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[2019] VSC 532
Supreme Court of Victoria
2019-08-12
NIALL JA
Original judgment source is linked above.
MEDICAL PRACTITIONERS - Power to take 'immediate action' in the public interest - Medical Board of Australia - Suspension of health practitioner's registration - Medical practitioner charged with serious criminal offence - Medical Practitioners Board of Victoria v Lal [2009] VSCA 109; (2009) 23 VR 702 considered - Health Practitioner Regulation National Law (Victoria) Act 2009.
ADMINISTRATIVE LAW - Appeal from decision of Victorian Civil and Administrative Tribunal - Question of law - Whether Tribunal took irrelevant considerations into account - Whether decision legally irrational or unreasonable - Whether Tribunal failed to give adequate reasons for decision - Leave to appeal granted - Appeal dismissed - Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 applied - Victorian Civil and Administrative Tribunal Act 1998 s 148.
1 The respondent,[1] a specialist medical practitioner, has been charged with two serious criminal offences and, as a consequence, the Medical Board of Australia ('the Board'), acting under s 156(1)(e) of the Health Practitioner Regulation National Law ('National Law'),[2] took 'immediate action' and suspended his registration. The Victorian Civil and Administrative Tribunal ('the Tribunal'), by majority, overturned the suspension. In this Court, the Board has applied for leave to appeal, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'), and seeks an order that the Tribunal's decision be set aside and the decision of the Board be affirmed, or, alternatively, that the matter be remitted to a differently constituted Tribunal for reconsideration.
2 For the reasons that follow, I would grant leave to appeal, but dismiss the appeal.
3 In order to place the questions of law in their context, it is necessary to say something about the background facts drawn from the decision of the Tribunal.
4 In September 2018, the respondent was charged with one count of rape[3] and, alternatively, one count of sexual assault.[4] As part of the criminal process, police prepared a summary of the circumstances surrounding the alleged offence, a copy of which was before the Tribunal. That summary set out the allegations. Those allegations have not been the subject of any findings by the Board or the Tribunal. The Tribunal recorded that the allegations are denied by the respondent, who contests the charges.
5 The respondent and the complainant met in 2010, both being single homosexual men. They discovered that they were both doctors working at different hospitals.
6 When the respondent moved interstate, the two remained in contact, mostly through intermittent text messages. In 2012, the respondent visited Victoria and stayed with the complainant at his home.
7 After a break in contact, in April 2017, they recommenced conversations via text. In mid-2017, they went out for dinner and later decided to have sex at the complainant's home. The complainant alleges that, while the respondent assured him that he would use a condom, when the respondent penetrated him, the complainant checked a few times to confirm that the respondent was using a condom, which he was, and that the condom had not slipped off nor broken. The complainant alleges the respondent reassured him he did not need to check and could trust the respondent to make sure it stayed on.
8 Later during intercourse, the complainant checked again and became concerned that the respondent was no longer wearing the condom. The complainant alleges he asked what was happening and the respondent said he had taken it off.
9 The complainant says he was very upset and challenged the respondent, who replied 'it feels better'.
10 In late June 2017, the complainant reported his allegations to Victoria Police. In September 2018, the respondent attended a Melbourne police station with his lawyer to be interviewed. He was arrested and interviewed, providing 'no comment' responses.
11 The respondent provided nine references to the Board, eight of which were from colleagues in the medical and nursing profession. All but one of the referees stated that they were aware of the allegations against him and surprised at the allegations, given their views of his good character and commitment to providing high level medical care. The respondent also provided a substantial resume, including current appointments, including academic appointments, varied professional experience, publications, grants and awards and professional and other memberships.
12 Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 provides that the National Law, as in force from time to time, applies as a law of Victoria. The National Law provides for the detailed regulation of health practitioners by the Australian Health Practitioner Regulation Agency ('AHPRA'). A National Health Practitioner Board ('National Board') is established for each of the relevant health professions.[5] For the medical profession, it is the Board. In turn, s 36 of the National Law permits a National Board to establish a committee to enable the board to exercise its functions in each jurisdiction.
13 In overview, the National Law provides for the establishment of AHPRA as the relevant regulatory agency, the registration of health practitioners, and the setting of standards and disciplinary processes. Those processes allow for certain lower order disciplinary matters to be heard by the relevant board and for referrals of more serious matters to the relevant State tribunal which, in the case of Victoria, is the Tribunal.[6]
14 The National Law provides for registration within each of the categories of health practitioner and confers rights, responsibilities and protections on registered practitioners. Part 8, titled 'Health, performance and conduct', provides for various ways in which the conduct of registered health practitioners can be examined and subject to disciplinary oversight.
15 The National Law provides for notifications to be made to AHPRA, in some cases on a mandatory basis and on a voluntary basis in others. AHPRA is required to refer a notification to the National Board that is relevant to the particular health profession. The National Board must conduct a preliminary assessment of the notification,[7] which may result in the National Board taking no further action,[8] taking immediate action (as in the present case),[9] or commencing an investigation.[10]
16 In relation to the power to take immediate action, s 156 provides as follows:
(1) A National Board may take immediate action in relation to a registered health practitioner ... if -
(a) the National Board reasonably believes that-
(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
...
(c) the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or
(d) the registered health practitioner's ... registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.
(e) the National Board reasonably believes the action is otherwise in the public interest.
_Example of when action may be taken in the public interest - _
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.
17 Immediate action that consists of suspending, or imposing a condition on, the health practitioner's registration may only be taken if the Board has complied with the show cause process in s 157.[11]
18 Schedule 7 of the National Law contains miscellaneous provisions relating to the interpretation of the provisions in the National Law. Clause 8(2)(c) of sch 7 provides that extrinsic material may be used to confirm the interpretation conveyed by the ordinary meaning of the provision. Clause 10 of sch 7 relates to the use of examples. It provides:
If this Law includes an example of the operation of a provision -
(a) the example is not exhaustive; and
(b) the example does not limit, but may extend, the meaning of the provision; and
(c) the example and the provision are to be read in the context of each other and the other provisions of this Law, but, if the example and the provision so read are inconsistent, the provision prevails.
19 In November 2018, the Board suspended the respondent's registration as a medical practitioner. It gave written reasons for doing so. It stated that it was in the public interest for the community to have confidence in the trustworthiness, ethics and morals of registered health practitioners. It concluded that the alleged conduct underpinning the charges involved a breach of trust and, if proven, would call into question the respondent's suitability to hold registration.
20 On the issue of public confidence, the Board concluded that a perception that there is a failure to act on the part of the regulator, when on notice of serious criminal charges, 'erodes the public's confidence in the protective function of the regulator and the standards to which the profession is held'. In the opinion of the Board, the public must see professional standards being maintained and a decision not to take immediate action would be contrary to community expectations.
21 The respondent sought the review of the Board's decision by the Tribunal.[12] It is not in dispute that the Tribunal approached its task in accordance with the decision of the Court of Appeal in Kozanoglu v Pharmacy Board of Australia,[13] in which it was said that the responsible tribunal is required to consider the material that was before the initial decision-maker again (as well as other material presented by the parties) and exercise the initial decision-maker's powers in reaching its own decision on the merits.[14]
22 The Tribunal was constituted by three members. Deputy President Proctor and Member Mason concluded that they had not formed the reasonable belief that immediate action was in the public interest and set aside the suspension that had been imposed by the Board. Member Reddy dissented and concluded that immediate action was in the public interest. The Tribunal gave a single set of reasons, incorporating the reasons of both the majority and the minority. A large part of the reasons represent the combined views of the three members of the Tribunal. In what follows, unless it is clear from the context, a reference to the reasons of the Tribunal is a reference to the reasons of all three members.
23 The Tribunal set out the details of the charges and a summary of the legal principles applicable to s 156(1)(e). It was not suggested that the summary contains any legal error. The Tribunal referred to the Explanatory Memorandum which accompanied the introduction of s 156(1)(e) and observed that whether a health practitioner being charged of a serious offence will give rise to the need for immediate action is a matter for judgment in the particular case.[15]
24 The Tribunal observed that the taking of immediate action does not require proof of conduct and that it was open to take immediate action based on complaints and allegations. The Tribunal said that 'the mere fact of and seriousness of charges, in a case, might be enough to create the reasonable belief that immediate action is in the public interest'.[16] It was also noted that the nature of the allegations will be highly relevant to the question of whether an order is justified.[17]
25 The Tribunal set out, in some detail, the submissions of the Board and of the respondent. It was not submitted on the present application that the Tribunal misstated or failed to set out the submissions that were addressed to it.
26 In its submissions to the Tribunal, the Board, reflecting its own decision, contended that if the public perceived a failure of the regulator to act in the face of serious criminal charges, this would erode the public's confidence in the protective function of the regulator and the standards to which the profession is held. The Board referred the Tribunal to the need of patients to have faith in the medical profession,[18] and submitted that public confidence in the medical profession and the willingness of members of the public to seek appropriate treatment would be significantly undermined if they were aware of the underlying circumstances of the charges and that the respondent, accused of such charges, was permitted to continue practising medicine in the interim.[19]
27 Having summarised the applicable law, facts and the submissions of the parties, the Tribunal then proceeded to determine the application. Under the heading 'Should immediate action be taken?' the Tribunal noted that, by majority, the Tribunal had not formed the view that immediate action was required in the public interest. After noting the existence of divergent views as to the result, the Tribunal stated that 'as a panel we are unanimous that the following analysis should be applied to the factual context in this case'.[20]
28 Under the heading 'Applying s 156(1)', the Tribunal described s 156(1)(e) in unexceptionable terms, noting that the public interest in maintaining public confidence in the provision of services by health practitioners is an example of where the taking of immediate action might be in the public interest.[21] The Tribunal noted that there is no assumption that immediate action will be taken where a medical practitioner is charged with a serious criminal offence.[22]
29 Referring to the power in s 156(1)(e) as discretionary, the Tribunal framed its analysis in terms of a spectrum, with one end represented by three examples. The first was of a medical practitioner charged with sexual assault of multiple young patients over many years. The second was where a practitioner allegedly intentionally infected (not through sexual contact) multiple patients. In such cases, the Tribunal considered that the public would be 'rightly outraged' if the practitioner was permitted to continue to practise pending the determination of the charges.[23] To those examples, the Tribunal added the case of Farshchi v Medical Board of Australia,[24] involving allegations of forced labour of a refugee over months with the medical practitioner providing treatment so that the forced labour could continue.[25]
30 At the other end of the spectrum, where immediate action may not be required, the Tribunal posed the following example:
a medical practitioner met another adult. Shortly after first meeting, one night after drinking wine at the person's home, they first went to bed, unsuccessfully attempted sexual intercourse due to the amount of alcohol consumed and fell asleep. The next morning, the person alleged to Police that in the middle of the night the medical practitioner started sexual intercourse without consent, to which the person protested. The doctor pleaded not guilty to charges of rape and sexual assault. The hospital which employed him supported his ongoing employment. The sense of the evidence was that the allegations related to intention and consent in the middle of the night, where there was consent earlier in the night. This scenario may not be seen as having the potential to cause public outrage if the doctor continues to practise while the charges were pending.[26]
31 As its final example, and as another example of where immediate action may not be required, the Tribunal referred to a doctor charged with tax offences.[27]
32 The Tribunal summarised its approach by saying that the first three examples:
alleged reprehensible conduct such that, in our view they are rare situations where public knowledge of the allegations and that the doctors could continue to practise would highly likely adversely impact public opinion of the medical profession and its regulation, that being against the public interest. Our last two examples may be unlikely to have that effect.[28]
33 The Tribunal considered this approach to be consistent with the decision of the Court of Appeal in Medical Practitioners Board of Victoria v Lal.[29]
34 Having thus framed its analysis by reference to a spectrum of alleged offending, the Tribunal then turned, under the heading, 'Deciding this case', to the facts before it. Again, this part of the reasons represents the reasons of the three members of the Tribunal.
35 The Tribunal accepted that the allegations, if proven, were grave and inconsistent with the ethical discharge of a medical practitioner's obligations.[30] Those obligations, the Tribunal held, include the expectation that registered medical practitioners must always display integrity, truthfulness, dependability and compassion, always acting in an ethical and trustworthy manner, and at all times endeavouring to maintain the highest standards to ensure the protection and promotion of health of individuals and the community.[31]
36 In light of these obligations, the Tribunal described the allegations, if proven, as fundamentally violating the principles which lie behind registration; involving dishonest conduct; and intentionally and seriously negatively impacting the health and safety of another person.
38 The Tribunal then referred to a number of matters that were said to be 'public interest factors' that supported the respondent returning to medical practice.[34]
39 Those matters were as follows. First, the respondent is presumed innocent and the immediate action[35] would be in place for a very significant period of time.[36] Secondly, in the 16 months between the alleged offending and the respondent being charged, he continued to practise with no complaints warranting investigation.[37] Thirdly, the respondent continuing to practise serves the public interest in members of the health profession, in whom training and expenditure have been made, being able to practise.[38] Finally, his referees spoke of him delivering exemplary medical services in a respectful, caring, compassionate and polite manner, and providing expert advice in the service of the community.[39]
40 The Tribunal considered that the fact that the respondent may return to practice without complaint from his patients, had very limited relevance to maintaining the public's confidence in the medical profession. In support of this conclusion, the Tribunal stated that the public assumes all doctors will deliver high quality services to their patients and will be ethical and trustworthy.[40]
41 At this point in the reasons, the reasons of the majority and the minority diverge and are dealt with under separate headings: 'Majority decision - immediate action not required'[41] and 'Minority decision - immediate action required in the public interest'.[42] As already noted, it is apparent from the text and structure of the reasons that, to that point, the reasons reflect the joint reasons of the three members of the Tribunal.
42 The majority commenced their separate part of the reasons by referring to the earlier analysis, repeating that the allegations were grave, but had not yet been tested, and that the respondent is presumed innocent.[43] They then repeated part of the passage from Lal, cited earlier in their reasons[44] and set out at [91] below, which they regarded as applicable in judging whether allegations of serious offending are likely to have any material or lasting negative effect on the medical profession's reputation.
43 They noted that Lal established that an evaluation of the public's likely perception is relevant to s 156(1)(e), and rejected the respondent's submission to the contrary.[45]
44 The majority said that it was foreseeable that the public would have high concern if they came to know of the allegations against the respondent[46] and then set out the following paragraphs, on which the Board focussed.
45 The majority then turned to a different aspect of the public interest, being whether suspension would be in the public interest by preventing patients, who are unaware of the charges and unable to make up their own mind, from seeing the doctor. On that question the Tribunal said:
46 It followed that, whilst the majority agreed with the principles on which the Board relied, their application of those principles brought them to a different conclusion and they substituted the Board's decision with a decision not to take immediate action.
47 This Court does not regulate medical practitioners and has no jurisdiction to decide for itself whether the respondent should or should not be suspended. That role and power is vested in the Board, and, on review, the Tribunal. This Court has the jurisdiction conferred on it by s 148 of the VCAT Act to determine an appeal on a question of law brought from the Tribunal. That supervisory jurisdiction exists to ensure that the decisions of the Tribunal are free from legal error. It does not allow this Court to make its own findings of fact or substitute its own decision because it disagrees with the result, or to endorse the decision of the Tribunal because it agrees with the outcome. It follows from the limited role of this Court, that the applicant must establish that the Tribunal made an error on a question of law.
48 The questions of law on which this appeal was brought were as follows:
(a) it is foreseeable that the public would understand that the allegations were made against one practitioner only;
(b) it is foreseeable that the public would understand that it is rare for such allegations to be made against a registered medical practitioner;
(c) it is foreseeable that the public would understand the medical profession as a whole should not be judged on the allegations made against one practitioner; and
(d) that the public understand that, where it is appropriate, an accused person should be able to continue with his or her life until a jury or court makes a decision?
49 I propose to consider the grounds in the order they were argued on the application. That is, I will commence with ground 4 before turning seriatim to grounds 1, 2 and 3.
50 The fourth question of law asked: did the Tribunal fail to give adequate reasons for its decision?
51 The Board identified five propositions, supported by authority, in aid of its argument that the Tribunal had failed to provide adequate reasons. First, the Tribunal is under a legal obligation to provide written reasons for its order.[47] Secondly, the Tribunal will commit a vitiating error of law if its reasons fail to disclose its path of reasoning for reaching its decision.[48] Thirdly, the Tribunal must give reasons that explain its process of reasoning, even where it is has exercised a wide discretion in making its decision.[49] Fourthly, the Tribunal's reasons will fail to disclose its path of reasoning if those reasons do not provide an intelligible explanation of the process of reasoning that led the Tribunal from the findings to the ultimate conclusion.[50] Finally, the reasons will not be intelligible if they leave the reader to wonder about the process of reasoning that has been followed.[51]
52 The Board also acknowledged that the reasons of a decision-maker, including the Tribunal, are not to be scrutinised by overzealous judicial review.[52] To an extent, the Board sought to qualify that approach by submitting that the Court's eyes should not be so blinkered as to avoid discerning an absence of reasons.[53]
53 After setting out the five propositions detailed above, the Board recounted the findings of the Tribunal that the conduct, if proven, was egregious, grave and that it was foreseeable that it could be of high concern if the public came to know of the allegations made against the respondent. The Board submitted that, having made those findings, there was no explanation for how the majority arrived at their ultimate conclusion that immediate action was not required in the public interest.
54 The Board submitted that paragraphs [116] to [119] of the Tribunal's reasons, which are set out above,[54] comprise the totality of the reasons on why they had not formed the reasonable belief, but that these paragraphs do not illuminate the process of reasoning. That was because those paragraphs apply to any case where a medical practitioner is charged with a serious offence. That being so, the Board submitted that there was no rational justification for why the majority concluded that immediate action was not required in this case.
55 It is clear from paragraph [119] of the Tribunal's reasons, that the majority did not accept that permitting the respondent to practise medicine pending resolution of the criminal charges would result in a loss of public confidence in the provision of services by the medical profession or members of the public not seeking medical treatment.
56 Contrary to the submissions of the Board, the reasoning for that conclusion does not reside solely in the few paragraphs that precede, but is to be found in the reasons as a whole. The identification of what represents the whole of the reasons is made more challenging because the reasons comprise a single set of reasons that contain the reasons of both the majority and the minority.
57 Nevertheless, it is clear that those parts of the reasons that represent the reasons of all of the members of the Tribunal, are not repeated when the reasons diverge to separately describe the conclusions of the majority and the dissenting member. It is necessary to read those parts of the reasons that reflect the majority's separate and ultimate conclusions together with the common parts of the reasons. That is so for the following reasons.
58 First, in those parts of the reasons that set out the reasons of both the majority and the minority, the Tribunal sets out the allegations against the respondent. The reasons utilise a spectrum of allegations as a tool of analysis, that is dependent on the particular facts of the case. The Board submitted, correctly, that most of the examples referred to by the Tribunal involved alleged offending that posed a serious risk to persons, or required immediate action to protect public health or safety, and, accordingly, would fall within s 156(1)(a). For that reason, most of the examples did not engage s 156(1)(e) and the facts of the case. Nevertheless, the examples demonstrated that the Tribunal recognised the importance of the particular facts to public interest and public confidence.
59 Secondly, in paragraphs [93] to [109], which also comprise common reasons, the Tribunal set out the competing factors in the application of s 156(1)(e). They referred, on the one hand, to the serious (grave, egregious, distressing) nature of the allegations and, on the other, to the presumption of innocence, the impact of the suspension on the respondent, his positive antecedents and the public interest in having his skills available. Before this Court, the Board accepted that each of these matters was relevant and reflected the Tribunal's understanding of the competing public interests. It would be odd for the Tribunal to have set out the competing public interest considerations, but to have ignored them entirely when dealing with the critical issue.
60 The Board submitted that the matters of public interest were taken into account by the Tribunal in paragraph [121], which expressly refers to the context of the 'countervailing public interests', but only for considering whether there is a public interest in preventing patients from consulting the doctor who is facing charges. In my view, that submission reflects an unduly narrow reading of the reasons and is inconsistent with established principle regarding how this Court is to read reasons of administrative decision-makers. The matter considered in paragraph [121] was a relatively minor one and it is improbable that the majority would apply the spectrum analysis to this particular aspect, but ignore it entirely in relation to the more fundamental questions that it had resolved to paragraph [119].
61 Thirdly, in the separate reasons of the majority, there is an express reference to the earlier analysis.[55] Further, the express rejection of the respondent's submission that public perceptions were irrelevant, was, in my view, a reference to how the public would perceive the Board allowing a practitioner to continue to practise, with the particular allegations outstanding. This shows that the majority's consideration of the public confidence was based on the Tribunal's earlier analysis.
62 In my view, when read as a whole, the reasons of the majority reveal that they considered the particular allegations, and how they would be perceived by members of the public, and came to the conclusion that immediate action was not required. In that regard, the majority considered the impact on the reputation of the profession and whether patients would be dissuaded from seeking medical treatment. In the context of the facts as a whole, the majority considered that public confidence would be informed by the presumption of innocence; that no findings of wrongdoing had been made out; and that the allegations related to a single practitioner.
63 The Tribunal's conclusions on these matters were necessarily impressionistic. The concept of 'public confidence' has been described, in a different context, as hard to define, let alone to apply, by reference to any useful methodology. In Forge v Australian Securities and Investments Commission,[56] in the context of confidence in the courts, Kirby J said that the criterion of 'public confidence' is 'conclusory, sometimes inappropriate and usually unhelpful'.[57]
64 The fact that the power exercised by the Tribunal was discretionary and that the criteria for its exercise (public interest and public confidence) were matters of broad judgment and impression, did not relieve the Tribunal of the obligation to provide reasons. However, the path of reasoning for such conclusions will often be exposed by identifying the matters that are taken into account and the weight accorded to them. The evaluation of the competing considerations is often analysed in terms of weight, but that is not to introduce an empirical tool of analysis. Weight is used in the sense of ascribing the force of persuasion to particular factors that point in different directions. For the purpose of giving reasons, it is sufficient if the decision-maker identifies those factors that are taken into account and, to the extent possible, explains why an ultimate consideration is reached having regard to all of the material. In my view, that occurred here.
65 The Tribunal's path of reasoning is sufficiently disclosed. I would answer question 4 in the negative, and ground 4 is not made out.
66 The first question of law asks: in deciding whether to exercise the power under s 156(1)(e) of the National Law on the basis that the medical practitioner has been charged with a serious criminal offence, is the Board (or the Tribunal standing in its shoes) required to determine whether it has formed the reasonable belief that immediate action is required to be taken to maintain public confidence in the provision of services by medical practitioners?
67 The Board submitted that, where the facts fit within the example to s 156(1)(e), the Board and, in its place, the Tribunal, must apply it by asking whether immediate action is required to maintain public confidence in the provision of services by health practitioners. It submitted that the Tribunal did not ask itself that question, but focused instead on what was said to be a narrower issue, namely whether not taking immediate action would result in a loss of public confidence.
68 The Board submitted that there is a difference, in substance, in asking whether there would be a loss of public confidence, rather than whether immediate action was required to maintain public confidence. In this regard, the Board submitted that the Tribunal asked itself the wrong question by relying on the decision in Lal.
69 The particular passages of Lal relied on by the Tribunal,[58] that were said to have induced the error, were as follows:
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.
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.[59]
70 The major premise of the Board's argument was that, where the facts fit the example (which the Board described as a 'factual precondition'), the example provides the legal test that must be applied. That was said to follow from cl 10 of sch 7 of the National Law, which provides that, where the National Law includes an example of the operation of a provision, the example and the provision are to be read in the context of each other.
71 Before considering the soundness of that premise, it is important to identify the minor premise of the Board's submissions, which was that the Tribunal did not consider whether public confidence would be maintained, but, rather, whether it would be lost. That is, the Tribunal applied a different and erroneous test. In this respect, the Board accepted that the issue was one of substance not form.
72 In my view, neither premise of the Board's argument can be accepted.
73 The power to take immediate action is enlivened in the five circumstances set out in sub-ss 156(1)(a) to (e). Three of those circumstances depend on the Board forming a reasonable belief as to a certain state of affairs,[60] and the other two operate on facts, rather than being conditioned on the Board forming a reasonable belief as to those facts.
74 The Board may take immediate action under s 156(1)(e) where it reasonably believes the action is 'otherwise in the public interest'. The word 'otherwise' indicates that this sub-section provides an additional and alternative source of power that is available where none of the other specific circumstances has been established. The subject matter of the relevant belief is whether the taking of immediate action is in the public interest.
75 The nature of 'public interest' determinations in the exercise of statutory powers was described as follows in O'Sullivan v Farrer:[61]
the expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.[62]
76 It has been said that the phrase 'public interest' lacks a fixed and precise content, and no singular construction can be afforded.[63] In Lal, the Court of Appeal described the public interest as a 'protean concept', the meaning of which depended on context and not on any predetermined generic criteria.[64]
77 The example attached to s 156(1)(e) provides an important aspect of the context in which the phrase public interest appears. Clause 10(c) to sch 7 requires the example to form part of the context in which the construction of the public interest falls to be determined. The context, given the example, is different to that considered in Lal and the finding in Lal that public confidence is not a mandatory consideration cannot be carried over into the National Law. However, the example does not exhaust the context for the purposes of construction.
78 An important part of the broader context is the nature and purpose of the power conferred by s 156 of the National Law. The power to take immediate action is, as the Board correctly submitted, designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded. The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination. It is not an end in and of itself.
79 In this regard, it is relevant to identify how criminal conduct, unrelated to a practitioner's practice, may become relevant to disciplinary proceedings under the National Law.
80 Criminal conduct outside of a practitioner's practice may reflect on the question of whether the practitioner is a fit and proper person to hold registration and, if established, may lead to suspension or cancellation of the practitioner's registration under the National Law. Of course, such a finding would require the Board, or on review the Tribunal, to make findings as to whether the conduct occurred and its relationship to fitness to practice.
81 In circumstances where the allegations, if substantiated, may reflect on the practitioner's fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.
82 As a consequence, the Board may conclude, in those circumstances, that it is in the public interest to take immediate action in order to address the question of public confidence. The relevant public confidence to which the example is directed is confidence in the provision of services by health practitioners.
83 Although, as I have just explained, the example forms part of the context in which s 156(1)(e) is to be understood, and it does not control the language of the provision, nor does it provide a substitute or alternative test. So much follows from the terms of cl 10(c) of sch 7, which says that the example and provisions are to be read in the context of each other. That is, they are to be read together for the purpose of elucidating the meaning of the public interest.
84 Sub-clauses 10(a) and (b) of sch 7 are also relevant. They provide that an example is not exhaustive and does not limit, but may extend, the meaning of the provision.
85 Ultimately, the question is whether or not the Board reasonably believes, in circumstances where none of the other sub-paragraphs of s 156(1) apply, that it is necessary in the public interest to take immediate action. The meaning of public interest is informed by the example. It is necessary for the Tribunal to proceed on the basis that public confidence in the provision of services by health practitioners is an aspect of the public interest. However, the Tribunal does not need to apply the example as if it were a statutory test. Specifically, the Tribunal was not required to analyse the issue of whether public confidence would be maintained, as opposed to whether, and to what extent, public confidence would be impacted and whether the extent of any such impact would require, in the public interest, that immediate action be taken.
86 In the present case, the issue of public confidence was squarely raised and considered by the Tribunal. The next issue is whether, in doing so, it fell into legal error.
87 Turning then to the minor premise of the Board's argument, I am not satisfied that the Tribunal applied s 156 in the manner contended by the Board. It did not misapply or misunderstand s 156(1)(e), read in the context of the example.
88 The Board relied on two errors on the part of the Tribunal. First, it said that the majority approached the concept of public confidence as if it were either present or absent, and not something that could be impacted by degrees. Secondly, in its oral submissions, the Board contended that the Tribunal said that loss of confidence only arises where there is public outrage and this put the test too high.
89 The Board submitted that the question of whether public confidence was maintained involved consideration of whether it had been impaired, tarnished or undermined, and not, as the Tribunal was said to have understood it, a consideration of whether it had been lost.
90 Neither the language employed by the Tribunal nor the references to Lal support the Board's argument.
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.[67]
92 At paragraph [114] of the reasons, the majority stated that the above passage was applicable 'in judging whether allegations of serious offending are likely to have any material or lasting negative effect on the medical profession's reputation'.
93 The Tribunal identified that public confidence was liable to being affected in two material ways. It held that not taking immediate action might, first, affect the reputation of the medical profession and, secondly, impact on the willingness of people to seek medical assistance from registered medical practitioners. They are two obvious consequences that may flow from a diminution in public confidence in the provision of services by health practitioners.
94 In my view, there was no error in regarding public confidence as being reflected in the reputation of the profession and the willingness of members of the public to access medical treatment. The concept of public confidence has no fixed meaning or content. It is a difficult concept to measure. In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all of the competing factors. The Board did not submit to the contrary.
95 On the question of reputation, the majority concluded that not taking immediate action was unlikely to have any lasting or material negative effect on the reputation of the profession as a whole. This was a finding open to the majority. The Board's objection to this conclusion on the basis that this will often be the case, did not preclude the Tribunal from approaching the assessment of public confidence in this way. Rather, the Board's conclusion reflects that the relevant issue is public confidence in the provision of services by health practitioners. It requires an assessment of the impact of allowing one practitioner to continue to practise, in circumstances where he or she has been charged with a serious criminal offence, on the reputation of the profession as a whole.
96 For the reasons given by the Court of Appeal in Lal, decisions in an individual case may not have a deleterious impact on reputation. The passage in Lal cited above, and referred to by the Tribunal, involved an explication of the concept of public confidence. It did not state a proposition of law and I do not take the majority as having used it in that way. Rather, the majority were reflecting on the impact that not taking action wold have on reputation.
97 In relation to the second way in which public confidence was liable to being affected, the majority concluded that public confidence was not likely to be impacted in a way that would discourage members of the community from seeking medical treatment. Again, this was a matter that the Tribunal could take into account in assessing the impact on public confidence and the conclusion was open to the Tribunal.
98 Where no issues of patient or public safety are involved, and in circumstances where it is necessary to impute to the public an understanding that the allegations are untested and unproven, the Tribunal may, in a given case, consider that there is no significant impact on public confidence. No general rule can be applied.
99 I am not persuaded that the majority regarded the issue of public confidence as being binary, in the sense of being either present or absent. Rather, as the introductory words of the passage from Lal[68] emphasise, public confidence is impacted gradually. As a matter of substance, the Tribunal's conclusion that public confidence will not be lost is a finding that there will be no significant impact on public confidence if no immediate action is taken in the circumstances of this case. That reasoning did not involve any legal error and was open to the Tribunal.
100 In substance, the majority considered whether immediate action was required to maintain public confidence. Their reference to public confidence being lost was another way to say the same thing, and could equally have been expressed using the words favoured by the Board, such as tarnished or undermined. It follows that the Tribunal considered the matter that the Board said the Tribunal was required to consider.
101 I do not accept the Board's submission that the majority put a gloss on the public interest by proceeding on the basis that the public interest would only require immediate action if the failure to take action would prompt outrage. It is true that, in analysing the spectrum of potential exercises of power, the Tribunal observed that, in some cases, immediate action would be required in the context of public outrage. However, in its analysis of the circumstances of the present case, the Tribunal did not apply that test, nor did it decide that immediate action would only be appropriate in order to address public outrage.
103 Under ground 2, the Board submitted that the Tribunal took into account four irrelevant considerations, namely:
(a) it is foreseeable that the public would understand that the allegations were made against one practitioner only;[69]
(b) it is foreseeable that the public would understand that it is rare for such allegations to be made against a registered medical practitioner;[70]
(c) it is foreseeable that the public would understand that the medical profession as a whole should not be judged on the allegations made against one practitioner;[71] and
(d) the public understand that, where it is appropriate, an accused person should be able to continue with his or her life until a jury or court makes a decision.[72]
104 In order to succeed on this ground, the Board must establish that the National Law prohibits the Board, and on review the Tribunal, from having regard to the above listed matters when exercising the power in s 156(1)(e).[73] The Board submitted that, although s 156 did not expressly preclude the Tribunal from having regard to those matters, it did so impliedly on the basis that Parliament could not have intended that the decision-maker would have regard to matters that could have no logical bearing on the decision whether to take immediate action.
105 The question whether something is an irrelevant consideration, in the relevant sense, is one of statutory construction. The answer does not turn on the facts of a particular case. In seeking to establish that the matters were irrelevant considerations, the Board was required to confront the following well-established principle, to which the respondent drew attention:
where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard'.[74]
106 Further, where, as here, the power is conditioned on the public interest, it will be necessarily difficult to identify matters that are prohibited from being considered.
107 The first matter identified by the Board is not an irrelevant consideration. As the Board acknowledged, it is part of the context of the decision that will be present in every case. The power is to take immediate action against a practitioner. That will inevitably focus attention on the individual circumstances of that practitioner. For example, in the context of criminal charges, it will involve consideration of the charges and the impact of any decision to take immediate action on the medical practitioner.
108 The power to take immediate action under s 156(1)(e) in the public interest, and the maintenance of public confidence to which the example refers, underscore that there is a public dimension to the regulation of the health profession that goes beyond the circumstances of individual practitioners. In some cases, to await the resolution of criminal charges before taking any precautionary steps may adversely impact on patient safety, public confidence and, more broadly, the public interest.
109 Where there is no issue regarding patient safety, either because s 156(1)(a) is not engaged or the material does not suggest any risk of a less serious kind, then, as part of considering the impact on public confidence in provision of services as a whole, the fact that only a single practitioner is involved will be a factor in the mix. The weight to be given to it will be a matter for the decision-maker, however, I do not accept that the Board was prohibited from having regard to this matter of context.
110 Whether the type of conduct that underlies the need for immediate action is prevalent, rare or unique is likewise not irrelevant to applying s 156(1). The significance may depend on what aspect of s 156(1) is being considered. In the context of an assessment of risk to patients, it may be a factor that is weighed in the balance. However, the fact that the medical practitioner had not done the alleged act before, or that it is rare, is unlikely to be of much significance to the decision-maker. On the other hand, where the public interest is the relevant criterion, as it is in s 156(1)(e), and it is informed by questions of public confidence, then prevalence of the allegations may be relevant.
111 The reasons of the Tribunal provide an example of where the prevalence of allegations may be relevant. In the context of considering public confidence, the Tribunal considered the impact on the reputation of the medical profession as a whole. The reputation or standing of the profession is not irrelevant to the public interest. The impact on the reputation of the profession of not taking immediate action may be influenced by recognising that only one practitioner is involved and the conduct occurred outside of his medical practice and is rare.
112 The reference by the majority to the public understanding that, where it is appropriate, an accused person should be able to continue with his or her life until the charges are determined, did not entail consideration of an irrelevant consideration. It is a reflection of the fact that the charges are untested and that the accused person should not be treated as if he is guilty. Nevertheless, the qualification that this holds true where it is appropriate is no more than an acknowledgement that, in some cases, the public interest requires the taking of immediate action. This does not reveal any misunderstanding on the part of the Tribunal. The Tribunal expressly directed itself that criminal charges do not automatically require immediate action, that the nature of the charges will be important and that it is not necessary to make findings of guilt before action can be taken.[75] The impugned sentence recognises a level of reasoned thought underpinning public confidence and a rejection of the contrary proposition that it would never be appropriate to allow a medical practitioner to continue to see patients while awaiting trial.
113 As the Board's submissions recognised, many factors will be present in every case where immediate action is contemplated because a practitioner has been charged with a criminal offence and is awaiting the completion of the criminal process. They include that the power will fall to be exercised against an individual practitioner; no finding of wrongdoing will be made; the kind of allegations involved are rare; and the reputation of the profession as a whole is high. The presumption of innocence, and the right to a fair trial, including the right to silence in the criminal process, will form an important part of the context. The ubiquity of these matters does not render them irrelevant. Nor will they always be neutral in any consideration of whether to take immediate action.
115 Under ground 3, the Board submitted that the decision of the majority was legally irrational or unreasonable. It submitted that, having found that the alleged conduct was grave and egregious and that, if the public came to know of the allegations, it was foreseeable that there could be high concern, it was legally irrational for the majority to set aside the suspension.
116 If a decision, made in the purported exercise of a statutory power, is in breach of the standard of legal reasonableness, then the decision is outside the scope of the authority conferred by the statutory power. It is necessary to determine whether the exercise of power is seen by the supervising court as lacking 'an evident and intelligible justification'.[76] The Wednesbury[77] formulation of unreasonableness, namely that the decision is one that no reasonable decision-maker could have arrived at, is a way of expressing the conclusion that the decision lacks an intelligible justification.
117 Any assessment of the legal reasonableness of a decision must occur within the particular statutory and factual setting in which the decision was made. Indeed, 'the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case'.[78] Usually, that assessment will be directed to either the process of reasoning adopted by the decision-maker, as reflected in the reasons for decision, or the particular outcome of the exercise of power.
118 In considering whether the decision lacks an evident and intelligible justification, it is necessary to focus on both the outcome and the particular reasons for decision. Where there are reasons for the exercise of a power, generally it is those reasons to which supervising court should look in order to understand whether the power has been exercised in accordance with the legal standard of reasonableness.[79] That said, there may be cases where it is necessary to examine not just the ultimate conclusion, but also the anterior findings made by the repository of the power, in order to determine whether the decision lacks an evident and intelligible justification.
119 In large part, the Board's submissions on this ground proceeded on the basis that the totality of the reasoning that led the majority to overturn the suspension is contained in paragraphs [116] to [119]. I have rejected that submission.
120 When regard is had to all of the relevant factors considered by the Tribunal, I am not persuaded that the outcome was irrational. The predicate for immediate action is not that the allegations will be proven, that remains to be seen. The issue is whether, during this period, immediate action is required. This was a difficult case, as evidenced by the divergent views in the Tribunal, but the facts are not such as to legally demand a particular answer. The area of decisional freedom, given the public interest criterion, was relatively large and was conferred on the Tribunal. I am unable to detect, either from the path of reasoning or from the conclusion ultimately reached, that the Tribunal's decision was irrational or lacked an intelligible justification.
121 In my view, the decision of the majority was not irrational, nor was it outside the bounds of legal authority.
122 None of the grounds of legal error have been established. I would grant leave to appeal, on the basis that the grounds were arguable and of some importance, but I would dismiss the appeal.
[1] The Notice of Appeal, as originally filed, used a pseudonym for the respondent. The parties were invited to consider whether an order should be made to permit this course, however, no application was made pursuant to the Open Courts Act 2013. The Board sought, and was granted leave at the hearing, to amend its Notice of Appeal to name the respondent.
[2] Section 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 provides that the National Law, as in force from time to time, applies as a law of Victoria.
[6] Health Practitioner Regulation National Law (Victoria) Act 2009 s 6.
[12] Ibid s 199; Health Practitioner Regulation National Law (Victoria) Act 2009 s 6A.
[15] CJE v Medical Board of Australia [2019] VCAT 178 [21]-[23] ('VCAT Reasons'). A non-publication order made by the Tribunal in relation to the identity of the respondent remains in force.
[29] [2009] VSCA 109; (2009) 23 VR 702 ('Lal').
[35] According to the Tribunal, in this context, the only logical immediate action, if required, was suspension.
[48] State of Victoria v Turner [2009] VSC 66; (2009) 23 VR 110, 173 [240].
[49] Burgess v McGarvie [2013] VSCA 142 [65].
[50] Dimatos v Coombe & Ors [2011] VSC 619 [20].
[51] Commissioner of State Revenue v Anderson [2004] VSC 152 [33].
[52] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
[53] Soliman v University of Technology Sydney [2012] FCAFC 146; (2012) 207 FCR 277, 295-6 [57].
[57] Ibid 122 [194] (citations omitted).
[58] VCAT Reasons [91]. These paragraphs were cited by the Tribunal as supporting its spectrum analysis.
[59] Lal [2009] VSCA 109; (2009) 23 VR 702, 717.
[60] National Law sub-ss 156(1)(a), (b), (e).
[62] Ibid 216 (Mason CJ, Brennan, Dawson and Gaudron JJ) (citations omitted).
[63] Osland v Secretary, Department of Justice (2008) 234 CLR 275, 300 [57] (Kirby J).
[64] Lal [2009] VSCA 109; (2009) 23 VR 702, 717 [56], citing O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216; East Melbourne Group Inc v Minister for Planning [2008] VSCA 217; (2008) 23 VR 605, 636 [126].
[67] Lal [2009] VSCA 109; (2009) 23 VR 702, 717 [59].
[68] [2009] VSCA 109; (2009) 23 VR 702, 717 [59].
[73] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J) ('Peko-Wallsend'). See also Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Thompson Reuters, 5th ed, 2013) 274-5 [5.30].
[74] Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J).
[75] VCAT Reasons [25], [26], [27].
[76] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 367 [76] (Hayne, Kiefel and Bell JJ), 373 [98] (Gageler J), 375 [105] (Gageler J).
[77] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
[78] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437, 447 [48].
Medical Board of Australia
Liang Joo Leow [2019] VSC 532
(2009) 23 VR 702
(1986) 162 CLR 24
(2013) 249 CLR 332
(2014) 231 FCR 437
(2012) 36 VR 656
(2009) 23 VR 110
(1996) 185 CLR 259
(2012) 207 FCR 277
(2006) 228 CLR 45
(1989) 168 CLR 210
(2008) 234 CLR 275
(2008) 23 VR 605