1. On 22 August 2019, the Medical Board of Australia, ("the Board") decided to take immediate action under section 156(1)(e) of the Health Practitioner Regulation National Law Act 2009 ("the National Law"), to suspend Dr Jereth Kok's registration.
2. Section 156(1)(e) of the National Law reads 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 -

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

Example of when action may be taken in the public interest -

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

1. In its reasons for decision, the Board said the information before the Board is evidence that Dr Kok publishes comments on social media/internet forums that include but are not limited to:
   • (a) Denigrating, demeaning and slurring medical practitioners who:
     • (i) Provide terminations of pregnancy services;
     • (ii) Recognise and treat gender dysphoria in a manner that is in accordance with accepted medical practice; and
     • (iii) Recognise that people who identify as transgender, are not suffering from a mental health condition.
   • (b) Sentiments of violence:
     • (i) Endorsing / calling for violence and/or genocide toward racial and religious groups; and
     • (ii) Endorsing calls for capital punishment for members of the profession who provide terminations of pregnancy services;
   • (c) Commentary expressing and encouraging views regarding LGBQTI persons that:
     • (i) has no proper clinical basis and is contrary to accepted medical practice, and/or
     • (ii) is otherwise demeaning.
2. The Board identified some 30 examples upon which it specifically relied in support of its decision.
3. On 9 September 2019, Dr Kok appealed to this Tribunal against the Board's decision under section 199(1)(h) of the National Law.
4. Under section 202(1) of the National Law this Tribunal is empowered after hearing such an appeal to:
   • (a) confirm the appellable decision; or
   • (b) amend the appellable decision; or
   • (c) substitute another decision for the appellable decision.[1]

1. The hearing proceeded before us on 28 February 2020.
2. No witnesses gave evidence, but we heard helpful submissions from the parties who referenced three volumes of materials containing (together with documents pertaining to the immediate action journey) and extracts of many of Dr Kok's social media and Facebook posts spanning approximately a 10-year period.
3. The Board contended that we should confirm the appellable decision.
4. The Board contended that it was in the public interest under section 153(1)(e) of the National Law to take immediate action.
5. The Board contended that it is in the public interest for the community to have confidence in the medical practitioners it registers and that this interest is consistent with the objectives of the National Law to only register medical practitioners who are fit and proper to hold registration.
6. The Board submitted that Dr Kok's published statements are egregious and reflect a lack of the integrity, ethics and compassion required of a medical practitioner. This says the Board calls into question his suitability to hold registration as a medical practitioner.
7. The Board emphasises that the reputation of the profession, and the standards to which the profession is held, must be maintained. In order to retain public confidence, the public must see the regulator seeking to maintain those standards.
8. The public, submits the Board, cannot have confidence in Dr Kok. Accordingly, it may lose confidence in the medical profession if he continues to hold himself out as a registered medical practitioner. In the circumstances, it is necessary to take immediate action to suspend his registration.
9. Dr Kok contended that the Board erred in finding that the alleged conduct enlivened section 156(1)(e) of the National Law.
10. He contends that the Board further erred in finding that a failure to act on the part of the regulator erodes the public confidence in the protective function of the regulator and relying on factors which were more relevant to section 156(1)(a)(i) and (ii) of the National Law in deciding to suspend Dr Kok.
11. Dr Kok submitted that the conduct did not warrant immediate action under section 156(1)(e) of the National Law, particularly in the form of suspension. He contended that if action were to be found necessary, a lesser form of regulatory action by way of undertakings or conditions on his registration not to post to social media would be sufficient to achieve the regulatory purpose.
12. We will quickly address Dr Kok's preliminary arguments before turning to a discussion of whether we reasonably believe immediate action is "otherwise in the public interest" under section 156(1)(e) of the National Law.

1. We disagree with the submission made on behalf of Dr Kok that conduct of the type alleged in this case was not contemplated by the legislature as falling within the remit of section 156(1)(e) of the National Law. The submission made by Dr Kok focussed on the example attached to the provision.
2. We agree with the submissions made on behalf of the Board that the statutory example does not confine a consideration of the public interest to cases where a practitioner has been charged with a criminal offence.
3. Schedule 7 of the National Law contains miscellaneous provisions relating to the interpretation of the provisions in the National Law.
4. Clause 8(2)(c) of Schedule 7 provides that extrinsic material may be used to confirm the interpretation conveyed by the ordinary meaning of the provision.
5. Clause 10 of Schedule 7 relates to the use of examples. It provides:

If this law includes an example of the operation of a provision -

(a) the example is not exhaustive; and

(b) the example does not limit, but may extend, the meaning of the provision; and

(c) the example and the provision are to be read in the context of each other and the other provisions of this Law, but, if the example and the provision so read are inconsistent, the provision prevails.

1. In Medical Board of Australia v Liang Joo Leow [2019] VSC 532, Niall JA noted at [83] and [85] that the example forms part of the context in which section 156(1)(e) is to be understood, but it does not control the language of the provision nor does it provide a substitute or alternative test.
2. Niall JA said:
   • [77] The example attached to s 156(1)(e) provides an important aspect of the context in which the phrase public interest appears. Clause 10(c) to sch 7 requires the example to form part of the context in which the construction of the public interest falls to be determined. ... However, the example does not exhaust the context for the purposes of construction.
   • [78] An important part of the broader context is the nature and purpose of the power conferred by s 156 of the National Law. The power to take immediate action is, as the Board correctly submitted, designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded. The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination. It is not an end in and of itself.
3. Niall JA went on:
   • [81] In circumstances where the allegations, if substantiated, may reflect on the practitioner's fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.
   • [82] As a consequence, the Board may conclude, in those circumstances, that it is in the public interest to take immediate action in order to address the question of public confidence. The relevant public confidence to which the example is directed is confidence in the provision of services by health professionals.
4. Whilst conduct or allegations of a criminal nature may, by virtue of the wording of the provision and the example, readily fall to be examined under section 156(1)(e), we consider that the real emphasis of the example lies in the ability of the regulator to now take immediate action where required to maintain public confidence in the provision of services by health practitioners.
5. Such an interpretation is consistent with the explanatory memorandum and Second Reading Speech introducing the new provision, each of which emphasise the protection of the public and public confidence in the health profession (albeit using the example of criminal charges).[2]
6. There is no justification to limiting considerations surrounding the public interest to situations involving criminal charges.
7. Dr Kok further contended that the Board made errors:
   • (i) in its formulation of the public interest test;
   • (ii) in making a finding that "a failure to act on the part of the regulator" erodes the public confidence in the protective function of the regulator; and
   • (iii) in relying on factors relevant to section 156(1)(a)(i) and (ii) of the National Law in deciding to suspend Dr Kok.
8. Although we will address some of these matters in more detail in due course, we briefly make the point that we do not in this determination rely on/adopt those aspects of the Board's case.
9. In reaching a conclusion, we exercise the powers of the original decision maker, the Board, to reach our own decision on the merits.[3]

What are the relevant public interest considerations under section 156(1)(e) of the National Law?

1. We premise our discussion with the observation that the range of cases where a reasonable belief will be formed that action is "otherwise in the public interest" is variable. There may be many situations, as yet not even contemplated, where it would be appropriate to impose conditions on a practitioner's registration in accordance with section 156(1)(e) of the National Law.
2. Relevant public interest considerations have already been articulated in a number of recent cases including Farshchi v Medical Board of Australia (Review and Regulation) [2018] VCAT 1619, Medical Board of Australia v Liang Joo Leow [2019] VSC 532 and the related determination of the Tribunal in CJE v Medical Board of Australia (Review and Regulation) [2019] VCAT 178.
3. From those cases and as already discussed, it is apparent that it may be in the public interest to take immediate action in order to address the question of public confidence. The relevant public confidence is confidence in the provision of services by medical practitioners.
4. It may also be in the public interest to take immediate action to ensure the standards of the medical profession are maintained.
5. The public interest is not however a one-sided concept. It requires a balancing of competing interests.
6. There is for example, a public interest in members of health professions, in whom training and expenditure has been made, being able to practice. This is arguably particularly relevant in the current health climate where it is readily foreseeable that health services may be stretched to their capacity.
7. There is also an important public interest in ensuring that the regulatory system responds proportionately and fairly when allegations are made.
8. In Farshchi, the Tribunal said at [75]:
   • [75] 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 when no immediate action against practitioners is taken, even though they may later be found to have engaged in serious misconduct.
9. It is always appropriate to consider whether concerns raised are able to be ameliorated through other means.
10. We turn then to a consideration of the social media posts, the subject of the immediate action.

1. Dr Kok concedes that he has made the social media posts attributed to him.
2. He contends however, that many of his social media posts have either been taken out of context or misinterpreted by the Board. He denies, for example, advocating violence.
3. He nevertheless concedes that some of his posts do have the potential to cause offence.
4. We do not propose to describe in detail each post made by Dr Kok. Dr Kok's posts span volumes. The extraction of small parts of the posts do not fully or properly represent Dr Kok's social media engagement. It would be meaningless for the purposes of immediate action to attempt to determine precisely what meaning each post carries or is intended to carry or if that meaning differs when read in isolation or as part of a thread. It is the reality of social media postings that they are not always read or understood in their full context. This is however, arguably part of the danger of posting on social media.
5. There is no doubt that Dr Kok posts extensively on social media. He has clear conservative leanings.
6. He posts in his own name. Sometimes the posts reference his being a member of the medical profession. Other times they do not.
7. We accept that many of Dr Kok's posts could, arguably, be viewed as (acceptable) social commentary/debate. There is no doubt that he sometimes engages in lengthy, articulate and considered discussion.
8. Other posts, whether social commentary/debate or not, most certainly have the real potential to cause concern/offence to a range of members of the community including (but not limited to) women seeking abortions, other health practitioners and the hospitals/practices in which they work, multiple named races, and members of the LGBTIQ+ communities.
9. We turn then to a consideration of whether Dr Kok's online social media posts lead us to form a reasonable belief that action is "otherwise in the public interest" in accordance with section 156(1)(e) of the National Law.

Do we reasonably believe that action is otherwise in the public interest?

1. We start our discussion by immediately recognising that although we read Dr Kok's posts together, making the cumulative effect sometimes confronting, we are also mindful of the reality that many of Dr Kok's posts were months, if not years, apart and were peppered amongst a great many other posts, often discussing broader social issues.
2. We are also mindful of the fact that his posts were often made during periods of public debate on a range of issues and within the context of forums discussing those issues.
3. They cannot therefore be read as one would read a book. It is unlikely that his posts have ever (other than by the parties) been read as we read them.
4. We are also keenly aware of the right of individuals, including medical practitioners, to self-expression.
5. The community values open expression in different forums.
6. The taking of action in the public interest under the National Law is not designed to disallow or discourage legitimate public debate in relation to differing medical perspectives or to prevent medical practitioners from using social media to engage in such debate.
7. Dr Kok has however, as a member of the medical profession, obligations to his profession and to those served by the medical profession.
8. We have formed the reasonable belief arising from his social media posts that "action is otherwise in the public interest" for the following reasons.
9. Dr Kok accepts that he has posted comments on social media that have the potential to offend.
10. Although, as we have already discussed, we recognise the breadth of Dr Kok's social media postings, we consider that some of his posts do appear to go further than simply having the potential to offend.
11. Some of the posts on a simple reading of them, arguably denigrate, demean and slur medical practitioners who provide termination of pregnancies, recognise and treat gender dysphoria (in a manner that is in accordance with accepted medical practice) and recognise that people who identify as transgender are not suffering from a mental health condition. Some of the posts, particularly read in isolation, do appear to endorse or call for violence and/or genocide towards racial and religious groups and endorse calls for capital punishment for members of the profession who provide termination of pregnancy services. Some of the posts do arguably express demeaning views regarding LGBQTI+ individuals.
12. We do not know whether Dr Kok's posts were triggered by personal interactions with patients/other health professionals or were purely academic in their nature. Nevertheless, the potential for individuals to take the posts personally is a very real one.
13. We are of the opinion that public confidence in the provision of services by medical practitioners and the maintenance of the standards of the medical profession are undermined if a practising medical practitioner ever broadcasts a view, for example, that his fellow health practitioners are "murderers" or in need of referral to the Australian Federal Police, whether stated "tongue in cheek" or not.
14. We raise similar concerns with respect to posts which on their face engage in racial slurring of members of the community. A reader may readily be left with the impression from such posts that the medical profession has members who have strong views against individuals based on their ethnicity. This too has the potential to harm the reputation of the medical profession. We repeat these comments in relation to Dr Kok's posts referencing members of the LGBQTI+ community.
15. It does not matter that Dr Kok finds it amusing/rhetorical/entertaining to engage in online antics of this nature. We accept that such banter may be the reality of social media posts. Dr Kok is however a medical practitioner. He is by virtue of his profession required to abide by a Code of Conduct which requires respect and compassion. He has obligations to his profession which he must take seriously. He does not simply drop his profession each time he enters the playground of social media engagement. A registered medical practitioner cannot go online and shout to all who care to read his posts (or have the misfortune of coming across his posts) without care as to the potential consequences of his actions.
16. We do not know to what extent Dr Kok's posts have been read. It is possible that many of his posts (certainly before this action was taken) had only been seen or read by a limited number of like-minded people. Conversely, it is however also possible that the posts have not been contained in this way and that the posts have been read more extensively. It is largely not to the point.
17. Any patient who discovers that Dr Kok expresses views on matters very personal to their own situation could reasonably question whether their own care or the care of others like themselves will be compromised.
18. We are satisfied that such posts have the real potential to undermine public confidence in the provision of services by health professionals. There is a real likelihood that the maintenance of the standards of the medical profession will be undermined by such posts, particularly when posted by a registered medical practitioner. The reputation of the profession is thereby impacted.
19. We are satisfied that the conduct warrants immediate action under section 156(1)(e) of the National Law.

What immediate action under section 156(1)(e) is appropriate?

1. The more difficult question for us to grapple with has been what action is proportionate and appropriate to take in the public interest.
2. The Board contends that the only appropriate outcome is suspension of Dr Kok's registration. The Board submitted that the public cannot have confidence in Dr Kok and may then lose confidence in the medical profession if Dr Kok is permitted to continue to hold himself out as a registered medical practitioner.
3. Dr Kok submitted through his Counsel that an undertaking or alternatively a condition imposed on his registration in relation to his social media accounts would be sufficient action in the public interest.
4. We are mindful of the very significant consequences any ongoing suspension of his practice will have for Dr Kok. We are also mindful that Dr Kok has practised for many years without clinical complaint. We are also mindful of the public importance particularly in the current climate of having qualified medical practitioners available for patient care.
5. We also understand that whilst immediate action is temporary, it frequently remains in place for lengthy periods.
6. We are also mindful that immediate action is the beginning of the process, not the end, and any immediate action should only extend to what is necessary in the circumstance.
7. It will be for later disciplinary investigations/proceedings to determine conclusively whether or not Dr Kok's conduct warrants final disciplinary action.
8. No evidence was placed before us to show that in his actual practice Dr Kok has not endeavoured to protect and promote the health of individuals and the wider community. No evidence was placed before us to show that when consulting with his patients, Dr Kok does compromise their best interests.
9. It is possible that ultimately Dr Kok will be found to be an individual with strong views who is also first and foremost a committed health practitioner. It may be possible for two personas to live within the one body.
10. Nevertheless, we have no doubt that Dr Kok should cease posting on social media.
11. We did not hear evidence from Dr Kok. We therefore can have no confidence, based on the materials before us, that he has yet learned or fully understands what measured social media commentary or debate consists of, particularly in the context of his being a member of the medical profession.
12. We do not know how, or even if, Dr Kok's strongly held beliefs have impacted or infiltrated his actual medical practice. We accept that there is no direct or concrete evidence that they have. We were not provided with any reports of notifications about Dr Kok's clinical care of patients.
13. We are mindful of the excellent character references provided on his behalf (although we note none of his referees gave evidence before us and we are not sure whether they are aware of all or any of Dr Kok's online posts).
14. We spent considerable time contemplating whether placing a condition on Dr Kok's registration to require him not to post would be sufficient action.
15. Ultimately, we do not consider that anything short of a suspension of his registration would preserve public confidence in the provision of services by the medical profession and ensure the standards of the medical profession are maintained.
16. Dr Kok's denigrating and threatening posts remain online. He probably cannot remove them. Whilst he apparently now recognises that he was ill advised to post them, there is no evidence before us as to how or even whether he or his clinic have reflected on the potential impact of those posts on patients and/or managed his patient caseload accordingly.
17. From his own keyboard, Dr Kok has over the years been prepared from time to time to say online what he thinks of various members of the population and what he thinks of some of his medical colleagues. It is not to the point that (arguably some) other medical practitioners may silently agree with some (or all) of his views. Those medical practitioners have not exposed themselves in the way Dr Kok has exposed himself.
18. We have grave concerns about whether the community would accept that any medical practitioner could switch, as though he were a light, from airing disrespectful views online to providing respectful and appropriate treatment for those who fall within a class he denigrates online.
19. We also have concerns about the level of respect he can bring to other members of his own profession with whom he may have to engage and/or refer patients to.
20. The reputation of the profession to deliver care appropriately and respectfully is undermined by Dr Kok's conduct.
21. The role of the medical practitioner is not that of a machine who writes prescriptions in a cold, clinical manner who when walking through the door of the clinic, disassociates himself with all he has said and done.
22. We consider that both past and present patients may reflect on their treatment differently if they were to become aware of the views expressed on social media by Dr Kok.
23. We reiterate that it is not to the point that social media inspires and encourages diatribe or vitriolic comments. Members of the medical profession cannot allow their commentary to escalate unchecked without any regard to the impact on or sensibilities of their Code of Conduct. They have responsibilities to current and/or future patients or vulnerable members of the community and the profession regarding their posts.
24. We ultimately consider that Dr Kok's conduct compromises the confidence held by the public that they can seek and receive treatment safely not only from him, but potentially from other members of the medical profession.
25. We consider that public confidence in the medical profession and the willingness of (some) members of the public to seek appropriate treatment would be significantly undermined if Dr Kok were permitted to continue to practice even with conditions pertaining to his use of social media.

[1] In substituting another decision for the appellable decision, this Tribunal has the same powers as the Board (National Law section 202(2)).

[2] In Farshchi v Medical Board of Australia (Review and Regulation) [2018] VCAT 1619, the Tribunal quoted as follows:

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.

[38] The Second Reading Speech says at page 2716:

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 charge [is] 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.

[3] See Medial Board of Australia v Liang Joo Leow [2019] VSC 532 at [21]; Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656.