MEDICAL BOARD OF AUSTRALIA -v- GLP [2025] WASCA 87 (12 June 2025)

1. Section 156(1) of the National Law relevantly provides that:

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

(a) The National Board reasonably believes that -

(i) because of the registered health practitioner's health, conduct or performance, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(e) the National Board reasonably believes 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. Subsection 155(a) of the National Law defines 'immediate action' to include the suspension or imposition of a condition on the health practitioner's registration.
2. As noted above, the Tribunal in the present case concluded that immediate action under s 156(1)(a) of the National Law was not warranted in relation to the respondent, as it did not believe he was a 'serious risk' within the meaning of s 156(1)(a)(i). The Board does not challenge that finding in this Court.
3. The issues before this Court are confined to the application of s 156(1)(e), that is the Board's (and Tribunal's) reasonable belief that immediate action is otherwise in the public interest.
4. Relevant to the 'public interest' are the objectives and guiding principles of the National Law. Section 4 of the National Law provides that an entity exercising functions under the National Law, which includes the Tribunal on review, must have regard to the objectives and guiding principles set out in s 3 and s 3A of the National Law.
5. Section 3 is headed 'Objectives'. Relevantly, by s 3(2)(a) the objectives of the national registration and accreditation scheme are 'to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered'.
6. Section 3A of the National Law, headed 'Guiding principles', relevantly provides:

(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount -

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

(2) The other guiding principles of the national registration and accreditation scheme are as follows:

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

(aa) ...;

(b) ...;

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely consistent with best practice principles.

1. It is not necessary to set out all of the factual background in the Tribunal's decision, save to the extent that it is relevant to the grounds of appeal.
2. The Tribunal recognised that the ultimate question before it, as it related to s 156(1)(e) of the National Law, was whether it reasonably believed the immediate action was in the public interest. It also recognised the multi-faceted nature of the 'public interest'. The Tribunal said for example:[5]
   1. The Tribunal in Lee went on to say, with reference to the decision in Farshchi v Chinese Medicine Board of Australia:

[I]t is well established, and the parties agreed, that the 'public interest' is not a 'one-sided construct'. Rather, the public interest is a multi-faceted concept. In Farshchi the Victorian Civil and Administrative Tribunal referred to a variety of public interest considerations which may arise in cases such as this;

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

There is a public interest in members of health professions, in whom training and expenditure have been made, being able to practice;

There is a public interest in 'area of need' professionals being able to practice.

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

There is a public interest in ensuring immediate action is only taken when it is necessary to do so.

1. Our view is consistent with the language used by Niall J in Medical Board of Australia v Leow, who said with respect to s 156(1)(e) of the National Law:

Ultimately, the question is whether or not the Board reasonably believes, in circumstances where none of the other sub-paragraphs of s 156(1) apply, that it is necessary in the public interest to take immediate action. The meaning of public interest is informed by the example. It is necessary for the Tribunal to proceed on the basis that public confidence in the provision of services by health professionals is an aspect of the public interest. However, the Tribunal does not need to apply the example as if it were a statutory test. Specifically, the Tribunal was not required to analyse the issue of whether public confidence would be maintained, as opposed to whether, and to what extent, public confidence would be impacted and whether the extent of any such impact would require, in the public interest, that immediate action be taken.

1. Early in the Primary reasons, the Tribunal addressed s 3A of the National Law. In that context it said:[6]
   1. As submitted by the Board, it follows from the inclusion of s 3A(1) of the National Law that we must give priority to considerations of public safety and public confidence in the safe provision of services by health practitioners over other considerations relevant to the determination of whether immediate action should be imposed under s 156(1)(a) or s 156(1)(e) of the National Law.
   2. In its written submissions, however, the Board seemed to go further with respect to the effect of s 3A, submitting that:

The National Law compels decision-makers to treat as paramount (and hence place more weight upon) the public interest in public confidence in the profession. (emphasis added)

1. Overall, the Board's written submissions in relation to 'public confidence in the profession' did seem to suggest that public confidence in the profession in a more general sense, and in particular, the need to maintain public confidence by maintaining the reputation of the profession, was a paramount consideration under s 3A(1)(b) in determining whether immediate action should be imposed under s 156(1)(e) of the National Law. Such a consideration, whilst relevant, does not obviously affect the public perception of the safety of health services so as to fall within s 3A(1)(b) and be a 'paramount' consideration.
2. In any event, in its oral submissions the Board resiled from any such suggestion, saying that its use of the words 'public confidence in the profession' in its written submissions was merely a shorthand way of referring to 'public confidence in the safety of services provided by health practitioners', as stated in s 3A(1)(b). The Board made submissions on the relevance of s 3A(1)(b) in the circumstances of this case which we address later in these reasons.
3. The Tribunal's conclusions in relation to s 156(1)(e) may be set out in full:[7]

Conclusions in relation to immediate action under s 156(1)(e)

Relevance of s 3A(1) of the National Law

1. The Board pressed the submission that medical services can only be supplied safely by a person with the 'right qualities', and in particular a person who will abide by a doctor's fundamental obligations to 'do no harm' and to protect the health of members of the community. The Board submitted that a person who intentionally applies force to a newborn infant, which causes injury, as admitted in this case, must be said to fundamentally lack those qualities. The Board submits that, by reason of s 3A(1)(b) of the National Law, these considerations must be given priority over all other considerations, as concerning public confidence in the safety of services provided by registered health practitioners.
2. In our view, the connection between this submission and the consideration of public confidence in the safety of medical services is slight. The impression gleaned from the Board's submissions overall is that the concern was the reputation of the profession generally in the community rather than a concern about the safe provision of services, other than to the extent submitted under s 156(1)(a) of the National Law.
3. There is no evidence, in our view, to reasonably support a finding that the public, apprised of all the facts currently known, would be concerned about the safety of the services that the Practitioner provides.
4. The reference to a person 'abiding' by the obligation to do no harm, or the obligation to protect patients' health, assumes a deliberate intent not to follow those tenets or an inability to do so. The Practitioner's history weighs strongly against that proposition. There is no apparent dispute in this case that the Practitioner has been a highly competent practitioner as far as his treatment of persons is concerned, other than the Infant on these two occasions. There is no evidence of any risk in his treatment of adult patients. In fact, the evidence is that his patients have benefited from his care.
5. On the evidence the Practitioner does not treat children under 16 years of age. That the Practitioner does not currently present a risk either to children generally, or his own children, is evidenced by the fact that he has been allowed to retain his WWC card, that the Department has lifted any restriction on his seeing his children and that the Magistrates Court has lifted the protective bail conditions that prevented him from having access to the Infant.
6. In any event, as we have mentioned, in its oral submissions, the Board suggested that the Practitioner's actions on 5 March 2024 could be regarded as having occurred under 'extenuating circumstances'. That submission suggested an acceptance that, on the evidence before us, the events of 5 March 2024 was out of character and unlikely to occur again, which does not support the proposition that the Practitioner, in future, may not be able to abide by the fundamental tenets of a medical practitioner or may be perceived by the public to be someone who may not do so.
7. In our view, considerations of public confidence in the safety of services provided by a health practitioner do not arise in this case other than potentially in relation to the possibility of the Practitioner treating children, which may, in any event, be dealt with properly by the imposition of conditions.

1. The public interest in the reputation of the profession by maintaining public confidence in the moral probity of medical practitioners, and the effectiveness of the regulatory system are relevant and important. However, in our view, those considerations do not fall within s 3A(1) of the National Law, and are not paramount considerations to be given greater weight than the other competing considerations of the public interest.
2. As noted above, the Board submitted that a relevant consideration is that some patients who might be treated by the Practitioner might feel betrayed by the regulatory system and question whether they had given informed consent. In making this submission, the Board relied on the decision in Cheema.
3. The South Australian Civil and Administrative Tribunal (SACAT) in Cheema made the finding referred to in the context of a decision to suspend a practitioner who had been accused of sexually assaulting a patient during a home visit. The practitioner denied the sexual assault but admitted to conduct that the SACAT considered to be a serious boundary breach. The SACAT considered that public confidence in the provision of medical services would be severely damaged if the practitioner were allowed to continue in unrestricted practice, being the risk that the practitioner would inappropriately touch or assault female patients or engage in other types of boundary breach conduct. In addition, the SACAT considered that an important factor was that female patients might consult the practitioner and submit to intimate examinations and confide in him concerning intimate sexual issues or issues concerning sexual violence and may seek his help or assistance concerning those issues. The SACAT did not rely on this issue to suspend the practitioner, but rather imposed conditions that prevented the practitioner from treating women.
4. We consider the circumstances in this case are different. In particular, as we have said, on the evidence before us the Practitioner does not treat children and children will not be consulting him about their experience of physical abuse. Any such risk may be dealt with by conditions.
5. The legislation clearly contemplates that immediate action may be taken where there is a serious charge laid against a medical practitioner, including immediate action by suspension of registration. The necessary belief must be arrived at that the particular form of immediate action is in the public interest. That requires a consideration of the competing aspects of the public interest.
6. The strength the case to impose immediate action under s 156(1)(e) derives from the Practitioner's admitted conduct, as the Board submits. His admitted conduct and its consequences are very serious indeed, and troubling.
7. However, the uncertainty around the Practitioner's motivations for those admitted actions, is a relevant factor. There appear to be a number of potential findings that may ultimately be made about the Practitioner's motivation for his actions in intentionally inflicting the force he did on the Infant's body. These include that:

(a) he did so out of frustration, or tiredness, or for some other reason, either meaning to hurt the Infant or reckless or uncaring whether he did so;

(b) he did so believing it would help the Infant's symptoms of distress, but his judgment was impaired by tiredness; or

(c) he did so believing it could help the Infant's symptoms of distress but inadvertently applied more force than he had intended, or for longer than he intended.

1. As may be seen from the discussion of the evidence above, we have considered the relative strengths and weaknesses of the evidence going to the Practitioner's reasons for doing what he did. In our view, the balance between the competing evidence as to the Practitioner's motivations would weigh in favour of the Board's contentions were it not for the content of the large number of character references provided on the Practitioner's behalf. Whilst it is difficult to envisage that the application of any force to an infant's abdomen or leg could be thought to be appropriate, in light of the strength of the content of those references the Practitioner's assertion that he did not apply that force with the intention of injuring the Infant appears to have some prospect, ultimately, of being accepted.
2. The public interests in favour of allowing the Practitioner to continue to practice include the public interest in:

(a) the maintenance of a fair and proportionate response to allegations, including taking into account the significant adverse consequences to a practitioner who is prevented from earning a living in his profession for a considerable period until the criminal and foreshadowed disciplinary proceedings are concluded; and

(b) that trained, competent, and experienced practitioners such as the Practitioner are able to practice. In this case, on the evidence of the three references specifically referred to, the Practitioner's services are highly valued and valuable to the community who, as we have found, presents no risk to the patients he might serve.

1. The criteria under s 156(1)(e) raises difficult questions in this case. However, the matters referred to above illuminate the difficulty in immediate action proceedings by which action may be taken pre empting a determination of the facts and the appropriate action in light of those proven facts, even where admissions have been made.
2. Ultimately, whilst we believe that immediate action is warranted in the public interest under s 156(1)(e) of the National Law, as the Practitioner has conceded, we are unable, in the circumstances, to form the belief that immediate action by way of suspension is the required response. However, we do believe, in our view reasonably, that the significant conditions that we will impose are a necessary, and proportionate response, to protect the public interest.
3. Two further parts of the Primary reasons are relevant to the appeal to this Court (in particular to grounds 3 and 4).
4. First, the Tribunal addressed certain character evidence adduced by the respondent as follows:[8]

1. As has been said, we have been provided with a large number of character references that speak in what may fairly be described as glowing terms of the Practitioner's good character.
2. That evidence weighs against the inference that the Practitioner deliberately inflicted harm against the Infant, even out of frustration.
3. The Practitioner relies on three references from the Director of [REDACTED] at the Hospital, the Executive Area Director for [REDACTED] with responsibility for leading the medical workforce at the Hospital, and another [REDACTED] consultant at the Hospital.
4. In summary, these uniformly speak of an exemplary practitioner, with excellent personal qualities, and that the alleged offence appears entirely inconsistent with their observation of the Practitioner's conduct in his working environment. They all consider that he poses no risk to patients. In particular:

(a) the Director says, 'In all the time I have known [the Practitioner] he has displayed nothing but care and compassion towards his patients. He is a great team player and is held in high regard as a clinician and a person by everyone who has worked with him ... he is affable, polite and kind, is an excellent clinician and a good communicator'. That referee also says, 'I have never had any cause for concern as to [the Practitioner's] conduct or clinical performance and have never observed him acting inappropriately or violently with a patient'.

(b) the Executive Area Director says that the Practitioner's employer has held him 'in the highest regard as a medical practitioner of excellent character. [He] has always displayed exceptional professionalism, ethical and clinical judgment. He is a very highly regarded member of the [REDACTED] team and the broader hospital environment. [The Practitioner] has always displayed exceptional professionalism, ethical and clinical judgment ... He had a gentle and kind demeanour, and this is appreciated by colleagues and patients alike. I have never had cause for concern relating to [the Practitioner's] conduct and integrity, and I have never observed or been made aware of [the Practitioner] expressing any tendencies of violence or aggression to either his patients or colleagues. I have similarly never had concerns relating to his clinical performance'.

(c) The third referee says that the Practitioner, 'has always prioritised patient safety and minimising risk in his clinical practise', that they would trust the Practitioner with the care of any member of their family and that the Practitioner's 'performance and reputation at work are exemplary. The charges (sic) are entirely inconsistent with his longstanding practice at [the Hospital]. He is reliable and trustworthy ...'

1. The Practitioner has also submitted 14 further references which were originally supplied to the WWCS Unit. These references are from various members of the Practitioner's family, friends and colleagues, including medical practitioners he has worked with. Generally, they speak of their belief that the alleged conduct was out of character and their continuing belief in the Practitioner's good character and his good qualities as a parent. Those who have worked with the Practitioner also attest to his good qualities as a medical practitioner in similar terms to the references already referred to.
2. The Board says that we should not give these character references much, if any, weight because there is no evidence that the writers of the references knew the full extent of the Infant's injuries at the time they wrote them, namely the leg fracture which was discovered a week after the Practitioner was charged. The Practitioner's counsel conceded that the referees, apart from the Practitioner's partner, did not know of this last injury.
3. The Board's submission has some force given the seriousness of the femur fracture. However, this is diminished by the fact that the injuries forming the basis of the Charge were also very serious and none of the references, including the references by medical practitioners seek to justify the Practitioner's conduct in applying force to the Infant's abdomen. It is also diminished, in our view, by the extremely positive terms in which the numerous referees speak about the Practitioner. In our view, the references should be given weight, in particular the three references we have specifically referred to.
4. This evidence weighs in favour of the proposition that the Practitioner is not the type of person who would deliberately injure any child, including the Infant, and weighing in favour of the truth of his contentions about the circumstances in which the Infant came to be injured.
5. Finally, the Tribunal addressed what inferences it could draw from the respondent's notification to AHPRA made on 7 March 2024 in which, amongst other things, the respondent described himself as tired and stressed. In that context, the Tribunal said:[9]

1. Reference was also made by the Board to the Practitioner having described himself in the Notification as, in effect, tired and stressed at the time he injured the Infant. Essentially the Board says that it may be inferred from this that the injuries occurred while the Practitioner was exerting force on the Infant out of tiredness and frustration, because he was 'at the end of his rope', and not because he was trying to alleviate the Infant's constipation.
2. The Practitioner says that the reference in the notification to his being sleep deprived and facing other stressors was not intended to be an admission that his actions were the result of his acting on his own frustrations or out of tiredness. The Practitioner is said to 'vehemently deny' any such suggestion. It was submitted, in effect, that this was an infelicitous use of language in a document drafted soon after the Practitioner had been released after spending a night in custody.
3. In our view, the evidence that the Practitioner was very tired and suffering from stress as a result of the ill health of his parents, which is contained in the Notification, does not assist us one way or another. That evidence might equally support an inference that the Practitioner was careless or clumsy in doing what he did whilst trying to help the Infant, which led him to inadvertently injure the Infant, as well as an inference that he did what he did deliberately to hurt, in a moment of frustration.

1. It is appropriate to recall the principles applicable to the grant of leave to appeal.
2. As noted above, a party may only appeal against a decision of the Tribunal if the court gives leave to appeal.
3. As this Court recognised in Paridis v Settlement Agents Supervisory Board,[10] the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.
4. While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls.[11] In Hulls, Phillips JA said:[12]

When leave is sought to appeal ... it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would‑be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

1. These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, determinative. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.[13]
2. In the present case, the ultimate question is whether the Tribunal made a material error of law in imposing conditions on the respondent's registration in substitution of suspension and whether a substantial injustice would be imposed on the appellant if the Tribunal's decision remains undisturbed.

1. The Board relied upon four grounds of appeal.
2. Grounds 1 and 2 concern the proper construction of s 3A of the National Law, and in particular the expression 'public confidence in the safety of services provided by registered health practitioners' in s 3A(1)(b). The Board contends that the Tribunal 'misconstrued' (ground 1) or failed to comply with (ground 2), s 3A(1)(b). In essence the Board submits that:

(a) section 3A(1)(b), properly construed, is concerned with public confidence in the safety of services provided by registered health practitioners generally; and

(b) the Tribunal construed s 3A(1)(b) as being limited to public confidence in the safety of services provided by the respondent himself, and in evaluating whether it reasonably believed that the relevant immediate action was in the public interest the Tribunal did not consider whether and if so how the public confidence in the safety of services provided by registered health practitioners generally might be impacted.

1. Ground 3 contends that the Tribunal's 'findings' that the character evidence 'weighs against the inference that the [respondent] deliberately inflicted harm against the Infant, even out of frustration'[14] and 'weighs in favour of the proposition that the [respondent] is not the type of person who would deliberately injure any child'[15] were not open or were otherwise irrational or illogical.
2. Ground 4 contends that the Tribunal denied the Board procedural fairness by failing to give the Board notice of its 'finding' that 'the evidence that the [respondent] was very tired and suffering from stress ... contained in the Notification, does not assist us one way or another'.[16]

1. The relevant statutory criteria in the present case, enabling the Tribunal to take immediate action, was that the Tribunal 'reasonably believes that the action is otherwise in the public interest' (s 156(1)(e)).
2. The 'public interest' is plainly an expression that has a broad meaning. The term 'public interest' as it has been interpreted by the Courts was discussed by Quinlan CJ and Vaughan JA in Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police, albeit in a different statutory context. In that case their Honours said:[17]

The term 'public interest' has long informed judicial discretions and evaluative judgments at common law. When used in a statute, the term derives its content from the subject matter, scope and purpose of the enactment in which it appears. Thus a decision-maker is not free to apply idiosyncratic notions of public interest.

As was said by the plurality (Mason CJ, Brennan, Dawson and Gaudron JJ) in O'Sullivan v Farrer when discussing the nature of public interest determinations in the exercise of statutory power:

[T]he expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view': Water Conservation and Irrigation Commission (NSW) v Browning per Dixon J. (citations omitted)

That passage has been cited, with approval, on many occasions in subsequent decisions in the High Court. ... More generally, the authorities have observed that the question of what is in the public interest has more than one dimension. The application of a public interest criterion may require a balancing of competing interests and be very much a question of fact and degree. Thus, to adapt what has been said in another context, there are obvious difficulties in giving the phrase 'public interest' ... a fixed and precise content.

1. The Tribunal in the present case clearly understood the broad and multi-faceted nature of the public interest enquiry (see [31] above).
2. It is in the context of that multi-faceted 'public interest' enquiry that the 'main guiding principle' in s 3A of the National Law arose in the present case. That is, the Tribunal was obliged to have regard to that main guiding principle in the exercise of that particular function. In that regard, it may be observed that, consistent with the meaning of the 'public interest' generally, the enquiry in s 156(1)(e) is broad enough to encompass the guiding principles in any event. The principal legislative effect of identifying the main guiding principle in s 3A(1), which is itself multi-faceted, is to ensure that it is accorded paramountcy in that decision.
3. Accordingly, it is to be expected that there will be a significant degree of overlap between the matter identified in s 3A(1)(a) ('protection of the public') and the matter identified in s 3A(1)(b) ('public confidence in the safety of services provided by registered health practitioners and students'); just as there is likely to be a significant overlap between those two matters and the 'public interest'.
4. In this context, a number of general observations may be made in relation to the main guiding principle.
5. First, the main guiding principle, as with the other guiding principles identified in s 3A of the National Law, is just that: a guiding principle. It is not a free standing statutory test but a broad precept (or norm) expected to be applied in a variety of differing circumstances and contexts. While there will no doubt be many different facets or aspects of the main guiding principle, it should not be approached as a collection of compartmentalised separate components, as if it were a checklist, or less still, an algorithm or calculus to be applied with mathematical precision.
6. Secondly, the particular relevance or weight to be afforded to the guiding principles of the National Law, including the main guiding principle, will inevitably vary according to the nature of the particular function being exercised by an entity under the National Law (whether the Board or the Tribunal). The issues arising in a case concerning immediate action, for example, will inevitably be different to those arising in disciplinary proceedings, and so in each case those aspects of the main guiding principle that are most relevant to those issues may be expected to come to the fore.
7. In the present case, for example, the Board emphasised that one aspect of the main guiding principle is the need for the public to have confidence in the responsiveness of the regulatory system itself; and therefore that general deterrence in relation to the setting of appropriate standards will be an aspect of both the protection of the public and public confidence in the safety of services provided by registered health practitioners. So much may readily be accepted. At the same time, general deterrence may well have less significance in a case concerning immediate action, where (by definition) the Tribunal is not required to make a final determination as to the conduct of a practitioner, than in a disciplinary proceeding, where the relevant conduct of the practitioner is determined with some specificity.
8. Thirdly, the identification of guiding principles, including as to the 'paramount' considerations, does not exhaust or confine the considerations relevant to the exercise of a particular function, particularly one such as that in s 156(1)(e) of the National Law, which is concerned with the identification of the 'public interest'. The exercise of that function requires a balancing of competing interests and is very much a question of fact and degree. By affording paramountcy to the protection of the public and public confidence in the safety of services provided by registered health practitioners and students the main guiding principle requires particular weight to be given to those matters. It does not, however, render other aspects of the public interest as of no weight or importance.
9. Having considered the general effect of s 3A, we turn to the Board's contentions in grounds 1 and 2 in the present case. The Board submits that, on its proper construction, s 3A(1)(b) is concerned with public confidence in the safety of services provided by registered health practitioners generally and is not confined to public confidence in the safety of services provided by a particular health practitioner.
10. As a matter of construction, that view has much to commend it. The breadth of the main guiding principle, as a whole, and the variety of contexts in which it applies, are such that public confidence in the safety of health services provided by the medical profession as a whole, in our view, clearly forms part of that guiding principle. Indeed, while it is not necessary to decide in this case, we would be inclined to the view that public confidence in the medical profession generally is an aspect of the 'protection of the public' in s 3A(1)(a).
11. What is far less clear, however, is that the Tribunal misconstrued s 3A(1)(b) in the manner suggested by the Board, or that it erred in law in applying the main guiding principle.
12. In that regard, it is clear, in our view, that the Tribunal did not expressly construe s 3A(1)(b) in the manner alleged by the Board. In particular, in our view, the distinction sought to be drawn, as a matter of the construction of s 3A(1)(b), between public confidence in the safety of services provided by registered health practitioners generally and public confidence in the safety of services provided by a particular registered health practitioner was not squarely raised before the Tribunal.
13. The Tribunal did express one view as to the construction of s 3A(1)(b). As appears in the passages set out at [32] above, the Tribunal drew a distinction between public confidence in the safety of services provided by registered health practitioners and public confidence in the medical profession generally, on the basis that there may be matters relevant to confidence in the profession generally that do not relate to the safety of services. We are not sure that this distinction is helpful, particularly in light of the breadth of s 3A(1)(a). Perhaps the effect on public confidence of conduct such as tax evasion may be an example of such a matter. Nevertheless, that issue of construction that was addressed by the Tribunal is not the one raised by the Board in this Court.
14. It is also apparent from the Primary reasons that the Tribunal, when it came to the application of s 3A(1) to the circumstances of this particular case, did focus on the safety of the services that the respondent provides. That does not, however, necessarily reflect a misconstruction of the provision, particularly given the way in which the proceedings before the Tribunal were conducted.
15. In that regard, as we have noted above, those aspects of the main guiding principle that will assume most prominence in a particular case will depend upon the particular function being exercised. In the present case the Tribunal was concerned with immediate action against a particular practitioner. The purpose of that immediate action was to put measures in place to protect against, or ameliorate, the risk of harm pending a final determination. In those circumstances it was inevitable that the Tribunal would focus on the risk and safety associated with the particular practitioner.
16. In addition, in our view, it is difficult to see how, in the particular circumstances of this case, public confidence in the safety of services provided by health practitioners generally could be undermined in light of the Tribunal's unchallenged conclusion that the public, apprised of all of the facts currently known, would not be concerned about the safety of services provided by the respondent.
17. This is not to say that the Tribunal ignored the safety of medical services generally. It simply observed that the connection between the Board's submission in that regard and public confidence in the safety of medical services was 'slight'.[18] Equally, it is clear that the Tribunal took into account all relevant considerations, including the public interest in the reputation of the profession by maintaining public confidence in the moral probity of medical practitioners, and the effectiveness of the regulatory system.[19] Ultimately, the Board's complaint is as to the relative weight afforded to each of these considerations, in light of which particular 'box' each consideration fell. Given the Tribunal's careful evaluation of all of the relevant considerations it is difficult to see how the Tribunal would, or might, have reached a different view if the construction of s 3A advanced in this Court was put to the Tribunal in the same terms.
18. Ultimately, in our view, while there is merit in the Board's submission as to the breadth of the paramount consideration in s 3A(1) of the National Law, we are not satisfied that the Tribunal materially erred in law in the approach that it took to the issues before it in light of the manner in which the proceedings were conducted.

1. In our view ground 3 is completely without merit and does not raise a question of law of general importance.
2. The relevance and weight of the character evidence was ultimately an issue of fact for the Tribunal. The 'findings' challenged by ground 3 (if they can properly be characterised as 'findings') were expressed in modest terms. Consistent with the nature of the issues before it, the Tribunal did not reach any ultimate conclusions on the basis of the character evidence. Rather, the Tribunal concluded that the character evidence - which was indeed in glowing terms - carried weight in relation to the issues that would ultimately have to be determined in any disciplinary proceedings.
3. For example, the impugned findings included that:

(a) the character evidence 'weighs against the inference that the [respondent] deliberately inflicted harm against the Infant, even out of frustration';[20]

(b) the references 'weighs in favour of the proposition that the [respondent] is not the type of person who would deliberately injure any child';[21] and

(c) 'in light of the strength of the content of those references the [respondent's] assertion that he did not apply [the] force with the intention of injuring the Infant appears to have some prospect, ultimately, of being accepted'.[22]

1. None of these observations or findings express a concluded view as to the respondent's conduct and each of those observations or findings was entirely rational. In that regard it may be noted that the character evidence addressed not only the respondent's safety and competence as a medical practitioner, it also attested to his good character generally. That was relevant not only to whether he would deliberately hurt a child, but also to whether he should be believed when he said that he did not do so.
2. The Board, on this ground, submitted that the impugned findings were irrational because the character evidence addressed how the respondent acted in usual circumstances and not how the respondent may act in 'extenuating circumstances'. As a matter of fact that proposition is highly debatable. The character evidence included statements from a large number of people who had been able to observe the respondent professionally and personally for long periods of time, in a variety of circumstances. There is no reason to suppose that observing the respondent in what might be described as 'extenuating circumstances' was outside of the experience of all of those referees.
3. In any event, the Board's submission does not address the nature of the impugned findings, which were simply that the character evidence 'weighed in favour' of the respondent's account; not that the respondent's account had been accepted. The Tribunal was at pains to make clear that its decision must not be mistaken for any finding of the likely outcome of any disciplinary proceedings after the charge had been dealt with and that its decision did not have any effect on the ultimate outcome of any future proceedings pursued by the Board.[23]
4. There was nothing irrational in the Tribunal's treatment of the character evidence. Ground 3 is completely without merit.

1. Ground 4 is also without merit and does not raise a question of law of general importance.
2. The 'finding' challenged by ground 4 is 'that the evidence that the [respondent] was very tired and suffering from stress as a result of the ill health of his parents, which is contained in the Notification, does not assist us one way or another'.[24]
3. There could hardly be, in our view, a more innocuous 'finding' on the part of the Tribunal. It is simply an observation, in relation to one piece of evidence, that the respondent's reference to being tired and stressed in his notification to AHPRA did not assist the Tribunal to determine whether the respondent hurt his son deliberately. In that context, it is to be recalled that in the very notification relied upon by the Board the respondent expressly said that he had firmly squeezed his son's abdomen to 'help [him] to poo'. The inference sought to be drawn from the reference in the notification to the respondent being tired and stressed was therefore contradicted by the express words of the notification itself.
4. In those circumstances it was hardly surprising that the Tribunal might conclude that it was not assisted by the contents of the notification in relation to whether the respondent deliberately sought to injure his son. There were only three possible conclusions that the Tribunal might reach in that regard: that it accepted the Board's submission, that it accepted the respondent's submission or that it was not assisted either way.
5. Having heard the submissions of the parties, procedural fairness did not require the Tribunal to give prior notice of the third possible conclusion with an opportunity for further submissions. Ground 4 is without merit.

1. For the above reasons, in our view, there is not a real or significant argument to be put on a question of law sufficient to justify the grant of leave. In addition, for the reasons that follow, no substantial injustice would be done by leaving the Tribunal's decision undisturbed.
2. As we said at the commencement of these reasons, the purpose of immediate action is to put measures in place to protect against, or ameliorate, the risk of harm pending the investigation or determination of disciplinary proceedings.
3. The measures put in place by the Tribunal have been in operation, without incident, for nearly eight months and the Board did not challenge the finding that the respondent is not a serious risk to persons. The Board accepted that, if the appeal was allowed, the appropriate order would be to remit the question of immediate action to the Tribunal and it quite properly accepted that the conditions contained in the Tribunal's orders should remain in place until the hearing and determination of any remitter. The interim measures currently in place will therefore remain in place pending any remitter.
4. Moreover, the circumstances now existing are more favourable to the respondent than they were at the time of the Tribunal's original decision. The charge has been discontinued and there are no pending criminal proceedings against the respondent. In addition, there is no evidence before this Court that, while the respondent has been practising under the conditions imposed by the Tribunal, the respondent has posed any risk to the safety of the public.
5. At the same time, the Board has now commenced disciplinary proceedings against the respondent. Those proceedings were not, in our view, commenced in a timely manner. At the very least, they were not commenced with any sense of urgency or priority, having been commenced well over a year after the respondent's notification to AHPRA, eight months after the Tribunal's decision, and almost six months after the charge was discontinued.
6. It is in the interests of justice that the allegations now made against the respondent be resolved as soon as possible. It is in the disciplinary proceedings that the substantive issues as to the broader protection of the public and public confidence in the medical profession will be finally resolved. Indeed, public confidence in the safety of services provided by registered health practitioners, and in the medical profession generally, is most likely to be achieved by the speedy resolution of the disciplinary proceedings. Relitigating the particular form of immediate action that should be in place in the meantime could only serve to delay the resolution of the disciplinary proceedings.
7. It is not in the interests of justice to grant leave to appeal.
8. We would refuse leave to appeal.

1. In our view leave to appeal should be refused and the appeal dismissed. We would hear the parties as to the final orders, including as to costs.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.

Principal Associate to the Honourable Chief Justice Quinlan

[1] Medical Board of Australia v Leow [2019] VSC 532 [78] (Niall JA).

[2] GLP and Medical Board of Australia [2024] WASAT 89 (Primary reasons).

[5] Primary reasons [34], [37] (citations omitted).

[7] Primary reasons [137] ‑ [154] (citations omitted).

[10] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] (Buss JA, Wheeler & Pullin JJA agreeing).

[11] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

[12] Hulls [16] (Phillips JA, Tadgell & Batt JJA agreeing). These principles were also applied in Legal Profession Complaints Committee v Rayney [2017] WASCA 78; (2017) 51 WAR 142 [87] - [88].

[13] SH v Chief Executive Officer of Department of Communities [2019] WASCA 31 [53] (Quinlan CJ, Mitchell & Pritchard JJA).

[17] Australian Leisure and Hospitality Group Pty Ltd v Commissioner of Police [2020] WASCA 157; (2020) 56 WAR 102 [36] ‑ [38] (Quinlan CJ & Vaughan JA).

[18] Primary reasons [137] ‑ [138].