Plaintiff v Defendant

1 On 4 November 2021, the Medical Board of Australia ('the Board') took 'immediate action' against Dr Peers pursuant to s 156 of the Health Practitioner Regulation National Law ('the National Law').[1] The action taken was to suspend her registration and had the effect of precluding her from engaging in her general practice. That action was taken because the Board formed the view that Dr Peers posed a serious risk to persons and that it was necessary to take immediate action to protect public health or safety, and that it was otherwise in the public interest to take the action to maintain public confidence in the medical profession. Before taking that action, the Board sought from, and was provided with, submissions from Dr Peers. The Board later commenced an investigation under s 160 of the National Law.

2 On 2 December 2021, Dr Peers commenced a proceeding in the Victorian Civil and Administrative Tribunal ('VCAT') to have the Board's 4 November 2021 decision reviewed.[2] Had she pursued that application, VCAT would have conducted a review on the merits of the Board's decision to suspend her registration. Dr Peers, however, withdrew her application to VCAT on 14 July 2022 before it was determined.

3 A considerable amount of time passed, some of which was taken up by the VCAT proceeding described above.[3] On 12 January 2024, Dr Peers commenced this proceeding in which she seeks judicial review of the Board's decision made on 4 November 2021 to take immediate action against her.

4 On 19 September 2024, the Board decided to refer Dr Peers to VCAT under s 193(1)(a) of the National Law on the basis that, it asserted, it reasonably believed that Dr Peers 'has behaved in a way that constitutes professional misconduct.' When that matter comes on for hearing, VCAT will not be reviewing the Board's decision to suspend her registration, but will instead be exercising original jurisdiction and determining whether Dr Peers has in fact breached the obligations on her as a medical practitioner.

5 The immediate action taken under s 156 of the National Law, being the suspension, has now been in operation for almost three years and, unless some change is made, is likely to remain in operation at least until the VCAT proceeding is heard and determined. I accept that it has had a very significant impact on Dr Peers personally (as well, presumably, as on some of her patients). Her central point arises from the length of time for which she has been subject to the immediate action. She contends that:

(a) having made a decision to take the 'immediate action', the Board was required immediately to refer the matter to VCAT, which it did not do; and, independently and also as a consequence

(b) she has been subjected to an 'indefinite suspension' that is unlawful on a proper construction of the legislation, particularly when read with binding authorities that have pronounced safeguards inherent in that legislation.

6 Dr Peers is not here seeking, or able to seek, to have the Board's decision to take immediate action against her, or the nature of that action, reviewed on their merits.[4] Dr Peers instead seeks a declaration that s 156 of the National Law is:

invalid in its practical operation or substance when the Board exercised the power indefinitely, that is, for years and is contrary to the very nature of the power where only interim and temporary protection for the public is envisaged.

There does not exist the power to indefinitely suspend a health practitioner under the Health Practitioner Regulation National Law Act 2009 (Victoria).

8 Consistently with this relief, she identifies in her originating motion as a ground relied on that 'it is ultra vires the Board to indefinitely suspend a practitioner'.

9 Dr Peers also seeks, as a consequence of a finding that the Board has acted unlawfully, an order that the Board 'immediately remove the suspension' made on 4 November 2021.

10 Notwithstanding her decision to commence the proceeding in this Court, Dr Peers challenged this Court's jurisdiction to hear her proceeding. I ruled at the hearing that I did have jurisdiction. After setting out my reasons for that ruling, I will set out aspects of the regulatory regime, then consider Dr Peers' submission that the Board was required, after deciding to suspend her registration, to refer her matter to VCAT immediately, and then her (related) submission that the exercise of power under s 156 of the National Law was unlawful because it resulted in an effective indefinite suspension.

11 Dr Peers submitted that there is an irreconcilable conflict between two decisions of the Court of Appeal of the Supreme Court of Victoria: Kozanoglu v Pharmacy Board of Australia[5] (Kozanoglu) and Hobart v Medical Board of Australia[6] (Hobart). She contended that it is only the High Court of Australia that can determine which of these two decisions is correct, and that therefore this Court has no jurisdiction other than to refer to the High Court a question as to whether Kozanoglu or Hobart was correct. The Board submitted there was no conflict, on the basis that Hobart was analogous to Dr Peer's matter and Kozanoglu ought to be distinguished on its facts.

12 Dr Peers is correct that a single judge of this Court may not overturn a decision of the Court of Appeal. That may only be done by the High Court or the Court of Appeal itself. But that does not mean that a trial judge has no jurisdiction. Tensions, or possible conflicts, between binding authorities are not uncommon. Trial judges must do their best in the circumstances. Oftentimes, what appear to be tensions turn out not to be, or one case or the other is distinguishable. If not, the conflict may be identified, and then the trial judge should follow the decision that he or she thinks more correct. Then, if need be, applications for leave to appeal may be sought and in that way the decision may move up the judicial hierarchy. I consider that I have the jurisdiction to hear, and should hear, Dr Peers' proceeding.

13 The legislative scheme relevantly provides that:

(a) The objective of the registration scheme is to 'provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered';[7]

(b) The 'main guiding principle' of the registration scheme is that the 'protection of the public' and 'public confidence in the safety of services provided by registered health practitioners' are 'paramount'.[8] Another guiding principle is that the registration scheme operate in an 'efficient, effective and fair way';[9]

(c) The Board, being one of a number of National Boards,[10] has functions including overseeing the 'receipt, assessment and investigation of notifications about persons' who are registered as health practitioners,[11] and referring 'matters about health practitioners who are or were registered ... to responsible tribunals';[12]

(d) 'Notifications' may be given to the National Agency (being the Australian Health Practitioner Regulation Agency, also known as Ahpra)[13] about conduct of a registered health practitioner,[14] after which Ahpra must 'as soon as practicable' refer the notification to the relevant Board;[15]

(e) The Board may then take immediate action, including the suspension of a health practitioner's registration,[16] if the Board 'reasonably believes' that the practitioner 'poses a serious risk to persons' and it is 'necessary to take immediate action to protect public health or safety';[17]

(f) Prior to taking any immediate action, the Board must invite the practitioner to make a submission and have regard to any submission made by that practitioner;[18]

(g) Having decided to take immediate action, the Board must, as well as giving written notice of that decision, then 'immediately' 'take the further action ... the Board considers appropriate including, for example, investigating the practitioner'.[19] The notice must include advice that the practitioner may appeal the decision to VCAT.[20] As noted above, that right of appeal is an appeal on the merits, in the sense that VCAT may confirm the decision, amend the decision, or substitute another decision and in substituting a decision VCAT has the same powers as the Board;[21]

(h) The Board must then '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.'[22] The investigator must give a report to the Board 'as soon as practicable after completing an investigation'.[23] It is noteworthy that these provisions emphasise the need to avoid delays, but also anticipates that different investigations will take different periods of time. The report must include the investigator's findings and recommendations about any action to be taken;[24] and

(i) On receipt of the investigator's report, the Board 'must decide' to take no further action, or to take the action the Board considers 'necessary or appropriate under another Division', or to refer to matter to another entity.[25]

14 As noted above, on 20 September 2024 the Board advised Dr Peers that it had decided on 19 September 2024 to refer the matter to VCAT. That referral was made under s 193(1)(a) of the National Law. Section 193(1)(a) of the National Law provides that the Board 'must refer a matter about a registered health practitioner' if the Board 'reasonably believes ... the practitioner has behaved in a way that constitutes professional misconduct.'[26] VCAT will, in due course, hear the matter in its original jurisdiction rather than in its review jurisdiction.

15 Section 159 of the National Law is important when it comes to ascertaining whether a decision to take immediate action is unlawful if it results in a prolonged or 'indefinite' period of suspension. It provides as follows:

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

(a) the day the notice is given to the practitioner ...; 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 ... the registered health practitioner's ... registration, the suspension is revoked ... by the National Board;

...

D. Is the Board required immediately to refer a matter to VCAT if it suspends a practitioner's registration as part of its immediate action?

16 Matters must in certain circumstances be referred to a responsible tribunal. As noted above, in Victoria VCAT is the responsible tribunal.[27] Section 193(1)(a) of the National Law provides as follows:

193 Matters to be referred to a responsible tribunal

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

(a) ... the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct ...

17 I will put to one side, for present purposes, the qualification introduced by s 193A of the National Law that a Board may decide not to make a referral if it decides there is 'no public interest in the matter being heard by a responsible tribunal.'

18 The term 'professional misconduct' is defined in s 5 of the National Law 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, 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.

19 Dr Peers submitted that, if the Board forms the reasonable belief that it is necessary to take immediate action because of a prescribed reason under s 156 of the National Law, and the immediate action is the suspension of the practitioner's registration, it follows that such a belief would also amount to a belief of professional misconduct, thus compelling the Board to refer the matter to VCAT under s 193 of the National Law.

20 However, the argument that the Board is required to refer a matter to VCAT immediately (or promptly) after making its decision to suspend a practitioner's registration was rejected by the Court of Appeal in Hobart. The Court of Appeal said:

Dr Hobart's contention that there exists what amounts to an implied constraint upon the exercise of immediate action under s 156 by way of suspension, being a requirement for immediate referral to VCAT, cannot be accepted.[28]

21 I respectfully agree. Section 193 of the National Law requires the Board to refer a matter to VCAT if the Board 'reasonably believes' that the practitioner has behaved in a way that constitutes professional misconduct. That is a different test to the test set out in s 156 of the National Law for the taking of immediate action, and so the mere fact that the criteria required by s 156 in order to impose a suspension are engaged does not mean that the criteria that require a referral to VCAT under s 193 are satisfied.

22 In Kozanoglu, the Pharmacy Board, after hearing from Mr Kozanoglu, took immediate action to impose a condition that Mr Kozanoglu not work as a pharmacist. It did not itself then commence an investigation or take any other steps but decided to wait until a police investigation had been completed. Mr Kozanoglu sought merits review at VCAT. VCAT, constituted by a Vice-Presidential Member, also considered that immediate action was warranted but replaced the conditions that the Board had imposed with conditions including that Mr Kozanoglu not work as a pharmacist unless supervised. Mr Kozanoglu appealed to the Court of Appeal against VCAT's decision. His appeal was limited to an appeal on a question of law.[29] The Court of Appeal dismissed his appeal. In the course of so doing, it made 'some final observations' in which it criticised the Pharmacy Board. It identified two 'safeguards': that there be a 'timely' referral to a panel or to VCAT, and that safety of the public should be 'secured with as little damage to the practitioner as is consistent with its maintenance.'[30] The Court of Appeal then stated:

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 [Immediate Action Committee] 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.[31]

23 Dr Peers relied on these observations in support of her contention that, properly understood, an exercise of power under s 156 that was not immediately, or even promptly, followed by a referral to VCAT was unlawful because, or if, it resulted in an 'indefinite suspension'. That is not what I consider the Court of Appeal in Kozanoglu to have been saying. The Court of Appeal was criticising the Pharmacy Board for not taking the next steps that were required under the relevant legislation because of the risk of unfair delays associated with its not doing so, but was not purporting to express a limit on the powers contained in the legislation.

24 I set out in Part F.1 below some further observations that are relevant to this argument of Dr Peers.

E. Can s 156 authorise immediate action that lasts for three years or more?

25 The issue I have to determine is one of law: can s 156 of the National Law authorise the taking of immediate action that lasts for three or more years (or for an indefinite time, in the sense that the end date is not identified)? As the argument concerns what is contended to be a limitation on the power set out in s 156, the answer must be found in the legislative provisions.

26 When the provisions set out in Part C above are considered together, it is apparent that there is not the limitation on the power contained in s 156 of the National Law for which Dr Peers contends. The first and most obvious point is that there are no time limits expressly provided for in the National Law. Instead of imposing a time limit as it could have done,[32] as noted above the National Law instead expressly states in s 159 that immediate action will continue to have effect until the decision is set aside on appeal, the suspension is revoked, or an undertaking is agreed upon. In that way, the legislature has turned its mind to the duration for which immediate action taken under s 156 of the National Law may last, and has expressed that duration by reference to possible events rather than by reference to time limits. For practical purposes, that means that, in situations like those facing Dr Peers, the legislation anticipates that the immediate action may last at least for the duration of the investigation,[33] together with the time taken then for the matter to be determined by VCAT. There is no justification for reading any other temporal limitation on the power to take immediate action contained in s 156 of the National Law. The power in s 156 does not in some way retrospectively become 'spent', to use a word employed by Dr Peers in her submissions, after the effluxion of time.

27 Further, there is nothing inherently unlawful in the legislature setting up a regulatory regime that allows for a regulator:

(a) to suspend registrations 'indefinitely', in the sense that the suspension does not have a fixed end date at the time it commences; or

(b) to do so on the basis of beliefs reasonably formed by the regulator that the practitioner poses a 'serious risk' to persons and that it is necessary to do so to protect public health or safety,[34] rather than only after a final determination to that effect following a full hearing of the allegations made.

28 Indeed, it is apparent that the legislature has prioritised the objective of 'protecting the public' from risk above the interests of practitioners in continuing their practise or the risk of unfairness to any particular practitioner in any particular case. That weighting of priorities is a question of policy and a matter for the legislature.

F.1 Should the Board have referred Dr Peers immediately to VCAT?

29 I considered in Part D above Dr Peers' submission that, as a matter of statutory construction, a referral to VCAT must follow a suspension imposed as part of immediate action and so the Board's failure to refer to VCAT meant that its decision to suspend her registration was unlawful. I rejected the premise of that argument.

30 It may well be, however, that, on the basis of the reasons given by the Board for which it suspended Dr Peers' registration, the Board was, in the circumstances of this case, required by s 193(1)(a) of the National Law to refer Dr Peers to VCAT.[35] Any failure on its part to make such a referral when required to do so would not make the suspension unlawful, but it could make the Board susceptible to an order in the nature of mandamus requiring it to make such a referral. As Dr Peers did not in her originating motion seek an order in the nature of mandamus requiring the Board to refer her to VCAT, and because the Board has, now, made that referral in any case, it is not necessary for me to consider whether the Board was obliged to make that referral.[36]

31 It is worth pointing out, however, that the obligation on the Board imposed by s 193 is not expressed to be conditional on the Board having formed a final view or having completed an investigation. Under s 193(1)(a), the Board is required to make the referral if it forms a belief, on reasonable grounds, that a practitioner has behaved in a way that constitutes professional misconduct. It may well often be the case that if the Board forms the state of mind sufficient for it to decide to suspend a practitioner under s 156 of the National Law, it will also have formed the state of mind that requires it to refer the practitioner to VCAT.

32 Here, the Board stated in its 4 November 2021 notice that:

Dr Peers' 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 Peers 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. (emphasis added)

33 'A manner wholly inconsistent with expectations of a medical practitioner' may be compared with the expression used in the legislated definition of professional misconduct in s 5 of the National Law, which as noted above 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...

34 The 4 November 2021 notice also said that the nature and character of the conduct was such that, if proved, the Board would likely be compelled to refer Dr Peers to VCAT for appropriate findings and determinations. It may be that this reflects a misunderstanding of the referral obligation under the National Law; as noted above, the Board's referral obligation is triggered by its forming a belief on reasonable grounds that a practitioner has behaved in a way that constitutes professional misconduct, not on its forming a view that the professional misconduct has been 'proved'. The legislative scheme requires that where the Board has formed that belief, the referral takes place, and that VCAT then decides whether the practitioner has in fact engaged in a way that constitutes professional misconduct.[37] That is not to say, of course, that an investigation could not proceed at the same time. But in serious cases, the referral should not necessarily, and may often ought not, await the findings of an investigation. I repeat, however, that these are observations only, and it has not been necessary for me to determine whether or not, in this case, the referral ought to have been made earlier.

35 It is apparent that the regulatory regime may operate unfairly from the perspective of medical practitioners by suspending them for prolonged periods of time - and potentially destroying their livelihoods - before any findings of actual wrongdoing have been made. This may arise if the Board has decided to impose a suspension and to commence an investigation but has not made a referral because it has not formed a view on reasonable grounds that a practitioner has behaved in a way that constitutes professional misconduct. For the reasons set out above, this might be a rare event, but it remains a legally possible event.

36 There are some protections. A practitioner may not be suspended unless the Board forms the views referred to and the suspension must not be made without having given the practitioner an opportunity first to make submissions following a 'show cause' process.[38] A practitioner may also apply to VCAT to have the immediate action reviewed on the merits and, if that fails, apply for leave to appeal to this Court on a question of law.[39] That, however, is not a complete solution because the practitioner will not know at that stage how long the immediate action will last. This case is a good example. The real problem, or at least a very significant problem, is that the investigation into Dr Peers' conduct took almost three years. Quite properly, because it did not arise as an issue, there was no evidence before me as to why the investigation into Dr Peers' conduct took that long. Unless Dr Peers in some way contributed to or caused delays, it seems to me that the fact that the investigation took almost three years has been unfortunate to say the least.

37 The regulatory scheme requires an investigation to be undertaken 'as quickly as practicable, having regard to the nature of the matter to be investigated'.[40] For the regulatory regime to operate fairly, the obligation to undertake investigations as quickly as practicable must be complied with. But the regulatory regime does not expressly provide any protections for a practitioner if an investigation is taking what seems to be an excessively long time or for any consequences in the event that the obligation is not being complied with. When I raised this risk of unfairness with the Board, its counsel informed me (having taken instructions) that:

(a) if an investigation is taking a long time, a practitioner suspended as a result of immediate action may ask the Board to revoke the suspension;

(b) although the Board did not accept that it was under a legal obligation to make a decision in response to such a request, as a matter of practice, the Board would do so; and

(c) the Board accepted that, if it did make a decision in response to such a request, and a practitioner were dissatisfied with that decision, the practitioner could seek merits review of that decision from VCAT.

38 It is not clear whether a practitioner would be able to seek merits review at VCAT of a decision made by the Board not to revoke a suspension earlier imposed as immediate action.[41] If not, it may be that it would be a decision that would be amenable to judicial review, and it may that one of the factors the Board would have to consider was the extent of any delay. Other than to note the Board's position as communicated to me, I say no more about these issues.

39 I will dismiss the proceeding, and hear the parties on the question of costs.

[1] Being the schedule to the Health Practitioner National Law Act 2009 (Qld), which is adopted in Victoria by the Health Practitioner National Law Act (Victoria) Act 2009 (Vic).

[2] National Law, s 199(1)(h). VCAT is the 'responsible tribunal': Health Practitioner National Law Act (Victoria) Act 2009 (Vic), s 6. For completeness, I note that on 25 November 2021, Dr Peers requested the Board review the decision to suspend her registration. On 1 December 2021 the Board gave Dr Peers notice it proposed to refuse to revoke the suspension. Dr Peers provided written submissions to the Board on 8 December 2021. The Board, by way of further notice dated 9 December 2021, refused to revoke the suspension.

[3] I note that in late June 2022, it seems Dr Peers requested the Board to conduct a further review of its decision to suspend her registration, and noted her concerns about the length of time since the immediate action was last considered. On 6 November 2023, the Board gave Dr Peers notice that it had reviewed (for a second time) its decision to suspend Dr Peers' registration and indicated that it proposed not to revoke the suspension. Submissions were sought from and provided by Dr Peers. On 4 January 2024, the Board decided not to revoke the suspension. The Board's 12 January 2024 letter by which that decision was communicated contained some errors but, when read in context of previous communications, its meaning was clear.

[4] As noted above, in Victoria VCAT is the 'responsible tribunal' to hear any merits review action.

[5] [2012] VSCA 295.

[6] [2023] VSCA 270.

[14] Eg s 144 of the National Law; see also Part 8, Division 2 as to mandatory notifications.

[18] A 'show cause' process; see ibid s 157.

[26] I note that s 193A of the National Law creates an exception to this obligation if the Board decides there is no public interests in the matter being heard by a responsible tribunal.

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

[28] Hobart v Medical Board of Australia [2023] VSCA 270, [51].

[29] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.

[30] Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295, [126].

[32] Dr Peers drew my attention, in a written submission, to the Medical Practitioners Act 2008 (WA) which, although now repealed and replaced with the National Law, in s 87 imposed a 30 day time limit on 'interim orders' made by the Board.

[33] As noted above and discussed further below, s 162 of the National Law requires the Board to ensure investigations are conducted 'as quickly as possible, having regard to the nature of the matter to be investigated'.

[34] National Law, s 156.

[35] If s 193A of the National Law were not engaged.

[36] As to which, see Hobart v Medical Board of Australia [2023] VSCA 270, [69]-[70].

[38] National Law, s 157.

[39] Indeed, that avenue was attempted by Dr Peers, although as noted above she elected to withdraw her application.

[40] National Law, s 162.