These proceedings have a lengthy history. It is necessary to provide an overview of some of the salient aspects of that history.
On 8 September 2022, the Tribunal made orders, by consent, following a mediation of a disciplinary proceeding commenced by the Board against Dr Nugawela in VR 53/2020 (Tribunal's Orders). In the Tribunal's Orders, the Tribunal found that by engaging in conduct set out in agreed facts (Agreed Facts) contained in Annexure A to the Tribunal's Orders (Conduct), Dr Nugawela had behaved in a way that constituted professional misconduct as defined in s 5 of the National Law.
Broadly speaking, the thrust of the Conduct set out in the Agreed Facts was that Dr Nugawela was self-employed as a medical practitioner at premises in Greenwood (practice premises), that he had become bankrupt, that a Trustee in Bankruptcy was appointed over his estate, including his medical practice and, on 21 June 2018, he was evicted from the practice premises by his mortgagee, who then took possession of the practice premises. An inspection of the practice premises at that point revealed that patient medical records were not stored appropriately, and that Dr Nugawela had not facilitated the transfer of all patient records upon departure from the practice premises, contrary to provisions of the Code of Conduct for Doctors in Australia (Code). In addition, following the mortgagee taking possession, a number of medicines the subject of Schedule 4 and Schedule 8 of the Medicines and Poisons Regulations 2016 (WA) (Poisons Regulations) were found on the premises. They were not stored in compliance with the requirements of the Poisons Regulations, and Dr Nugawela had not destroyed or made suitable arrangements for the destruction of medicines at the practice premises.
The Agreed Facts also indicated that Dr Nugawela believed that the practice premises had been secured by the mortgagee, and that he was not permitted to deal with his property as it was, by then, the property of his trustee in bankruptcy. The Agreed Facts further indicated that Dr Nugawela now accepted that his understanding of the consequences of his bankruptcy and the role of his Trustee in Bankruptcy were not relevant to his ongoing duties under the Code and the National Law.
It was also agreed that Dr Nugawela had not provided AHPRA with his current residential contact details, and the address of his principal place of practice, contrary to provisions of the National Law.
Dr Nugawela was reprimanded for the Conduct and, in addition, a number of conditions were imposed on his registration as a medical practitioner, pursuant to s 196(2)(b) of the National Law. Relevantly, for present purposes, those conditions included conditions relating to supervision of aspects of Dr Nugawela's practice (Conditions). The Conditions, in summary, provided that:
Dr Nugawela 'be supervised by another registered medical practitioner (supervisor) in respect of the maintenance and storage of clinical records and storage of medicines'.
'Supervised' was defined in the Conditions to mean that Dr Nugawela 'must consult with the supervisor, who is to be accessible by telephone or other means of communication and available to attend the workplace to observe and discuss the maintenance and storage of clinical records and storage of medicines, when necessary and otherwise at fortnightly intervals.'
Within 28 days of the imposition of the Conditions, Dr Nugawela was required to nominate a primary supervisor and at least one alternate supervisor, to be approved by the Chair of the Board.
In the event that no approved supervisor was willing or able to provide the supervision required, the Conditions provided that Dr Nugawela 'must cease practice immediately and must not resume practice until a new supervisor has been nominated by Dr Nugawela and approved by the Chair of the Board'.
Dr Nugawela was to confirm with AHPRA that it could obtain information or a report from the supervisor on a monthly basis or as required.
All costs associated with compliance with the Conditions were to be at Dr Nugawela's expense.
[2]
On 6 October 2022, Dr Nugawela filed an appeal in the Supreme Court against the Tribunal's Orders (Supreme Court appeal). The Supreme Court appeal has not yet been determined.
On 31 October 2022, Dr Nugawela applied to the Supreme Court for a stay of the Tribunal's Orders. The application for the stay was dismissed.[2]
[3]
Information received by the Board prior to the Suspension Decision
[4]
The evidence adduced by the Board for the hearing of the Stay Application included information that had come to its attention, before it made the Suspension Decision, which suggested that Dr Nugawela was continuing to practise as a medical practitioner, even though no supervisor had been approved. That information comprised:
(a) In the course of a hearing before the Supreme Court on 2 February 2023, Dr Nugawela confirmed that he had a practice at that time, and that he had practice premises which were open and operating;[3]
(b) Investigations conducted thereafter by officers of AHPRA led to it receiving information which suggested that, as at 20 March 2023, Dr Nugawela was engaged in practice as a medical practitioner;[4] and that he had rooms at the Coolibah Medical Centre in Greenwood and that he worked at those premises;[5]
(c) Medicare and Pharmaceutical Benefits Scheme (PBS) records obtained by AHPRA indicated that after 8 September 2022 and throughout October, November and December 2022 and throughout January and February 2023, Dr Nugawela had seen patients and prescribed medicines.[6]
[5]
The Board made the Suspension Decision on 12 May 2023. It relied on a number of matters as founding its reasonable belief that because of his conduct Dr Nugawela posed a serious risk to persons, and that it was necessary to take immediate action to protect public safety. In summary, those matters were:
The Tribunal imposed the Conditions on Dr Nugawela's registration following a finding of professional misconduct;
The Conditions imposed by the Tribunal's Orders made clear that if Dr Nugawela was unable to secure an approved supervisor, he must cease practice immediately;
Information available to the Board indicated that since the Tribunal imposed the Conditions, there had been repeated non-compliance, in that Dr Nugawela had no approved supervisor in place, yet he had continued to practice, as evidenced by his acknowledgment to the Supreme Court at a hearing on 2 February 2023 that he was practising, site visits and checks conducted by AHPRA indicated that he was practising, and Medicare and PBS data indicated that he had been prescribing to patients; and that he had disengaged with the regulatory process;
The Conditions imposed by the Tribunal were a direct result of professional misconduct findings that Dr Nugawela had not appropriately stored or secured patient records and had not complied with the legislative requirements for the storage of medicines and poisons. The Board noted that 'the conditions imposed were considered an appropriate and proportionate regulatory response ... to mitigate future risk associated with [his] practise' [sic];[7]
A stay of the Tribunal's decision to impose the Conditions was denied by the Supreme Court, yet Dr Nugawela demonstrated continued unwillingness to comply with the processes which had been put in place to protect public health or safety;
Dr Nugawela's continued unwillingness to comply meant that there was a serious risk of harm to all patients to whom he provided care and treatment. The Board was not assured that the Conditions had proven sufficient to mitigate the identified deficiencies across Dr Nugawela's practice, where the imposition of the Conditions was undertaken to address serious and ongoing risks associated with his practice;
The Board had a reasonable belief that suspension was the minimum regulatory force appropriate to mitigate the identified serious risk being posed by Dr Nugawela, and that lesser forms of immediate action would not be sufficient in circumstances where he had demonstrated a repeated failure to comply with the Conditions on his registration, and in those circumstances his conduct could not be mitigated by the imposition of further conditions or restrictions.
The Suspension Decision took effect on 12 May 2023. It has not been revoked.
[6]
Information received by the Board after the Suspension Decision
[7]
The affidavit of Karen La, which was relied on by the Board on the hearing of the Stay Application, annexed prescriber reports from two pharmacies, together with information from Medicare, which indicated that from 13 May 2023 (that is, the day after the Suspension Decision was made) and throughout the balance of May 2023, throughout June and July 2023, and until 16 August 2023 (when the information was compiled) Dr Nugawela was prescribing medicines to patients.
[8]
(b) The Tribunal's power to grant a stay and the factors relevant to the exercise of its discretion to do so
[9]
Ordinarily, the commencement of a review proceeding does not affect the operation of the decision which is sought to be reviewed.[8] However, the Tribunal clearly has the power to grant a stay of the decision under review. That power lies in s 25(2) of the SAT Act which provides that the Tribunal may, on the application of a party or on its own initiative, make an order staying the operation of a decision that is the subject of a proceeding for a review.
Under s 25(4) of the SAT Act, the Tribunal may make an order staying the operation of a decision the subject of a review 'only if it considers it desirable to do so after taking into account:
[10]
(a) the interests of any persons whose interests may be affected by the order; and
[11]
(b) any submission made by or on behalf of the decision-maker; and
[12]
However, the matters specified in s 25(4)(a) - (c) of the SAT Act are not an exhaustive list of the matters that the Tribunal may take into account in determining whether it is desirable to make an order staying the operation of a decision.[9]
The language used makes it clear that the discretion conferred by s 25(4) of the SAT Act is a wide statutory discretion which is to be exercised judicially.[10]
The principles relevant to the exercise of the discretion to grant a stay pending an appeal in curial proceedings may be relevant to stay applications in relation to review proceedings in the Tribunal.[11] Those principles include:
(a) that a successful litigant is ordinarily entitled to enforce a judgment pending an appeal and that the applicant must show that 'special circumstances' exist to warrant the grant of the stay;
(b) whether a stay is necessary to preserve the subject matter or integrity of the litigation, or whether the refusal of a stay could create practical difficulties in relation to the relief which may be granted on the appeal; and
(c) even if the appeal would be rendered nugatory if the stay is not granted, a stay will generally still be refused unless it can be established that the appeal ultimately has reasonable prospects of success; and
(d) a stay may also be refused if the balance of convenience does not favour the applicant for the stay, such as where the grant of the stay will occasion hardship to the respondent which may not be alleviated by the terms on which the stay is granted.[12]
However, the relevance of those principles will vary according to the nature of the decision in respect of which a stay is sought, and do not displace the considerations in s 25(4) of the SAT Act, nor should they be grafted onto that provision.[13]
In particular, a decision of a regulatory decision-making authority is not to be equated with a successful party in proceedings in which the issues have been contested and determined by a court or tribunal.[14] That is because in review proceedings, the Tribunal engages in a hearing de novo, in which it determines, on the basis of all of the evidence then before it, what is the correct and preferable decision. The decision under review is not subject to any presumption of correctness. No error need be shown for the decision to be set aside or varied. No party bears any onus of proof. Instead, it is for the Tribunal to review the evidence and make a determination as to the correct and preferable decision as at the date of the determination. In those circumstances, it would not be appropriate to regard the Board as entitled to the benefit, on a stay application, of any presumption that its immediate action decision is the correct and preferable decision, so as to impose a higher threshold for the grant of a stay, over and above the Tribunal forming the view that the grant of a stay is 'desirable' having regard to the matters in s 25(4) of the SAT Act and any other considerations it considers relevant.
In considering what other matters, apart from those in s 25(4) of the SAT Act, may be relevant to its exercise of discretion in relation to the grant of a stay, the Tribunal should bear in mind the statutory framework for the decision under review, including the purpose or objective of the statute and of the exercise of power in particular. (It can be expected that those matters will ordinarily be referred to by the decision maker but even if they are not, they should nevertheless be taken into account.)
It is not appropriate for me to make any findings of fact on the Stay Application.[15] Dr Nugawela's application for a review of the Suspension Decision awaits determination. To the extent that particular facts are not in dispute, I have relied upon those, but otherwise, in my consideration of the various factors relevant to the Stay Application, my discussion of the factual matters relevant to the question of the strength of the parties' arguments are expressed only in broad-brush terms, acknowledging that on the Stay Application, the evidence has not been tested in cross examination.
[13]
(c) Consideration of the evidence and submissions of the parties in relation to the factors relevant to the grant of a stay
[14]
Before turning to the factors relevant to whether a stay should be granted in this case, it is convenient to address a matter that Dr Nugawela sought to address at length in his submissions. Dr Nugawela sought to challenge the Board's reliance on the Conditions imposed upon his registration by the Tribunal's Orders. He did so on a number of bases, namely that:
the Conditions were incapable of compliance[16] and that the Board was made aware of that in November 2022 and in the course of other proceedings.[17] Dr Nugawela submitted that the Conditions could not be complied with due to changed circumstances, namely that he no longer kept paper records, as all of his patient records were now stored on a computer, and that he does not store any medicines at the practice premises.[18] Furthermore, he submitted that the storage of his clinical records would now need to be supervised by a person with expertise in information technology rather than a medical practitioner;[19]
he had been unable to arrange for a supervisor to act, so as to enable him to comply with the Conditions. Dr Nugawela submitted that he had called three potential supervisors and made informal enquiries with 'half a dozen' others. He did not provide the names of any of those persons, claiming that the prospective supervisors 'were not prepared to be named'.[20] He asserted that none had been willing to assist because they did not understand what the Conditions required;
he had sought information in relation to what the supervisor's duties would be. Dr Nugawela claimed that he had asked AHPRA to meet with him to discuss the difficulties he had experienced in arranging for a supervisor but no one had responded;[21]
arranging for a supervisor to act would be too costly for him to afford. Dr Nugawela submitted that even if he was able to arrange for a supervisor it would be redundant to do so as there were no physical records of patients to inspect, and to engage a supervisor would cost approximately $15,000, plus the cost of fortnightly inspections for six months;[22]
he was not responsible for the Conduct in respect of which the Conditions were imposed (that is, the storage of medicines and patient records)[23] and that the Tribunal's Orders should not have been made;
the Tribunal's Orders were not made by consent;
the Tribunal's Orders were made 'without determination of guilt of the charges'[24] and the Tribunal's Orders are the subject of an appeal.[25]
At first blush, Dr Nugawela's contentions and complaints in relation to the Tribunal's Orders face a number of difficulties. By way of example:
(a) the claimed 'change in conditions' does not appear to constitute a change at all (there being nothing in the Tribunal's Orders that refers only to patient records kept in paper, as opposed to electronic, form, nor are the Tribunal's Orders preconditioned on Dr Nugawela actually storing medicines subject to the Poisons Regulations at his practice premises);
(b) Dr Nugawela's opinion that an information technology specialist would be a more appropriate supervisor in relation to his electronic patient records appears to be irrelevant and no excuse for non-compliance with the Conditions that expressly require that he be supervised by a medical practitioner. There was no evidence which detailed his attempts to arrange a supervisor, and in any event, his claim that he had attempted to do so did not sit comfortably with his reliance on the fact that engaging a supervisor would be an expensive exercise (which suggested that he had chosen not to engage a supervisor because of the cost);
(c) Dr Nugawela's claim that he had attempted to contact AHPRA to clarify the duties of the supervisor, but that AHPRA had failed to respond, did not appear to be consistent with the evidence. Apart from Dr Nugawela's assertions, the only evidence that he approached AHPRA to clarify the operation of the Conditions was an email from Dr Nugawela to an officer of AHPRA dated 9 August 2023 (after the Review Proceedings had commenced, and approximately 11 months after the Tribunal's Orders were made);[26] and
(d) Dr Nugawela's claim that the Tribunal's Orders were made by consent was at odds with the fact that the Orders were, on the face of it, made by the Tribunal with the consent of the parties at the conclusion of a mediation at which Dr Nugawela was represented by legal practitioners.
However, it is unnecessary to finally resolve any of these issues. The fact is that unless and until the Tribunal's Orders are set aside by the Supreme Court, they stand as final orders of the Tribunal, which are binding on the parties to those orders and capable of enforcement.[27]
In any event, Dr Nugawela was clearly aware that the Tribunal's Orders were binding unless and until set aside by the Supreme Court, and he was aware that the effect of the Conditions was that he could not continue to practise as a medical practitioner unless and until he engaged a supervisor who was approved by the Board. That much is evident from his application for a stay of the Tribunal's Orders. The stay having been dismissed by the Supreme Court, there also can be no doubt that Dr Nugawela was aware that the Tribunal's Orders were binding on him and the effect of the Conditions which formed part of those Orders.
I turn then to consider the matters which, having regard to the matters explicitly set out in s 25(4) of the SAT Act, and to the submissions of the parties, are relevant to whether it is desirable to grant a stay in the present case. In my view, the matters for consideration are:
(i) How Dr Nugawela's interests may be affected by the Suspension Decision and by a stay of that Decision;
(ii) Dr Nugawela's delay in bringing the application for a stay;
(iii) Whether the Suspension Decision, if it continues, will render the Review proceedings nugatory;
(iv) How the interests of other persons may be affected by the Suspension Decision and by a stay of that Decision;
(v) The submissions made by the Board as to the existence of, and basis for, a serious risk to persons, of the necessity to take immediate action, and as to the choice of immediate action;
(vi) The public interest.
I have outlined below the parties' evidence and submissions in relation to each of these matters and made a broad-brush assessment of each of these matters individually. I then consider the various matters, taken as a whole, to explain why I do not consider that it is desirable to stay the Suspension Decision.
[15]
(i) How Dr Nugawela's interests may be affected by the Suspension Decision and by a stay of that Decision
[16]
Dr Nugawela submitted that the suspension of his registration had caused a 'devastating financial impact and deprivation of livelihood' for him as a sole general practitioner.[28] Dr Nugawela submitted that the Suspension Decision was in its fourth month of operation, and that it had had a severe effect 'because on-going tenure for the practice premises was withdrawn within 24 hours of AHPRA conducting audit investigations in March this year'.[29] He also submitted that his practice may not remain financially viable if he was not returned to work soon.[30] He submitted that if the suspension continued, his practice would face certain closure, and the longer the suspension continued, the harder it would be for him to return to practice.[31]
The Board submitted that Dr Nugawela had produced no evidence of any financial impact but, in any event, any such impact had to be balanced with the overall public interest and safety of the public and, given the risks the Board had identified in this case, the public interest outweighed the individual impact upon Dr Nugawela.[32]
The Board submitted that the protection of the public must take priority, even if damage to a practitioner would occur if a stay were refused.[33] In cases where immediate action against a health practitioner is necessary to protect public safety, the protection of the public will trump the financial impact on a practitioner of the operation of a suspension.[34]
Dr Nugawela's case in relation to the financial implications of the Suspension Decision was far from compelling for several reasons. First, there was no evidence of those financial implications, in terms of lost income for Dr Nugawela. In part, perhaps that was due to the fact that Dr Nugawela has continued to see patients notwithstanding the Suspension Decision (although he claimed that he had not charged patients any fees since the Suspension Decision was made). Secondly, there was no evidence to support his claim that his tenure for the practice premises had been withdrawn after the AHPRA investigation in March. Moreover, that investigation took place over a month before the Suspension Decision was made. Finally, Dr Nugawela's submission as to the financial implications of the Suspension Decision ignored the fact that, prior to the Suspension Decision, Dr Nugawela was not entitled to practice unless he engaged an approved supervisor in accordance with the Conditions. Even if a stay is granted, Dr Nugawela will not be entitled to resume practice without a supervisor being engaged. Consequently, this is not a case where any financial implication for Dr Nugawela, arising from his inability to practise medicine, can be attributed, or solely attributed, to the Suspension Decision.
Dr Nugawela also submitted that the suspension would adversely affect his application for the renewal of his registration.[35] It was not clear how that would be so, other than that it will not be necessary for that application to be determined unless and until the suspension of his registration is removed.
Dr Nugawela submitted that he could not get a job while under suspension. He also submitted that the Suspension Decision was draconian because it meant he was not able to use his medical knowledge at all. Clearly the Suspension Decision means that Dr Nugawela is unable to do anything that, under the National Law, can only be done by a person who is registered as a medical practitioner. There was no evidence as to whether that would impact on any other activities in which Dr Nugawela might use his medical knowledge, but without a requirement for registration. There was also no evidence as to whether the suspension of his registration would preclude any other form of employment.
While suspension of a medical practitioner's registration will ordinarily have significant financial implications for that person, the fact that Dr Nugawela would not be entitled to resume practice if the Suspension Decision is lifted, and could only resume practice if a supervisor is engaged, substantially undermines the force of this consideration.
[17]
(ii) Dr Nugawela's delay in bringing the application for a stay
[18]
At first blush, the force of Dr Nugawela's submission as to the financial implications of the Suspension Decision was undermined by his delay in bringing the Review Proceedings and the Stay Application. The Suspension Decision was made on 12 May 2023. The Review Application was filed in the Tribunal on 28 July 2023 and the Stay Application was filed on 31 July 2023.
Dr Nugawela submitted that there was no unintended or unnecessary delay in taking action to pursue the stay.[36] That was because he relied on the fact that, on 16 June 2023, he commenced proceedings in the Supreme Court for a stay of the Suspension Decision (CIV 1636 of 2023).[37] He submitted that the stay application was dismissed because he had not filed the correct application for a stay application.[38]
I requested further information in relation to the proceedings in CIV 1636 of 2023. In an email to the Tribunal dated 29 August 2023, the Board's solicitors advised that in those proceedings, Dr Nugawela sought substantive relief by way of a 'dismissal' of the Suspension Decision and restoration of his registration status, and also applied for interim orders for a stay of the Suspension Decision and a stay of the Tribunal's Orders. The Board's solicitors advised that his interlocutory summons was dismissed, and the substantive proceedings have been referred to a Registrar for case management. The Board's solicitors also advised that they have applied for summary judgment and to strike out the proceedings. The Board's submission was that the Tribunal was clearly the appropriate forum for the review of the Suspension Decision.[39]
The commencement of a proceeding in the Tribunal whilst an extant proceeding seeking the same, or similar, relief proceeds in the Supreme Court, raises the question as to whether the Tribunal proceedings would be an abuse of process.[40] Given the view I have taken in relation to the Stay Application, that is not of immediate concern. However, subject to the outcome of the Board's applications in CIV 1636 of 2023, the issue may need to be revisited before the Review Proceedings can continue.
Returning to the issue of the delay in bringing the Stay Application to the Tribunal, Dr Nugawela submitted that he brought the proceedings in the Supreme Court to seek a stay of the Suspension Decision because he thought he was unable to bring proceedings in the Tribunal in relation to that matter. He did not explain why he had formed that view. I have assumed (in his favour) that he thought that Supreme Court proceedings were required given that the Tribunal's Orders (which precipitated the Suspension Decision) were the subject of the Supreme Court appeal.
For that reason, I have not attached any weight to Dr Nugawela's delay in bringing the Stay Application.
[19]
(iii) Whether the Suspension Decision, if it continues, will render the Review proceedings nugatory
[20]
Dr Nugawela submitted that failure to grant a stay would render the Supreme Court appeal nugatory. He submitted that there was a real risk that if the appeal was successful, he could not be restored to his former position, and that once the Tribunal's Orders were 'undertaken', they could not be retracted or undone as the 'supervisory penalty' would already have been served.[41]
It was not immediately clear whether and how the refusal of the Stay Application would render the Supreme Court appeal nugatory.
It appeared that Dr Nugawela's submission may have conflated the Stay Application with the Review Application. Even though the Stay Application will be dismissed, the Review Proceedings remain to be determined by the Tribunal. The refusal of the Stay Application would not render the Review Proceedings nugatory. There were a number of issues that arose in the hearing of the Stay Application that were not explored in any detail given the limited evidence before the Tribunal. On the hearing of the Review Application, the Tribunal's role will be to determine whether the correct and preferable decision, having regard to all of the evidence then before it, is to suspend Dr Nugawela's registration.
It would be unhelpful to speculate whether the outcome of the Review Application would have any bearing on the Supreme Court appeal. In any event, the Tribunal does not have any information as to which hearing is likely to proceed first.
I do not give any weight to Dr Nugawela's submission that the refusal of a stay would render nugatory the Supreme Court appeal.
[21]
(iv) How the interests of other persons may be affected by the Suspension Decision and by a stay of that Decision
[22]
Dr Nugawela submitted that the Suspension Decision had caused harm to his patients who could not get Medicare rebates for his referrals for other health services.[42] (I understood that submission to mean that because his registration had been suspended, if Dr Nugawela treated any patients, they would not be entitled to any Medicare rebates for the costs of any consultation with him, or for any other health services which he provided, including referrals.) The difficulty with that submission is that it failed to address the possibility that his patients could have been seen by other medical practitioners and, had they done so, they would have been eligible for any applicable Medicare rebates.
Dr Nugawela submitted that the Suspension Decision meant that his long-standing patients would have to attend on alternative medical practitioners, and that their ongoing medication requirements would be denied, causing harm and danger to their health.[43] Dr Nugawela also submitted that after his registration was suspended, his patients were 'not willing to transfer to another doctor'.[44]
The fact of the matter is that once Dr Nugawela's registration was suspended, whether he saw patients was no longer a matter for their preference. Dr Nugawela was simply not permitted to treat patients whilst not registered. Other than that, his patients preferred to continue to see him, no explanation was offered for why those patients could not be seen by other medical practitioners. There was no evidence to support Dr Nugawela's claim that his patients' ongoing medication requirements could not be met, as a result of the Suspension Decision, or that they would otherwise suffer harm and danger to their health if a stay was not granted. It may be that Dr Nugawela has cared for some of his patients for long periods, but that does not mean that their medical care could not be adequately provided by another (registered) practitioner.
I note that this was not a case where Dr Nugawela contended that he had unique, rare or uncommon skills or qualifications of which patients would be deprived if he were unable to practise medicine.
The Board acknowledged that the Suspension Decision may result in some disadvantage for some of Dr Nugawela's patients. I accept that to be so. Transferring from one medical practitioner to another involves administrative inconvenience and, more importantly, building a new therapeutic relationship. I give that consideration weight in determining the desirability of whether to grant a stay.
[23]
(v) The submissions made by the Board - the basis for its case as to the existence of a serious risk to persons, of the necessity to take immediate action and as to the choice of immediate action
[24]
The Board's case must be assessed bearing in mind the statutory criteria for the decision under review. The Suspension Decision was a decision by the Board to take immediate action under s 156 of the National Law. An immediate action order may be made without a detailed enquiry and will be made in circumstances of urgency, where an immediate response is required to protect public health and safety.[45]
In making a decision to take immediate action the Board is able to act on the basis of a reasonable belief as to three matters, namely that:
(a) the practitioner poses a serious risk to persons;
(b) that risk arises because of the practitioner's conduct, performance or health; and
(c) it is necessary to take immediate action to protect public health or safety.
There must be a sufficient basis for the formulation of the required reasonable belief. The facts in relation to the practitioner's conduct, performance or health do not have to be proved on the balance of probabilities, in order for it to act under s 156(1)(a) of the National Law.[46] However, the Board must form a belief which is reasonable. It is therefore necessary for the Board to scrutinise and evaluate the 'known facts, circumstances and considerations which bear rationally' on the questions on which it must form a belief.[47] In other words, what must be proved are objective circumstances sufficient to justify the belief.[48]
[25]
The Board's case as to the existence of a serious risk to persons, which arises from Dr Nugawela's conduct
[26]
The Board's belief as to the existence of a serious risk to persons, and that that risk existed because of Dr Nugawela's conduct, rested on the same factual foundation.
Counsel for the Board submitted that the Suspension Decision had been made because Dr Nugawela had failed to comply with the Conditions imposed by the Tribunal (in the Tribunal's Orders) for the protection of the public in relation to the confidentiality of patient information and in relation to the storage of medicines, the subject of the Poisons Regulations.
Counsel for the Board submitted that the Tribunal's Orders had been imposed for the purpose of the protection of the public in relation to the identified deficiencies set out in the Agreed Facts annexed to the Tribunal's Orders, namely that patient records were not stored confidentially and that medicines subject to Schedule 4 and Schedule 8 of the Poisons Regulations were not properly stored.[49]
Counsel for the Board submitted that the Conditions were directed to two fundamental aspects of medical practice. The first was the trust and confidence of patients in their doctor, including by virtue of the care, safety and security of their confidential and private medical record. The Board submitted that the failure to store confidential patient records was conduct that was inconsistent with a practitioner's professional duties and obligations in so far as patient confidentiality is concerned.[50] The second went to the unsafe and inappropriate storage of dangerous medicines in the clinical setting.[51] The Schedule 4 and Schedule 8 drugs were substances that were liable to be abused and misused and which were subject to strict legislative controls, no doubt because of their risk to human health if not taken under supervision.[52]
The Board submitted that in the documents he had filed in support of the Stay Application, Dr Nugawela had in effect confirmed that he was practising in breach of the Conditions and implied 'that it is quite acceptable for him to do so because in his view, the [C]onditions are not practical for the type of medical practice he now runs'.[53]
The Board submitted that the information and evidence available to it demonstrated that Dr Nugawela had continued to practise, continuously and without interruption, including to see hundreds of patients per month, after the Conditions were imposed.[54]
The evidence of Ms La also suggested that Dr Nugawela had continued to see patients, and to prescribe medications to them, without interruption, following the Suspension Decision, until 16 August 2023 (when the prescription information was compiled for AHPRA).
The Board submitted that because the Conditions had been disregarded by Dr Nugawela, this indicated to the Board that the 'safeguards considered to be necessary are not in place or not having the necessary impact, and therefore public health and safety cannot be assured'.[55]
Counsel for the Board submitted that in those circumstances there were three aspects to the risk posed by Dr Nugawela's continued practise without an approved supervisor.[56]
First, the Board submitted that the risk to the public was that Dr Nugawela was, and would continue to be, non-compliant with the Conditions, which were directed to the protection of the safety of the public. In that respect, the evidence in Ms La's affidavit reinforced that concern because even after he was suspended as a result of the Suspension Decision, Dr Nugawela continue to see patients and prescribe medicines.
Secondly, counsel for the Board submitted that Dr Nugawela's non-compliance with the Conditions called into question his capacity to act in accordance with the standards of the medical profession more broadly.
The Board submitted that maintaining the confidentiality of patient records was a fundamental obligation of a medical practitioner, and failure to do so posed a risk to the confidentiality of patients' personal information.
Thirdly, insofar as the Conditions were directed to supervision of Dr Nugawela's compliance with the requirements for the storage of Schedule 4 and Schedule 8 drugs, the Conditions were imposed to ensure public safety in relation to access to and use of such drugs. The risk posed by Dr Nugawela's failure to observe the Conditions was the risk that he may not ensure the safe storage of such drugs. Counsel for the Board observed that there was no evidence that Dr Nugawela was not storing such drugs at his practice premises, and his submission that he was not storing drugs at the premises could not reassure the Tribunal at all, in light of his previous conduct.
Furthermore, the Board submitted that there was a clear risk of harm to the public where a registered medical practitioner, who had been suspended, continued to prescribe medications to patients.[57]
The Board submitted that Dr Nugawela's failure to comply with the Conditions was significant because the Conditions were imposed, and existed, to protect the health and safety of the public and patients. Further, for the practitioner to practice in that way - by ignoring conditions on his registration - significantly undermined the confidence the public has in the medical profession and demonstrated an inability by the practitioner to fulfil his duties as a medical practitioner.[58] From that perspective, the Board submitted it was incorrect for Dr Nugawela to submit that his conduct involved no risk of harm to patients or the public.[59]
The Board submitted that the 'serious risk' posed by Dr Nugawela 'was to all patients to whom he provides care and treatment'.[60]
Dr Nugawela submitted that the Board had not demonstrated how immediate action was necessary for the protection of public health or safety, or how he posed a risk to any persons,[61] or the nature of the risk.[62] Dr Nugawela submitted that his failure to comply with the Conditions had not put his patients at any serious risk.[63] Dr Nugawela submitted that the conduct to which the Conditions were addressed - storage of patient records and of medicines - dated back to 2017 - 2018, were no longer relevant to his practice,[64] and did not involve a risk of serious injury to the health of any person or place public health and safety at risk.[65]
Dr Nugawela's submissions were directed to whether his conduct in failing to engage a supervisor had caused harm to his patients. In contrast, the Board's case for immediate action was based on its assessment of the risk of the repetition of Dr Nugawela's past conduct, as a result of the failure by him to observe the protective measure put in place to minimise that risk (namely the appointment of a supervisor) and of its implications for public safety.
Dr Nugawela also submitted that the Conditions on his registration had not been imposed for incompetence or negligence and referred instead to administrative, non-clinical matters.[66] The difficulty with that submission was that it failed to grapple with the protective purpose of the Conditions.
Bearing in mind that I am engaging only in a broad-brush assessment, on the evidence thus far, I consider that the Board's contention that the Conditions are directed to the protection of the public from the repetition of Dr Nugawela's previous conduct, which would pose a risk to public safety, is clearly arguable. I consider that the Board's belief as to the existence of a risk to the safety of patients arising from non-compliance with the Conditions is based on circumstances capable of being proved, and which are sufficient to support that belief. Having regard to the evidence before the Tribunal on the Stay Application, it is clearly arguable that the Board's belief that the risk to patient safety exists because of Dr Nugawela's conduct, is a reasonable one. And insofar as the Board believes that the risk posed by Dr Nugawela is a serious risk, it is arguable that that belief is a reasonable one, having regard to Dr Nugawela's acceptance that he failed to engage a supervisor, contrary to the Conditions, in light of the admitted prior conduct which formed the basis for the Tribunal's Orders, and having regard to the evidence that suggests that Dr Nugawela continued to see patients, and prescribe them medicines, even after the Suspension Decision.
The Board's belief that the risk posed to patient safety is a serious one is on its strongest footing in relation to Dr Nugawela's failure to engage a supervisor in relation to his storage of drugs which are subject to the Poisons Regulations. Absent the oversight of a supervisor, the risk that Dr Nugawela may repeat the conduct of the past in failing to store drugs in accordance with the Poisons Regulations can arguably be regarded as a serious risk to persons by virtue of the dangers of improper access to, and misuse of, such drugs.
However, even in relation to Dr Nugawela's failure to engage a supervisor in relation to his storage of patient information, the very sensitive personal information that necessarily is contained in a patient's medical records means that it is clearly arguable that the risk to persons from improper access to their patient records can be regarded as a serious risk.
Counsel for the Board submitted that the Tribunal should take into account the fact that in the Review Proceedings, it would be open to the Tribunal to find that there is also an additional basis apart from reliance on s 156(1)(a) of the National Law for the conclusion that the correct and preferable decision is the suspension of Dr Nugawela's registration. Counsel for the Board submitted that the evidence supports a reasonable belief that suspension of Dr Nugawela's registration would be in the public interest under s 156(1)(e) of the National Law. The Board submitted that quite apart from the risk to patients, Dr Nugawela's 'ongoing and admitted conduct in contravention of [the Conditions] seriously undermines public confidence in the profession'[67] and that for that to continue would be contrary to the public interest. Assessing that submission on a broad-brush basis, I accept that it is arguable, having regard to the evidence on the Stay Application.
[27]
The Board's case as to the necessity to take immediate action and as to the choice of immediate action
[28]
Dr Nugawela submitted that the suspension of his registration because of his failure to arrange supervision for his storage of medical records was a 'draconian response'.[68] He described the suspension as 'excessive and manifestly harsh'.[69]
In contrast, the Board's case was, effectively, that once it became aware of facts which suggested that Dr Nugawela was practising in contravention of the Conditions, it was necessary for it to take immediate action to protect public safety. The Board submitted that the information available to it suggested that Dr Nugawela was clearly practising in a manner which was in direct contradiction of the Conditions imposed on his registration. The Board submitted that the fact that Dr Nugawela continued to engage in medical practice notwithstanding he did not have a supervisor, contrary to the Conditions, demonstrated that the regulatory safeguards that were initially imposed on him in the form of the Conditions, had not, and were not, being observed, and therefore were not adequate for the protection of the public. In those circumstances, its case was that it reasonably believed it was necessary to take immediate action of a kind which was capable of protecting public safety.
Under s 155 of the National Law, 'immediate action' in relation to a registered health practitioner covers a variety of actions, including accepting an undertaking from the practitioner, or the suspension, or imposition of a condition on, the practitioner's registration.
The Board's case was, effectively, that the imposition of the Conditions on Dr Nugawela's registration, through the Tribunal's Orders, had not been effective to protect public safety, because Dr Nugawela had practised in disregard of the Conditions. In those circumstances, the Board's case was that it reasonably believed that it was necessary to take immediate action in the form of the suspension of Dr Nugawela's registration in order to protect public safety.[70] Before assessing the strength of that contention, it is necessary to address some arguments advanced by Dr Nugawela which bear on that issue.
[29]
Dr Nugawela's explanations for his non-compliance with the Conditions
[30]
Dr Nugawela advanced a number of arguments by way of explanation for his failure to comply with the Conditions. I understood these to be directed to undermining the Board's case that it was necessary to take immediate action in the form of the Suspension Decision.
In the course of the hearing of the Stay Application, Dr Nugawela did not dispute that he had been engaged in medical practice without a supervisor, after the Tribunal's Orders were made and after the Suspension Decision was made.[71] However, he submitted that this was not a case of a deliberate intention not to comply. He submitted that he had tried to marry his responsibility for complying with the Tribunal's Orders with his duty to his patients, and asserted that at no time did he consider that he was putting the public at risk by his failure to comply with the Tribunal's orders.[72]
Dr Nugawela submitted that his motivation in continuing to engage in medical practice without a supervisor being appointed was that he was transitioning his patients to alternative care arrangements,[73] and could not suddenly cease practising until those alternative care arrangements were made.[74] Dr Nugawela submitted that he did not know that he was not able to practise without a supervisor in circumstances where he understood he had a duty to care for his patients. He claimed to have thought that he was under a duty to assist his patients to transition to the care of other practitioners, and that he could treat them in the process of that transition. It was not entirely clear what that meant, or what the basis for the asserted duty was. The difficulty with Dr Nugawela's arguments is that they are at odds with the evidence that suggests that that Dr Nugawela was well aware that he was not to practise if he did not have an approved supervisor. The fact that he applied to the Supreme Court for a stay of the Tribunal's Orders, which was refused, belies his claim.
Further, there was no evidence to support Dr Nugawela's assertion that his patients would not or could not find alternative medical care, nor any explanation of why Dr Nugawela's patients could not be referred to other practitioners without delay immediately after the Conditions were imposed, if a supervisor was not approved.
Dr Nugawela submitted that after the Suspension Decision he had not charged his patients for his consultations. That appeared to be a submission that he had not been motivated by financial gain when he failed to comply with the Suspension Decision. However, that submission failed to recognise that the basis for the Board's actions was concern about public safety, in light of his continued treatment of patients after the imposition of the Conditions, and after the Suspension Decision.
[31]
Dr Nugawela criticised the Board for what he described as 'allowing eight months to lapse' between the imposition of the Conditions and its decision to take immediate action.[75] Dr Nugawela submitted that since a stay of the Tribunal's Orders was refused, he had been 'allowed to practice, pending the [Supreme Court] appeal'.[76]
In addition, Dr Nugawela submitted that the Board had not sought to enforce compliance with the Conditions by utilising the provisions for enforcement in the SAT Act, but rather sought to use its powers under the National Law.
I have understood these submissions to be directed, not just to criticism of the Board, but to undermining its claim that it reasonably believed that the Suspension Decision was necessary to protect public safety. In other words, the argument seemed to be that if the protection of public safety had really been required, the Board would have acted more expeditiously and effectively.
The difficulty with Dr Nugawela's arguments is that they did not reflect the evidence before the Tribunal on the Stay Application. The Conditions were imposed by the Tribunal's Orders of 8 September 2022. The evidence before the Tribunal suggested that the Board first became aware that Dr Nugawela was practising medicine, despite the fact that no supervisor had been approved, in the course of a hearing before the Supreme Court on 2 February 2023. There was evidence that in March 2023, AHPRA conducted investigations into whether Dr Nugawela was practising, before it gave Dr Nugawela notice of its proposed immediate action, and that it then made the Suspension Decision on 12 May 2023. That evidence does not support the assertion that the Board 'allowed' Dr Nugawela to practise for eight months, despite his non-compliance with the Conditions.
As for Dr Nugawela's criticism that the Board did not seek to enforce the Tribunal's Orders in the Supreme Court, that may have been one avenue open to the Board to enforce the Conditions. But having become aware that Dr Nugawela was engaged in medical practice without a supervisor, and thus in breach of the Conditions, I am unable to see any basis for criticism of the Board for pursuing another course of action open to it, which enabled the Board itself to take immediate action designed to protect the safety of the public. Its decision to pursue that course can hardly be relied upon by Dr Nugawela to challenge the Board's claim that immediate action was necessary to protect public safety.
[32]
The Board's case as to whether the Suspension Decision was necessary to protect public health or safety
[33]
The statutory objectives of the national registration and accreditation scheme established by the National Law are of relevance in relation to the Board's reasonable belief that it is necessary to take immediate action and the form of the immediate action. One of the statutory objectives of that national registration scheme is 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.[77] However, that objective must not be pursued at all costs.[78] That follows from the fact that another of the objectives of the scheme established under the National Law is that 'restrictions on the practice of a health profession are to be imposed ... only if it is necessary to ensure health services are provided safely consistent with best practice principles'.[79]
Given the evidence which suggests that Dr Nugawela was aware that he was required to comply with the Conditions, and that he failed to comply with those Conditions from the outset, it is clearly arguable that it was necessary to take a form of immediate action which would protect public safety. Given that the imposition of the Conditions on Dr Nugawela's registration had not been sufficient to achieve the protective purpose for which the Conditions were designed, it is also arguable that it was necessary to take some other form of immediate action which could achieve that protective purpose. The difficulty for Dr Nugawela is that it is not immediately apparent that any other form of immediate action, short of suspension of his registration, would have been capable of achieving that protective purpose.
[34]
I turn, next, to consider the public interest. The 'public interest' in s 25(4) of the SAT Act must be understood within the statutory context of the enabling Act pursuant to which the review is sought. In the case of the National Law, public interest considerations relevant to the taking of immediate action under s 156(1)(e) of the National Law are relevant to the public interest in s 25(4) of the SAT Act. Those considerations include the maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made; the public interest in members of health professions, in whom training and expenditure has been invested, being able to practise; proportionality, particularly where a matter is unlikely to finalise quickly; and ensuring immediate action is only taken when it is necessary to do so.[80]
Equally, there is clearly a public interest in utilising forms of immediate action, including suspension of a practitioner's registration, to protect the public from risks to public safety as a result of the conduct, performance or health of medical practitioners who the Board reasonably believes are unable to practise medicine without risk to public health or safety.
Furthermore, there may be cases where a doctor's conduct, or alleged conduct, is indicative of such a serious lack of trustworthiness, such a disregard for fundamental ethical obligations, and such a preparedness to put their own interests above the best interests and protection of their patients, that the public interest warrants taking immediate action, including by suspending the practitioner's registration, in order to prevent erosion of public confidence in the profession.[81]
The Board submitted that Dr Nugawela had demonstrated an overt disregard for the law in this case. It submitted that there was a clear public interest in ensuring that 'only medical practitioners who abide by the laws to do with public health and wellbeing and do not seek to circumvent them, are registered'.[82]
Dr Nugawela submitted that the taking of immediate action in the form of the Suspension Decision was not in the public interest in this case. He submitted that it was in the public interest for the presumption of innocence to be given weight, in light of the Supreme Court appeal, which Dr Nugawela appeared to understand would 'negate the charges'[83] (that is, the disciplinary proceedings which led to the Tribunal Orders).
As I have already observed, the purpose of the Conditions was to protect the public from the risk to public safety which would arise in the event of the repetition of the Conduct. Furthermore, the Suspension Decision was made by the Board in circumstances where it believed that the protective purpose behind the Conditions was not being achieved. In those circumstances, there is clearly an argument that the grant of a stay would be contrary to the public interest in the use of immediate action in order to protect public safety.
Given the evidence to suggest that Dr Nugawela acted in contravention of the Conditions from the outset, and the evidence that suggested that Dr Nugawela had continued to engage in medical practice even after the Suspension Decision, it is clearly arguable that the grant of a stay would be contrary to the public interest in ensuring that only persons willing to comply with legal obligations directed to the protection of the public should be permitted to practice medicine.
The Board submitted that quite apart from the risk to patients, Dr Nugawela's 'ongoing and admitted conduct in contravention of the Conditions seriously undermines public confidence in the profession'[84] and in those circumstances, the grant of a stay would be contrary to the public interest in maintaining public confidence in the medical profession. I accept that that is certainly arguable.
For completeness, I should address the question whether there is likely to be any delay in determining the Review Application, and how any such delay would bear on the public interest. Taking immediate action is not an end in itself. Immediate action may be taken while investigations are undertaken into the medical practitioner's conduct, performance or health, and pending the outcome of any process or legal proceedings pursued as a result of those investigations (such as disciplinary proceedings for professional misconduct). There may be an argument that it is not in the public interest for a practitioner to be denied or restricted in their ability to practise medicine for a lengthy period, by taking immediate action or particular kinds of immediate action.
In the present case, there was nothing to suggest that there was likely to be significant delay in determining the legal proceedings relevant to Dr Nugawela's non-compliance with the Conditions. The Supreme Court appeal has been on foot for some time, and will no doubt be resolved soon. As for the Review Proceedings in the Tribunal, I had proposed that they be expedited and heard as soon as possible, rather than for the Stay Application to be determined. Dr Nugawela opposed that course. Given the likely significant overlap in the issues requiring determination in the Review Proceedings and the issues arising for consideration on the Stay Application, there is no reason why the Review Proceedings cannot be heard and determined as soon as the parties are ready for a hearing.
[35]
(d) Whether it is desirable, having regard to all of those matters, that the operation of the Suspension Decision should be stayed
[36]
I turn, now, to consider, as a whole, those factors discussed above which carry weight, in order to determine whether a stay of the Suspension Decision is desirable.
For the reasons I have given, there is an arguable case that the Board reasonably believed that because of Dr Nugawela's conduct, he posed a serious risk to persons, and that it was necessary to take immediate action to protect public safety. Given that the Conditions on Dr Nugawela's registration had already been imposed by the Tribunal's Orders, but disregarded by Dr Nugawela, it is arguable that the only form of immediate action available to the Board was to suspend Dr Nugawela's registration altogether. Those considerations weigh in favour of the Suspension Decision, and against the grant of a stay.
While the suspension of a medical practitioner's registration will ordinarily have significant financial implications for that person, the fact that Dr Nugawela did not engage a supervisor, and was not entitled to practise without one, means that it is difficult to identify any financial impact which is attributable solely to the Suspension Decision. The Suspension Decision may give rise to some inconvenience to Dr Nugawela's patients, but any such inconvenience must give way to the need to protect public safety from the risk of a repetition of the Conduct in respect of which the Conditions were imposed. These considerations do not weigh heavily in favour of a stay.
When the public interest is weighed in the balance, there is no doubt that the Stay Application should be refused. Dr Nugawela's conduct in practising without a supervisor, contrary to the Conditions, and in continuing to see patients even after the Suspension Decision, raises serious concerns as to his lack of insight, and if permitted to continue would arguably undermine public confidence that medical practitioners will comply with their legal and professional obligations. For that to occur would be contrary to the public interest in maintaining public confidence in the profession.
It would be antithetical to the public interest in protecting the safety of the public, to stay the operation of the Suspension Decision, which was designed to protect the public in circumstances where the imposition of the Conditions on Dr Nugawela's registration had been ineffective for that purpose.
In his submissions in reply on the Stay Application, Dr Nugawela submitted that as far as compliance with the Tribunal's Orders were concerned, he 'now understood that no means no'.[85] He submitted that if the stay was granted he would 'fully comply' with the Conditions, and that there would be 'complete compliance from now on'.[86] The latter submissions, which came very late indeed, rang hollow in light of the evidence as to his conduct, and in light of his submissions on the Stay Application which suggested a lack of insight on his part into the seriousness of his non-compliance with the Conditions.
In circumstances where Dr Nugawela was well aware of the Conditions, and of the fact that he was not entitled to practise without an approved supervisor, yet continued to do so, and in circumstances where there is evidence to suggest that Dr Nugawela continued to practise even after the Suspension Decision was made, there is no basis for confidence that Dr Nugawela's assurances can be relied upon.
At present, there is nothing to support Dr Nugawela's assertions that he would comply with the Conditions if the Suspension Decision was stayed. Things might have been different (and might be different in the future) if Dr Nugawela provided evidence that he had found a supervisor who was eligible for approval by the Board. In that case, there would at least be some basis for considering whether an undertaking by Dr Nugawela to comply with the Conditions could be accepted.
Accordingly, this is not a case where an alternative form of immediate action, other than the suspension of Dr Nugawela's registration - such as accepting an undertaking from him, or imposing conditions on his registration - is open.
There is a further reason why the Stay Application must be dismissed, namely that a stay will have no utility. Even if a stay were to be granted, that would simply render the Suspension Decision inoperative until such time as the Review Application is determined, but the Conditions would nevertheless remain in place. In short, unless and until Dr Nugawela arranges for a supervisor to provide supervision of his storage of clinical records and of any medicines at his practice premises, and until that supervisor is approved by the Board, Dr Nugawela will be unable to practice, regardless of whether or not the stay is granted.
Accordingly, I do not consider that it is desirable to grant a stay of the Suspension Decision. The Stay Application should therefore be dismissed.
I will list the matter for a directions hearing at the next available opportunity so that programming orders can be made to facilitate the determination of the Review Application as quickly as possible.
[37]
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
[38]
Research Associate to the Honourable Justice Pritchard
[39]
[1] The National Law is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) and applies in Western Australia by virtue of s 4 of that Act.
[43] Applicant's Submissions at page 23, para 114.
[78]
[44] Applicant's Submissions at page 26, para 134.
[79]
[45]Milky v Medical Board of Australia (Review and Regulation)[2019] VCAT 1780 (Milky) at [19], referring to Syme v Medical Board of Australia[2016] VCAT 2150 (Judge Jenkins DP); and WD v Medical Board of Australia[2013] QCAT 614 at [8] (Hornemann-Wren J).