Plaintiff v Defendant

1 Dr Eiman Al Raheb is a general practitioner who has practiced from home and at various medical clinics. An investigation into her home clinic has resulted in her registration to practice being suspended whilst the investigation is underway. The investigation may take 12 to 18 months or longer to conclude. Dr Al Raheb is her family's main breadwinner and wants to return to work. She appealed the decision to suspend her registration to practise to the Victorian Civil and Administrative Tribunal ('the Tribunal'). The Tribunal upheld the suspension decision.

2 Dr Al Raheb now seeks leave to appeal the Tribunal's decision on the following ground:

Whether the Tribunal erred in law in arriving at a decision that was not open on the evidence, namely that it was necessary to suspend Dr Al Raheb's registration in order to protect the public.

3 It is submitted that the question of law is as follows:

Whether a tribunal errs in law by suspending a practitioner's registration by way of immediate action pursuant to s 156(1)(a)(ii) of the Health Practitioner Regulation National Law (Vic) Act 2009 if there is another means of satisfactorily addressing the need to protect public health or safety.

4 The Health Practitioner Regulation National Law (Vic) Act 2009 is part of a national scheme for the registration and accreditation of health practitioners. Section 4 provides that the Health Practitioner National Regulation Law set out in the Schedule to the Health Practitioner National Regulation Law (Qld) ('National Law') applies as a law in Victoria_._

5 Dr Al Raheb's application for leave to appeal is made pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1999 ('the VCAT Act'). Dr Al Raheb seeks that the order of the Tribunal made on 15 May 2017 be quashed and remitted for further hearing before the Tribunal differently constituted. She also seeks a stay on the order if her appeal is successful.

6 Dr Al Raheb is given leave to appeal. However, her appeal will be dismissed.

(1) Was the Tribunal's decision to suspend Dr Al Raheb's entire practice, rather than restricting her suspension to practise at her home clinic, open on the material before it?

(2) Did the Tribunal draw an incorrect inference of fact based upon assumptions about Dr Al Raheb's clientele?

(3) Was it open on the evidence to conclude there was a reasonable belief that it was necessary to suspend Dr Al Raheb's registration in order to protect the public?

(4) Was the Tribunal bound to reach the conclusion that Dr Al Raheb's immediate suspension from all practice was necessary?

8 Dr Al Raheb was born in Egypt where she obtained her medical qualifications from the University of Cairo in 1980.[1] Prior to migrating to Australia with her family in 2001, she practised medicine working as a general practitioner and paediatrician in Egypt and Saudi Arabia.[2] On or around 31 January 2003, she was registered as a medical practitioner in Australia and worked for a number of years at various medical service providers in Victoria.[3] In 2008 she commenced work at three medical clinics as a general practitioner. Eventually, she became an equity partner in the business that operated the clinics.[4] In or about July 2015 Dr Al Raheb commenced consulting patients from two of the medical clinics after hours at her Caroline Springs home due to an overflow of patients.[5]

9 For convenience, in this judgment a reference to the 'orthodox clinics' is a reference to clinics where Dr Al Raheb practised with other doctors in a professional medical environment, away from her home. A reference to the 'home clinic' is a reference to Dr Al Raheb's home-based medical practice.

10 On 28 October 2016, two women (the first patient, and the second patient) attended the home clinic to receive cosmetic procedures namely Botox and filler injections. Dr Al Raheb performed the cosmetic procedures on both women.[6] A few days after the consultation, the first patient developed an infection and swelling to her face.[7] She re-attended Dr Al Raheb's home clinic accompanied by the second patient as a support person, and received medication from Dr Al Raheb to reduce the swelling.[8] On this occasion, the second patient took photographs of the premises.

11 The first patient's condition did not improve and she subsequently attended a medical centre on three occasions after which she was admitted to the Emergency ward of a hospital.[9]

12 On 18 November 2016, the second patient notified the Australian Health Practitioner Regulation Agency (AHPRA) of the incident and provided the agency with photographs of the Dr Al Raheb's home premises and of the first patient's face following the procedure.[10]

13 On 23 November 2016, AHPRA investigators executed a search warrant on the Dr Al Raheb's home premises.[11] The investigators identified concerns relating to, amongst others, hygiene and infection control procedures, the storage of medication and patient notes, and the presence of multiple script pads.[12]

14 On 28 November 2016, AHPRA wrote a letter to Dr Al Raheb's solicitors informing them of the proposed immediate action to suspend Dr Al Raheb's medical practitioner's registration under s 156 of the National Law. The letter also stated that Dr Al Raheb was the subject of a separate further action investigation under s 160 of the National Law.[13]

15 On 15 December 2016 after hearing Dr Al Raheb's submissions, the Medical Board of Australia ('the Board') wrote a letter to her solicitors informing them that Dr Al Raheb's registration had been suspended with immediate effect.[14]

11 Dr Al Raheb made an application to the Tribunal seeking a review of the Board's decision to suspend her registration on 10 January 2017.[15] On 15 May 2017, the Tribunal delivered its decision and confirmed the Board's decision to suspend Dr Al Raheb's registration.

(a) affidavit of Dr Eiman Al Raheb in Support of Originating Motion sworn 15 June 2017;

(b) Supplementary Affidavit Dr Eiman Al Raheb in Support of Originating Motion sworn 29 June 2017; and

(c) affidavit of James Philip Stoller affirmed on 6 July 2017.

17 The relevant principles concerning leave to appeal are well-established and not in contention between the parties.[16] I would grant leave on the basis that Dr Al Raheb has an arguable case that bears directly upon the relief sought. Applying Secretary to the Department of Premier and Cabinet v Hulls ('Hulls') [17], the applicant does not need to establish there has been an error in order for leave to appeal to be granted. The applicant must, however, establish that there is a real or significant argument that an error of law exists to the extent that there is sufficient doubt to justify leave to appeal being granted. Further, an appellable error of law must be an error in relation to a finding that has a bearing on relief. In other words 'the question of law must be such that, if there is shown to be error in respect of the question, the appellant's claim to relief will thereby be advanced'.[18]

18 As discussed below, the Tribunal misapplied the relevant legislation, being s 156 of the National Law. That gives rise to an arguable case about whether the decision made by the Tribunal was open on the facts before it. This is a question of law that has a bearing on the relief sought by the plaintiff as it bears upon the plaintiff's right to practise pending the outcome of the AHPRA investigation.

19 Further applying Hulls, though not a necessary factor for the Court in considering the application for leave, the public or general importance of the question of law which has been identified may be a consideration for the Court.[19] I accept Dr Al Raheb's submission that the application of s 156 of the National Law raises issues of public importance. It affects health practitioners and whether they may continue to practise while being investigated and it affects their patients.

20 Under s 148(1) of the VCAT Act a party may appeal an order of the Tribunal on a question of law. Dr Al Raheb's appeal is brought on the ground that the decision made by the Tribunal is not open on the evidence, therefore it is necessary to consider the applicable principles identifying an error of law in contradistinction to an error of fact. They may be summarised as follows:

(a) If the Tribunal's conclusion depends on a finding of fact simply not open to it on the evidence (or other material, if relevant), then that conclusion is an error of law.[20]

(b) If the Tribunal misapplies the statutory description in a case where the facts that were found could only have led to the opposite conclusion to that reached by the Tribunal (and the error may be evident in the reasons or hidden), then that is an error of law.[21]

(c) Appellants have a 'heavy onus to bear' in cases where they submit 'not that an affirmative finding had no evidence to support it, but that the evidence was such as to necessitate an affirmative finding which was not made'.[22] In such cases, appellants need to 'show the tribunal was bound to reach the conclusion for which the applicant now contends'.[23]

(d) The question is not whether or not a court would have drawn a different inference from facts but rather whether there were facts upon which the inference might be drawn.[24]

(e) The Tribunal must proceed according to evidence (or other material, if relevant) before it and not on some frolic of its own.[25]

(f) An error will not vitiate a decision unless it is a relevant finding of fact critical to the ultimate decision.[26] That is, it will not vitiate the decision unless it would have made a difference to the decision ultimately taken.[27]

(g) The weight to be given to relevant facts when reaching a conclusion is not a question of law.[28]

(h) The Court should be reluctant to overturn a specialist tribunal.[29]

21 This appeal concerns a specialist tribunal. It was constituted by a legal member and two specialists (medical doctors).

22 Section 3(2) of the National Law provides the objectives of the national registration and accreditation scheme and includes:

(a) 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; and

...

(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners.

23 Section 3(3) of the National Law provides the guiding principles of the national registration and accreditation scheme and include:

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

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

24 Section 4 of the National Law provides that an entity which has functions under the National Law exercise them with regards to the objectives and guiding principles.

25 Section 156 of the National Law is a mechanism permitting a National Board (in this proceeding, the Medical Board of Australia), to take immediate action in respect of health practitioners. Immediate action is defined in s 155 as:

(a) the suspension, or imposition of a condition on, the health practitioner's or student's registration; or

(b) accepting an undertaking from the health practitioner or student; or

(c) accepting the surrender of the health practitioner's or student's registration.

Power to take immediate action

(1) A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if -

(a) the National Board reasonably believes that -

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

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

(b) the National Board reasonably believes that -

(i) the student poses a serious risk to persons because the student -

(A) has been charged with an offence, or has been convicted or found guilty of an offence, that is punishable by 12 months imprisonment or more; or

(B) has, or may have, an impairment; or

(C) has, or may have, contravened a condition of the student's registration or an undertaking given by the student to a National Board; and

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

(c) the registered health practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board information or a document that was false or misleading in a material particular; or

(d) the registered health practitioner's or student's registration has been cancelled or suspended under the law of a jurisdiction, whether in Australia or elsewhere, that is not a participating jurisdiction.

(2) However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner's or student's registration only if the Board has complied with section 157.

27 Section 157 of the National Law contains a 'show cause' process. Section 158 provides the health practitioner be immediately notified of a decision concerning immediate action.

28 Section 159(2) of the National Law states that the decision of a National Board to take immediate action to suspend a practitioner will continue to have effect until it is revoked or overturned on appeal.

29 Section 162 provides the National Board 'must ensure an investigator it directs to conduct an investigation conducts the investigation as quickly as practicable, having regard to the nature of the matter to be investigated'.

30 The Supreme Court of Western Australia has considered s 156(1) and outlined some useful principles:

(1) Existence of a reasonable belief is a jurisdictional fact that enlivens s 156(1)(a), power to take immediate action.[30]

(2) It is necessary to identify with precision what is the subject of the reasonable belief.[31]

(3) There are three components of s 156(1)(a) and they are as follows:

(i) (1) Because of (that is by reason of) the practitioner's conduct, performance or health

(2) the practitioner poses a serious risk to persons; and

(ii) It is necessary to take immediate action to protect public health or safety.[32]

(4) The first component, namely (i)(1) above, is a factual component and the other two components are evaluative. The 'reasonable belief' requirement applies to all three components.[33]

(5) The relevant facts do not need to be proven on the balance of probabilities. However, there must be proven objective circumstances sufficient to justify a belief.[34]

(6) The question is whether the Tribunal held a reasonable belief as to these matters, not whether those matters were fact.[35] 'Reasonable belief' requires the existence of facts sufficient to induce the belief in a reasonable person.[36]

31 Section 199(1)(h) of the National Law provides that a health practitioner may appeal a decision of a National Board in respect of immediate action:

Appellable decisions

(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision -

...

(h) a decision by a National Board to suspend the person's registration;

32 In Victoria, the Tribunal is the relevant appeal body. Section 202 provides that, on appeal, the Tribunal may:

Decision

(1) After hearing the matter, the responsible tribunal may -

(a) confirm the appellable decision; or

(b) amend the appellable decision; or

(c) substitute another decision for the appellable decision.

(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.

33 In Kozanoglu v Pharmacy Board of Australia,[37] the Court of Appeal provided the following guidance on the Tribunal's exercise of appellate powers in respect of s 202.

(1) The appeal to the Tribunal is 'neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not 'open slather', but nor is it an appeal confined to error.'[38]

(2) The Tribunal may therefore receive 'any evidence that bore upon the decision that was actually taken' by the National Board 'at the time that decision was taken'.[39]

(3) The Tribunal will revisit the health practitioner's suitability to practise 'on all the material, before the panel or the responsible tribunal'.[40] This includes both the evidence before the panel, and 'any additional evidence that bears directly upon the position as it was when the original decision was made.'[41]

34 In the same decision, the Court of Appeal outlined the following principles:

(1) The Tribunal erred when it failed to consider the previous good record of the health practitioner. Although, in the circumstances of that case, it made no difference to the ultimate decision and could not vitiate it.[42]

(2) The consequences of an error to be made by a National Board when deciding whether to take immediate action on the basis of limited information must be guarded against. Two safeguards are, first, 'the importance of a timely referral to a panel, or to VCAT. The second is that, while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.'[43]

(3) The National Law envisages that once there has been a decision 'to take immediate action, the matter should ordinarily proceed, forthwith to a panel or tribunal. The entire legislative scheme breaks down if there is a lengthy delay' between an immediate action decision and a complete hearing on the merits.[44]

Was the Tribunal's decision to suspend Dr Al Raheb's entire practice, rather than restricting her suspension to practise at her home clinic, open on the material before it?

36 Dr Al Raheb says there is no evidence of untoward medical practise outside her home clinic. She says it was not open on the evidence before the Tribunal to conclude it was necessary to suspend her practice at the orthodox clinics in order to protect the public. Her counsel, Dr Freckelton QC, concedes Dr Al Raheb has 'a high hurdle to pass' because she must satisfy the Court 'that this was a decision which just could not properly be made by the Tribunal.'

37 Dr Al Raheb made submissions on the following categories of evidence before the Tribunal that she says vitiate its decision. The question is whether this evidence leads to a conclusion that the Tribunal's decision was not open on the facts before it. These categories are now addressed.

38 Dr Al Raheb submits there is no psychological contraindication of her being able to work safely outside her home clinic. She refers to the report of a psychiatrist, Dr Neill, that was before the Tribunal. It concludes Dr Al Raheb is: 'Presently fit, with respect to psychiatric conditions, to return to work as a GP.'[45] It is a report properly and carefully confined to Dr Neill's field of expertise, namely psychiatric diagnosis.

39 The Board says that Dr Neill's report is qualified in that her conclusion about Dr Al Raheb's fitness to practise is limited to the consideration of mental health, not other factors.

40 The Tribunal considered Dr Neill's report.[46] It accepted her diagnosis, background and certain conclusions. It considered the report was limited to opining Dr Al Raheb did not pose a serious risk to the public from the perspective of her mental health. However, it agreed with the Board's submission that this was 'quite a separate proposition to whether she poses a risk because she has shown disregard for acceptable medical practices'. The Tribunal also noted that Dr Neill's conclusions were 'somewhat guarded' concerning the apparent hoarding of medical supplies and rationalisation of that. [47]

41 It is for the Tribunal to weigh evidence, not this Court. That is a question of fact. It does not give rise to an error of law.

42 Dr Al Raheb also refers to the report of her treating psychologist, Ms Christofidis, that was before the Tribunal.[48] She says it is evidence that she has sought and is receiving counselling, is co-operative, and making significant progress in terms of her particular mental health issues. Dr Al Raheb submits the report expresses a view that she has insight into her [mental health] problems and the nexus with her behaviours.

43 The Board says that Ms Christofidis' report contains limited information. It does not say she is fit to practise.

44 The Tribunal considered Ms Christofidis' report.[49] It noted that it reiterates some of the evidence that Dr Al Raheb herself gave. It accepted Dr Al Raheb feels guilty towards patients and her family for whom she has provided, and that she worked extremely long hours, that her working hours would be reduced if she were not working at home, and that not being able to work has placed a toll on Dr Al Raheb. However, the Tribunal placed little weight on Ms Christofidis' report in relation to the observations as to Dr Al Raheb's remorse and insight. It observed that Ms Christofidis had not been called to give evidence and without extensive evidence from her, the Tribunal was not persuaded Dr Al Raheb has shown insight.

45 Again, it was for the Tribunal to weigh the evidence of Ms Christofidis' report. It was also open for the Tribunal to draw an adverse inference from Dr Al Raheb's failure to call Ms Christofidis to give evidence. It does not give rise to an error of law.

46 Dr Al Raheb's statement was before the Tribunal.[50] She also gave oral evidence and was cross-examined. Dr Al Raheb's counsel refers to her evidence, particularly:

(a) her experience as a medical practitioner in Australia and prior - she is a practitioner of significant experience;

(b) that she graduated first out of 434 candidates for the Australian Medical Council exams for overseas graduates - she is a practitioner of significant ability;

(c) she has not previously been the subject of any adverse finding by any disciplinary body or tribunal in Australia or elsewhere;

(d) she has never been the subject of any notifications in respect of her work in any orthodox medical practice;

(e) the issues have arisen solely in respect of her home clinic. It commenced in mid-2015 and concluded in 2016;

(f) she has experienced her own health issues and a death in the family;

(g) it was following the death in the family that she opened the home clinic;

(h) she has acknowledged the areas of issue and contention (namely her home clinic) and that she has been remiss;

(j) she has concluded her home clinic and is prepared to abandon other forms of unstructured practice outside the environment of the three orthodox clinics where she has practised, and is prepared to work at another location;

(l) she is prepared to submit to conditions in respect of completion of further education.

47 The Board submits that Dr Al Raheb's evidence has been considered. It says that the Tribunal made an adverse conclusion as to her character as a result of that evidence.

48 I agree that Dr Al Raheb's evidence on the matters above has been considered.[51] It was open to the Tribunal to accord the weight it did to that evidence. Accordingly, the Tribunal has not erred in law in that aspect.

49 Dr Al Raheb's Counsel submitted that the plaintiff has not been the subject of any adverse finding by a medical disciplinary body and that the Tribunal engaged in problematic and illogical reasoning in relation to the plaintiff's clientele.[52] This matter is addressed further below.

50 The Tribunal did not make an adverse finding as to Dr Al Raheb's character. There is no finding that she was a hostile, evasive, unreliable or untruthful witness, for instance. Some of her evidence was accepted.[54] Other evidence was not. At various times, the Tribunal concluded that aspects of her evidence was implausible, uncertain, not persuasive and inadequate. As Counsel for the plaintiff submitted, had a finding of adverse character been made, it would have given the proceedings a very different flavour.

51 Dr Al Raheb refers to the letters from her colleagues at orthodox clinics, Dr Nabil Moussa, Dr Safwat Mesiha and Dr Sam Youssef.[55] In his letter Dr Moussa provides that he is aware of the circumstances which have led to Dr Al Raheb's suspension and has seen the letter of the Medical Board containing the reasons for the suspension. He stated that he is prepared to supervise Dr Al Raheb at the orthodox clinic.[56] Dr Mesiha and Dr Youssef have also stated that they are aware of Dr Al Raheb's situation and her current suspension from practice and that they are prepared to act in a supervisory role to assist her in returning to work if need be.[57]

52 The Tribunal stated in its findings that whilst it is mindful of the guiding principles under the National Law, which emphasises the protection of the public, the Law also requires that restrictions only be placed on the practice of a health practitioner when necessary to ensure the health services are provided safely and are of an appropriate quality.[58] The Tribunal found that it did not consider the level of risk reduced to an acceptable level even if Dr Al Raheb were permitted to practise under supervision.[59]

53 Dr Al Raheb's evidence from her medical colleagues has been considered by the Tribunal.[60] It was open to the Tribunal to accord the weight it did to that evidence. Accordingly, the Tribunal has not erred in law in that aspect.

Evidence from Department of Health and Human Services

54 Dr Al Raheb relies upon a letter to her from the Department of Health and Human Services ('DHS') dated 16 March 2017.[61] The letter refers to an investigation into her home practice. It concludes that her home practice has not resulted in any significant risk to public health, and therefore no further action will be taken. It provides her with feedback (which is not in evidence) and states 'the best way to resolve these issues is to ensure that any future work is conducted from a properly established, dedicated medical clinic with support of other clinical staff'. It notes this outcome does not pre-suppose any outcome in terms of the investigation by AHPRA.

55 The Board submits that the investigation by DHS was limited. It did not inspect Dr Al Raheb's home practice.

56 The Tribunal considered the DHS letter.[62] It observed it was 'not entirely sure' of the basis for the DHS decision not to take further action. It observed there was no attendance at Dr Al Raheb's premises. Further, it did not have the same evidence as before it, and its considerations were different to those it must make.

57 It was for the Tribunal to weigh the evidence of the DHS letter. It does not give rise to an error of law.

Did the Tribunal draw an incorrect inference of fact based upon assumptions about Dr Al Raheb's clientele?

58 In the 'Findings' section of its Reasons, the Tribunal held at paragraph [129]:

We accept that the Board has not received a complaint about Dr Al Raheb's conduct in a clinical setting. We are mindful, however, that this is not determinative of the manner in which a doctor is conducting him/herself. It may well be that she has a clientele disinclined to complain.

59 Dr Al Raheb makes a number of submissions concerning paragraph [129]. First, she submits it was not open for the Tribunal to hypothesise the lack of any complaints about her prior to the complaint that resulted in this investigation was because she has a clientele disinclined to complain by virtue of their ethnic backgrounds. She says this was a significant part of the Tribunal's reasoning and it was not a form of reasoning open to it.

60 Second, Dr Al Raheb submits the hypothesis in paragraph [129] about the lack of complaints because of the ethnic background of clients appears to have contributed to the Tribunal's reasoning that there was other conduct in which Dr Al Raheb was engaging in at the orthodox clinics which was problematic. In turn, this contributed to the problematic inference that the risks attaching to her conduct in the home clinic travelled with her practice outside the home clinic.

61 In reply, Ms Price Counsel for the Board, submitted that the Tribunal's reference to the plaintiff's clientele being disinclined to complain, was a:

...passing comment of the Tribunal and that it was a correct comment, because the absence of complaint from other sources was not positive evidence that a practitioner's conduct is satisfactory elsewhere.[63]

62 Further Counsel submitted that this statement was conceded by Counsel who appeared on behalf of the plaintiff in the hearing before VCAT. Counsel concluded that, 'it was open for the Tribunal to make such a comment because the home clinic was in operation from 2015 to 2016 and bearing in mind the state of that home clinic, what it actually would look like to a patient who attended the premises, not one of those patients, those 15 or so a week patients that came through the plaintiff's home clinic, made a complaint until Patient B did in November of 2016.' In those circumstances, Counsel concluded that the Tribunal's comment was a fair comment to make in that it may be that the plaintiff has a clientele that are disinclined to make a complaint.[64]

63 There was limited evidence before the Tribunal of Dr Al Raheb's 'clientele'. The limited evidence available indicated that: she has treated a refugee family at the orthodox clinic,[65] that she treats persons from the Middle East, Subcontinental Africa and Asia regions, some of whom speak English well and others who do not. In relation to patients of Arabic descent and who are not fluent in English, Dr Al Raheb under examination, stated that she speaks with them in Arabic as she commands both languages which is appealing to her patients of Arabic descent.[66] Further the evidence indicated that many of Dr Al Raheb's patients are women.[67]

64 The Tribunal does not describe the gender or ethnicity of the clientele. However it may be inferred that this observation about the clientele is about their ethnicity.[68] Specifically, at the hearing the Tribunal asked Counsel representing Dr Al Raheb whether it:

should (...) be at all concerned about the nature of the clientele that was being seen both in the clinic and in the home setting, being a refugee clientele, that there were no complaints despite how the home was set up in the preceding two years. Should we be concerned that while there were no complaints it may be because it was a clientele that was [indistinct]?[69]

65 There was no evidence before the Tribunal of the predilection or preparedness of clientele to complain on the basis of either their gender or ethnicity. Decision-makers must avoid stereotyping based on gender and ethnicity. Findings should be evidence-based.

66 In this case, there are a number of reasons why there may have been a lack of complaints. For instance, clients may have been satisfied with the service Dr Al Raheb provided to them. This demonstrates the dangers of jumping to a conclusion based on a generalisation about the behaviour of Dr Al Raheb's clientele.

67 It was not open on the evidence before the Tribunal to hypothesise that Dr Al Raheb may well have a clientele disinclined to complain. However, this hypothesis does not ultimately affect the Tribunal's decision. I do not agree with Dr Al Raheb's submission that it contributed to the conclusion that her conduct at orthodox clinics was problematic. Nor that it then infected the conclusion that the risks travelled with her from the home clinic to the orthodox clinics. It is made in the context of a finding that a lack of complaints is not determinative of the manner in which a doctor is conducting themselves. As a specialist tribunal, that is an observation open to it. It was for the Tribunal to consider the evidence that there had been no complaints about Dr Al Raheb's conduct in a clinical setting (orthodox clinics).

Was it open on the evidence to conclude there was a reasonable belief that it was necessary to suspend Dr Al Raheb's registration in order to protect the public?

68 Dr Al Raheb submits that the Tribunal cannot form a reasonable belief that it was necessary to suspend her registration on the basis of concerns it identified. She refers to paragraphs [62], [86], [97], [101], [120], [122], [131], [136] and [137] of the Tribunal's Reasons as instances where the Tribunal outlines concerns. Dr Al Raheb says that 'concerns' are not findings. There must be a factual basis for the Tribunal to have come to the decision it did. She says there is no evidence for the Tribunal to draw an adverse inference about the risks posed when practising supervised in an orthodox clinical setting.

69 The Board submits that Dr Al Raheb is challenging the conclusion rather than the factual findings. The Board says that there are categories of evidence which entitle the Tribunal to conclude as it is. It submits there is ample evidence for the conclusion that Dr Al Raheb lacked insight.

70 The Reasons considered evidence as to the 'concerns raised by the Board' concerning hygiene and control. Within that category, the Tribunal concluded that the treatment room in the home clinic was not in a hygienic state.[70] It expressed concern about washing hands in the family bathroom, washing kidney dishes and other items in the domestic laundry tub and washing other items in the domestic dishwasher.[71] The Tribunal indicated it was unclear what processes were put in place to ensure the safe disposal of items used in the treatment room.[72] It concluded the evidence before it 'raised grave concerns about Dr Al Raheb's understanding of basic hygiene requirements in a clinical setting'.[73] Further, '[h]er endeavours to impress upon us that she cleaned her treatment room showed a lack of insight as to what is required in a hygienic treatment setting'.[74]

71 The Tribunal referred to evidence about the disposal of needles and concluded that the failure to properly dispose of them created a risk of infection.[75] The Tribunal expressed concern about Dr Al Raheb's evidence about an open sharps container not being a problem, provided there were no children in the treatment room.[76] It expressed 'grave concern' about her lack of care in disposing of a needle that she said she had accidentally thrown into the wrong container when taken by surprise at the arrival of the investigators.[77]

72 The Tribunal referred to evidence from AHPRA that a dog was present in the treatment room. It found that Dr Al Raheb's explanation that it had followed the investigator in on the day and dogs could not usually enter the treatment room, to be unlikely. Further, if a dog could follow an investigator into the treatment room, it could follow a patient.[78]

73 Turning now to the findings made by the Tribunal concerning the Board's immediate action.

74 The Tribunal concluded that the suspension of Dr Al Raheb was appropriate and not excessive. It stated it could not think of any lesser action that would protect the public.[79] It concluded immediate action was and is necessary.[80]

75 The Tribunal referred to the photos taken by investigators of Dr Al Raheb's home practice and said that even 'the most rudimentary glance' at them 'would raise very serious concerns as to the way in which Dr Al Raheb conducts herself as a health practitioner'.[81] It was however not the role of the Tribunal to determine whether there were 'concerns'.

76 Section 199(1)(h) of the National Law gives the Tribunal jurisdiction to review the decision of the Medical Board of Australia to suspend a person's registration.

77 Applying the principles discussed above in s 156 of the National Law, the task of the Tribunal was to consider whether it was open for the Medical Board of Australia to form a reasonable belief, on the material before it, that (i) because of Dr Al Raheb's conduct, performance or health, (ii) she posed a serious risk to persons, and (iii) it was necessary to take immediate action to protect public health or safety. However, the Tribunal did not undertake this task. There is no reference in its Reasons as to whether or not the Board formed a reasonable belief as to these matters.

78 Paragraphs 148 of the Tribunal's Reasons conclude:

We agree with the submissions of the Board that this is not a case about deficiencies in Dr Al Raheb's home practice. It is about a practitioner who shows complete disregard for proper professional practice and has practiced medicine over a substantial period of time without sufficient regard to hygiene or appropriate infection control procedures.

We are satisfied that suspension is the only appropriate outcome. We are so satisfied because of the sheer number of issues presented. We have not been presented with errors made on an isolated occasion. The disregard for professional practice appears to span 2015 to 2016.

[emphasis added]

79 As discussed above, the Tribunal made a number of findings concerning hygiene and infection control procedures and protocols, and Dr Al Raheb's lack of insight regarding such procedures and protocols.[82] It also raised a number of concerns. Putting those concerns to one side, and focusing on the factual findings, it was up to the Tribunal to decide how to weigh that evidence.

80 However, it is unclear which factual findings lead to the conclusion that Dr Al Raheb, has a 'complete disregard for proper professional practice'. Perhaps it is the findings concerning hygiene and appropriate infection control procedures in her home clinic. Or does it also include the concerns about vaccination procedures and protocols in the orthodox clinic?[83] If so, concerns are not findings.

81 The conclusion that suspension is the only appropriate outcome because of the 'sheer number of issues' lacks clarity. It was the task of the Tribunal to consider whether the Board had a reasonable belief on the material before it, as discussed above. It has not done so.

82 The Tribunal clearly had an understanding of the substantive issues at hand. The decision usefully refers to key evidence. However, the Tribunal did not consider whether the Board had a reasonable belief on the material before it. Its conclusions and findings do not refer to the particular evidence upon which it was open to the Board to form a reasonable belief.

83 Applying Bernardt, it is necessary to identify, with precision, what forms the subject of the reasonable belief. Paragraphs [120], [121], [123] and [126] do not refer to precise findings but rather multiple failings, multiple excuses or multiple deficiencies. There is no reference to whether the Board had a 'reasonable belief'. Further, a conclusion as to a 'concern' is not a conclusion there was a reasonable belief (nor, as discussed above, is it a factual finding). Paragraphs [120], [122] and [131] record concerns, not findings. The Board relies upon the findings in paragraphs [133]-[137] of the Reasons in support of the Tribunal's decision that it was open on the evidence that Dr Al Raheb's suspension should not be confined to the home clinic. Those paragraphs were preceded by the Tribunal referring to submissions by Dr Al Raheb's counsel that the clinic had the accoutrements of a modern practice which would act as a safeguard against the failings evidenced in her own clinic.[84] The Tribunal noted it had 'very little evidence' about how Dr Al Raheb conducts herself in the orthodox clinic setting, but the limited evidence it did have raised concerns.[85]

84 Paragraph [133] of the Reasons states that the relevant orthodox clinic 'is not, of course, on trial and was not in a position to defend itself or its protocols. Nevertheless, the insights that we gained into what was taking place through the clinic caused concerns.' Four areas of 'concern' are then discussed. I refer to the analysis above: concerns are not findings. The Tribunal should have, and did not direct itself to the question of whether the Board had a reasonable belief on the material before it. Had the Tribunal done so, and applied Kozanoglu, it would have revisited Dr Al Raheb's suitability to practice on all the material before the Board and any additional evidence that bears directly upon the position as it was when the Board made its decision.

Was the Tribunal bound to reach the conclusion that Dr Al Raheb's immediate suspension from all practice was not necessary?

85 Dr Al Raheb contends that it was not open for the Tribunal to uphold the Board's decision as to her suspension from all forms of practice.

86 During oral submissions, the Board referred to the findings made by the Tribunal. It submitted those factual findings were not challenged but rather the conclusion (suspension) is challenged.

87 It is unnecessary to traverse the evidence referred to in the Tribunal's reasons. Dr Al Raheb did not challenge the factual findings made in respect of her home clinic. Indeed, she accepts immediate action was necessary in respect of that practice. The real issue of contention was whether the immediate action to suspend her was necessary in respect of her practice outside of the home clinic.

88 The question the Tribunal needed to ask was whether it was open for the Medical Board of Australia to form a reasonable belief, on the material before it, that (i) because of Dr Al Raheb's conduct, performance or health, (ii) she posed a serious risk to persons, and (iii) it was necessary to take immediate action to protect public health or safety.

89 The Tribunal is a specialist Tribunal. It found that Dr Al Raheb had a lack of insight as to hygiene and infection control procedures.[86] It was open for the Board to consider that lack of insight was not specific to Dr Al Raheb's home practice. On the basis of those findings as to a lack of insight, it was open to the Tribunal to conclude that the Board had formed a reasonable belief on that material that Dr Al Raheb's conduct posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety. Its conclusion that it accepted the Board's decision would then follow.

90 Critically, for there to be an error of law, Dr Al Raheb must establish that the Tribunal was bound to reach the opposite conclusion. That is, that the Board did not form a reasonable belief that because of her conduct she posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety. Dr Al Raheb has not established that the Tribunal was bound to reach that conclusion. Accordingly, the appeal must be dismissed.

91 Given the findings above, the question of a stay does not arise.

92 Orders will be made giving leave to appeal and dismissing the appeal. The parties are requested to confer as to the appropriate form of orders and costs.

[1] Affidavit of Dr Eiman Al Raheb in Support of Originating Motion sworn 15 June 2017 (Plaintiff's affidavit sworn on 15 June 2017), [4a].

[2] Plaintiff's affidavit sworn on 15 June 2017, [4a-e].

[3] Defendant's submissions dated 24 July 2017, [4]; Ibid, [4h-k].

[4] Plaintiff's affidavit sworn on 15 June 2017, [4l].

[5] Plaintiff's affidavit sworn on 15 June 2017, [4o].

[6] Exhibit 'JPS-1' to the Affidavit of James Philip Stoller affirmed on 6 July 2017 [the jurat of this affidavit states that it was affirmed on 6 July 2016 however this appears to be a typographical error as the first page of the affidavit is dated 6 July 2017], (Defendant's affidavit affirmed 6 July 2017); Defendant's submissions dated 24 July 2017 [6].

[8] Exhibit 'JPS-1' (170) to the Defendant's affidavit affirmed 6 July 2017.

[12] Exhibit 'JPS-1' (170) to the Defendant's affidavit affirmed 6 July 2017. [336], [337].

[13] Exhibit 'JPS-1' (158) to the Defendant's affidavit affirmed 6 July 2017; Plaintiff's affidavit sworn 15 June 2017, [7], [8].

[14] Exhibit 'JPS-1' (314) to the Defendant's affidavit affirmed 6 July 2017; the Defendant's submissions dated 24 July 2017, [11].

[15] The Defendant's affidavit affirmed 6 July 2017 [4]; the Plaintiff's outline of submissions dated 14 July 2017, [3].

[16] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, [8]- [17].

[20] S v Crimes Compensation Tribunal [1998] 1 VR 83, [89].

[22] Psychology Board of Australia v Mair [2010] VSC 628, [13] (Brooking JA).

[24] Tracy Village Sports and Social Club v Walker [1992] NTSC 91; (1992) 111 FLR 32,[37]-[38] (Mildren J); S v Crimes Compensation Tribunal '[91]; Myers v Medical Practitioners Board of Victoria [2007] VSCA 163, [54].

[25] S v Crimes Compensation Tribunal, [90].

[27] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; [2012] 36 VR 656.

[28] Psychology Board of Australia v Mair [2010] VSC 628, [61].

[30] Bernadt v Medical Board of Australia [2013] WASCA 259, [64] (McClure P).

[33] Bernadt v Medical Board of Australia [2013] WASCA 259, [65]-[66].

[37] [2012] VSCA 295; [2012] 36 VR 656.

[43] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; [2012] 36 VR 656, [126].

[45] Exhibit 'ER-16A' to the Plaintiff's affidavit sworn 15 June 2017; The Plaintiff's submissions in reply dated 31 July 2017.

[46] Reasons of the Victorian Civil and Administrative Tribunal Reference No. Z28/2017 dated 15 May 2017, being Exhibit 'ER-5' to the Plaintiff's affidavit sworn 15 June 2017, [140]-[143] ('VCAT Reasons').

[48] Exhibit 'ER-16' to the Plaintiff's affidavit sworn 15 June 2017.

[50] Applicant's Statement dated 2 March 2017 being Exhibit 'JPS-1' to the Defendant's affidavit affirmed 6 July 2017.

[51] VCAT Reasons, [10]-[14], [108]-[109], [111], [113]-[115], [124]-[126], [129], [140].

[52] The Plaintiff's submissions in reply dated 31 July 2017, [8], Transcript of proceedings, Dr Eiman Al Raheb v Medical Board of Australia (Supreme Court of Victoria, S CI 2017 02258, Ierodiaconou AsJ, 3 August 2017), 12-13, ('Transcript of Proceedings').

[54] VCAT Reasons, [129], [141], [144], [159], [161], [162].

[55] Exhibit 'ER-17' to the Plaintiff's affidavit sworn on 15 June 2017.

[57] The Plaintiff's affidavit sworn on 15 June 2017, Exhibits 'ER-18', 'ER-19'.

[61] Exhibit 'ER-16B' to the Plaintiff's affidavit sworn on 15 June 2017.

[63] Transcript of Proceedings, [73]-[74].

[64] Transcript of Proceedings, [73]-[74].

[65] Transcript of Proceedings, [76]; Transcript of Proceedings, Dr Eiman Al Raheb v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z28/2017, Ms H. Lambrick, Dr B. Collopy, Dr A. Reddy, 9 March 2017), 152, 201.('VCAT Transcript of Proceedings, 9 March 2017').

[66] VCAT Transcript of Proceedings, 9 March 2017, 3, 29.

[67] Transcript of Proceedings, Dr Eiman Al Raheb v Medical Board of Australia (Victorian Civil and Administrative Tribunal, Z28/2017, Ms H. Lambrick, Dr B. Collopy, Dr A. Reddy, 10 March 2017), 152, 201.('VCAT Transcript of Proceedings, 10 March 2017'), 109.

[68] VCAT Transcript of Proceedings, 10 March 2017, 200.

[83] These concerns are expressed in the findings section in the VCAT Reasons [135].