In two recent cases, the State Administrative Tribunal of Western Australia (the Tribunal) upheld decisions made by the Medical Board of Australia (the Board) to take immediate action regarding the registrations of two doctors that were charged with criminal offences for conduct that was outside the scope of their clinical practice. Although the circumstances of each practitioner’s criminal charges were quite different, the Tribunal found on each occasion that it was in the public interest for the Board to take immediate action.
This article was originally published in the Lexis Nexis Health Law Bulletin Volume 30 No 7.
Background
Pursuant to s 156 of the Health Practitioner Regulation National Law (Western Australia) Act 2010 (the National Law), a national board is authorised to take immediate action regarding a registered health practitioner in circumstances where a practitioner poses a serious risk to public health or safety,1 or in circumstances where the board reasonably believes the action is otherwise in the public interest.2 In two recent cases, the State Administrative Tribunal of Western Australia (the Tribunal) upheld decisions made by the Medical Board of Australia (the Board) to take immediate action regarding the registrations of two doctors that were charged with criminal offences for conduct that was outside the scope of their clinical practice. Although the circumstances of each practitioner’s criminal charges were quite different, the Tribunal found on each occasion that it was in the public interest for the Board to take immediate action.
In Lee and the Medical Board of Australia (Lee),3 the Board took immediate action against Dr Kenneth Lee by suspending his medical registration after becoming aware that Dr Lee had been charged with numerous domestic violence offences against his former partner. The Board refused Dr Lee’s subsequent application to revoke that decision.4 On appeal, the Tribunal ultimately held that the Board had correctly determined that there was a need for immediate action to protect public health and that this action was also in the public interest.5 However, the Tribunal considered that, in all the circumstances, the appropriate immediate action was the imposition of conditions on Dr Lee’s registration rather than allowing the ongoing suspension of the registration.6
In Rao and the Medical Board of Australia (Rao),7 the Board took immediate action in relation to Dr Luke Rao, an intern employed by a hospital, by suspending his medical registration after becoming aware of two criminal charges of sexual penetration without consent.8 Dr Rao denied the charges, which are unlikely to be tried by a court until early 2024.9 The Tribunal again found that immediate action in relation to the practitioner was in the public interest, and that the protection of public health and the maintenance of the public interest would be achieved by the imposition of conditions on Dr Rao’s registration.10 Although this outcome is broadly similar to the Tribunal’s decision in Lee, the Tribunal in Rao expressly noted that the 'relevant factual circumstances are materially different to those in Lee11 which required unique consideration and resulted in different conditions being imposed on each practitioner’s registration. These are discussed below.
These two cases, which were delivered approximately 2 months apart, provide detailed commentary regarding the circumstances in which a national board can take immediate action regarding a health practitioner’s registration in the context of criminal charges that were unrelated to the practitioner’s scope of clinical practice. They further highlight the kinds of immediate action that are considered to be validly in the 'public interest'.
Relevant legislation
In each case, the Board took immediate action against the relevant practitioner pursuant to s 156 of the National Law, which provides that:
- 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 —
- the National Board reasonably believes that —
- because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons, and
- it is necessary to take immediate action to protect public health or safety, or
- the National Board reasonably believes that—
- the student poses a serious risk to persons because the student—
- 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
- has, or may have, an impairment, or
- has, or may have, contravened a condition of the student's registration or an undertaking given by the student to a National Board, and
- it is necessary to take immediate action to protect public health or safety, or
- the student poses a serious risk to persons because the student—
- 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
- 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, or
- the National Board reasonably believes the action is otherwise in the public interest.
- the National Board reasonably believes that —
Section 156(1)(e) of the National Law specifically notes the following example of when action may be taken by a board 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.
Notably, s 156(1)(e) was inserted in the National Law as an amendment in 2018.12 The Explanatory Memorandum makes it clear the purpose of this inclusion was to expand the bases upon which immediate action could be taken.13 The Explanatory Memorandum noted that, without this inclusion, a national board might be constrained from taking action in circumstances where (notwithstanding that the public interest may warrant immediate action) an allegation that a practitioner had engaged in conduct unrelated to their health practice may not, of itself, found a reasonable belief that the practitioner posed a serious risk to persons.14
In light of the above comments, the factual circumstances of both Lee and Rao appear to sit squarely within the legislature’s intended operation of s 156(1)(e).
The Lee decision
The charges
Dr Lee was charged with 23 charges of domestic violence offences allegedly committed between December 2018 and January 2020 against his former partner throughout the acrimonious breakdown of their relationship.15 These included nine counts of aggravated assault occasioning bodily harm, nine counts of common assault in circumstances of aggravation, three counts of endangering the life, health or safety of a person, and one count of indecent assault (the Charges).
Dr Lee has entered pleas of not guilty to each of the Charges which are yet to be tried before the Court.16 Some of the Charges will be tried on 31 October and the remainder will be tried on 12 December 2022.17
Procedural history
On 1 July 2020, the Board became aware that Dr Lee had been charged with 20 of the Charges. On 14 September 2020, the Board gave Dr Lee notice of its intention to take immediate action pursuant to ss 156(1)(a) and 156(1)(e) of the National Law by suspending his registration.18 On 17 September 2020, the Board received written submissions from Dr Lee in which he vehemently denied the charges and denied that a basis for immediate action existed (although he indicated a preparedness to take an undertaking not to practise).19
On 21 September 2020, the Board notified Dr Lee of its decision to suspend his registration (the 2020 decision).20 The Board asserted that it had formed the 'reasonable belief that 'because of his conduct, Dr Lee poses a serious risk to persons, and it is otherwise in the public interest to take immediate action and it is necessary to … protect public safety'.21
On 1 June 2021, Dr Lee’s solicitors applied for the revocation of the suspension of his registration, and indicated, amongst other things, that Dr Lee was willing to be subject to conditions on his registration, as an alternative to suspension. However, the Board refused this application on 12 July 2021 (the 2021 decision).22 In refusing this application, the Board noted that the 'reasonable beliefs' it had formed which underpinned the 2020 Decision had not been displaced, such that it was necessary to continue to take immediate action to protect public health or safety.23
On 20 July 2021, Dr Lee filed an application seeking the Tribunal’s review of both the 2020 and the 2021 decisions. There was some question as to whether the 2021 decision was more appropriately characterised as a 'decision to refuse to revoke a decision to suspend a person’s registration' (which may not have been appealable to the Tribunal) or alternatively as a reconsideration of whether immediate action was necessary under s 156(1) of the National Law (which would have been appealable). The Tribunal held that the latter construction was appropriate and as such, the Tribunal had jurisdiction to review both decisions.
Tribunal’s decision
The Tribunal was required to determine two questions. Firstly, the Tribunal considered whether immediate action against Dr Lee was necessary pursuant to s 156(1)(a) and/or s 156(1)(e). Secondly, the Tribunal considered what kind of action ought be taken in this case (if any).
Was immediate action necessary?
The Tribunal declined to fully determine the scope of the Board’s power under s 156(1)(e) in this case.24 Rather, the Tribunal considered it sufficient to state that 'parliament plainly contemplated that an allegation that a health practitioner has committed a serious crime, albeit one that lacks an obvious connection to clinical practice, may, depending on the circumstances, warrant immediate action against the practitioner'.25 Whether immediate action is warranted will depend on various public interest considerations, which include (but are not limited to):
- the protection of the public, or
- maintenance of public confidence in the medical profession.26
The Tribunal found that both abovementioned public interest considerations led to the conclusion that immediate action was necessary.
With respect to the 'protection of the public' consideration, the Tribunal did not accept the Board’s submission that the Charges support the conclusion that Dr Lee posed a risk of violence to patients or women generally. This was because the Charges pertained to one complainant and arose in a domestic context rather than in a clinical one.27 However, the Tribunal did accept that a patient who seeks treatment for physical or psychological harm suffered as a result of domestic violence may suffer further psychological harm if they subsequently discover that that their treating practitioner was, at the time, facing multiple serious charges for domestic violence offences spanning a substantial period of time.28 As such, the Tribunal accepted that there is a public interest in protecting public health by taking action to avoid this risk to patients.
With respect to the 'public confidence' limb, the Tribunal emphasised that public confidence in the medical profession would not be jeopardised in every case in which a medical practitioner faces a criminal charge on the basis that the public is sufficiently capable of distinguishing between allegations and convictions of criminal conduct.29 That said, allowing Dr Lee to practice without limitation pending trial of his charges would be likely to undermine public confidence in the profession due to the number, nature and severity of the charges and the prolonged period of underlying conduct.30
As such, the Tribunal concluded that immediate action was warranted under s 156(1)(e) of the National Law.
What immediate action was appropriate?
The Tribunal noted that any restriction on Dr Lee’s registration must be no more than is necessary,31 and must satisfy both the public interest in avoiding the risk of psychological harm to victims of domestic violence and the public interest in maintaining public confidence in the profession.32
The Tribunal considered the following circumstances before ultimately determining that the above public interest considerations did not warrant suspension of Dr Lee’s registration,33 but could more appropriately be addressed by the imposition of conditions on Dr Lee’s registration:
- Although the Charges against Dr Lee were serious, that was not, of itself, considered sufficient to warrant suspension.34
- Dr Lee had an extensive history of disciplinary proceedings, including reprimands for self-prescribing and dishonest attempts to avoid detection following these reprimands.35 Although this raised a legitimate concern regarding Dr Lee’s ability to comply with conditions on his registration, the Tribunal considered that Dr Lee’s past dishonest behaviour was of a 'different nature' in that he 'stood to benefit personally'36 from the conduct. In contrast, the conditions which would need to be imposed to maintain public interest would be concerned with Dr Lee’s engagement with patients and the Tribunal considered that there was no evidence that it would be in Dr Lee’s personal interest to take steps to actively avoid the effect of the proposed conditions.37
- The Board conceded (and the Tribunal agreed) that confidence in the profession as a whole was not likely to be so undermined by allegations of dishonest conduct against a single doctor that it required immediate suspension of that doctor’s registration.38
- In some circumstances it would be necessary to consider the impact of a suspension (as opposed to imposing conditions) on a practitioner personally in order to ensure that the action is proportionate.39 However, the Tribunal determined that suspension was unnecessary on other grounds and as such, consideration of the impact on Dr Lee was unnecessary.40
The Tribunal ultimately determined that the public interest considerations would be upheld by imposing conditions that, inter alia, Dr Lee be required to disclose the nature and number of charges to all patients, be precluded from having any contact with female patients, submit to quarterly audits of his practice, be prohibited from self-prescribing medication, and undertake treatment with a general practitioner, psychologist and psychiatrist.41
The disclosure condition required the following declaration to be made to each patient upon booking a consultation with Dr Lee, and also to be put on display at the relevant practice:
Dr Lee is the subject of twenty three (23) pending charges relating to allegations of domestic violence, alleged to have been committed over a 13 month period. The charges are denied and will be defended by Dr Lee. The charges are listed for trial in the Magistrates Court of Western Australia in October and December 2022. Should these matters be of concern to you, you have a right to see an alternative doctor.
The Tribunal emphasised that the condition prohibiting Dr Lee from treating female patients is warranted both in order to meet the risk of psychological harm to female patients and to maintain public confidence in the profession.42 However, it is necessary for this condition to be supplemented by the disclosure condition as the gender-based condition would not prevent Dr Lee from having contact with women if they accompany male patients to appointments.43
The Rao decision
The charges and procedural history
On 16 March 2022, Dr Rao was charged with two offences of sexual penetration without consent that were alleged to have occurred on 5 and 6 March 2021 following celebrations attended by both Dr Rao and the complainant for the completion of their first rotation in their final year of medical school.44 The complainant was allegedly severely affected by alcohol and incapable of consenting to sexual penetration.
On 2 May 2022, the Board advised Dr Rao of its intention to take immediate action by way of the suspension of his registration on the basis that it reasonably believed that this action was in the public interest.45 The Board considered that the alleged conduct was 'egregious in nature and may erode the intrinsic trust that the public has in medical practitioners'46 on the basis that the conduct allegedly demonstrated that Dr Rao lacked 'integrity, respect and compassion for another person and that he failed to observe appropriate and requisite boundaries'.47
On 10 May 2022, the Board suspended Dr Rao’s registration 'until the suspension is revoked by the board'48 on the basis that to do so was in the public interest pursuant to section 156(1)(e) of the National Law. On 16 May 2022, Dr Rao applied to the Tribunal for review of the Board’s decision.
Tribunal’s decision
As in the Lee decision, the Tribunal was first required to determine whether immediate action against Dr Rao was necessary pursuant to s 156(1)(e) of the National Law. Secondly, the Tribunal considered what kind of action ought be taken in this case (if any).
Was immediate action necessary?
The Board submitted that Dr Rao posed a serious risk of psychological harm to victims of sexual assault that he treats and examines who may subsequently discover that he was facing charges of sexual penetration without consent at the time of the examinations.49 This alleged 'risk of psychological harm' was formulated on almost identical terms to that alleged by the Board in Lee. In neither case did the Board contend that the practitioners posed a risk of committing their respective alleged offences on patients.50
In determining whether immediate action was necessary, the Tribunal considered both the likelihood of the risk eventuating and the magnitude of harm that arises from the risk.51 The Tribunal held that, although the likelihood of Dr Rao examining or treating a patient who presents with injury associated with a sexual assault is low (as a result of his supervised position as a hospital intern in contrast with, say, a general practitioner),52 the nature and magnitude of this risk of resulting psychological harm to patients is serious.53 The harm that could be caused is serious even if the charges become known to a patient in the context of all the relevant facts and circumstances (including the seemingly isolated incidents which occurred outside the context of Dr Rao’s clinical practice).54 On this basis, the Tribunal concluded that immediate action was necessary to avoid the abovementioned risks to patients in order to uphold the public interest in protecting public health and safety.55
What immediate action was appropriate?
The Tribunal ultimately determined that the public interest in protecting public health and safety from the relevant risks would be upheld by imposing conditions that, inter alia, Dr Rao only be permitted to work in approved workplaces, that Dr Rao be prevented from examining or treating a patient who presents with an ailment or injury associated with a sexual assault, and that Dr Rao inform his supervising colleagues of the charges.56
The Tribunal considered that further restrictions, such as gender based restrictions, would be unnecessary because Dr Rao’s position as an intern meant that senior doctors determine who Dr Rao is to examine and treat and that they supervise him when he does so. In these circumstances, there are unlikely to be many cases where a victim of sexual assault presents for treatment by Dr Rao of an associated ailment or injury.57
The Tribunal considered that, although the public interest in avoiding the relevant risk of harm could be achieved by suspending Dr Rao’s registration, this is not warranted (and in fact would not be desirable) when taking into account various countervailing public interest factors. These included the public interest in having sufficient, suitable junior doctors (particularly during a pandemic),58 as well as the public interest in maintaining a regulatory system which responds in a fair and proportionate manner when allegations are made.59
Implications
It is well established that the Board has power to take immediate action against a health practitioner where criminal charges have been brought based on conduct that has some tangential relationship to the practitioner’s clinical practice. National boards have taken immediate action against health practitioners in circumstances where a pharmacist was charged with the sexual assault of a customer,60 where a doctor used illicit drugs with a patient,61 and where a dentist provided treatment outside the scope of his expertise.62
However, Lee and Rao demonstrate the breadth of the power conferred on national boards by s 156(e) of the National Law to take immediate action on public interest grounds, particularly in circumstances where the conduct underpinning the criminal charges had no connection with the doctors’ clinical practice. The Tribunal found that immediate action was necessary and in the public interest in both cases, notwithstanding the following material differences between the two cases:
- Dr Lee was charged with over 20 offences of domestic violence over a lengthy period of time (amounting to a sustained period of criminal conduct) which informed the Tribunal’s conclusions as to Lee’s underlying character and associated risk.63 Dr Rao was charged with 2 offences that were allegedly incurred in a single 2-day period.
- Dr Lee had an extensive prior disciplinary history, including multiple attempts to dishonestly cover his conduct.64 Dr Rao was a junior practitioner on a provisional registration (which was to be reviewed shortly in any event) with no disciplinary history.65
- The likelihood that the alleged risk of harm would arise was much more likely in Dr Lee’s case given his position as a general practitioner (meaning his interaction with patients would be more comprehensive and unsupervised) as opposed to Dr Rao’s position as an intern (with necessarily supervised practice).66 The likelihood of an intimate examination or treatment by Dr Rao of an at-risk patient was capable of being further reduced by input from his supervising doctors.67
In terms of similarities, both decisions were made while the practitioners were facing charges only, with the matters awaiting determination by a court some time later. In each case the alleged offences involved allegations by a single complainant.
By way of summary, Lee and Rao demonstrate the Tribunal’s willingness to uphold the Board’s decisions to take immediate action that the Board reasonably believes to be in the public interest. By contrasting the material differences between these cases, it is clear that the Board has the power to take immediate action in a range of circumstances (notwithstanding that the type of action that is considered appropriate will vary accordingly).
Both decisions emphasise the need for immediate action to be proportionate, and no more than is necessary in the public interest. The Tribunal in Rao approached this as a countervailing public interest consideration, noting the public interest in a regulatory system that responds fairly and proportionately. It is also interesting to note the Tribunal’s specific inclusion of the need for junior doctors during the pandemic as an additional countervailing public interest point.
These decisions further provide guidance regarding the Board’s power to take immediate action in response to a practitioner’s conduct that is outside the scope of their clinical practice. While the Western Australian legislation is clear on this point due to the express inclusion of an 'example of when action may be taken in the public interest', the National Law in other jurisdictions such as New South Wales include no such express guidance on the meaning of 'public interest'.68 As such, the Tribunal’s comments in Lee and Rao on this point has the potential to aid interpretation of 'public interest' in those other jurisdictions.
1 Health Practitioner Regulation National Law (WA) Act 2010, s 156(1)(a).
2 Above n 1, s 156(1)(e).
3 Lee and Medical Board of Australia [2022] WASAT 28; BC202203892.
4 Above n 3 at [17].
5 Above n 3 at [100].
6 Above.
7 Rao and Medical Board of Australia [2022] WASAT 55; BC202206088.
8 Above n 7, at [7].
9 Above n 7, at [4].
10 Above n 7, at [14] and [171].
11 Above n 7, at [100].
12 Health Practitioner Regulation National Law (WA) Amendment Act 2018, s 57.
13 Explanatory Memorandum, Health Practitioner Regulation National Law (WA) Amendment Bill 2017 (WA) 27.
14 Explanatory Memorandum, Health Practitioner Regulation National Law (WA) Amendment Bill 2017 (WA); Lee and the Medical Board of Australia
[2022] WASAT 28, at
[28].
15 Above n 3, at [10].
16 Above n 3, at [11].
17 Above.
18 Above n 3, at [11].
19 Above n 3, at [13].
20 Above n 3, at [14].
21 Above n 3, at [22].
22 Above n 3, at [17].
23 Above n 3, at [22].
24 Above n 3, at [30].
25 Above n 3, at [30].
26 Above n 3, at [30].
27 Above n 3, at [41].
28 Above n 3, at [39].
29 Above n 3, at [44].
30 Above.
31 Above n 3, at [46].
32 Above.
33 Above n 3, at [76].
34 Above n 3, at [52].
35 Above n 3, at [63].
36 Above.
37 Above.
38 Above n 3, at [66] [emphasis in original].
39 Above n 3, at [70].
40 Above n 3, at [71].
41 Above n 3, at Annexure 1.
42 Above n 3, at [85].
43 Above n 3, at [88], [96].
44 Above n 7, at [23].
45 Above n 7, at [24].
46 Above.
47 Above.
48 Above n 7, at [27].
49 Above n 7, at [47].
50 Above n 7, at [47].
51 Above n 7, at [129].
52 Above n 7, at [120]–[22], [132].
53 Above n 7, at [135].
54 Above n 7, at [68], [99], [133].
55 Above n 7, at [142].
56 Above n 7, at [144]–[48].
57 Above n 7, at [157]–[58].
58 Above n 7, at [79], [152].
59 Above n 7, at [57].
60 Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708; BC202005036.
61 Medical Council of New South Wales v Smithson [2021] NSWCA 53; BC202102492.
62 Kirby v Dental Council of New South Wales [2018] NSWSC 1869; BC201811866.
63 Above n 7, at [100].
64 Above n 3 at [63].
65 Above n 7, at [91].
66 Above n 7, at [75].
67 Above n 7, at [123].
68 Health Practitioner Regulation National Law (NSW) s 150.
