• There are appropriate grounds under s 156(1)(a) and (e) of the National Law to impose immediate action. Public confidence in the provision of medical services would be severely damaged if the appellant was allowed to continue in unrestricted practice whilst this serious criminal charge was pending.
• The appropriate immediate action in this case was to impose conditions on the registration of the practitioner to ensure that he does not treat or have any contact with female patients until the allegations have been fully determined and dealt with and that he consult male patients only by telehealth medicine
• The decision of the Board to impose a suspension should be set aside and a decision substituted to impose conditions on the practitioner's registration to the above effect.

Following further submissions, the Tribunal ordered:

1. The decision of the Board is set aside and, in lieu thereof, the Tribunal decides to impose conditions on the registration of the applicant as set out in the attached Schedule of Conditions.
2. The matter is adjourned for submissions on costs

Health practitioners - Review a decision of the Medical Board of Australia - Nature of an appeal under s 199 of the National Law - Immediate action - Nature of an immediate action appeal - Principles relevant to matters under s 156(1)(a) and (e) - reasonable belief - risk to persons - public interest - public confidence - requirement to do as little damage to the practitioner as is consistent with the safety of persons and the public interest - suspension - gender based restrictions - Charge of aggravated incident assault on a patient

Health Practitioner Regulation National Law (South Australia) ss 3, 156, 158, 199, 202, 203

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 4, 6

South Australian Civil and Administrative Tribunal Act 2013 s 34

Bernadt v Medical Board of Australia [2013] WASCA 259

Pearse v Medical Board of Australia [2013] QCAT 392

Kapser v Psychology Board of Australia (no 2) [2015] NTCAT 179

Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Farschi v Medical Board of Australia [2018] VCAT 1617

WD v Medical Board of Australia [2013] QCAT 614

I v Medical Board of Australia [2011] SAHPT 18

Lindsay v NSW Medical Board (2008) NSWSC 40

Liddell v Medical Board of Australia [2012] WASAT 120

Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701

Farshchi v Chinese Medicine Board of Australia [2018] VCAT 1617

Medical Practitioners Board of Victoria v Lal [2009] VSCA 109

Medical Board of Australia v Leow [2019] VSC 532

Sobey v Commercial & Private Agents Board (1979) 22 SASR 70

The Tribunal has made an order pursuant to s 60 of the SACAT Act prohibiting the publication of the name of, or anything tending to identify, the patient the subject of the allegations leading to the decision which is subject to review.

1. The appellant (Dr Cheema) is registered as a medical practitioner under the Health Practitioner Regulation National Law (South Australia) (the National Law). The National Law is found in Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act). Section 4 of the Act provides that the National Law forms part of the law of this jurisdiction.
2. Since July 2015 the appellant has been engaged as an after-hours medical practitioner by National Home Doctor Service (Australia) Pty Ltd, trading as "13SICK, National Home Doctor".
3. Late on 25 March 2020 the appellant attended at the home of a female patient (the patient) to conduct a consultation. It is alleged that he sexually assaulted the patient during this home visit. The appellant denies that he did so. On 27 March 2020, the appellant was arrested and charged with one count of aggravated indecent assault.
4. The allegations were notified to the respondent (the Board). The Board instituted an investigation into the matter, which is ongoing, and will no doubt remain so until the criminal charges are dealt with. After following the necessary statutory process and considering submissions made on behalf of the appellant, the Board decided to take immediate action against the appellant under s 156 of the National Law. The Board suspended the appellant's registration as a medical practitioner.
5. The appellant appealed to this Tribunal under s 199 of the National Law. He accepted that it was appropriate for the Board to take immediate action. However, he argued that suspension of registration was unnecessary and inappropriate. He submitted that the Board should have instead imposed a condition limiting his practice to telehealth medicine only (or that the Board should have accepted an undertaking to similar effect).

1. The National Law envisages that each participating jurisdiction is to nominate a "responsible tribunal" to hear matters under the National Law. Section 6 of the Act provides that SACAT is the responsible tribunal for this jurisdiction.
2. With respect to an appeal under s 199, s 203 of the National Law provides:

This Division applies despite any provision to the contrary of the Act that establishes the responsible tribunal but does not otherwise limit that Act.

A person who is the subject of an appellable decision under section 199 of the Health Practitioner Regulation National Law (South Australia) may appeal against that decision by applying to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for a review of the appellable decision.

1. Section 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) provides that, in exercising the review jurisdiction, the Tribunal is to examine the decision of the decision-maker by way of rehearing. Section 34 prescribes that:
   • The Tribunal should have regard to the evidence or material before the decision-maker (unless excluded by law).
   • The Tribunal has a discretion to admit additional evidence on review.
   • The Tribunal must have regard to, and give appropriate weight to, the decision of the original decision-maker.
   • The Tribunal must reach the correct or preferable decision.
2. There is nothing in the National Law that is inconsistent with the provisions of s 34. This review is to be conducted and determined on the basis outlined.[1]
3. In this matter the Tribunal had regard to the material before the Board, but also received additional evidence on review. The additional evidence was received without objection.
4. Section 202 of the National Law sets out the powers available to the Tribunal after hearing the matter. The Tribunal may affirm the decision, amend it, or substitute another decision. In substituting another decision, the Tribunal has the same powers as the decision-maker.
5. In summary, the Tribunal is required to conduct a review on the merits. It is not necessary to find error in the decision under review before interfering with that decision. It is sufficient that the Tribunal considers that a different decision is preferable.

1. Part 8 of the National Law deals with "Health, performance and conduct". It contains elaborate provisions concerning notifications, investigations, national board assessment, panel hearings, and referral of more serious matters to the responsible tribunal.
2. These provisions are designed to ensure that allegations are thoroughly investigated and then considered in the context of proceedings where the relevant practitioner is accorded natural justice.
3. However, there is also a recognition that some matters require more urgent action in the public interest. Division 7 of Part 8 makes provision for "Immediate action". Such action may include suspension of registration, imposition of conditions, acceptance of an undertaking, or acceptance of a surrender of registration. A "show cause" process must be followed if the Board intends to suspend the practitioner or impose conditions on practice.
4. Insofar as relevant to the present matter, s 156 of the National Law provides as follows:

(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in the health profession for which the Board is established 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

...

(e) the National Board reasonably believes that 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.[2]

1. Section 158 provides that, if the Board takes immediate action, the Board must inform the practitioner as to what further action the Board proposes to take under Part 8 in relation to the practitioner. This tends to confirm that immediate action (as the term itself suggests) is intended to be an interim action until the matter is more comprehensively dealt with under Part 8 or at least disposed of permanently in an appropriate way. That is not to deny that there may be circumstances where the immediate action proves to be the permanent resolution. For example, a practitioner may choose to retire and surrender his or her registration and no further action may be taken.

Scope of an appeal from a decision to take immediate action

1. The case law dealing with immediate action appeals contains a variety of approaches and opinions which, at first glance, appear difficult to reconcile. This is not surprising. Provisions of the National Law (as adopted in a particular jurisdiction) must be interpreted in the context of the total statutory scheme in that jurisdiction. In South Australia that scheme encompasses the National Law (as adopted in SA), the enabling Act (the Act), and the SACAT Act.[3] The statutory schemes in some other jurisdictions have quite different features. Specific provisions of the National Law may have been adopted in the same form in each state, but aspects of their operation and effect may differ within the context of different statutory schemes.
2. We give one example. In Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295 the Victorian Court of Appeal considered the operation of provisions of the National Law in the context of the statutory scheme within that jurisdiction. The Court held that evidence on an immediate action appeal could not extend to events occurring after the decision of the Board to take immediate action. This conclusion was drawn by inference from provisions of the National Law. In our view, that same conclusion cannot apply in this jurisdiction where the enabling Act specifically provides for an appeal to be dealt with under s 34 of the SACAT Act and s 34 expressly gives the Tribunal an unfettered discretion to receive additional evidence on review. Given the total statutory scheme in this jurisdiction, there is no basis to conclude that any provision of the National Law impliedly limits that discretion or requires that an appeal be conducted on the facts as existing at the time of the original decision. To the contrary, the normal principles as laid down in the case of Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 will apply.[4] This enables the Tribunal to have regard to the state of affairs at the time of the Tribunal hearing. It avoids the unpalatable possibility that the Tribunal could be forbidden from considering a subsequent retraction by the notifier/complainant or the equally undesirable possibility that further immediate action might be taken by the Board after the Tribunal hearing in relation to events occurring before the hearing which the Tribunal was not entitled to take into account.
3. There are other jurisdictions where the Act establishing the responsible tribunal provides that an appeal is to be by way of hearing de novo at which additional evidence can be called as of right. Those provisions have also been referred to as a basis for distinguishing the decision in Kozanoglu and holding that evidence of subsequent events is admissible.[5] However, insofar as it might be suggested that a hearing de novo confers on an applicant a right to tender additional evidence (rather than such being in the discretion of the Tribunal), such considerations do not apply in this jurisdiction. The hearing in this jurisdiction is not a hearing de novo. It is a review of a different nature. Under s 34 of the SACAT Act, additional evidence is a matter for the discretion of the Tribunal. That does not detract from the fact that it is still a review on the merits.
4. It should also be noted that, even within this jurisdiction, the total statutory scheme is now quite different from that which existed before the transfer of the jurisdiction to SACAT. Previous decisions of the SA Health Practitioners Tribunal as to the nature of the appeal should be understood in this light.
5. It is within this context that we express some views about the scope of an appeal against immediate action under s 156.
6. When hearing an appeal under s 199 of the National Law, the Tribunal stands in the shoes of the Board. It must consider whether it holds the reasonable beliefs referred to in s 156. If it does have such a reasonable belief, it must determine what is the correct or preferable immediate action in the circumstances. The Tribunal must act on the material before the Tribunal at the time of the review hearing, but the task to be performed is still that required by s 156.
7. In our view, an appeal under s 156 is not an occasion for conducting a de facto disciplinary hearing or determining contested factual or medical issues. It would not generally be an occasion for hearing disputed oral evidence or assessing in any conclusive way the weight of disputed evidence. Where serious issues of professional misconduct arise, they should be determined on a referral under s 193 of the National Law in accordance with established principles as to the onus and standard of proof. The task of the Tribunal in an appeal from an immediate action decision is limited in scope.

1. The Tribunal has before it a copy of the information in which the appellant is charged before the Magistrates Court with the indictable offence of aggravated indecent assault of the patient.[6] The circumstances of aggravation are alleged to arise from the appellant abusing his position of trust.
2. There is a Police document setting out the facts of charge.[7] There is an affidavit of the patient, prepared for the criminal proceedings and setting out her evidence concerning the matter.[8]
3. For the purposes of this appeal, the allegations made by the patient against the appellant can be summarised as follows. The patient was an interstate truck driver. She returned from a work trip on 25 March 2020. She suffered from asthma and was experiencing an exacerbation of that condition. At about 6.15pm she sought treatment from the 13SICK National Home Doctor Service. The appellant arrived at her home at about 11.20pm. He asked the patient some questions and then examined her. He used a stethoscope to listen to her chest from the rear and then the front. He took off a mask that he had been wearing. He then checked the patient's throat, using a wooden tongue depressor. He gave the patient medication to take and she did so immediately.
4. The appellant complimented the patient on her figure. He counselled her concerning her smoking habit and gave advice as to how to stop. He then suggested they go outside to have a cigarette. They went to the back yard and both had a cigarette. They had general "chit-chat" and he asked further questions about her smoking. They then returned to the lounge of the house. The appellant proceeded to again check the patient's chest, at the rear and then the front. He wrote a script and a medical certificate, advising her to remain home for two days. The appellant remained in the lounge for another five minutes, even though the patient was trying to encourage him to leave. They then moved to the hallway adjacent to the front door.
5. As the patient was about to open the door, the appellant placed his left hand on her right cheek and turned her face towards him. He kissed her on her bottom lip. She describes that she was frozen with fear and not able to move. The appellant then placed his right hand on her shoulder and started to lightly massage her shoulder. She pulled back but the appellant pulled her towards him and started to feel her breasts with his hands under her T-shirt. She tried to pull back. The appellant then placed his right hand onto her waist area and slid it down inside her pyjamas down to her buttocks. He then moved his hand to the front and touched the outside of her genitalia. She grabbed his arm and pulled it out from her pyjama pants. The appellant then hugged her with both arms and kissed her again. She felt his erect penis rubbing against her.
6. The appellant was saying: "Come on, come on, let us go to the dark room, you need to relax, I will do some chest physio". The appellant was pointing to the room and trying to push the patient in that direction. The patient responded that she was a lady and that in Australia one should take a lady to dinner or a coffee to get to know her and take her on a date. The appellant said, "Come on, just 5 minutes, it would be good for you". The patient said "No, no, no". The appellant asked, "When can we go for dinner, you have two days off". The patient responded, "Mexican at Glenelg, Sunday at six o'clock". The appellant said, "What if I'm not back and what if I'm working". The patient asked for his phone number. She deposes that she did this as she thought that would get him away from her. He provided the number and told her to save it under the name Tom. She recorded the number in her phone under the name "Creep Locum Indian Rapist". She then let the appellant out the door. Shortly after leaving, at about 12.14am on the 26 March 2020, the appellant messaged her on his phone, saying "Tom here". The patient states that she felt dirty and violated and vomited three times. She sat in her clothes on the floor in the shower under the water. She remained there for about one hour and twenty minutes.
7. The Tribunal has before it a copy of a screen shot[9] of the patient's phone, recording three messages received from the appellant. It is not disputed that the appellant sent these messages. The first message at 12.14am on 26 March 2020 simply reads, "Tom here". A second message at 9.12am the same morning reads, "Haya n good morning Wonder how are feeling this morning?" The third message at 4.19pm the same day reads "Hye [Christian name of patient] Are you alright?- Tom here Wonder about dinner tonight".
8. A report was made to police and notifications were made to AHPRA by police and another notifier on 27 March 2020. The appellant was interviewed by police on 27 March 2020. The record of that interview is not available to the parties or the Tribunal. However, some information is recorded in the Police "Facts of Charge" Document[10]. We note that this information is not a first-hand record and must be treated with care. Under the heading "ACCUSED VERSION", the following appears:

The accused stated that he had attended at [the address] in his capacity as a locum doctor to assess her asthma. He stated that he conducted two assessments one with the stethoscope and the other with his hands to assess her diaphragm. The accused denied touching the victim on the breasts or buttocks and did not touch her vagina. He stated that he did have a cigarette with the victim and he did text message the victim however that was to check on her welfare.

1. The Tribunal has before it (and has considered) the material that was before the Board when it made the immediate action decision. It is not necessary for the purpose of this decision to detail all of that material.
2. It will suffice to add that the appellant submitted during the "show cause" process that he should be permitted to continue to practice with a condition limiting that practice to telehealth medicine. He pointed to the fact that, apart from the subject allegations, there has been no relevant previous complaint concerning his medical practice.
3. The Tribunal has before it letters from the State Operations Manager and the Chief Medical Officer of the National Home Doctor Service. They are dated 9 April 2020 and 14 April 2020 respectively.[11] The letters record that the appellant has worked for the Service since July 2015 and that the Service's experience has been that he has conducted himself in a professional manner. He is described as friendly, professional and polite. There has been no negative feedback from any patient or any other person. The Service indicates that it is prepared to make available a position for the appellant to practice in the area of telehealth medicine involving consultations conducted from the Service's Dulwich office. Further correspondence before the Tribunal confirmed that this offer was made in full knowledge of the relevant facts and allegations.[12]
4. The Tribunal also has correspondence from the Evanston Park Surgery at which the appellant worked from 1 July 2018 to 10 July 2019. The Practice Manager and Director reports that the appellant displayed complete professionalism during that time and had a good rapport with patients, colleagues, and staff alike. There was no negative feedback or complaint. This surgery was also willing to make a position open to the appellant to practise in telehealth medicine. The offer from Evanston Surgery was also made with appropriate knowledge of the facts and circumstances.[13]
5. The correspondence contained in exhibit A3 confirms that the appellant has admitted sending the text messages which are seen at page 165 of exhibit A2. He has also admitted having a cigarette with the patient. We remind ourselves that he has denied the criminal allegations made against him and that his wish to utilise his right to silence in relation to the criminal matter constrains his ability to provide explanations for the aspects of his conduct that are admitted.
6. Following discussion during the hearing, the appellant's counsel confirmed that a position would be available to him, at least at the National Home Doctor Service, on the basis that he was allowed to consult with male patients only by telehealth medicine. He also confirmed that all calls would first be received by a staff member before any patient was connected with the appellant.

1. Reference should be made to one of the guiding principles of the national registration and accreditation scheme as set out in s 3(3)(c) of the National Law:

restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of appropriate quality.

1. Before referring to the case law, it is appropriate to note that s 156(1) was amended in 2018 to include paragraph 156(1)(e). This amendment (the 2018 amendment) was in response to a concern that the public interest might well require immediate action in situations other than where it could be shown that the practitioner's conduct posed a serious risk to patients[14]. The example contained in the new paragraph (e) specifically refers to the desirability of maintaining public confidence in the provision of services by health professionals. This is acknowledged as one reason for taking immediate action in the public interest. The amendment thus introduces a broader concept of what is required for public protection and welfare and the guiding principle contained in s 3(3)(c) must be understood accordingly.
2. Many of the cases refer to the situation before the 2018 amendment. Whilst certain references in those cases are directed towards the more limited criteria appearing in s 156(1)(a), general principles outlined in the cases still provide appropriate guidance.
3. In WD v Medical Board of Australia [2013] QCAT 614 Judge Horneman-Wren DP summarised the proper approach to be taken by the Tribunal in determining the issues which arise in an immediate action matter under s 156(1)(a) as follows:
   1. an immediate action order does not entail a detailed enquiry;
   2. it requires action on an urgent basis because of the need to protect public health and safety;
   3. the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk;
   4. an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
   5. the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
   6. the material available should be carefully scrutinised in order to determine the weight to be attached to it;
   7. a complaint that is trivial or misconceived on its face will clearly not be given weight;
   8. the nature of the allegations will be highly relevant to the issue of whether the order is justified.[15]
4. In I v Medical Board of Australia [2011] SAHPT 18, the appellant had been charged in the criminal courts with two counts of indecent assault of patients, allegedly occurring during consultations. This pre-dated the 2018 amendment. Immediate action was taken under s 156(1)(a). In that context, the SA Health Practitioners Tribunal stated as follows:

The Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed enquiry by the Board or by this Tribunal. It requires action on an urgent basis because of the need to protect the public. This is clear from s 156 which requires action where there is risk to a person or the need to protect public health or safety.

The Tribunal adopts the approach of the New South Wales Supreme Court in Lindsay v New South Wales Medical Board as authority for the proposition that material upon which an immediate action order might be based may "include material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations".

That matter refers to other authority which indicates that the body in question is not embarking on a fact-finding exercise. The rules of evidence do not apply but it is up to the Tribunal to look at the allegations in question and consider the source and the potential seriousness of any complaint. A complaint that is trivial or misconceived on its face will clearly not be given weight and the nature of the allegations will be highly relevant to the issue of whether an order is justified.

...

The appellant submitted that s 156 necessitated established conduct before a reasonable belief of a risk to persons could be reached sufficient to take immediate action. The submission continued that there was no more than allegations of conduct before the Board and that they did not constitute 'conduct' for the purposes of the section. In any event the allegations were hotly denied. The documentation was not tendered as evidence of the truth of the matter and ought not to be received.

As indicated above, the Tribunal takes the view that this is not a matter of proving conduct but one of whether there was a reasonable belief that because of conduct, Dr I was a serious risk to persons. We are not of the view that the considerations in Lindsay were substantially different from those before this Tribunal. We also take the view that s 156 clearly contemplates immediate action in certain situations where it is necessary to protect the public even before the sometimes lengthy criminal process is complete. The appellant's submissions seems to us to eviscerate s 156 and substantially defeat its purpose.

1. In Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20], Judge Horneman-Wren added the following comments concerning the required reasonable belief as to serious risk under s 156(1)(a):

I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.

1. In Farshchi v Chinese Medicine Board of Australia [ 2018] VCAT 1617, a case determined after the 2018 amendment, the Tribunal stated:

A number of legal principles have been established for the taking of immediate action under s.156(1)(a) of the National Law. We consider those principles to be equally applicable to immediate action taken under the new section 156(1)(e) of the National Law.

Each provision requires us to form a reasonable belief in a state of affairs, albeit that the focus of the reasonable belief is different.

Under s.156(1)(a) of the National Law the focus of the reasonable belief is on the conduct, the serious risk posed and the necessity to take immediate action to protect public health or safety.

Under s. 156(1)(e) of the National Law the focus of the reasonable belief is on whether "action is otherwise in the public interest".

Reasonable belief requires the existence of a factual matrix sufficient to induce the belief in a reasonable person. "Belief" is an inclination of the mind toward assenting to, rather than rejecting, a proposition. The taking of immediate action does not require proof of conduct. It requires consideration to be given as to whether there is a reasonable belief that the individual poses a serious risk based on the factors set out in s.156(1)(a)) and/or under the new amendments, that action is otherwise in the public interest (s.156(1)(e)).

Immediate action might be taken, based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations. The mere fact of and seriousness of charges, in a particular case, might be sufficient to create the necessary reasonable belief as to either the existence of risk (s.156(1)(a)) and/or that action is otherwise in the public interest (s.156(1)(e)).

The underlying facts giving rise to the reasonable belief (about conduct performance or health, and/or whether action is otherwise in the public interest), do not have to be established on the balance of probabilities, however there must be proven objective circumstances sufficient to justify the belief. The material available should be carefully scrutinised in order to determine the weight to be attached to it. The nature of the allegations will for example be highly relevant to the question of whether an order is justified. A complaint that is trivial or misconceived on its face should clearly not be given weight.

Immediate action is not a substitute for the action that a Board (or this Tribunal), would/may take after an investigation into allegations of misconduct or unprofessional conduct had taken place. An immediate action hearing is not conducted as if it were a referral proceeding under s.193 of the National Law. The focus for immediate action is on serious risk (s.156(1)(a)) and/or the public interest (s.156(1)(e)) and the necessity (or otherwise), for taking immediate action.

Immediate action, where taken, should take a form which protects the public safety and/or the public interest with as little damage to the practitioner as is consistent with the maintenance of that public safety and/or public interest.[16]

1. The appellant in Farshchi, who was registered in three health professions, had been charged with very serious forced labour offences_._ The alleged conduct was described by the Tribunal as amounting to prolonged exploitation of a vulnerable individual. It was also regarded as an important factor that some medical treatment had been provided by the applicant to the alleged victim and that the alleged conduct, if it occurred , would have "irretrievably contaminated" any treating relationship.[17] The arguments centred on the criteria in paragraph (e) of s 156(1). In that regard the Tribunal made the important point that the public interest is not a one-sided construct:

The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.

There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.

There is a public interest in "area of need" professionals being able to practise.

There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.

There is a public interest in ensuring immediate action is only taken when it is necessary to do so. Immediate action is not required every time a health practitioner's conduct is brought into question. There will be many cases where no immediate action against a practitioner is taken, even though they may later be found to have engaged in serious misconduct.

1. However, the Tribunal determined that immediate action was necessary in that case. It affirmed the decision of the National Board to impose stringent conditions on registration:

...we nevertheless consider immediate action is warranted in order to protect, uphold and give effect to the very principles which lie behind registration in each of the health professions in which Dr Farshchi practises_[18]_.

...

People confide in their health practitioners and must have trust in the relationship. In order to look after a patient, a health practitioner must have the fundamental ability to have a feeling of mercy toward the patient and candid communication with the patient. Holistic patient care requires full disclosure with trust between patient and doctor. The patient must know that the health practitioner always has his or her best interests at heart and that there is nothing likely to compromise those best interests. When a practitioner is accused of profound exploitation and abuse (mental and/or physical in nature), it is contrary to the essence of the practice of the therapeutic relationship. It is for this reason that personal integrity is an important hallmark of each of the professions in which Dr Farshchi practises.

The confidence of the public in each of the professions in which Dr Farshchi practises, that they can seek and receive treatment safely, are of great relevance to our determination.

The new public interest test allows us to look beyond questions of risk to persons and the need to protect public health and safety to broader considerations, such as public confidence in the various health professions. Such confidence may be undermined by an individual's (alleged) conduct whether it occurs within or outside of the practise of the relevant health profession.[19]

...

Dr Farshchi's actions are alleged to have taken place against a vulnerable individual, described as an Iranian refugee fearful of the Iranian Government. If established the conduct would demonstrate the absence of ethics and respect required in the health professions in which Dr Farshchi practices. The nature of the threats alleged to have been made by him would indicate an awareness of X's heightened vulnerabilities and his disregard for same.

We consider that the fact of charges having been laid against Dr Farshchi coupled with the serious nature of those charges supported by the (albeit untested) allegations in and of itself provides a sufficient factual basis to form a reasonable belief that it is in the public interest for immediate action to be taken.[20]

1. It was therefore determined that it would be counter to the public interest for Dr Farshchi to continue unrestricted practice, pending the outcome of the criminal charges. The Tribunal imposed conditions of strict direct supervision. It stated:

The public would be gravely concerned if a practitioner accused of forced labour offences, with the type of aggravating issues alleged in this case, could be left to practise unfettered pending the outcome of the criminal charges. The regulatory system surrounding health practitioners must not be seen to be "protecting its own." It cannot ignore criminal allegations so serious in their nature.

Confidence in each of the health professions must be maintained.

The physical presence of a supervisor, will enable each patient to have complete confidence that the health practitioner/patient relationship (relevant to the discipline practised by Dr Farshchi), will not be undermined in any way.[21]

1. Whilst the Tribunal recognised that the conditions would have a deleterious effect on Dr Farshchi and might prevent him from obtaining employment, there was a stronger public interest in patient well-being, confidence in the system and accountability.[22] The public was entitled to feel entirely protected in their dealings with Dr Farshchi while he awaited the outcome of his criminal charges.[23]
2. The above principles were generally accepted by the parties in this case. There was one area of divergence (or at least difference of emphasis) which will we deal with now. It relates to the concept of "public confidence" as it applies to s 156(1)(e).
3. In Medical Practitioners Board of Victoria v Lal [2009] VSCA 109, a case pre-dating the national scheme, the Victorian Court of Appeal suggested that public confidence in the medical profession was not a mandatory matter to be considered in relation to the registration of a medical practitioner. That suggestion cannot be maintained under the National Law.[24] The 2018 amendment makes the position clear. The example attached to the new paragraph (e) of s 156(1) highlights the importance of public confidence to issues concerning the public interest. Considerations of public confidence in the provision of health services can justify action under s 156 even where there is no proven risk to persons.
4. The view was also expressed in Lal's case that

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.

1. It has been pointed out that the Court was not stating a proposition of law.[25] The view expressed by the Court should be approached cautiously in the light of the National Law. The 2018 amendment reflects an understanding that the failure to take immediate action in a particular case could well affect public confidence to the extent that such a decision would be contrary to the public interest. That is a view with which many would agree. Public confidence in the profession relies upon:
   • A public perception that most practitioners in the profession practise with appropriate skill, integrity, and compassion; and
   • A public perception that those practitioners who do not meet these standards are appropriately regulated in the public interest.
2. If the second of these perceptions is absent, it matters little that the vast majority of practitioners may be regarded as honourable. The failure to adequately regulate the "bad eggs" (or those subject to serious allegations which raise fundamental issues concerning fitness to practise) will damage the reputation of the profession and the confidence of the public in accessing services.
3. It is essential that the public can access health services with confidence that practitioners will display integrity, propriety, and commitment to their health and welfare. Experience teaches that a few errant practitioners can cause enormous damage to patients and to the reputation of the profession. It is not sufficient that most members of the profession are held in high esteem. Registration effectively accredits the practitioner to the public as a person who can be trusted with the responsibilities of a registered person.[26] The public needs to have confidence that appropriate action will be taken whenever there is good reason to doubt the fitness of a practitioner to be registered. Where a practitioner has been charged with a serious criminal offence, the public need to be assured that appropriate action is being taken in the public interest during the period until the charges are determined.

1. We have formed a reasonable belief that, because of the appellant's conduct, he poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety. The appellant accepted that immediate action was appropriate, but we briefly describe our reasons for this finding.
2. The appellant has been charged with an aggravated offence of indecent assault of a patient. This is a serious allegation.
3. The alleged patient has sworn an affidavit as to the circumstances. It is an apparently credible account.
4. The appellant admitted to police that he had a cigarette with the patient. He also admitted that he sent the patient a text message the following day, inviting her to dinner. Regardless of the truth of the indecent assault allegation, it appears that the appellant admits conduct that would amount to a serious boundary breach in the context of his professional practice.
5. The appellant denies the allegations of indecent assault. He has a right to silence in relation to the criminal matters and this impacts his ability to explain the above conduct.
6. Given the material before us, we reasonably believe that there is a real risk that the appellant might inappropriately touch or assault female patients or engage in other types of boundary breach conduct with female patients. This would include the risk of the respondent using the occasion of a medical consultation for his own sexual gratification or to pursue a personal relationship. This risk would extend to other females he might contact through his practice such as the mother of a child patient. We believe there is a need to take immediate action to protect such persons from that risk.
7. As indicated, we do not accept that the risk is confined to situations where the appellant might inappropriately touch a patient.

1. We have also formed the reasonable belief that it is necessary to take immediate action in the public interest.
2. Public confidence in the provision of medical services would be severely damaged if the appellant was allowed to continue in unrestricted practice whilst this serious criminal charge was pending. This is primarily due to the risks that have already been outlined.
3. However, there are other factors of importance. Female patients might consult with the appellant, unaware of the allegations. They might submit to intimate examinations. They might confide in him concerning intimate sexual issues or issues concerning sexual violence. They might seek his advice and assistance concerning such issues.
4. Even if the appellant's conduct during these consultations was exemplary, such patients would have every right to feel betrayed and violated when they later came to learn of the allegations against the appellant. They well might feel betrayed by the regulatory system which continued to hold the appellant out as a person to be trusted, despite the known issues as to his fitness to practice. They might fairly question whether they had given informed consent to the consultations.
5. A failure to take immediate action would severely damage the public confidence in the provision of medical services and would be contrary to the public interest.
6. We believe on reasonable grounds that there is a need for immediate action in the public interest.

1. The immediate action should take a form which protects the public safety and the public interest with as little damage to the practitioner as is consistent with the maintenance of that public safety and public interest.[27]
2. It is inevitable that there will be very significant delay before the contested allegations can be dealt with in the criminal courts. Even if the appellant is acquitted, the Board may wish to further investigate the professional aspects and may still proceed with disciplinary action. The immediate action will likely impact the appellant for a considerable period.
3. A suspension from practice is likely to have a significant adverse financial impact on the appellant over a long period of time. We do not consider that a suspension is required in this case. The risks identified and the public interest issues are focussed almost entirely on the appellant's interaction with female patients. We consider that there is no need to ban the appellant totally from practice during this interim period. We propose instead to impose conditions on practice that would allow the appellant to consult male patients only by telehealth medicine.
4. The Board submitted that the character flaws inherent in the alleged behaviour meant that the appellant was a risk to all patients and that it was in the public interest to suspend. We do not consider that such would be a proportionate response. We remind ourselves that we are dealing with untested allegations. We consider that any risk to male patients is far more remote and not of the same order. The public interest considerations are less significant in the context of male patients. Given that the allegations are untested and disputed, we consider that the public would regard our proposed conditions as fair and proportionate. They are sufficient, in our view, to maintain public confidence in the provision of medical services.
5. The primary submission of the appellant was that he should be allowed to consult female patients, but only by telehealth medicine. For reasons already outlined, we do not consider that this would adequately address the risks or the public interest. A real and significant risk of harm to female patients would remain. The public interest would not be adequately served.

1. We are aware that AHPRA has certain standard protocols and documents which may be of assistance in refining the detail of conditions to be imposed. We will allow the parties to confer and possibly agree the detail of conditions in accordance with this decision. If the parties do not agree, we will receive submissions in writing as to this issue.
2. In general terms, we propose that the conditions, however drafted, should achieve the following:
   1. The practitioner must practise only at practice locations approved by the Board or its nominee.
   2. The Board must approve a supervisor at each practice location who has agreed to take responsibility for ensuring that the appellant practices only in accordance with these conditions at the specified location.
   3. AHPRA must have access to records, reports and information to allow it to monitor compliance with these conditions.
   4. The practitioner must have no contact (by any means whatsoever) with any female patient or female relative of a patient.
   5. The practitioner may only consult male patients through the modality of telehealth medicine with patient contact limited to audio or video conferencing. All consultations must be conducted from the practice address.
   6. Systems must be in place to ensure that every potential patient is first triaged by another staff member before being put in contact with the practitioner so as to ensure that these conditions are complied with.
3. The parties are required to provide to the Tribunal by 2pm on Tuesday, 16 June 2020:
   • agreed minutes of order for approval by the Tribunal or
   • the proposed minutes of order of each party, together with any submissions as to the detail thereof.

The Tribunal may then make a final order without further reference to the parties.

1. The Tribunal has made an order pursuant to s 60 of the SACAT Act prohibiting the publication of the name of, or anything tending to identify, the patient the subject of the allegations leading to the decision which is subject to review.

Following further joint submissions, the Tribunal made an order as indicated in the headnote above.

[1] Bernadt v Medical Board of Australia [2013] WASCA 259 at [10], [21], [51], and [171]; Pearse v Medical Board of Australia [2013] QCAT 392 at [24] - [25]; Kapser v Psychology Board of Australia (no 2) [2015] NTCAT179 at [39] are all cases where the nature of the appeal was held to be governed by the provisions of the Act creating the responsible tribunal.

[2] The status and relevance of examples in the National Law is dealt with in clause 10 of Schedule 7 to the National Law.

[3] Reference could also be made to the Statutes Amendment (SACAT) Act 2019, but it is not relevant to this case.

[4] Kirby J at 299-231, Hayne & Heydon JJ at 315-316, Keifel J (Crennan J agreeing) at 328; as summarised in Kozanoglu at [105].

[5] Bernadt v Medical Board of Australia [2013] WASCA 259 at [10], [21], [51], and [171]; Pearse v Medical Board of Australia [2013] QCAT 392 at [24-25, 36-37]; Kapser v Psychology Board of Australia (No 2) [2015] NTCAT179 at [39].

[14] See the Explanatory Memorandum and Second Reading Speech as cited in Farschi v Medical Board of Australia [2018] VCAT 1617 at [37] and [38].

[15] At para [8]; citing I v Medical Board of Australia [2011] SAHPT 18, Lindsay v NSW Medical Board (2008) NSWSC 40, Liddell v Medical Board of Australia [2012] WASAT 120, Pearse v Medical Board of Australia [2013] QCAT 392.

[24] Medical Board of Australia v Leow [2019] VSC 532 at [77].

[25] See Medical Board of Australia v Leow [2019] VSC 532 at [96].

[26] Sobey v Commercial & Private Agents Board (1979) 22 SASR 70 at 76.