Victorian Civil and Administrative Tribunal|2019-11-11|Before: Mr J

The application for a stay is granted.
As requested during the hearing, I will make orders enabling the parties to provide submissions (preferably agreed) as to the conditions which should be imposed, and as to the future conduct of this matter.
Finally, in accordance with the comments of the Court of Appeal in Kozanoglu to the effect that it is highly undesirable for there to be a lengthy delay between the IAC decision and a hearing on the merits,[18] I emphasise the importance of the investigations being carried out and brought to a conclusion as soon as possible - that is in the interests of all concerned.

[1] The National Law as applicable in Victoria is set out as a schedule to the Health Practitioner Regulation National Law (Victoria) Act 2009.

[3] In relation to one of these, some further information had been received by the Board, in a prior notification from the patient, made in June 2019.

[4] [2013] QCAT 614 at [8]. This approach has been adopted and endorsed in Ord v Nursing & Midwifery Board of Australia [2014] QCAT 68 at [8]; Chaudry v Medical Board of Australia (no.2) [2014] QCAT 288 at [16] and in MLNO v MBA [2012] VCAT 1613.

[7] Shvetsova v Medical Board of Australia (Stay) [2018] VCAT 867, at [41], and Piesse v Medical Board of Australia [2017] VCAT 1615 at [45] and [79].

[8] Of course, the actual determination as to the validity or invalidity of any disciplinary charge which incorporates reliance on the 2012 allegation would likely have to await any final VCAT substantive disciplinary hearing, if it remains an issue at that point.

[9] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 177; Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 26 ALR 247; Hempel and Another v Moore 70 ALR 601 at 610; Bradley v The Commonwealth of Australia and Another [1973] HCA 34; 128 CLR 557 at 574-5; Nakuda Ali v Jayaratne [1951] AC 66 at 77.

[10] McKinnon v Dept of Treasury [2006] HCA 45; 228 CLR 423 at 429-30.

[11] See, e.g. Piesse at [45] and [79].

[12] See e.g. Shvetsova at [41]; Piesse at [53].

[13] See, e.g. Espedido v Physiotherapy Board of Australia [2017] VCAT 1401 at [44].

[18] [2012] VSC 295, at [127].

Civil and Administrative Act 1998

Practitioner Regulation National Law (Victoria) Act 2009

Milky v Medical Board of Australia (Review and Regulation) [2019] VCAT 1780 (11 November 2019)

Both counsel referred to Syme v Medical Board of Australia [2016] VCAT 2150, where the Tribunal, presided over by Deputy President Judge Jenkins stated:

The Board made the following submissions:
- There is a powerful public interest in protecting the public from unsafe practitioners, and a clear public interest in maintaining standards in the medical profession.
- Even if refusing the stay will render the review nugatory, these public interests are so strong that they 'trump'[11] or 'take priority'[12] over any damage to Dr Milky's private interests, as is often the case in matters involving immediate action against health practitioners.
- The allegations have been made by multiple, unrelated notifiers yet concern strikingly similar conduct. This suggests a disturbing pattern of behaviour over a sustained period of time.
- Each allegation concerns conduct that is said to have occurred in the course of Dr Milky's practice as a medical practitioner, in circumstances where there was a clear power imbalance between Dr Milky and his patient.
- Viewed in totality, the material before the Board (and this Tribunal) paints a clear picture of a practitioner who has wilfully disregarded his obligation to maintain professional boundaries with patients, and who has exploited his position of trust and power for his own personal gratification.
- Practitioners of that kind are a risk to the community. They are not dependable and trustworthy. The alleged conduct, viewed as a whole, is indicative of ethical decision-making and judgment so flawed that the public may not be assured that Dr Milky will make decisions consistent with the safe and appropriate care of his patients.
- Suspending his registration is required to maintain public confidence in the medical profession and its regulation. Put simply, reasonable members of the public would be alarmed[13] if a medical practitioner were allowed to continue to practice in any form in circumstances where the practitioner is claimed to have sexually abused multiple vulnerable patients over several years.
Mr Pizer said the case is put on the basis of both s 156(1)(a) and (e) of the National Law. That is, under (a), that the Board had a reasonable belief that Dr Milky's conduct posed a serious risk to persons, and that it is necessary to take immediate action to protect public health and safety. And under (e), that suspension is 'otherwise in the public interest'.
The pattern of conduct alleged by the Board involves serious boundary violations by a male GP against multiple female patients. The most obvious risk which is potentially posed is to female patients. That is why the March 2019 immediate action decision barred Dr Milky from seeing female patients.
Mr Pizer did not articulate how it was that there is an equivalent direct physical risk in relation to non-female patients. Rather, he said, the submission was put at a more general level, namely that a risk to non-female patients might arise from the lack of trustworthiness, lack of compliance with ethical obligations, and prioritisation of his own personal interests over those of patients.
In addition, it was put that the reputation of the profession would suffer from Dr Milky being allowed to practice, even when restricted to male patients.
That submission was made on the basis of s 156(1)(e). That new subsection (e), including the example, was incorporated into the National Law with effect from 1 March 2018. It now enables consideration of matters extending beyond risks to persons and action to protect public health or safety. Broader public interests may be taken into account, such as the reputation of the profession, and public confidence in the profession. The effect of the new provision was discussed extensively in Farshchi v Medical Board of Australia [2018] VCAT 1619 and CJE v Medical Board of Australia [2019] VCAT 178.

Similarly, in AZD v Secretary to the Department of Justice [2009] VCAT 977, Deputy President Macnamara (as he then was) said:

In the context of public confidence in the profession, Mr Pizer referred to the allegations in this case as invoking 'public outrage'. But when considering that, it must immediately be borne in mind that there is no suggestion of Dr Milky being able to resume seeing female patients. Also, it is not so much a case of the allegations not invoking public outrage in the sense discussed in CJE (if proved, they would) but rather of the allegations being so inchoate at this point.
Mr Pizer also referred to the complaints as concerning 'strikingly similar' conduct. In this regard, I note the alleged conduct is of varying levels of seriousness. I also note it is easier to label allegations as such when they are only described in such summary form, and without precision.
Mr Maloney referred to the presumption of innocence. He noted it was recognised as a relevant factor in CJE at [105], and on appeal from that decision by Niall JA in Medical Board of Australia v Liang Joo Leow [2019] VSC 532 at [113].
As stated, the major factor in granting a stay is the absence of demonstrated risk at this point to non-female patients, or to public confidence in the profession. Also, of course, the context here is regulation of health practitioners in the public interest, not the criminal process. The protection of the public is paramount. Nevertheless, I do accept that the rights of the practitioner to a fair process, including the presumption of innocence, must be given weight in this context. It is easy in this context for language to slide towards a presumption of guilt, and at times, the language used in some of the material has shown this tendency.
As noted in CJE,[17] in considering public confidence in the profession, the public must be taken to understand the presumption of innocence.
Mr Maloney also relied on two references provided in support of Dr Milky. I take these into account, while noting their limitations. For example, the first reference refers to allegations of 6 February 2019, but makes no reference to allegations made subsequently. In my view, the references are of lesser significance than the other matters referred to above for present purposes.
Lastly, it was submitted (without objection by the Board) that Dr Milky has a clean disciplinary record. This is a relevant factor I take into account.

Milky v Medical Board of Australia

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Milky v Medical Board of Australia (Review and Regulation) [2019] VCAT 1780 (11 November 2019)