly similar" and "could not be contrived". Dr Sabet says that such language "bespeaks final judgment" and shows that the Board had "made up its mind, as a matter of final judgment" that Dr Sabet is guilty of the charges.[40] Even if this can properly be characterised as an "irrelevant consideration" argument, it must fail for the following reasons.

94 As previously mentioned, the Board's reasons are not to be zealously scrutinised for looseness of language. The mere fact that the Board used the language complained of does not establish that it regarded itself as making any final determination of guilt. That it formed certain beliefs or opinions, even strong ones, does not necessarily establish prejudgment; that is what the section requires it to do. It recited in a neutral manner the circumstances of the two women's notifications[41] and the history of the Board's investigation. It noted that Dr Sabet had complied with the initial agreement, had declined to comment on the charges, and there had been no finding of guilt made against him. The last page of the reasons clearly demonstrates that the Board understood it had to undertake a balancing or weighing exercise.

95 I do not accept, on a fair reading of the entire reasons, that it can be said that the Board regarded itself as making any final determination of guilt.

96 In so far as the parties addressed me as to whether the Board was in fact justified in using language such as "the circumstances ... were disturbingly similar and the Board did not consider such similarities could be contrived", I regard those as arguments going to the merits of the Board's decision and therefore beyond the court's review.

The Board's "charter" to protect the public_[42]_

97 In weighing up the various matters before it, the Board said that it had a "charter to protect the public." Dr Sabet says that is not an apt description of the Board's role and is an irrelevant consideration.

98 In fact, "a charter to protect the public" is a not inaccurate shorthand description of the fact that the Board has an important role in the protection of the public, through the various roles discussed earlier in these reasons.[43] In particular, s 40(1) itself specifically requires the Board to consider whether there is a serious risk that the health and safety of the public will be endangered.

99 Dr Sabet also asserts that the Board took the view that its "charter" was to protect the public "without regard to the functions and powers actually conferred upon it by statute." That argument was not really developed and the assertion is simply not borne out by a fair reading of the reasons.

100 This ground must fail, as it is not apparent from the reasons that the Board did have regard to "the mere fact" that Dr Sabet had been charged, in deciding to suspend. Although the Board noted in the lengthy historical narrative that Dr Sabet had been charged, and that the charges had not been dealt with, the charges are not mentioned at all on the last page of the reasons, and do not seem to play any role in the analysis of risk. Rather, in reaching the decision the Board seems to have relied (amongst other things) on the contents of the two women's detailed statements to police.

101 I am not persuaded that the Board took into account irrelevant considerations in making the decision.

102 The Charter identifies a number of human rights, which parliament seeks to protect and promote in various ways. One of those human rights is the presumption of innocence, contained in s 25(1) of the Charter.

103 Section 38 of the Charter provides that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.[45] Dr Sabet argues that the Board breached s 38 in making the decision, because it failed to give proper consideration to the presumption of innocence in s 25(1).

104 The Charter was not intended to create new causes of action against public authorities, additional to those already available outside the Charter[46] - which, in this case, are available to Dr Sabet under the ALA. Rather, s 39 of the Charter provides that if a person otherwise has a right to seek relief or remedy on the basis that a public authority's decision was unlawful, then the person may seek that same relief or remedy on the ground that the act or decision was unlawful because of the Charter.

105 As mentioned earlier, Dr Sabet seeks relief in the nature of certiorari and an injunction, on the ground of denial of natural justice. The effect of s 39 is that he may also seek that same relief on the ground that the decision was unlawful under the Charter (in this case, unlawful under s 38). It is not necessary that the grounds of review are the same under the Charter and the ALA, merely that the relief or remedy sought is the same.

106 The threshold question to be decided in every case under s 38 is whether the body is "a public authority". Here, there is no dispute that the Board is "a public authority" to which s 38 applies.

107 Finally, it must be noted that the Charter does not give unqualified protection to human rights. It recognises that human rights may be subject to reasonable limitation in certain circumstances, as set out in s 7.

108 I accept the Solicitor-General's suggestion that in analysing whether there has been a breach of a human right under the Charter it is useful to ask the following three questions:

(a) Has a Charter right been engaged? (the engagement question)

(b) If so, did the public authority impose any limitation on the right? (the limitation question)

(c) Was any such limitation reasonable and justified within the circumstances set out in s 7(2)? (the justification question)

109 Some commentators have suggested it is appropriate to adopt to two-staged approach in analysing issues under the Charter, by first asking the engagement question, and then asking a single question which combines the limitation and justification questions. I prefer the three-staged approach, because it forces the court or tribunal to focus on and clearly identify whether there has been any limitation on the right, before moving to consider questions of justification.

110 Applied to the facts of this case, those questions may be re-framed in the following terms:

(a) Was the Board required to have regard to the presumption of innocence at the April hearing?

(b) If so, did the Board impose any limitation on the presumption of innocence, in deciding to exercise its suspension power under s 40(1)?

Is the Board a public authority to which s 38 applies?

111 Dr Sabet, the Board and the Attorney-General all accept that the Board is a public authority to which s 38 applies. As the matter does not appear to have been the subject of previous judicial determination by this court, I will briefly explain why I agree with that submission.

The Board is a public authority under s 4(1)(b)

112 The term "public authority" is defined by s 4(1)(b) of the Charter to include "an entity established by a statutory provision that has functions of a public nature".

113 The factors which may be taken into account when determining whether functions are of a public nature include whether the function is of a regulatory nature,[47] and whether the entity is publicly funded to perform the function.[48]

114 The Board was established by statute, namely, Part 6 of the Medical Practice Act 1994. It has continued in operation under the HPRA, effective from 1 July 2007.[49]

115 It is publicly funded by way of an advance from the Public Account, which is repaid by registration fees.[50]

116 The Board's functions are set out in s 118 of the HPRA, and include the registration, supervision and regulation of practitioners, including regulation of "standards of practice in the health profession regulated by the [B]oard in the public interest", and the creation and publication of codes of practice.[51]

117 The regulation and supervision of a profession have been held to be inherently public functions.[52] The explanatory memorandum to the Charter notes that "a professional association which has statutory disciplinary, ethical or qualification powers is likely to be exercising public functions." [53]

118 For these reasons, I accept that the Board is a public authority within the meaning of s 4(1)(b) of the Charter. However, that is not the end of the matter; an entity may fall within one or more of the definitions of "public authority" in ss 4(1)(a) to (h), but nevertheless be excluded if it also falls within any of ss 4(1)(i) to (k).

119 Section 4(1)(j) of the Charter provides that a court or tribunal is not a public authority "except when it is acting in an administrative capacity".

120 "Tribunal" is not a term defined by the Charter, but there is no dispute that the Board is a tribunal for the purposes of the Charter.

121 The question which then arises is whether, in making the decision, the Board was acting in an administrative, or in a judicial or quasi-judicial capacity. If the former, then it is a public authority to which s 38 applies. If the latter, s 38 does not apply.[54]

122 There is no definition of "administrative capacity" in the Charter. The explanatory memorandum says that the term was intended to exclude instances where courts and tribunals are acting in a "judicial or quasi-judicial capacity".[55] The common law has long recognised a distinction between administrative and judicial (or quasi-judicial) powers. The parties agree that it is appropriate for the court to read "administrative capacity" in s 4(1)(j) as if it equated to "administrative power" at common law.

123 The notes to s 4(1)(j) gives the following examples of acting in an administrative capacity: committal proceedings, the issuing of warrants, the listing of cases and the adoption of practices and procedures.

124 It is well-established at common law that in conducting committal proceedings to determine whether there is sufficient evidence to stand an accused for trial, a magistrate is exercising an administrative, not a judicial, function.[56]

125 In Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board[57], the High Court recently held that the decision of a disciplinary board to suspend the registration of two liquidators did not involve the exercise of judicial power. Although Albarran was a constitutional case[58], the court's analysis is capable of broader application, reflecting as it does the well-established common law distinction between administrative and judicial functions.

126 The High Court noted that judicial power classically involves either the governance of a trial for the determination of criminal guilt and its punishment or, more broadly, the determination of a dispute inter partes regarding the existence of a legal right or obligation and the application of that law to facts as determined.[59] Although the effect of disciplinary action may have a detrimental impact on the individual concerned, the action is "corporate and self-respecting", rather than personal and retributive. The proceedings are disciplinary, rather than criminal. The board had not determined whether the liquidators had committed any offence. The disciplinary board's only task was to assess whether duties had been performed "adequately and properly", measured against standards familiar to the board's specialist composition, and whether a person was "otherwise not a fit and proper person" to be a registered liquidator.

127 Applying that same reasoning to the Board's role under s 40(1) of the HPRA, I am satisfied that in exercising its power to suspend Dr Sabet, the Board was acting in an administrative capacity. Therefore, although a tribunal, it is a public authority to which s 38 applies.

Was the Board required to have regard to the presumption of innocence?

128 Section 25(1) of the Charter provides that "a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law" ("the presumption").

129 It is common ground that the presumption applies in criminal proceedings arising out of the charges. But there is a dispute as to whether and how the presumption might apply in a disciplinary proceeding, such as a hearing under s 40(1) of the HPRA.

130 Dr Sabet says that the presumption is not limited to criminal proceedings. But Dr Sabet does not suggest that the presumption necessarily applies in all disciplinary hearings. Rather, he argues that a disciplinary body is bound to uphold or give effect to the presumption any time it "deals with" or "considers the impact of" a criminal charge. He says that because the Board considered the charges and the statements relating to the charges, it was therefore required to give effect to the presumption. Dr Sabet concedes that if he had not been charged, or if he had been charged but the Board did not have regard to the charges, then the presumption would not apply at all.

131 The Board and the Attorney-General argue that s 25(1) is limited in its operation to criminal proceedings, and has no direct operation in disciplinary proceedings (even where the alleged unprofessional conduct or misconduct has a criminal or quasi-criminal character).

132 They accept that the presumption may have an indirect impact on the proceedings before the Board, in that the Board:

(a) Is entitled to take into account the fact that Dr Sabet will have the benefit of the presumption at his criminal trial; and

(b) Should not make public statements that a person charged is guilty of an offence, at least where the public statement carries a risk of adversely affecting the criminal prosecution.

133 In support of their respective arguments, each side refers to the structure and language of s 25, as well as various foreign and international human rights provisions and cases.[60]

At a glance

Court

Decision date

Before

Source

Judgment (416 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (19)