Plaintiff v Defendant

3 Dr Hobart's registration remains suspended, while the Board completes investigations of a number of notifications received in relation to him. Many of those notifications relate to COVID-19 vaccination exemption medical certificates issued by Dr Hobart in 2020 and 2021, during the COVID-19 pandemic. There was also a concern that Dr Hobart may have been involved in publishing incorrect or misleading information about COVID-19 and the public health response to it.

4 In this proceeding, Dr Hobart seeks judicial review remedies in respect of the Board's decision to suspend his registration. He says that the Board's decision was not an exercise of its immediate action powers under the National Law, but a finding of professional misconduct that the Board did not have power to make. He seeks an order compelling the Board to refer the notifications that are under investigation to the Victorian Civil and Administrative Tribunal (VCAT), for hearing in its original jurisdiction. Dr Hobart also seeks remedies in relation to patient records that he believes are in the Board's possession.

5 For the reasons that follow, Dr Hobart has not made out his case for relief, and the proceeding will be dismissed.

Health Practitioner Regulation National Law - relevant provisions

6 The National Law establishes a national registration and accreditation scheme for the regulation of health practitioners, including medical practitioners, and students studying or training in a health profession. The National Law is contained in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld), and is applied in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic). A person who is registered under the National Law to practise a health profession, including the medical profession, is a 'registered health practitioner' for the purposes of the National Law.[2]

7 The National Law is administered by National Health Practitioner Boards established for each health profession. The National Board for the medical profession is the Medical Board of Australia. The Australian Health Practitioner Regulation Agency (AHPRA), established under s 23 of the National Law, provides administrative and other assistance to National Boards.

8 Part 8 of the National Law deals with the health, performance and conduct of registered health practitioners. Divisions 2, 3 and 4 of Pt 8 provide for mandatory and voluntary notifications to AHPRA in relation to registered health practitioners.

9 Division 7 of Pt 8 is headed 'Immediate action'. It commences with s 155, which provides the following definition:

In this Division -

immediate action, in relation to a registered health practitioner or student, means -

(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.

(d) if immediate action has previously been taken suspending a health practitioner's or student's registration - the revocation of the suspension and the imposition of a condition on the registration; or

(e) if immediate action has previously been taken imposing a condition on a health practitioner's or student's registration - the suspension of the registration instead of the condition.

10 Section 156 provides for power to take immediate action, relevantly:

Power to take immediate action

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

(a) the National Board reasonably believes that -

(i) because of the registered health practitioner's 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

...

(e) the National Board reasonably believes the action is otherwise in the public interest.

_Example of when action may be taken in the public interest - _

A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner's practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.

(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.

11 Section 157 provides for a show cause process that must be followed by a National Board that is contemplating suspending or imposing a condition on registration, as follows:

Show cause process

(1) If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner's or student's registration under section 156, the Board must -

(a) give the practitioner or student notice of the proposed immediate action; and

(b) invite the practitioner or student to make a submission to the Board, within the time stated in the notice about the proposed immediate action.

(2) A notice given to a registered health practitioner or student under subsection (1), and any submissions made by the practitioner or student in accordance with the notice, may be written or verbal.

(3) The National Board must have regard to any submissions made by the registered health practitioner or student in accordance with this section in deciding whether to take immediate action in relation to the practitioner or student.

12 Section 158 sets out the steps that a National Board must take after deciding to take immediate action in relation to a registered health practitioner:

Notice to be given to registered health practitioner or student about immediate action

(1) Immediately after deciding to take immediate action in relation to a registered health practitioner or student, the National Board must -

(a) give written notice of the Board's decision to the health practitioner or student; and

(b) take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment.

(a) the immediate action the National Board has decided to take; and

(b) the reasons for the decision to take the immediate action; and

(c) the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and

(d) that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner's or student's registration; and

(e) how an application for appeal may be made and the period within which the application must be made.

13 The period of immediate action taken by a National Board is governed by s 159:

Period of immediate action

(1) The decision by the National Board to take immediate action in relation to the registered health practitioner or student takes effect on -

(a) the day the notice is given to the practitioner or student; or

(b) the later day stated in the notice.

(2) The decision continues to have effect until the earlier of the following occurs -

(a) the decision is set aside on appeal;

(b) for the suspension of, or imposition of conditions on, the registered health practitioner's or student's registration, the suspension is revoked, or the conditions are removed, by the National Board; or

(c) for an undertaking, the National Board and the registered health practitioner or student agree to end the undertaking.

14 Division 8 of Pt 8 makes provision for investigations. Section 160(1) provides that a National Board may investigate a registered health practitioner if it decides it is necessary or appropriate for one of several specified reasons. These include, relevantly, that the Board has received a notification about the practitioner, or believes that the way the practitioner practises the profession is or may be unsatisfactory, or the practitioner's conduct is or may be unsatisfactory.[3] If a National Board decides to investigate a registered health practitioner or student, it must direct an appropriate investigator to conduct the investigation.[4] Section 161 requires a National Board that decides to investigate a registered health practitioner, as soon as practicable after making the decision, to give the practitioner written notice about the investigation, including advice about the nature of the matter being investigated. The Board must also give the practitioner written notice of the progress of the investigation, at not less than three monthly intervals.[5]

15 Section 162 requires an investigation to be conducted in a timely way:

Investigation to be conducted in timely way

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.

16 After completing an investigation, an investigator must give a written report about the investigation to the relevant National Board.[6] The report must include the investigator's findings about the investigation and recommendations about any action to be taken in relation to the health practitioner the subject of the investigation.[7]

17 Following an investigation, the National Board must make a decision, as provided by s 167:

Decision by National Board

After considering the investigator's report, the National Board must decide -

(a) to take no further action in relation to the matter; or

(b) to do either or both of the following -

(i) take the action the Board considers necessary or appropriate under another Division;

(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.

18 Division 10 of Pt 8 provides for the action that a National Board may take following an investigation under Div 8, or a health and performance assessment under Div 9. Section 178 provides, relevantly:

National Board may take action

(1) This section applies if -

(a) a National Board reasonably believes, because of a notification or for any other reason -

(i) the way a registered health practitioner registered in a health profession for which the Board is established practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory;

...; and

(b) the matter is not required to be referred to a responsible tribunal under section 193; and

(c) the Board decides it is not necessary or appropriate to refer the matter to a panel.

(2) The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student -

(a) caution the registered health practitioner or student;

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

(c) impose conditions on the practitioner's or student's registration, including, for example, in relation to a practitioner -

(i) a condition requiring the practitioner to complete specified further education or training within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(d) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.

(3) If the National Board decides to impose a condition on the registered health practitioner's or student's registration, the Board must also decide a review period for the condition.

19 In most cases, the various actions provided in s 178 may only be taken by a National Board after following the show cause process set out in s 179. Section 180 requires written notice of a decision to take action to be given to the registered health practitioner.

20 Division 11 of Pt 8 enables a National Board to establish panels to hear matters concerning the health or performance of a registered health practitioner. Where a National Board considers that a practitioner may have an impairment, it may establish a health panel under s 181. Section 182 provides that a National Board may establish a performance and professional standard panel, if the Board reasonably believes that the way a registered health practitioner practises the health profession is or may be unsatisfactory, or the registered health practitioner's professional conduct is or may be unsatisfactory.

21 Division 12 of Pt 8 provides for matters to be referred to responsible tribunals. In Victoria, VCAT is the responsible tribunal for the purposes of the National Law.[8] Section 193 provides:

Matters to be referred to responsible tribunal

(1) A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if -

(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason -

(i) the practitioner has behaved in a way that constitutes professional misconduct; or

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

(b) for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.

(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or

(ii) if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located; and

(b) give written notice of the referral to the registered health practitioner or student to whom the matter relates.

22 The terms 'professional misconduct' and 'unprofessional conduct' are defined in s 5, as follows:

professional misconduct, of a registered health practitioner, includes -

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and

(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers ...

The definition of 'unprofessional conduct' includes various types of conduct, as set out in the definition.

23 After hearing a matter referred to it under s 193, the responsible tribunal may make one or more of the decisions set out in s 196(1) and, unless it decides that the practitioner has no case to answer, it may decide to do one or more of the things set out in s 196(2). Section 196 provides, in full:

Decision by responsible tribunal about registered health practitioner

(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide -

(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or

(b) one or more of the following -

(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;

(iii) the practitioner has behaved in a way that constitutes professional misconduct;

(iv) the practitioner has an impairment;

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

(2) If a responsible tribunal makes a decision referred to in subsection (1)(b), the tribunal may decide to do one or more of the following -

(a) caution or reprimand the practitioner;

(b) impose a condition on the practitioner's registration, including, for example -

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons,

(c) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

(e) cancel the practitioner's registration.

(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.

(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to -

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person, either permanently or for a stated period, from -

(i) providing any health service or a specified health service; or

(ii) using any title or a specified title.

24 Division 13 of Pt 8 deals with appeals. Section 199 identifies a range of 'appellable decisions' that may be the subject of an appeal to the responsible tribunal by a person who is the subject of the decision. Again, the responsible tribunal in Victoria is VCAT. Relevantly here, s 199(1)(h) provides for an appeal against a decision by a National Board to suspend the person's registration. After hearing an appeal, the responsible tribunal may confirm the appellable decision, amend it, or substitute another decision for it.[9] In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.[10]

25 Between 14 December 2020 and 26 October 2021, AHPRA received eight notifications in relation to Dr Hobart. These notifications raised concerns that, without a proper basis, Dr Hobart may have advised patients not to get vaccinated against COVID-19 and issued vaccination exemptions to patients. There was also a concern that Dr Hobart may have been involved in publishing incorrect or misleading information about COVID-19 and the public health response to it. Between 11 June 2021 and 4 November 2021, the Board decided to commence an investigation in relation to each of these notifications, under s 160 of the National Law.

26 On 10 November 2021, AHPRA notified solicitors acting for Dr Hobart that the Board proposed to take immediate action by suspending Dr Hobart's registration, under s 156 of the National Law. The letter outlined the reasons why the Board proposed to take that immediate action, and the information it had considered. Dr Hobart was invited to provide a submission to the Board, which he did through his solicitors on 17 November 2021.

27 The Immediate Action Committee of the Board met on 18 November 2021, by Zoom. It was not in dispute that this committee was exercising powers delegated to it by the Board.[11] For simplicity, I will refer to the Committee as 'the Board', which is the term used in the record of the immediate action decision made on 18 November 2021. The record of the immediate action decision states the following, in relation to Dr Hobart:

Issues

1. Whether, based on the information available, the Board reasonably believes that because of his conduct (issuing fraudulent vaccine exemption certificates and/or anti-vaccination advice), Dr Hobart poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety; and/or whether taking immediate action in respect of Dr Hobart's registration is otherwise in the public interest.

Decision - part 1

On 10 November 2021, the Board:

1. formed a reasonable belief that because of his conduct Dr Hobart poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety, and

2. formed a reasonable belief that it is otherwise in the public interest to take immediate action in respect of Dr Hobart's registration.

3. proposed to take immediate action under section 156(1)(a) and 156(1)(e) of the Health Practitioner Regulation National Law (as it applies in each state and territory) (National Law) by suspending Dr Hobart's registration.

4. invited Dr Hobart to make a submission about the proposed immediate action.

5. agreed to reconvene 11 November 2021 (13.00pm AEDT) to consider Dr Hobart's submissions.

6. authorised the Chair of the Board to provide any further necessary instructions directly to Ahpra including in the event that Dr Hobart seeks further time to make submissions before the Board again.

7. noted that on 11 June 2021, the Board decided to commence an investigation under section 160 of the National Law in relation to Notification 00462138 and this process is ongoing.

8. noted that on 16 August 2021, the Board decided to commence an investigation under section 160 of the National Law in relation to Notification 00474973.

9. noted that on 16 September 2021, the Board delegate decided to commence an investigation under section 160 of the National Law in relation to Notification 00476214 and this process is ongoing.

10. noted that on 11 October 2021, the Board delegate decided to commence an investigation under section 160 of the National Law in relation to Notifications 00480307 and 00480126 and this process is ongoing.

11. noted that on 14 October 2021, the Board delegate decided to commence an investigation under section 160 of the National Law in relation to Notification 00481287 and this process is ongoing.

12. noted that on 4 November 2021, the Board decided to commence an investigation under section 160 of the National Law in relation to Notifications 00482477 and 00483049 and this process is ongoing.

Decision

On 18 November 2021, the Board:

1. noted that under section 157(3) of the Health Practitioner Regulation National Law (as it applies in each state and territory) (National Law), the Board must have regard to any submissions made by Dr Hobart in deciding whether to take immediate action in relation to that practitioner.

2. noted that on 17 November 2021, Dr Hobart, via his legal representative provided a written submission in response to the Board's proposed action. Attachments 20 and 21

3. formed a reasonable belief that because of his conduct Dr Hobart poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety, and

4. formed a reasonable belief that it is otherwise in the public interest to take immediate action in respect of Dr Hobart's registration.

5. decided to take immediate action under section 156(1)(a) and 156(1)(e) the National Law by suspending Dr Hobart's registration.

6. noted that on 11 June 2021, the Board decided to commence an investigation under section 160 of the National Law in relation to Notification 00462138 and this process is ongoing.

7. noted that on 16 August 2021, the Board decided to commence an investigation under section 160 of the National Law in relation to Notification 00474973.

8. noted that on 16 September 2021, the Board delegate decided to commence an investigation under section 160 of the National Law in relation to Notification 00476214 and this process is ongoing.

9. noted that on 11 October 2021, the Board delegate decided to commence an investigation under section 160 of the National Law in relation to Notifications 00480307 and 00480126 and this process is ongoing.

10. noted that on 14 October 2021, the Board delegate decided to commence an investigation under section 160 of the National Law in relation to Notification 00481287 and this process is ongoing.

11. noted that on 4 November 2021, the Board decided to commence an investigation under section 160 of the National Law in relation to Notifications 00482477 and 00483049 and this process is ongoing.

Reasons

Serious Risk

1. Dr Hobart is a listed Director of the Australian Medical Network LTD which is associated with the publication of the Covid Medical Network (CMN) website and Facebook page. The CMN operates a website that disseminates information that may contravene the position of local, state and federal government and health authorities; and evidence-based guidelines which are in place to protect public health and safety.

2. In addition, numerous notifications have been received alleging that Dr Hobart has been and/or is issuing COVID-19 vaccine exemption medical certificates to individuals that do not meet the requisite criteria and/or is promoting unjustifiable, misleading and/or non-factual claims in line with his medical and/or personal opinion(s) in consultation with patients regarding COVID-19 and/or COVID-19 vaccinations. Dr Hobart submits that, any temporary vaccine exemptions issued were to patients with acute major medical illnesses which conform to the criteria on the IMO11 form, however, to date, has failed to provide the relevant clinical records of the identified patients to support any diagnosis, citing that, he had returned each patient's medical files at their requests, and that the patients have all made requests to be treated by another general practitioner.

3. The Therapeutic Goods Administration (TGA) is responsible for assessing all COVID-19 vaccines before they can be used in Australia, and only register a vaccine (following a vaccine approval process using the provisional approval pathway which is the pathway being used by pharmaceutical companies to date), if the benefits are much greater than its risks. Following a thorough and independent review, the TGA, decided that the Moderna, Janssen-Cilag, AstraZeneca and Pfizer vaccines meet the high safety, efficacy and quality standards required for use in Australia and has been provisionally registered. The Australian Technical Advisory Group on Immunisation (ATAGI) notes that COVID-19 vaccines have been demonstrated to be safe and effective, and as such are recommended for all Australians from 12 years of age. There are very few situations where a vaccine is contraindicated and as such, medical exemption is expected to be rarely required.

4. Dr Hobart submits that, the publishing of information on CMN is not misleading or deceptive in its nature, is not defamatory, and is in accordance with evidence-based guidelines. In particular, that the website is full of evidence-based medical guidelines and medical articles. Dr Hobart maintains his involvement with the CMN is consistent with his obligations under the Code of Conduct, Guideline on Social Media and the National Board's position on COVID-19 vaccinations. Further, that he played no role in the administration of the CMN website and considers his actions consistent with his obligations as a registered medical practitioner. Notwithstanding, Dr Hobart remains accountable for publications associated with himself, and, as a director, any material published on the CMN website and/or with the company letterhead. Information published via CMN include (but is not limited to) video(s) and/or interviews with Dr Hobart reporting on serious concerns for mandatory vaccinations and the lack of transparency on the risks and open letters published by Dr Hobart and the CMN directors. In particular, the Board had regard to the published and distributed open letter dated 2 August 2021 addressed to 'Doctor[s], Health Professionals and Fellow Australians' and included statements bemoaning restrictions on personal liberty and governmental control of individuals through fear and coercion, and further raises concerns about the safety and efficacy of COVID-19 vaccinations.

Public Interest

1. It remains in the public interest to take immediate action in relation to Dr Hobart's registration.

2. Dr Hobart's conduct reflects a complete disregard to, and/or undermines the Board's position on the COVID-19 vaccination, and further contravenes the position of local, state and federal government and health authorities; and evidence-based guidelines which are in place to protect public health and safety. As such it is considered that Dr Hobart has failed to consider the public's safety and has behaved in a manner wholly inconsistent with expectations of a medical practitioner, and in contravention of relevant legislation and guidelines.

Public Confidence

1. Dr Hobart is a registered medical practitioner. The Board has implemented a Code of Conduct, various standards, polices and guidelines to ensure the public can have confidence that registered health practitioners conduct themselves to the highest legal, professional and ethical standards. The alleged conduct brings into question Dr Hobart's ability to behave in accordance with the standards of the profession and broader health system, including principles that are detailed in the Code of Conduct.

2. Additionally, the Code directly requires medical practitioners to protect and promote the health of individuals and the community and to advocate for the protection and advancement of the health and wellbeing of individual patients, communities and the population generally. Dr Hobart's opinion, commentary and actions may contravene the position that local, state and federal government and health authorities have provided in a global pandemic. In these circumstances, the Board is concerned that Dr Hobart relies on his position as a medical practitioner to lend credibility to his medical and/or personal opinions and may mislead persons to disregard public health directions and/or management of their health and wellbeing.

3. As such, it is considered that Dr Hobart has engaged in conduct that may erode the intrinsic trust that the public has in medical practitioners to provide safe and effective care to patients. Numerous notifications have been received in relation to Dr Hobart's involvement with the CMN and issuing of COVID-19 vaccination exemption medical certificates which is demonstrative of the seriousness of the conduct and, that such conduct is contrary to community expectations of medical practitioners. The conduct is in the public knowledge and is highly likely to adversely impact public opinion of the medical profession and its regulation and is likely to have a material or lasting negative effect on the profession's reputation. A perception of a failure to act, on the part of the Board, when on notice of serious conduct erodes the public's confidence in:

   1. the standards to which the profession is held; and
   2. the protective function of the Board and/or regulator.

4. The reputation of the profession and the standards to which the profession is held must be maintained. In order to retain its confidence, the public must see them being maintained. It is noted that a number of the notifiers, who include members of the public, have stated that Dr Hobart's actions require regulatory intervention.

Suitability

1. The seriousness of the conduct (if proved) is such that it calls into question Dr Hobart's suitability to hold registration as a medical practitioner -
2. What has been alleged suggests:
   1. a failure to make ethical decisions;
   2. a failure to comply with public health orders; and
   3. a failure to act in accordance with legal, professional and ethical standards.
3. The objectives of the national registration and accreditation scheme include providing for the protection of the public by ensuring that (amongst other things) only registered health practitioners who are able to practise in an ethical manner are registered.
   1. When assessing a practitioner's application for registration, the Board must have regard to their suitability and whether they are otherwise a fit and proper person to hold registration;
   2. If, while holding registration, a practitioner is found to have engaged in conduct, whether occurring in connection with the practitioner of the profession or not, that is inconsistent with being a fit and proper person to hold registration in the profession;
   3. the Board must refer the practitioner to the Tribunal for appropriate findings and determinations that may, by way of example, result in suspension or cancellation of the practitioner's registration;
   4. The nature and character of the conduct are such that:

      1. if pending at the time Dr Hobart first made an application for registration, the Board would have had to consider his suitability to hold it;

      2. if proved, the Board will likely be compelled to refer Dr Hobart to the responsible tribunal for appropriate findings and determinations;

      3. it is in the public interest to take immediate action now.

Competing Public Interests

1. Consideration may be had to competing public interests which may override the public interest to take immediate action, including that immediate action is only taken when it is necessary and proportionate to do so. However, in circumstances where the seriousness of such conduct may legitimately compromise public confidence in the health profession, it may be considered that any competing public interests do not override the above identified public interest that requires protection by way of immediate action.
2. The taking of immediate action to preserve the public's confidence in the trustworthiness, ethics and morals of medical practitioners is considered a primary public interest. This is particularly so given:

   1. the matters set out above; and

   2. that a decision not to take immediate action would be contrary to community expectations.

Form of Action

1. To date, Dr Hobart has not provided sufficient information to displace the Board's concerns. Having regard to the above and Dr Hobart's submissions, noting the Board's paramount role of public protection, immediate action by way of suspending Dr Hobart's registration remains the regulatory force necessary to mitigate the identified serious risks in circumstances where Dr Hobart has, despite being on notice of the Board and/or other health authorities concerns, continued to behave contrary to and/or continues to undermine the position of the Board and local, state and federal government and health authorities; and/or evidence-based guidelines which are in place to protect public health and safety, and further maintains his position in denying that he has failed to comply with public health orders or failed to act in accordance with legal, professional and/or ethical standards. Whilst the Board acknowledged Dr Hobart's proposed alternate form of action in lieu of suspension, in circumstances where objective information available indicates Dr Hobart has failed to comply with directions from public health authorities and the Board's requests for information and/or continued to practise in contravention of the Board's guidelines despite being on notice of the Board's concerns, it is not considered that any lesser form of action is sufficient to address the serious risk identified.
2. Further, it remains in the public interest to take immediate action now in the form of suspending Dr Hobart's registration, rather than awaiting the outcome of substantive regulatory processes. The Board considered suspension is the appropriate regulatory force in this instance because:
   1. Dr Hobart is alleged to have behaved in a manner that demonstrates a general absence of qualities essential for a medical practitioner, including the ethical exercise of judgment and integrity, and respect for the law and public health orders; and
   2. this form of immediate action is proportionate to the alleged conduct, and lesser forms of regulatory action would be insufficient to protect the public interest and address community expectations.

28 All of this was conveyed to Dr Hobart, in a letter to his solicitors dated 18 November 2021. The letter also listed the information that had been considered by the Board, and provided the following further information:

Further action - investigation

As you are aware, the Board has also decided to refer the matters for investigation under section 160(1) of the National Law. You will receive further correspondence about these decisions.

This further action is separate to the decision to take immediate action.

...

Appeal Rights

A decision to suspend Dr Hobart's registration is an appellable decision.

If Dr Hobart wishes to appeal, he must apply to the Victorian Civil and Administrative Tribunal no more than 28 days after being given notice of the decision.

The contact details of the Tribunal are:

Victorian Civil and Administrative Tribunal

55 King Street, Melbourne VIC 3000

Telephone: 1300 018 228

Website: https://www.vcat.vic.gov.au/

29 Dr Hobart did not appeal to VCAT against the Board's decision to suspend his registration. Instead, on 21 December 2021, he filed an originating motion for judicial review in this Court. I turn now to the arguments raised by Dr Hobart in this proceeding.

30 Dr Hobart contended that the Board's power to take immediate action, under s 156 of the National Law, did not include a power to make a finding of professional misconduct. He submitted that the National Law provides for an integrated system of administrative bodies or entities, including National Boards, Panels,[12] and VCAT, whose jurisdiction and powers are limited by the seriousness of the conduct alleged against a practitioner. He said that VCAT sits at the apex of this hierarchy - it can overturn any decision made by a National Board or a Panel, and can hear matters of a serious nature referred to it by those bodies. A Panel can hear matters that are intermediate in seriousness, and a National Board, being at the bottom of the hierarchy, can hear and decide matters that are the least serious in nature.

31 Dr Hobart referred me to various provisions of the National Law, including s 178, which sets out the powers of a National Board to take action.[13] He pointed out that the actions that a National Board can take under s 178 - if it believes that a practitioner's professional conduct is or may be unsatisfactory - do not include suspending the practitioner's registration. Only VCAT has that power, after it has heard and determined a matter referred to it under s 193 of the National Law. Dr Hobart correctly identified that VCAT deals with a referral under s 193 in its original jurisdiction.[14]

32 In Dr Hobart's submission, the Board's belief that 'because of his conduct Dr Hobart poses a serious risk to persons, and it is necessary to take immediate action to protect public health or safety' amounted to a finding that he had engaged in professional misconduct. He said that misconduct, in relation to a health professional, means conduct that is substantially below the standards of their peers, and that there was no doubt that an allegation of conduct that amounts to a serious risk to public health and safety is an allegation of professional misconduct at the highest level. Dr Hobart pointed out that only VCAT has power to make a finding of professional misconduct and to suspend a practitioner's registration as a result. He argued that the Board's power to take immediate action, under s 156 of the National Law, could not be used to suspend a practitioner's registration indefinitely, as he said had occurred in his case.

33 The Board had power to take immediate action in relation to Dr Hobart if it reasonably believed the matters set out in any one or more of paragraphs (a) to (e) of s 156(1) of the National Law. The record of the immediate action decision made on 18 November 2021 notes that the Board reasonably believed that, because of Dr Hobart's conduct, he posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety. Under s 156(1)(a) of the National Law, that was a basis on which the Board could take immediate action in relation to Dr Hobart. The record of the immediate action decision also states that the Board had a reasonable belief, under s 156(1)(e), that suspension of his registration was otherwise in the public interest. That was another, independent, basis on which the Board could take the immediate action that it did.

34 The record of the immediate action decision sets out at some length the matters that gave rise to the Board's beliefs, and the information considered by the Board. There is no question in my mind that the Board had an 'inclination of the mind towards assenting to, rather than rejecting' both grounds for taking immediate action.[15] It is also plain that there were reasonable grounds for the Board's beliefs, in that there was material before the Board sufficient to induce that state of mind in a reasonable person.[16]

35 I do not accept that the reasonable beliefs held by the Board on 18 November 2021 amounted to findings that Dr Hobart had engaged in professional misconduct. The record of the immediate action decision contains no such finding. While some of the Board's reasons are expressed with firmness, it was clearly conscious of the interim nature of the suspension. In setting out the factual background, the Board referred to the ongoing nature of the investigations of the various notifications about Dr Hobart. At paragraph 7 of the record of the immediate action decision, it explained why it considered that it could not await the outcome of those investigations, and that it was 'necessary to take interim action now to protect public health or safety'. At paragraph 16.d.ii, the Board said that the nature and character of the conduct was such that 'if proved, the Board will likely be compelled to refer Dr Hobart to the responsible tribunal for appropriate findings and determinations'. At paragraph 20, the Board concluded that it was appropriate to take immediate action in the form of suspending Dr Hobart's registration, because of the alleged conduct of Dr Hobart.

36 Further, the immediate action that the Board could take under s 156 of the National Law included suspending Dr Hobart's registration. So much is clear from the definition of 'immediate action' in s 155(a), which includes the suspension, or imposition of a condition on, the health practitioner's registration.[17]

37 The Board's power to suspend a practitioner's registration by way of immediate action under s 156 is not to be read down by reference to VCAT's power of suspension under s 196(2)(d) of the National Law. The two provisions deal with different stages of the process that is established by Pt 8 of the National Law for dealing with the health, conduct and performance of registered health practitioners. Section 156 deals with 'immediate action', which may be taken before or during an investigation, on one or more of the grounds set out in s 156(1). Section 196(2) deals with action that may be taken at the end of the process, when VCAT has heard and decided matters referred to it after a completed investigation, on one or more of the grounds set out in s 196(1).

38 I am reinforced in my conclusion that the Board had power to suspend Dr Hobart's registration by way of immediate action taken under s 156(1) by two other provisions of the National Law. The first is s 159(2)(b), which specifically contemplates that immediate action may involve the suspension of a practitioner's registration, and provides how long a suspension continues to have effect.[18] The second is s 199(1)(h), which includes 'a decision by a National Board to suspend the person's registration' in the list of appellable decisions that may be the subject of an appeal to the responsible tribunal.

39 The Board's decision to suspend Dr Hobart's registration was within its power to take immediate action under s 156 of the National Law.

Should the Board have referred the matter to VCAT?

40 Dr Hobart further contended that the suspension of his registration had continued in effect for so long that it could no longer be regarded as an interim measure for the protection of public health and safety. He argued that it had become an indefinite suspension and that the matters on which it was based should be referred immediately to VCAT for hearing and decision.

41 This argument was based in large part on observations made by the Court of Appeal in Kozanoglu v Pharmacy Board of Australia,[19] about the nature of immediate action under s 156 of the National Law. In that case, commercial quantities of a drug used in the manufacture of ecstasy and three unlicensed firearms were seized in a raid on the pharmacy operated by Mr Kozanoglu. The Pharmacy Board took immediate action against him under s 156 of the National Law, by imposing conditions on his registration including a condition that he not work as a pharmacist. Mr Kozanoglu appealed that decision to VCAT, which also decided to take immediate action, but in a form that allowed him to practise under supervision. Mr Kozanoglu's further appeal from VCAT's orders was dismissed by the Court of Appeal. At the end of its judgment, the Court of Appeal made the following observations about the fact that the Pharmacy Board delayed taking further action until completion of the police investigation:[20]

The [Immediate Action Committee (IAC)] will generally be required to make quick decisions on the basis of limited information. When full information is later obtained, a belief which, on the limited information was reasonably based, may be shown to have been in error. Accordingly, the IAC and the board must always be conscious of the possibility of error. The consequences of that error may be serious. Two safeguards against such consequences should therefore be kept to the forefront. The first is 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.

It is arguable that neither of the two precepts mentioned above were fully observed in this case. Indeed, the real problem here lies in the fact that the board did not, immediately after the IAC finding, refer the appellant's matter to a panel, or to VCAT as the responsible tribunal. Instead, it elected to await the completion of a police investigation. That investigation could well have been extremely protracted. In our opinion, there was no justification for the board to have delayed referring this matter. Its failure to act in a timely fashion was unfairly prejudicial to the appellant and meant that he had little choice but to appeal against the immediate action decision. That in turn meant that he had to argue his case in a somewhat constrained manner, and did not confront the real issues of substance. It should be clearly understood that the entire scheme, under the National Law, contemplates that once it has been determined 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 IAC decision and a complete hearing on the merits.

42 Dr Hobart also relied on a recent decision of the New South Wales Court of Appeal, Pridgeon v Medical Council of New South Wales,[21] which concerned a decision of the New South Wales Civil and Administrative Tribunal to suspend Dr Pridgeon's registration under s 150 of the Health Practitioner Regulation National Law (NSW) of 2009 (NSW Law). In allowing Dr Pridgeon's appeal, the Court of Appeal observed that, while the context of s 150 suggests that it should only be invoked as an emergency power where the circumstances are urgent, there was no urgency in the matter before the Tribunal.[22]

43 Dr Hobart said that the suspension of his registration had had a devastating effect on his business, which was established by his parents in 1956 and had been maintained by him since 1985. He pointed out during his oral submissions at trial that the suspension had been in place for eight months, and counting, and could no longer be regarded as interim or temporary. He said that his business had been effectively destroyed by the failure of the Board to refer the matters immediately to VCAT. He urged me to order the Board to refer those matters to VCAT without further delay.

44 The power to take immediate action under s 156 of the National Law is a power to take measures to protect public health and safety, pending the completion of an investigation and the hearing and determination of the matters alleged against a practitioner. In the case of a registered medical practitioner, the power is reposed in the Board and not, in the first instance, in the responsible tribunal.[23]

45 The immediate action power has been characterised as interim, in decisions including Kozanoglu, Bernadt v Medical Board of Australia,[24] Hocking v Medical Board of Australia,[25] Nitschke v Medical Board of Australia,[26] and Medical Board of Australia v Leow.[27] However, as McLure P observed in Bernadt,[28] some of the matters within the scope of 'immediate action' are not interim in nature and leave little room for further action - such as accepting the surrender of a health practitioner's registration.[29]

46 Immediately after deciding to take immediate action in relation to a registered medical practitioner, the Board must take the further action under Pt 8 of the National Law that it considers to be appropriate.[30] That further action may be an investigation, under Div 8, or a health or performance assessment under Div 9, or the Board may decide to take action under Div 10. More serious matters may be referred to a Panel, under Div 11, and the most serious matters may be referred to the responsible tribunal, under Div 12. The scheme of Pt 8 of the National Law does not contemplate that, in every case, the matters that prompted a National Board to take immediate action against a practitioner must be referred directly and without delay to the responsible tribunal. There are a range of other actions that a National Board may take under Pt 8 before, or instead of, a referral to the responsible tribunal under s 193.

47 The various steps that may be taken under Pt 8 in response to a notification about a registered health practitioner may, for entirely valid reasons, take time. Perhaps for this reason, s 159 does not impose any limit on the period during which immediate action may continue in effect.

48 It would be problematic for a National Board to take immediate action under s 156 and then do nothing more. As Murphy JA said in Bernadt, 'the legislature did not envisage that course (of doing nothing) as routinely or typically being open after taking immediate action'.[31] That is what occurred in Kozanoglu, and what prompted the observations made by the Court of Appeal set out at [41] above. In this case, if the Board had suspended Dr Hobart's registration under s 156, without taking any other action in relation to the matters that prompted its decision, he might have had a basis[32]or relief.32

49 However, that is not what has occurred - and is still occurring - in this case.[33] At the time the Board decided to suspend Dr Hobart's registration, it noted that eight notifications in relation to him were the subject of ongoing investigations. The Board advised Dr Hobart that the further action it was taking was the investigation of the matters that were the basis for the immediate action. It has provided him with regular updates about the investigations. By July 2022, six of the eight notifications that were the basis for the immediate action were still under investigation, and there were several other notifications concerning Dr Hobart also under investigation.

50 While I have sympathy for Dr Hobart's wish for the process to move more quickly, I accept that the investigation of all of those matters is 'a time consuming and resource demanding exercise' involving considerable work for AHPRA staff.[34] Dr Hobart has declined AHPRA's requests to participate in an interview or provide a written response to the concerns raised in the notifications, which might have moved the investigation along. As at 20 July 2022, AHPRA's National Manager, COVID Taskforce, Notifications estimated that the investigation will be concluded by the end of 2022, at which point AHPRA will provide a report to the Board pursuant to s 166 of the National Law.[35] After considering that report, the Board will have to decide what, if any, action to take in relation to the matters.[36] There is no basis for this Court to make an order pre-empting that decision of the Board - which may or may not involve a referral to VCAT.

51 For completeness, I note that Pridgeon concerned the operation of s 150 of the NSW Law, which gives the Medical Council of New South Wales power to suspend a practitioner's registration, or impose conditions, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons, or if it is satisfied the action is otherwise in the public interest. The legislative context in which s 150 of the NSW Law appears is materially different from Pt 8, Div 7 of the National Law. It is not obvious to me that the observations made in Pridgeon, to the effect that s 150 is an emergency power to be exercised in situations of urgency, are applicable to the immediate action powers in the National Law. In any event, those observations do not support Dr Hobart's claim for an order compelling the Board to refer the notifications about him directly to VCAT.

52 Dr Hobart also sought an order for the return of all patient records in the possession of the Board, or any other agency or any other person. The basis for this claim was not clear. The Board denied that it had any of Dr Hobart's patient records, and there was no evidence to the contrary. Indeed, requests made by the Board to Dr Hobart for production of relevant patient records were refused by his solicitors, initially because the patients had not consented to their release, and later on the basis that the records had been returned to the patients.

53 An authorised officer of Victoria's Department of Health attended Dr Hobart's practice on 29 October 2021 and took photographs of the pages in his appointment diary for the period between 25 October and 1 November 2021. Those images were later provided to AHPRA, and copies of them (with patient names redacted) were exhibited to an affidavit filed by the Board in this proceeding.[37] There was no suggestion that the authorised officer seized the original diary or anything resembling a patient record during this attendance.

54 I cannot order the Board to return documents that it does not have. Nor can I make an order against a person who is not a party to the proceeding. If Dr Hobart believes that the Department of Health has documents that belong to him, he should take that up directly with the Department.

55 The proceeding must be dismissed. I will hear the parties on the question of costs.

[1] Health Practitioner Regulation National Law Act 2009 (Qld), Schedule, in force as a law of Victoria pursuant to s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).

[2] National Law, s 5 (definition of 'registered health practitioner').

[5] National Law, s 161(3)(a). The National Board need not give progress reports under s 161(3) if it reasonably believes that giving the notice may seriously prejudice the investigation, place at risk a person's health or safety, or place a person at risk of harassment or intimidation: s 161(4).

[8] Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), s 6.

[11] Section 37(1)(a) of the National Law enables a National Board to delegate any of its functions, other than the power of delegation, to a committee.

[12] Being health panels and performance and professional standards panels established under Pt 8, Div 11 of the National Law: see [20] above.

[13] See [18] above.

[14] Referring to Herald and Weekly Times Pty Ltd v State of Victoria [2006] VSCA 146; (2006) 25 VAR 124, [12].

[15] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 116.

[17] See [9] above.

[18] See [13] above.

[19] [2012] VSCA 295; (2012) 36 VR 656 (Kozanoglu).

[20] Kozanoglu, [126]-[127] (citations omitted).

[21] [2022] NSWCA 60 (Pridgeon). He also referred to Ghosh v Medical Council of New South Wales [2020] NSWCA 122; (2020) 102 NSWLR 303, [9] (Brereton JA), quoted in Pridgeon at [27].

[23] A decision by a National Board to take some forms of immediate action are 'appellable decisions', which may be the subject of an appeal to the responsible tribunal under s 199 of the National Law. See in particular ss 199(1)(e), (f), (g), (h).

[24] [2013] WASCA 259, [151] (Newnes JA) (Bernadt).

[25] [2014] ACTSC 48; (2014) 287 FLR 54, [171], [193].

[26] [2015] NTSC 39; (2015) 36 NTLR 55, [5]-[6], [24].

[27] [2019] VSC 532, [78].

[28] Bernadt, [47]-[49] (McLure P).

[32] Noting that in Bernadt, the Western Australian Court of Appeal held that a failure to specify the further action proposed to be taken, in the written notice given under s 158(2), did not invalidate the decision to take immediate action: see [81] (McLure P), [150]-[155] (Newnes JA), [296]-[299] (Murphy JA).

[33] At the conclusion of the hearing on 12 July 2022, I directed the Board to file and serve an affidavit detailing the progress of the investigation of the notifications in relation to which it decided to take immediate action against Dr Hobart. It did so, in the form of an affidavit of Jane Eldridge, AHPRA's National Manager, COVID Taskforce, Notifications, affirmed on 20 July 2022.

[34] Affidavit of Jane Eldridge dated 20 July 2022, [21].

[35] Affidavit of Jane Eldridge dated 20 July 2022, [24].

[37] Affidavit of Emily Katherine Hamilton dated 11 May 2022, Exhibit EKH-2.