Application for leave
26 I am not satisfied that the Doctor should have leave to commence a proceeding against the Agency. In reaching that conclusion, it is unnecessary for me to form any concluded view concerning the submission that the Agency is the wrong party to the proceeding and that, for example, the correct party should be the Medical Board of Australia (the "Board").
27 In my view, the position of the Agency is different to that of SJOG. That is because no issue arises in relation to the failure, using that word in its neutral sense, to investigate or take other disciplinary action against the other medical staff associated with the Event. That was a failure on the part of SJOG and not on the part of the Agency. In that respect, the Agency relevantly acts on notifications made to it by health practitioners and hospitals and the like. I have otherwise seen no evidence that the Agency took steps in relation to the Doctor because of her age, gender, or ethnicity or because of any disability she might have had (none were really suggested). She was not discriminated against for those reasons.
28 The Agency relied upon two affidavits affirmed by Mr Jeremy Smith who is employed by it as a "Senior Legal Advisor". The contents of those affidavits were not effectively challenged by the Doctor (save by the making of conclusionary assertions). He was not cross-examined. The first affidavit of Mr Smith addresses the following matters:
(a) That pursuant to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (the "National Law (WA)"), the Agency has authority to receive notifications of complaints against health practitioners and the Board has the power to:
(i) take immediate action (as defined by the National Law (WA));
(ii) require a health practitioner to undergo a health assessment or a performance assessment;
(iii) investigate a health practitioner;
(iv) take relevant action (as defined by the National Law (WA));
(v) establish a health panel or performance and professional standards panel to hear and determine a matter; and
(vi) refer a health practitioner to a responsible tribunal to hear and determine a matter.
Relevantly, the Board may delegate any of its functions, other than its power of delegation, to the Western Australia State Board of the Board.
(b) At the end of 2014, the Agency received written notification as required by the National Law (WA) that the Doctor's accreditation had been suspended by SJOG. The notification was sent by the Doctor's lawyers. A further notification was sent by one of SJOG's doctors.
(c) The Western Australian Notifications Committee of the Board decided to undertake an investigation of the Event. In my view, that decision was taken because the nature of the Event demanded it, involving as it did potential misconduct. There is no evidence before me that it was made because of the Doctor's age, gender, or ethnicity or because of any disability she might have had.
(d) Further information was sent by the Doctor's lawyers to the Agency in December 2014.
(e) On 15 December 2014, the Western Australian Immediate Action Committee of the Board (the "Immediate Action Committee") proposed to take "immediate action" to impose a condition on the Doctor's registration that she not practise medicine until deemed fit to return to medical practice following a health assessment, which it required her to have; it invited the Doctor to make submissions about this proposed immediate action. In my view, this decision was made because of concerns held by the Immediate Action Committee about the Doctor's ability to practise her occupation safely. Before me, the Doctor strongly disputed that conclusion. In her view, she was able to perform her duties safely. She also strongly criticised the remedy imposed by the Immediate Action Committee. It may be the case that her complaints are soundly based. That committee may have been mistaken about the Doctor's wellbeing. It may have overreacted. But, in my view, there is no evidence that it so acted because of the Doctor's age, gender, or ethnicity or because of any disability she might have had.
(f) The Doctor's lawyers made a submission to the Agency. It set out details concerning the Doctor's health and about the Event. The submission stated:
The Practitioner very much regrets the decision to [participate in the Event] during the procedure.
She frankly admits that to do so was a lapse of judgment.
The Doctor disputes that she ever said this. She contends that her lawyers had conspired against her and were secretly acting in the best interests of SJOG. No compelling or cogent evidence was adduced to support those propositions. But even if true, the fact is that the Agency would not have known about it. It was entitled to assume that statements made by the Doctor's lawyers, such as those set out above, were made with the authority and instructions of the Doctor.
(g) On 19 December 2014, the proposed immediate action was then taken against the Doctor.
(h) The Doctor's health was assessed in January 2015 and a report given to the Agency on behalf of the Board. A copy was given to the Doctor's new lawyers. It is unnecessary and inappropriate to set out the content of that report in any detail other than to record that it found that the Doctor was not suffering from any relevant health impairment. It described her participation in the Event as a "serious lapse of judgment, although momentary". It recommended, amongst other things, that the Doctor undertake counselling and that she should resume work under a mentor. Suffice to say, I am more than satisfied that its making and its contents were not the product of unlawful discriminatory conduct.
(i) In February 2015, the Doctor's new lawyers sent the Agency a proposed voluntary undertaking. The purpose of the undertaking was to have the Doctor's suspension removed. The letter records that the Doctor had "learnt from the lapse in judgment" and that she accepted "the importance of obtaining objective treatment and care". Before me, the Doctor alleged that her new lawyers had not acted in her best interests and did not have her instructions in offering the undertaking specified. Again, no evidence was adduced to support those allegations, other than the making of conclusionary assertions by the Doctor. Critically, however, even if true, the Agency again would not have known that her new lawyers did not speak with her authority.
(j) In response, the Agency decided to continue the investigation into the Doctor, but also decided to remove the condition imposed on her registration described above. This is because the health assessment effectively demonstrated that the Doctor was not suffering from any relevant health impairment.
(k) In March 2015, following an invitation from the Agency, the Doctor's new lawyers made further detailed submissions on her behalf. The Agency sought further information from the Doctor in April 2015 and her lawyers responded to that request.
(l) In June 2015, the Doctor's new lawyers made another proposal to the Agency "in full and final resolution of the subject matter of this investigation" and following the "full and frank admissions" made by the Doctor about the Event. Once again, if this letter had been sent without the authority of the Doctor, there is no evidence to suggest that this was known by the Agency.
(m) Following an exchange of further correspondence, in August 2015, the Agency informed the Doctor of the Board's decision to caution the Doctor and to impose certain further conditions on her registration. It is unnecessary to set out those conditions. The Board explained its reasons for its decision in the following terms:
• You have admitted that [participating in the Event] while attending to a patient in theatre was inappropriate.
• You have admitted that you failed to adequately manage your illness and personal crisis circumstances and the impact this had on your capacity to practise.
• You acknowledge that the above amount to a serious lapse of judgement.
• It is appropriate for you to be cautioned and for conditions to be imposed on your registration in order to deter similar conduct in the future, to ensure that you uphold the professional standards set by the Medical Board of Australia, and to ensure that the public is safe and confidence in the profession is maintained.
• The imposition of conditions related to supervision and to counselling will support you to increase your awareness of the importance of [self-care] and the relevant professional standards and protect the public.
In my view, there is no evidence to support the contention that the Board cautioned and then imposed conditions on the Doctor's registration because of her age, gender, or ethnicity or because of any disability she might have had. There is no reason to doubt the authenticity of the reasons given by the Board as set out above. The Doctor strongly criticised what the Board did. Its decision has gravely affected her career. Many of those criticisms may well be justified. It may be that the Board did not appreciate what in fact had happened during the Event. But these considerations do not show that the Board engaged in unlawful discrimination. They are attacks on the merits of what the Board had decided to do.
(n) In October 2015, the Doctor herself wrote to the Agency. She explained that the Board's conditions on her registration were having a devastating effect on her career. She wanted the Board to remove those conditions and offered instead to make a confidential written undertaking in which she promised to fulfil conditions that were similar to those the Board had imposed. Her key concern was publicity. The conditions on her registration had been published on the National Register of Health Practitioners (the "National Register"). The National Register can be inspected by the public. In her letter, the Doctor referred to her gender and ethnicity but expressly stated she was "not suggesting that there is any racial basis" for her treatment. Nonetheless, she said she stood "fraught with the possibility by those who might want to use these factors [ie gender and ethnicity] and make me more vulnerable to unwarranted complaints". That comment was directed at SJOG. It was not directed at the Agency. Indeed, the Doctor expressly stated in her letter that the harm she was suffering was "through no fault" of the Agency. Importantly, there was no suggestion in this letter that previous representations made by the Doctor's lawyers to the Agency were false or had been made without her instructions or that her previous lawyers had not been authorised to negotiate on her behalf in the way they did.
(o) In November 2015, the Board declined to remove all of her conditions of registration; it removed some and amended others. Importantly, the Board decided that these conditions would not be published on the National Register. The Board informed the Doctor that she had a right to appeal its decision to the Western Australia State Administrative Tribunal (the "WA Tribunal"). Again, I can find no evidence that this decision to ameliorate the Doctor's conditions of registration was made because of the Doctor's age, gender, or ethnicity or because of any disability she might have had. The decision might not have been the preferable one. It may, for some reason, have been misconceived. It may have been preferable to have not published the conditions of registration on the National Register in the first place. But, if that were so, the Doctor's remedy was to appeal to the WA Tribunal. The evidence before me was that the Doctor had pursued and then abandoned such an appeal in relation to the earlier decision to take immediate action in relation to the Doctor's registration. The Doctor disputed that this had occurred with her knowledge or authority. That may be so, but it does not support a finding that the Board had unlawfully discriminated against her.
(p) In December 2015, after receiving further submissions from the Doctor, the Board decided to remove the remaining conditions on her registration. It gave its reasons for doing so as follows:
The Board decided to remove the remaining conditions from your registration because the Board acknowledged that the requirement for supervision has impacted upon your ability to sustain full time work and considers that there has been a material change in your circumstances in this regard. Accordingly, the Board considers that it is appropriate to remove the conditions that relate to supervision from your registration.
I have no reason to doubt the accuracy of this explanation given by the Board.
(q) The Doctor then wrote to the Board thanking it for its decision to remove all the conditions on her registration. She asked the Board to write a letter confirming: (i) that she had no health concerns that had impacted her ability to practise; and (ii) that the Board had no concerns with respect to her skill level or competency as a medical specialist.
(r) The Board responded in May 2016 stating that whilst it sympathised with the Doctor's situation, it had removed the conditions on the registration because the Board was satisfied that the Doctor had successfully complied with them and was satisfied that they were no longer needed. In my view, there is no evidence which suggests that the Board responded in this way because of the Doctor's age, gender, or ethnicity or because of any disability she might have had.
(s) A further attempt to enlist the support of the Board was made by the Doctor in May 2016. She wanted the Board again to confirm, amongst other things, her competency, and that she had not had personal health issues warranting action. She wanted the Board to issue her with a "certificate of good standing" so she could apply for jobs overseas.
(t) The Chair of the Western Australia Board of the Board replied sympathetically. He wrote:
While I am sorry for your ongoing distress and difficulties in obtaining employment, the Board is not able to agree with your requests. The decision made by the Board was based on the information which was available at the time.
…
Since December 2015, you have engaged in persistent communication with AHPRA and the Board, requesting the Board "remedy" the matter. Given the information that was available to the Board in making its decision, I regret that this is not possible and in exercising its responsibilities it made the only possible decision. I am sure that you understand that this decision was not taken lightly and that the Board addressed the issues in a most considered and concerned manner.
Once again, I am not satisfied that there is any evidence before me which would support a finding that the Board decided to reply in this way because of the Doctor's age, gender, or ethnicity or because of any disability she might have had. If the Board or the Agency had erred, and it may well have, it did not do so for such reasons.
29 Before me, the Doctor submitted that the Agency (and I infer the Board) unlawfully discriminated against her in four ways. She first contended that the Agency did not provide her with the same procedural fairness afforded to other doctors. In that respect, she contended that one of the guiding principles of the National Law (WA) is the use of minimum regulatory force. The second contention was that the Agency and the Board had used disproportionate force against her by imposing conditions on her registration and having these published on the National Register. They would not have behaved that way, it was contended, with respect to other practitioners. The inference was thus available that the Agency and the Board had unlawfully discriminated against the Doctor. The third contention was that the Board unlawfully discriminated against the Doctor, and acted beyond power, in investigating her health. That investigation was not justified by the Event. The fourth contention was that the Board had undertaken an investigation into the Doctor's health without telling her first about the nature of impairment they were investigating. In that respect, the Doctor alleged that this investigation had begun covertly. Each of the third and fourth contentions, as I understood them, were said to be examples of discriminatory behaviour explicable by reason of the Doctor's age, gender, ethnicity or disability (if any).
30 I respectfully am unable to agree with these contentions for the following reasons:
(a) As to the first contention, I do not think that the Doctor was denied procedural fairness. The recitation above of her interactions with the Agency and the Board demonstrate that at key moments she was given the opportunity to respond or make submissions. On each occasion they were considered, and reasons were given where the Agency/Board did not agree with her or her lawyers or could not accommodate her wishes. In my view, as a result of a continuous interaction between the Doctor, her lawyers and the Agency and Board, her penalty was largely the outcome of negotiation. Her conditions on registration were finally removed as a result of her own submission.
(b) As to the second contention, there was no evidence before me that the Agency and Board had used disproportionate "force" against her, or used "force" of a kind not used against other doctors in comparable circumstances. This contention rose no higher than an assertion. Ultimately, the Doctor was allowed to return to medical practice, at first with conditions on her registration, and then without any conditions. Why this led to the effective loss of her career in Australia is very troubling. However, reading the correspondence between her and the Agency/Board, I find that this consequence was not what the Agency/Board intended.
(c) As to the third contention, it may be the case that the Board was mistaken to judge that the Event, and associated allegations made against the Doctor, were the product of a health impairment. After all, her subsequent health assessment, which I have read, effectively gave her a clean "bill of health" but made recommendations about the need for, amongst other things, mentoring and counselling. However, I am not satisfied that if the Board had been mistaken about this issue it was because of the Doctor's age, ethnicity, gender or disability (if any). There is simply no evidence to support that conclusion, and I would not infer it.
(d) As to the fourth contention, I find that it may possibly have been ill-judged or mistaken as the Doctor submitted. But it was not the product of unlawful discrimination. Again, there is simply no direct evidence to support that conclusion, and I would not infer it.
31 For the foregoing reasons, leave should be denied.