For the reasons which follow, the imposition of a suite of conditions, comprising the conditions listed below, will protect public health by avoiding the risk of psychological harm which we have found to exist, and are warranted in response to the public interest considerations engaged in this case:
gender-based condition;
disclosure condition;
audit condition;
practice location condition;
location reporting condition;
self-medication condition;
treatment condition;
costs condition.
As noted above, the Board's submissions focused on what was said to be the inadequacy of any immediate action less than suspension in protecting against the risk of psychological harm to members of the public.[40] In other words, the Board submitted that no conditions could adequately protect against that risk. The primary basis for that submission was that even if Dr Lee was precluded from treating female patients he may still interact with women who accompanied their male partners or children to appointments.[41]
In its written submissions, the Board also referred to other reasons why suspension would not be adequate, by reference to the terms of two alternative undertakings Dr Lee had previously proffered. First, in response to a proposal that Dr Lee see female patients only by telehealth consultations, the Board submitted that a condition of that kind would not be sufficient to ameliorate the risk of psychological distress that may follow from the discovery by a female patient that she had been treated by a doctor charged with multiple charges of serious domestic violence.[42] We accept that is so but as the proposal for telehealth consultations with female patients was not ultimately pursued by Dr Lee it is not necessary to say anything more about this.
Secondly, it was said that a gender-based condition would not address the possibility that Dr Lee might need to respond to disclosures of domestic violence from male patients. The Board did not develop this submission at all, and we do not understand it to have been seriously pursued.
LEE and MEDICAL BOARD OF AUSTRALIA [2022] WASAT 28 | Case summary | Zoe
We accept that a condition prohibiting Dr Lee from treating female patients is warranted in order to meet the risk of psychological harm to female patients, which we have identified above.
In our view, a gender-based condition which prevents Dr Lee from treating female patients is also required to maintain public confidence in the profession. We note that gender-based conditions have been imposed in other cases where a risk to female patients has been found to exist.[44]
The gender-based condition which is proposed by Dr Lee, and which reflects the gender-based condition in the National Restrictions Library maintained by AHPRA, extends beyond female patients and encompasses 'any spouse, partner, parent, family member or guardian/carer of this individual'. In other words, the proposed condition prohibits any contact with a female patient, or with any person who attends with them.
Despite the breadth of that condition, we acknowledge that such a condition may not prevent Dr Lee from having contact with women who may have suffered domestic violence, if they accompany male patients to appointments. However, in our view the risk of such interaction is both less likely (in that the majority of male patients will not attend with a female companion) and the potential impact less severe (in that the accompanying woman would not be a patient) than would be the case in relation to a female patient. The circumstances giving rise to a risk of psychological harm for female patients includes the very real chance of a physical (and perhaps intimate) examination by Dr Lee. That circumstance would not arise in relation to an accompanying person.
Counsel for Dr Lee pointed out that gender-based restrictions are not uncommon (indeed, AHPRA includes such conditions within its National Restrictions Library) and yet there does not appear to be any example of a condition designed to protect women accompanying male patients. The absence of any such condition, which suggests that such a condition has not been required in any previous case, lends some support to the conclusion that the risk of psychological harm posed by a practitioner, facing charges such as those in the present case, to women accompanying male patients to appointments, is likely to be very low.
Having said that, we accept that a gender-based condition on Dr Lee's registration will not suffice, on its own, to avoid the risk (albeit a low risk) of psychological harm to a woman accompanying a male patient to an appointment with Dr Lee, and who later discovers that Dr Lee was facing the Charges at the time of the consultation. However, we do not consider that a complete suspension of Dr Lee's ability to practice would be necessary to avoid such a risk. Instead, the imposition of a disclosure condition will adequately address this risk.
Furthermore, a gender-based restriction, on its own, would not preserve public confidence in the medical profession. That public confidence may be undermined if a practitioner facing serious criminal charges is allowed to continue to practise medicine, without patients being given the opportunity to make an informed decision as to whether they wish to be treated by that practitioner.
The Board submitted that confidence in the profession may be undermined simply by the fact that 'a medical practice employs someone charged with serious offences relating to domestic violence'.[45] We are unable to agree. The Charges against Dr Lee remain untested allegations. In the course of the hearing, counsel for the Board, Mr Pratt, conceded that the public understood the distinction between a charge and a finding of guilt.[46] That was an appropriate concession.
In our view, a condition which requires disclosure of the existence, number and nature of the Charges would ensure that all patients attending consultations with Dr Lee are able to make an informed decision about whether they wish to attend the appointment.
The disclosure condition should require that Dr Lee disclose to all patients, as soon as practicable after making an appointment, that he is the subject of 23 charges of domestic violence offences.
The disclosure condition should also require a written notification to be displayed at the practice location, so that persons accompanying a patient will also be given notice of the Charges, and can decide whether they wish to attend the appointment with the patient.
Counsel for Dr Lee submitted that the information required to be disclosed need only properly include the plural nature of the Charges, rather than their quantity. We do not agree. In our view, the number of Charges, and the fact that they were committed over a 13 month period, as well as the fact that the Charges relate to allegations of domestic violence, are all important considerations to enable patients, or persons accompanying patients to appointments, and who may be the victims of abuse, to make an informed choice about whether they wish to see Dr Lee, and to avoid or mitigate the risk of subsequent psychological harm to that person.
The Board asserted that a disclosure condition would not adequately protect the public or the public interest because 'victims of abuse are highly vulnerable and may, upon learning that a medical practice employs someone charged with serious offences relating to domestic violence, be dissuaded from seeking medical treatment, whether at that practice or at all'.[47] The likelihood that a victim of abuse, who had determined to seek medical assistance, would choose not to see a medical practitioner at all in light of the information disclosed pursuant to the disclosure condition, seems to us to be very low. The suspension of Dr Lee's registration is not, in our view, necessary to address that possibility. The more likely consequence of disclosure is that a victim of abuse may well prefer to see another medical practitioner apart from Dr Lee. The disclosure condition ensures that an informed choice can be made.
We are satisfied that the audit condition, practice location condition, location reporting condition, self-medication condition, treatment condition and costs condition, should be imposed, in conjunction with the gender-based condition and the disclosure condition. The proposed terms of these additional conditions were consistent with the standard terms included in the National Restrictions Library but in our view the standard terms of the practice location condition require amendment, to require the Board to advise whether a proposed practice location is approved, and so that the orders we make are complete on their face. These additional conditions will permit the Board to ensure Dr Lee practises from an approved practice, will enable AHPRA to monitor compliance with the conditions imposed, will ensure that Dr Lee refrains from engaging in behaviour that may increase the risk of noncompliance, and will ensure that he receives treatment for underlying medical conditions which may increase the risk of noncompliance with the conditions imposed. Dr Lee did not object to the self-prescribing or treatment conditions being imposed.
In the Tribunal's view, the imposition of a disclosure condition, in combination with a gender-based condition, together with the suite of other conditions outlined above, will be sufficient to avoid the risk of psychological harm to female victims of domestic violence, who might have attended Dr Lee for treatment, or who may accompany male patients to appointments, and who may subsequently discover that Dr Lee was facing the Charges at the time.
In our view, the public interest in maintaining public confidence in the medical profession as a whole will be maintained by the imposition of such a comprehensive suite of conditions.
We are of the view that conditions should be imposed by the Tribunal, rather than by accepting an undertaking by Dr Lee in effectively the same terms. Although the outcome would be the same in either case, in our view, public confidence in the profession is more likely to be maintained by the public seeing that, in light of the Charges, a regulatory body has assessed whether immediate action is required, and has itself determined to restrict the circumstances in which Dr Lee will be able to continue to practise medicine, in a manner which it considers adequately protects public health. Dr Lee had no objection to the imposition of conditions, rather than the provision of an undertaking.[48]
[2]
The correct and preferable decision is that there is a need for immediate action to protect public health, that taking immediate action is also in the public interest, and that in all the circumstances, the immediate action which should be taken is the imposition of conditions on Dr Lee's registration.
The particular conditions to be imposed are set out in the Annexure to these reasons. They largely reflect the terms of the conditions proposed by Dr Lee, but with some proposed amendments to the disclosure condition, and to the practice location condition. In view of those proposed amendments, we will hear from the parties as to the terms of those conditions, before making orders. We consider a costs condition in the standard form is adequate. It goes without saying that the Board and AHPRA will bear any costs they incur in monitoring compliance with the conditions.
[3]
The orders which should be made are:
The respondent's decision made on 12 July 2021, to refuse to revoke the suspension of the applicant's registration, is set aside.
Pursuant to s 156 of the National Law, immediate action is imposed in relation to the applicant, namely that the applicant's registration is subject to the conditions set out in the Annexure hereto.
[4]
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
[5]
CONDITIONS APPLICABLE TO REGISTRATION IMPOSED BY THE
[6]
STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
[7]
Following the commencement of these conditions, the Practitioner must ensure that a written or oral declaration in the terms set out below is made to each patient as soon as reasonably practicable after a booking is made for a consultation with the Practitioner (and in any event at least prior to the patient's first consultation). In addition, the Practitioner is to ensure that the declaration is on display at the practice location so that it may be seen by any accompanying person who attends with a patient for a consultation:
[8]
"Dr Lee is the subject of twenty three (23) pending charges relating to allegations of domestic violence,alleged tohavebeen committed over a13month period. The charges are denied and will be defended by Dr Lee. The charges are listed for trial in the Magistrates Court of Western Australia in October and December 2022. Should these matters be of concern to you, you have a right to see an alternative doctor."
[9]
The declaration contained in condition 1 may be made to patients by the Practitioner, or by any other staff member employed by the Practitioner for the purpose of scheduling bookings.
[10]
The Practitioner must inform the Australian Health Practitioner Regulation Agency (AHPRA) as soon as reasonably practicable if there is a change in the number of charges or dates for hearing so the parties may agree an updated form of disclosure.
[11]
The Practitioner must ensure that, prior to consultation with the Practitioner, all patients sign and date a form acknowledging that the declaration contained in condition 1 has been made to the patient.
[12]
For the avoidance of doubt, the obligations in conditions 14 do not apply if the Practitioner practises in a nonclinical role.
[13]
The Practitioner must not have any contact with female patients.
[14]
6.1. 'Patient' is defined as any individual awaiting, requiring or receiving the professional services of the practitioner or a registered health practitioner within the same place of practice as the practitioner and any spouse, partner, parent, family member, friend or guardian/carer of this individual.
6.2. 'Contact with a patient' includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.
6.3. 'Male' is defined as any individual whose biological sex is that of a male, as well as all individuals whose gender identity or gender expression is that of a male.
6.4. 'Female' is defined as any individual whose biological sex is that of a female, as well as all individuals whose gender identity or gender expression is that of a female.
[15]
The Practitioner must comply with the genderbased restriction protocol in force at the date these conditions are imposed and then as amended from time to time.
[16]
Within 7 days of the notice of the imposition of these conditions the Practitioner is to provide acknowledgement, on the approved form (GBR1) that:
[17]
8.1. he has read and understood the genderbased restriction protocol;
8.2. he is aware that he is not permitted to practise until such time as approved practice locations are published;
8.3. he understands the definition of 'patient', 'practise', 'practice location', 'male', 'female', and 'contact' as detailed in this condition; and
8.4. he is aware of the actions AHPRA may take for the purposes of monitoring compliance with the genderbased restriction.
[18]
The Practitioner must submit to an audit of his practice (the audit), including any supporting records, within 3 months of the notice of the imposition of these conditions and thereafter on a quarterly basis, by permitting an auditor (the auditor) approved by the Medical Board of Australia (Board) to attend any and all places of practice (public and private) for the purpose of the audit and by permitting the auditor to provide a report in relation to the findings of the audit. The audit and the audit report are to focus on the Practitioner's compliance with these conditions 14 and 68 above.
[19]
Within 28 days of the notice of the imposition of these conditions, the Practitioner must:
[20]
10.1.1. nomination, on the approved form (HPN12), of an auditor(s) to be approved by the Board
[21]
10.1.2. acknowledgement, on the approved form (HPN12), that AHPRA will seek reports from the approved auditor at the conclusion of each audit; and
[22]
10.1.3. acknowledgement, on the approved form (HPNA12), from the nominated auditor.
[23]
10.2. make contact with a Board approved auditor and establish an audit plan outlining the form the audit(s) will take and how the areas of concern for the Board will be addressed. The audit(s) will take the form determined by the auditor;
10.3. provide the Board approved auditor with a copy of the conditions on their registration;
10.4. provide to AHPRA, on the approved form (HP8), acknowledgement that AHPRA will seek reports from the auditor; and
10.5. provide to AHPRA a copy of the audit plan, together with written acknowledgement, on the approved form (HPNA8), from the approved auditor.
[24]
The Practitioner must not selfprescribe any medications.
[25]
Within 7 days of the notice of imposition of these conditions, the Practitioner must provide to AHPRA:
[26]
12.1. acknowledgement, on the approved form (HP1), that AHPRA may obtain reports from the senior person at each and every place of practice on a monthly basis or as otherwise required by the Board or AHPRA;
12.2. acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the condition restricting access to medication, AHPRA may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories; and
12.3. confirmation, on the approved form (HPS1), from the senior person at each place of practice that they are aware AHPRA will seek reports from them.
[27]
The Practitioner must not practise as a selfemployed medical practitioner.
[28]
The Practitioner must not practise as a medical practitioner until the Board approves a practice location or practice locations for the Practitioner.
[29]
The Practitioner may only practise at approved practice locations.
[30]
For the purposes of these conditions, the following definitions apply:
[31]
16.1. 'Practise' is defined as any role, whether remunerated or not, in which the Practitioner uses his skills and knowledge as a medical practitioner in his profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct nonclinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical industry.
16.2. 'Practice location' means any location where the Practitioner practises the profession including any place where the Practitioner:
[32]
16.2.2. shares premises with other registered health practitioners;
[33]
16.2.3. is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement;
[34]
16.2.4. provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the Practitioner receives payment from an entity for the services; or
[35]
16.2.5. provides professional services at the residential premises of a patient.
[36]
The Board, or the Chair of the Board, is to advise the Practitioner whether a practice location proposed by the Practitioner is approved, within 10 days of the Practitioner's submission of that practice location for approval.
[37]
When seeking approval of a place of practice, the Practitioner is to provide to AHPRA on the approved form (HPS10), acknowledgement from the Senior Manager/other as appropriate (the senior person) at each place of practice that AHPRA may seek reports from them.
[38]
Within 7 days of a role being approved by the Board or Chair of the Board, and within 7 days of the commencement of practice at each subsequent place of practice, the Practitioner must provide to AHPRA, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they are aware AHPRA will seek reports from them.
[39]
Within 7 days of the notice of the imposition of these conditions, the Practitioner must provide to AHPRA on the approved form (HP7), acknowledgement that AHPRA may:
[40]
20.1 seek reports from the senior person at each place of practice on at least a monthly basis or as otherwise required;
20.2 request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent; and
20.3 have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
[41]
Within 7 days of the notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person at each current place of practice. In providing this form, the Practitioner acknowledges that AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The Practitioner will be required to provide the same form:
[42]
21.1. within 7 days of the commencement of practice at each subsequent place of practice, and
21.2. within 7 days of each and every notice of any subsequent alteration of these conditions.
[43]
The Practitioner must undertake treatment with a General Practitioner, Psychologist and Psychiatrist (the treating practitioner(s)) and attend at a frequency determined by the treating practitioner(s).
[44]
Within 7 days of the notice of the imposition of these conditions, the Practitioner must provide to AHPRA:
[45]
23.1. the contact details, on the approved form (HPF3), of all treating practitioners;
23.2. acknowledgement, on the approved form (HPF3) from the Practitioner that AHPRA may seek reports from the treating practitioner(s) on a monthly basis;
23.3. confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of these conditions on the Practitioner's registration and are aware AHPRA may contact them to seek reports.
[46]
All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
[47]
[1]The Health Practitioner Regulation National Law (Western Australia) is contained in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA), and applies as a law of Western Australia by s 4 of that Act.
[48]
[2] Respondent's Submissions dated 19 January 2022 (Respondent's Submissions), para 13.
[49]
[3] Applicant's Submissions dated 29 December 2021 (Applicant's Submissions), para 9.
[50]
[6] On 8 February 2022, the Tribunal made an order prohibiting the publication of the name and any identifying information in relation to the victim of the alleged offences.
[51]
[7]Health Practitioner Regulation National Law (WA) Act 2010, s 11.
[44] Such a condition was imposed by the SACAT in addressing allegations of aggravated indecent assault by Dr Cheema against his patient during a home visit consultation Cheema v Medical Board of Australia[2020] SACAT 40.
[70]
[45] Schedule summarising the parties' responses to conditions, cl 2.
[71]
[47] Schedule summarising the parties' responses to conditions, cl 2.
[72]
[48] Schedule summarising the parties' responses to conditions, cl 1.
Legislation Cited (3)
Amendment Act 2018
Administrative Tribunal Act 2004
Administrative Tribunal Rules 2004
Cases Cited (5)
LEE and MEDICAL BOARD OF AUSTRALIA [2022] WASAT 28 (6 May 2022)