Farshchi v Medical Board of Australia (Review and Regulation) [2018] VCAT 1619

1. Under section 202(a) of the Health Practitioner Regulation National Law (Victoria) Act 2009 the appellable decision of the Respondent dated 20 February is confirmed.

1. Dr Farshchi trained as a medical practitioner in Iran and practised in areas close to the Afghanistan border. Following his arrival in Australia in 2006, he also completed studies as a Chinese Medicine Practitioner and as a Chiropractor.
2. Dr Farshchi is accordingly now registered in three professions under the Health Practitioner Regulation National Law (Victoria) Act 2009 ("the National Law") - Chinese Medicine (acupuncturist since September 2012), Chiropractic (General since December 2011) and Medicine (Limited-Area of Need since June 2012).
3. Each profession is regulated by its own Board; the Chinese Medicine Board of Australia, the Chiropractic Board of Australia and the Medical Board of Australia respectively.
4. Dr Farshchi's current practice comprises 90% of Medical General Practice together with a small number of acupuncture and chiropractic patients. His patients include many refugees. He speaks multiple languages. He is active in the local Iranian community.
5. However, on 24 January 2018, Dr Farshchi was arrested and charged with serious "forced labour" offences under the Commonwealth Criminal Code Act 1995, namely:

(a) causing a person, (who we will refer to for the purposes of these reasons as "X"), to enter into or remain in forced labour contrary to section 270.6A of the Criminal Code Act 1995 (Cth), and;

(b) conducting a business involving forced labour contrary to section 207.6A (2) of the Criminal Code Act 1995 (Cth).

1. The offences, were introduced into the Crimes Act 1900 (Cth) by the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth). The then Attorney-General, Ms Roxon, said of the Bill in her Second Reading Speech:

... For many in our community the notion of "slavery" evokes 19th-century images of people sold as chattels, shackled and transported between countries. Tragically, 19th-century slavery has not been abolished. It is simply taking other forms.

People traffickers recruit, transport, transfer, harbour or receive their victims through force, coercion or other means in order to exploit them. This is the modern day face of slavery.

A common factor of contemporary slavery and trafficking - from forced labour in forced marriage to organ trafficking - is the misuse and abuse of power. And such an abuse has no place here in Australia.

I want to send that message loud and clear to all Australians and all young people: duress, violence and intimidation are not acceptable in contemporary Australian society - in any context. Slavery, trafficking and forced marriage are unacceptable and they will now be very serious crimes.

... More specifically this Bill will:

create a standalone offence of forced labour where a reasonable person in the position of the victim would not consider him or herself to be free to cease providing, or leave the place where they provide, labour or services because of the use of coercion, threat or deception.

1. Dr Farshchi appeared before the Melbourne Magistrates' Court and was released on bail with a $200,000 surety. Under his bail conditions, he is not able to prescribe any medication to X nor any other person in his employment (whether that employment is paid or not).
2. On the same day, each Board in which Dr Farshchi is registered as a health practitioner was notified of the fact of Dr Farshchi's arrest and charge by a Federal Agent of the Australian Federal Police.
3. Thereafter, on 30 January 2018, through his legal representatives, Dr Farshchi also made a disclosure to each Board as required under s.130 of the National Law. When doing so, he made it clear that he strenuously denies the serious allegations made against him.
4. On 6 February 2018, the Immediate Action Committee of the three Regulatory Boards considered an Immediate Action Agenda Paper in relation to the notification(s) about Dr Farshchi. The issue to be considered by each Board was:

Whether based on the information available, the Immediate Action Committee of [each Board] reasonably believes that because of his conduct, Dr Farshchi poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.

1. Each Immediate Action Committee did consider immediate action to be necessary and proposed to take immediate action under s.156(1)(a) of the National Law in the form of a suspension of Dr Farshchi's registration.
2. Before taking action, Dr Farshchi's legal representatives were however given an opportunity, in accordance with s.157(3) of the National Law, to make both written and verbal submissions to the respective Immediate Action Committee(s). Dr Farshchi was also invited to address the Immediate Action Committee(s) which he did. Character references were also tabled on his behalf.
3. Ultimately, each Board determined not to suspend Dr Farshchi's registration but instead imposed onerous conditions on his registration which permitted Dr Farshchi to continue to practise but required a very high level of supervision.
4. The conditions imposed by each Board largely mirrored each other and read as follows:

The practitioner must be supervised by another registered Chiropractor/Chinese Medicine Practitioner/Medical Practitioner when practising as a

Chiropractor/Chinese Medicine Practitioner/Medical Practitioner[1]. (The condition imposed on Dr Farshchi's medical registration further noted that these requirements are in addition and further to any requirement for supervision inherent with the practitioner holding limited registration as a medical practitioner)

For the purposes of this condition, "supervised" is defined as:

The practitioner must consult, and follow the direction of, their supervisor about the management of all patients, at the time of the consultation, and before the patient leaves the practice. The supervisor takes direct and principal responsibility for each individual patient, and must be physically present at the workplace at all times when the practitioner is providing clinical care. Supervision via telephone contact or other telecommunication is not permitted.

1. The conditions also required Dr Farshchi to nominate appropriate supervisors and had various related reporting requirements.
2. The conditions are akin to (and appear to be modelled on), the highest requirements set out in Level 1 of the Medical Board of Australia, Guidelines: Supervised Practice for International Medical Graduates.
3. Dr Farshchi considers the conditions imposed on each of his registrations to be excessive and prohibitive. On 19 March 2018, he therefore applied for a review of each decision to this Tribunal. He was entitled to do so by virtue of s.199 of the National Law.
4. The factual matrix surrounding each reviewable decision was, for the reasons explained above, essentially the same in each application, such that consideration was given by this Tribunal to hearing the matters concurrently.
5. Clause 11 AJ of schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998, ("the VCAT Act"), requires the Tribunal, in hearing matters under the National Law, to be constituted by at least two members of each of the health professions together with a legal presiding member.
6. Section 64 of the VCAT Act however, limits the composition of the Tribunal to a maximum of 5 members. Arguably then, if the Tribunal were to sit as a panel of 7 members and proceed to hear and determine all three proceedings at the same time, there was a risk that the Tribunal would be acting without lawful jurisdiction.
7. A cautious approach was therefore adopted.
8. The three applications for review were heard sequentially on 23 and 24 August 2018. In each case, the Tribunal was constituted by members drawn from the relevant health profession, together with a legal member. The same legal member however presided over each hearing. Similarly, the same Counsel appeared for the Board and for Dr Farshchi at each hearing.
9. Although each Tribunal matter was heard and considered separately, ultimately (and possibly unsurprisingly having been provided with the same material and having heard the same submissions), each panel of the Tribunal reached the same conclusions, based on the same reasoning process. In these circumstances, the decisions made in each case and the reasons therefor, are the same.

1. In each case, the Board contended that the Tribunal should confirm the appellable decision. It submitted the correct or preferable decision was to take the immediate action as was taken by each Board.
2. Dr Farshchi submitted that the conditions imposed on his registration were harsh, intrusive and unnecessarily/unduly onerous.
3. He contended that the conditions impeded his ability to find employment.
4. Dr Farshchi contended that we could not form a reasonable belief that such intrusive immediate action was necessary. He emphasised that his bail conditions preclude contact with witnesses and employees and he is thereby on notice about the need for extreme care surrounding the manner in which he conducts himself both professionally and personally.
5. He further emphasised that he is already subject to Level III Supervision as a medical practitioner by reason of not yet being a fellow of the College and that his employer has supplied a letter of support.

1. In reaching its decision to take immediate action, each Board took action under s.156(1)(a) of the National Law which reads as follows:

156 Power to take immediate action

(1) a National Board may take immediate action in relation to registered health practitioner or student registered by the Board 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...

1. However, during the period between the respective Board decisions and Dr Farshchi making his application to this Tribunal, the National Law in relation to immediate action was amended.
2. On 1 March 2018, s.156(1)(e) of the National Law came into effect, creating a further avenue for the taking of immediate action.
3. Section 156(1)(e) reads as follows:

156 Power to take immediate action

(1) a National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if - ...

(e) the National Board reasonably believes the action is otherwise in the public interest.

1. Section 4 of the National Law provides that the National Law "as in force from time to time" applies as a law of Victoria. It therefore became open for us to take into account the "public interest test", albeit that it was not a test available to the Board(s) when they determined to take immediate action.
2. The National Law[2] beneath s.156(1)(e), provides an example of the circumstances in which action may be taken 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.

1. The Explanatory Memorandum and Second Reading Speech each provide further illumination.
2. The Explanatory Memorandum [3] said at page [13]:

The threshold for immediate action in its current form in section 156 may constrain the National Board from taking swift action where it is warranted to protect public health, public safety or the public interest. For example, if a practitioner has been charged with a serious crime, and the relationship between the alleged crime on the practitioner's practice is not yet well established, the "public interest" may require a National Board to constrain the practitioner's practice until the criminal matter is resolved, both for the protection of the public and for public confidence in the health profession.

1. The Second Reading Speech says at page [2716][4]:

It is important to ensure that immediate action can be taken against health practitioners where public interest considerations require it. An example of where the public interest test may be used to take immediate action is if a serious criminal charges laid but the charges may not be directly related to the person's conduct as a health practitioner. In cases like these it can be difficult to show that the threshold of "serious risk to persons" in the National Law is reached. However, it may be appropriate to impose conditions on the person's registration for public protection and confidence in the health profession.

1. The relevance and potential applicability of s.156(1)(e) to the current proceedings is clear.
2. Unsurprisingly in these circumstances, the primary focus of each Board's submissions in support of immediate action moved from a discussion of section 156(1)(a) of the National Law to section 156(1)(e) of the National Law.

Immediate action under s.156 of the National Law

1. A number of legal principles have been established for the taking of immediate action under s.156(1)(a) of the National Law.[5] We consider those principles to be equally applicable to immediate action taken under the new section 156(1)(e) of the National Law.
2. 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.

1. 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".
2. 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)).
3. 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)).
4. 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.
5. 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.
6. 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.
7. We turn then to a consideration of the material before us, upon which we must make our decision.

1. It is essential to immediately acknowledge that the criminal prosecution is in its earliest phase.
2. We have a copy of the charges. We know therefore that the allegations span the period July 2015 to March 2017 and that the charges are by their nature, extremely serious. There is a $200,000 surety with stringent conditions imposed on Dr Farshchi.
3. We also know that the charges arose in the context of Dr Farshchi's ownership (with his wife) of a business unrelated to his practice in the health professions.
4. We have been provided with a police Summary of a statement, ("the Summary"), said to have been made by X.
5. From the Summary, we understand that X alleges that:

Dr Farshchi employed X, in his business. X, who is an Iranian refugee, had recently arrived in Melbourne. For three months X worked without pay because Dr Farshchi told him he was "in training" and it was Australia's law that he needed to first learn how to work. In due course, X was paid $10 per hour but the pay was irregular and he did not receive the full pay. When X queried the rate of pay, Dr Farshchi told him he would assist him to obtain a Visa in Australia and permanent residency after four or five years.

- X worked every day from 7/7:30 am through to 9 pm without breaks. Three or four times a month, X would have to work until midnight. On occasion, X would work until 3 or 4 am. When X would raise the issue of his payments Dr Farshchi threatened to get members of the local Iranian community to put a bag over X's head and throw him in the ocean adding that no one will know. Dr Farschi told X "I have money, I have power, I have influence, I know people and I have connections in the Department of Immigration". Dr Farschi said he could send the victim back to Iran just like he brings people to Australia. When the victim threatened to quit working for him, Dr Farshchi continued to threaten the victim.

- Dr Farshchi threatened X that he "had people in immigration" and would have him returned to detention and then back to Iran if he didn't continue to work for him. Dr Farschi claimed he knew people in the Iranian government and that after he sent him back to Iran Dr Farshchi would tell the Iranian authorities that X was now a Christian. X is on a bridging Visa and is scared of being sent back to Iran as he and his family have converted to Christianity. He believes he may be accused of apostasy and face the death penalty.

- X is terrified of Dr Farshchi and believes that eventually Dr Farshchi will destroy him.

- On occasions X vomited from the stress of his work conditions. X was suffering leg and back pain from long working hours. Dr Farshichi provided X with medication including Suboxone and Tramadol to "get his power again" so he could keep working, despite being tired and in pain. X has never taken these medications before.

- On one occasion X took Suboxone at work, had a seizure and collapsed. When workmates called Dr Farshchi and asked what to do, they were instructed not to call an ambulance but to take X to Dr Farshchi's office. The workmates splashed water over the X's face and he revived. Dr Farshchi did not however see X or assess him.

- Dr Farschi also provides medications to other employees.

- When X confronted Dr Farshchi about not coming to see him asking "didn't you think I might die?" Dr Farshchi responded that he would put X's body in the septic tank and dissolve it with acid.

1. This is a second-hand summary of evidence which the informant says the key witness will give. We have no sworn statements or police briefs of evidence. The summarised version of events placed before us may rely on translations and/or other material that has not been tested for accuracy or context. There are possible incongruities in the material that will no doubt be fleshed out in due course, such as why a victim would attend at the surgery of an alleged abuser; whether other workers were present during the alleged misconduct; whether there could be other motives for making a complaint; how the conduct could occur when Dr Farshchi was working regular hours in a practice away from that workplace and so on.
2. Care should be taken with respect to how much weight is given to the details provided by the informant in these circumstances. Nevertheless, in submissions made on behalf of Dr Farshchi, it was conceded that the existence of the charges supported in this way could constitute sufficient objective circumstances for the purposes of immediate action to support a reasonable belief that Dr Farshchi may have engaged in certain conduct as described. We agree the concession was appropriately made. Having said this, we acknowledge that Dr Farshchi strenuously denies the allegations. He is entitled to the presumption of innocence and the right to silence. He is not obliged to give evidence in these proceedings. We draw no inference from the fact that he did not do so. It is not our role to draw any conclusion whatsoever as to whether or not any of the extremely serious criminal allegations will ultimately be proven.
3. Finally, at the end of the Summary, the following words appear:

There is other corroborating evidence from a range of sources, which is not disclosed here, that the AFP relied upon in arresting and charging Dr Farshchi. There are restrictions on the AFP sharing some of this information to other agencies.

1. Whilst there is apparently [some] additional material upon which the AFP will seek to rely for the criminal prosecution, we are not privy to the detail or extent of that material.
2. Each Board has referred the matter for investigation under s.160(1) of the National Law. That process will, however, be largely suspended until the criminal prosecution has concluded. It is unlikely then that much more will be known for some time. Whilst the criminal proceedings have been listed for a 10-day committal hearing in early 2019, it is unlikely that the trial will take place for some considerable time. The end of 2019 or early 2020 is the current estimate.
3. In addition to the serious allegations of forced labour, it is apparent from the Summary that periodically Dr Farshchi provided X with medical treatment. We were shown the health records pertaining to Dr Farshchi's treatment of X at his clinic. (We note there have been no complaints or notifications (prior to this one), against Dr Farshchi in relation to his practice in any of his health profession registrations).
4. Dr Farshchi accepts that he prescribed Tramadol on 24 June 2017, Fosamax on 8 May 2017 and/or Suboxone on 4 July 2016 to X in relation to X's back pain. Apparently, he prescribed Suboxone because X complained of severe back pain which was resistant to painkillers. Dr Farshchi further admits to being aware of X's history of past opioid use and agrees it is not included in his medical records.
5. Dr Farshchi also agrees that he ordered a CT of the lumbar spine and engaged in gentle mobilisation, traction and manipulation of X's back, (presumably as a medical practitioner rather than a chiropractor although this is unclear).
6. Dr Farshchi admitted to the Medical Board of Australia that he prescribed Suboxone but denies ever being present or informed of an occasion where X collapsed at work after taking the medication. Dr Farshchi further accepts that the prescription for Suboxone was given without the required permit from Drugs and Poisons Regulation, Department of Health and Human Services. He accepts that it was his responsibility to be cognisant of his prescribing obligations and to comply with them and that he failed in this regard.
7. The Medical Board of Australia expressed concern about these matters. It submitted that the clinical records surrounding Dr Farshchi's therapeutic relationship with X did not reveal a proper, reasoned diagnosis or any diagnosis that would justify any/all of the prescriptions. It was accordingly critical of the adequacy of Dr Farshchi's clinical care of X.
8. Whilst these concerns were raised about Dr Farshchi's clinical practice, the Medical Board of Australia stressed that these factors were not and should not be our overriding concern or consideration in this case, conceding that even if all of the clinical concerns were proven, it is unlikely that they would have resulted in the immediate action taken by the respective Boards.
9. Dr Farshchi also stressed that the issue of potential deficiencies arose in his medical practice and that there was no material before us sufficient to support a reasonable belief that there is any similar deficiency in either his Chiropractic or Chinese Medicine practice.
10. Insofar as his clinical practice is concerned, we agree that there is no evidence before us (outside the facts of this matter), to find that there are any systemic deficiencies in the way Dr Farshchi has treated patients in any of his fields of practice. Nevertheless, we note that prior to providing treatment any registered health practitioner must undertake an appropriate clinical assessment of the patient to determine whether a therapeutic need exists. The provision of a health service without an independent clinical assessment transcends into all of the health professions in which Dr Farshchi practices.
11. Nevertheless, we agree that it is appropriate that the emphasis in each case be on the fact of the serious criminal law allegations.

1. We have formed the reasonable belief that immediate action should be taken in the public interest under s.156(1)(e) of the National Law.
2. In doing so, we are mindful of the fact that the public interest is not a one-sided construct.
3. The public interest includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.
4. There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.
5. There is a public interest in "area of need" professionals being able to practise.
6. There is a public interest in proportionality, particularly where a matter is unlikely to finalise quickly.
7. 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.
8. Taking these matters into consideration, 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.
9. The crimes alleged against Dr Farshchi are crimes alleging the prolonged exploitation in a work/personal relationship of a vulnerable individual. The relationship which health practitioners develop with their patients is a very personal relationship. 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.
10. The confidence of the public in each of the professions in which Dr Farschi practises, that they can seek and receive treatment safely, are of great relevance to our determination.
11. 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.
12. The penalty that the charges faced by Dr Farshchi attract, namely a term of imprisonment, is indicative of the severity of the charges. The allegations are capable of raising serious questions in the public's mind about Dr Farshchi's ethical suitability to practise in any of the health professions in which he is registered. We consider that public confidence in each of the professions and the willingness of members of the public to seek appropriate treatment would be significantly undermined if they were aware that a practitioner facing charges such as those faced by Dr Farshchi were permitted to practise unconditionally without restriction or supervision.
13. We consider that it is further appropriate for us to consider the impact on the reputation of [each of] the profession(s) in which Dr Farshchi practises when considering whether or not to take immediate action.
14. Each profession in which Dr Farshchi practises requires respect, the ethical exercise of judgement and trustworthiness.
15. The Code of Conduct pertaining to health practitioners acknowledges this.
16. The Good Medical Practice: A Code of Conduct for Doctors in Australia provides at [1.4]:

While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice.

Doctors have a duty to make the care of patients their first concern and to practice medicine safely and effectively. They must be ethical and trustworthy.

Patients trust their doctors because they believe that, in addition to being competent, the doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality.

Doctors have a responsibility to protect and promote the health of individuals and the community.

Good medical practice is patient centred. It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, recognising that these cultural differences may impact on the doctor-patient relationship and on the delivery of health services.

1. Similarly, the Code of Conduct for Chiropractors provides at [1.2]:

Professional values and qualities

While individual health practitioners have their own personal beliefs and values, there are certain professional values on which all health practitioners are expected to base their practice. These professional values apply to the practitioner's conduct regardless of the setting, including in person and electronically, e.g. in the social media.

Health practitioners have a duty to make the care of patients their first concern and to practice safely and effectively.

Health practitioners must be ethical and trustworthy. Patients trust health practitioners because they believe that, in addition to being competent, health practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on health practitioners to protect their confidentiality.

Health practitioners have a responsibility to protect and promote the health of individuals and the community.

Good practice is centred on patients. It involves health practitioners understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, and recognising that these cultural differences may impact on the practitioner- patient relationship and on the delivery of health services. It also includes being aware that differences such as gender, sexuality, age, belief systems and other antidiscrimination grounds may influence care needs and avoiding discrimination on the basis of these differences.

Effective communication in all forms underpins every aspect of good practice.

1. The Chinese Medicine Board of Australia Code of Conduct for Registered Health Practitioners provides at [1.2]:

Professional values and qualities

While individual health practitioners have their own personal beliefs and values, there are certain professional values on which all health practitioners are expected to base their practice. These professional values apply to the practitioner's conduct regardless of the setting, including in person and electronically, e.g. social media, e-health etc.

Practitioners have a duty to make the care of patients or clients their first concern and to practice safely and effectively. They must be ethical and trustworthy. Patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on practitioners to protect their confidentiality.

Practitioners have a responsibility to protect and promote the health of individuals and the community.

Good practice is centred on patients or clients. It involves practitioners understanding that each patient or client is unique, and working in partnership with their patients or clients, adapting what they do to address the needs and reasonable expectations of each person. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, and recognising that these cultural differences may impact on the practitioner- patient/client relationship and on the delivery of services. It also includes being aware that differences such as gender, sexuality, age, belief systems and other antidiscrimination grounds in relevant legislation may influence care needs and avoiding discrimination on the basis of these differences.

Effective communication in all forms underpins every aspect of good practice.

1. Each relevant Code of Conduct emphasises the professional values inherent in patient/client care. Patients, rather than self-interest, are the paramount consideration in all of the health professions in which Dr Farshchi practices. In each of the health professions, practitioners need to be ethical and trustworthy and display qualities that rely on the highest ethical standards.
2. Each of the relevant Codes of Conduct caution against providing care to persons with whom practitioners are in a close personal relationship because of the lack of objectivity, possible discontinuity of care and risks to the practitioner and patient. Each of the Codes, whilst recognising such care is sometimes unavoidable, emphasises the need for careful management of these issues.
3. 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.
4. 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.
5. Any suggestion that a practising health professional may have disregarded the Commonwealth Criminal Code, and/or employment laws or breached fundamental protections on human rights would raise concerns in any, let alone a vulnerable patient cohort.
6. Dr Farshchi contended that the criminal conduct related to the way he conducted his business and behaved toward his employees. It does not, he submits, follow that those alleged behaviours give rise to concerns about his practice in the respective health professions. The persons potentially at risk from that conduct, were employees. The conduct does not have a sufficient link to his practice as it is conduct directed towards employees and not patients and it is conduct related to workplace safety and not the quality of health care provided to patients. We disagree.
7. The criminal allegations and their inter-connection to the purported therapeutic relationship is of significance in our determination. If the criminal allegations were substantiated, it would be self-evident that the therapeutic relationship was a distorted and contaminated one. This is because the very symptoms for which X sought treatment were alleged by X to have arisen because of the stress and conditions of his work environment. If this were the case, it would have created an obvious conflict between the interests of Dr Farshchi and the interests of X.
8. X would not have been able to provide appropriate information to Dr Farshchi in the context of such a relationship. Any treatment he received could well have been compromised. The dynamics between Dr Farshchi and X would be seen to be irretrievably contaminated by the coexisting relationship. It would not be possible for X to discuss the cause of his medical condition with Dr Farshchi in these circumstances.
9. We do not consider it appropriate to delineate between Dr Farshchi's alleged conduct in a business context and his conduct in a therapeutic context. We also do not consider it necessary or appropriate to delineate where Dr Farshchi is a practising member of three different healthcare professions. In each profession, what is required for good practice is the exercise of ethical judgement, humanity, compliance with ethical and legal obligations and trustworthiness, together with sound clinical knowledge and practice.
10. The allegations faced by Dr Farshchi run counter to the inherent qualities necessary for a health practitioner in any of the professions in which Dr Farshchi practises.
11. Fundamental to good practice is the development and maintenance of trust between any treating practitioner and his/her patients/clients. Dr Farshchi's conduct if proven would be inconsistent with the maintenance of trust in any health professional relationship. If proven, the conduct would destroy or stifle the development of any patient's trust in him. Trust, as we have already stated, is at the heart of the practitioner/patient relationship. A lack of it detrimentally affects the effective provision of safe healthcare.
12. It is for these reasons that we have determined that it would be counter to the public interest for Dr Farshchi to continue unrestricted practice, pending the outcome of the serious criminal charges.
13. Community confidence would be eroded if the responsible Board(s) took no action.
14. Until the criminal matters are resolved, serious questions may exist about whether Dr Farshchi is able to effect good medical care for those who are experiencing abuse and violence, as well as whether he would be able to identify and respond appropriately to perpetrators of same. Patients or clients may be concerned that Dr Farshchi may hold exploitative attitudes or have a willingness to engage in exploitative behaviour.
15. Where there are serious allegations that a health practitioner may be prepared to prioritise his financial opportunities over the well-being of a vulnerable refugee, or be exploitative and/or misuse a power imbalance or exercise seriously impoverished judgement or enter into a dual and improper therapeutic relationship, regulatory authorities have a responsibility to act in the public interest.

What form should any immediate action take?

1. The Board contends that only the most onerous of conditions would allay the concerns raised. The Board contends that Dr Farshchi requires a supervisor who is not only actively involved in the care of each patient, but is the person with primary responsibility for the patient's care.
2. Dr Farshchi contends that the criminal charges are not related to the practise of his profession. He contends that it is not open to us to form the requisite reasonable belief that this level of supervision is necessary in the public interest. He contends that the level of supervision proposed by the Board is akin to an even greater level of supervision than Level 1, which is ordinarily imposed as a short-term measure to assess a practitioner's competence at the beginning of his/her registration, or in response to an identified deficiency.
3. Dr Farshchi contends that there is no basis to suggest that his level of clinical knowledge and skill warrants that level of supervision in any of his three areas of practice - either at all or for a period likely to exceed 18 months.
4. He contends that immediate action should take the form of conditions requiring supervision and monitoring at no higher than Level IV (in the case of his chiropractic and Chinese medicine registrations); and no higher than Level III (in the case of his medical registration).
5. He also contends that Level I Supervision conditions amount to a practical limitation on his ability to obtain work, which is not proportionate to the concerns raised.
6. He contends that other less intrusive forms of immediate action can serve the competing interests in this matter.

What are the minimum restrictions to be imposed?

1. There is no doubt that the immediate action in this case will last for a considerable period of time. The Board has already decided to defer any investigation until the conclusion of the criminal proceedings.
2. We are mindful of the guiding principles of the National registration and accreditation scheme set out in section 3(3) of the National Law namely that:

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; and

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

1. The conditions to be imposed by us on Dr Farshchi should reflect the minimum regulatory force. Nevertheless, we consider that nothing short of the actual physical presence by a supervisor at Dr Farshchi's workplace can achieve the level of oversight necessary to guard against the concerns raised in these proceedings.
2. We do not know whether or not this will mean Dr Farshchi will be able to work. An area of need practice or hospital may be able to accommodate a practitioner with the onerous supervision provisions attached to his registration.
3. We also however accept that this may not be the case.
4. However, the standards of each of the health professions in which Dr Farshchi practices are necessarily high.
5. 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.
6. Confidence in each of the health professions must be maintained.
7. 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.
8. Any patient/client concerns they may have had in being treated by an individual facing significant serious allegations can thereby be allayed.
9. Whilst we understand that stringent supervisory conditions have the potential to have a devastating impact on Dr Farshchi's career, there is a stronger public interest in this case in patient well-being, confidence in the system and accountability.
10. Whilst the imposition of strict supervisory conditions may appear onerous, conversely the imposition of supervisory conditions may allow Dr Farshchi the opportunity to retain his practice in a manner that suspension of his registration absolutely would not.
11. We consider that the telephone supervision suggested on behalf of Dr Farshchi could never achieve the level of protection required in the circumstances of this case.
12. The public interest requires that patients are entitled to feel completely protected in their dealings with Dr Farshchi whilst he awaits the outcome very serious criminal charges.
13. Only the highest level of supervision can achieve this end. Where such a serious shadow is cast over a practitioner it is imperative that there is complete transparency surrounding his clinical practice at all times.
14. Patients are vulnerable. There is a power differential between the health practitioner and the patient. It is in the public interest that there be no shadow cast over that relationship. Strict supervision will give the public confidence that the Board is monitoring the situation.
15. We further acknowledge that Dr Farshchi may even find it difficult to find a supervisor. It may be that supervisors, who generally seek to give back to the profession through supervisory roles, will be reluctant to supervise Dr Farshchi in the circumstances.
16. Nevertheless, we consider that the nature of the allegations is so serious that the conditions imposed by each Board are necessary. We will confirm the Boards' decisions to impose those conditions.

1. Having made the above findings in relation to s.156(1)(e) of the National Law, it is unnecessary to canvass s.156(1)(a) of the National Law in great detail.
2. Suffice to say that whilst we may have struggled to find the necessary nexus between the allegations made against Dr Farshchi and the necessity to take immediate action under s.156(1)(a) of the National Law, we had no difficulty, as already discussed, in doing so under the newly-introduced Public Interest Test, contained in s.156(1)(e) of the National Law.

Conclusion

1. Under s.202(a) of the National Law we will confirm the appellable decision of the Board.

[1] Depending on the relevant registration.

[2] Clause 10 of schedule 7 of the National Law permits examples to be used in the construction of a provision.

[3] Extrinsic materials are admissible pursuant to section 8 of Schedule 7 of the National Law.

[4] Second Reading Speech for Health Practitioner Regulation National Law and Other Legislation Amendment Bill, Cr Dick Minister for Health and Minister for Ambulance Services, dated 6 September 2017.

[5] See WD v Medical Board of Australia [2013] QCAT 614 at [8]; Syme v Medical Board of Australia [2016] VCAT 2150 at [34] and [122]; George v Rockett (1990) 170 CLR at [8] and [14]; Pharmacy Board of Australia v Kozanoglu (2012) 30 VR 656 at [126]. Crickitt v Medical Council of NSW (no.2) [2015] NSWCATOD 115 at [56].