The Queensland Supreme Court’s recent decision in Bay v Australian Health Practitioner Regulation Agency (AHPRA) [2024] QSC 315 has drawn attention to medical professionals giving advice to patients, particularly regarding COVID-19 vaccines.
On Friday 13 December 2024, Justice Thomas Bradley overturned the suspension that had been placed on Dr William Bay's registration. As of 17 August 2022, Dr Bay had been prohibited from practising as a medical practitioner, when AHPRA, on behalf of the Medical Board of Australia, informed him that they had decided to suspend his registration.
Background of the suspension
This decision was based on five complaints, all relating to Dr Bay's conduct at political protests or broadcasts which conveyed his anti-vaccine stance. Given the context of the COVID-19 pandemic, the complainants alleged that Dr Bay's behaviour had both caused harm to others and significantly departed from acceptable standard practice as a health professional.
The five complaints asserted that Dr Bay placed the public at risk of harm by spreading information unsupportive of vaccines on social media platforms.
In one instance, Dr Bay claimed that COVID-19 vaccines had caused harm to his patients and that it had killed one of his patients. On a separate occasion, he broadcast live from outside a patient's home, where he called for an ambulance as the patient was suffering from chest pains, all the while, making negative comments about vaccines.
Another complaint was made by the Queensland State Manager of AHPRA reporting that the Queensland Peoples Protest group, led by Dr Bay, had gathered to protest against AHPRA and COVID-19 vaccines. In addition, Dr Bay had livestreamed from outside the AMA National Conference, shouting at the 400 doctors attending the conference, demanding that they stop forcing vaccines on patients and making false claims regarding the efficacy of vaccines.
Judicial review of suspension and complaints
Following the Board's decision to suspend his registration, Dr Bay applied for a judicial review of the suspension decision and the investigation into the complaints regarding his conduct.
On the final day of the hearing, APHRA and the Board tendered critical evidence that exposed errors in both the suspension and investigation decisions. Nevertheless, they continued to argue that Dr Bay's application should be dismissed.
The case before the Supreme Court
The case before the Supreme Court turned on whether the suspension and investigation decisions should be set aside.
Regarding the suspension decision, the Board conceded that it was open to the Court to determine whether the decision to suspend Dr Bay's registration was affected by bias. In their evidence, it was revealed that the Board's Chair and AMA's Chair had discussed making a complaint to the Board about Dr Bay's conduct at an AMA conference.
Moreover, the Board had failed to give Dr Bay the opportunity to respond to the complaint regarding his conduct at the AMA conference, despite this incident being one of the factors in the decision to suspend his registration.
Furthermore, based on the nature of the five complaints, the Court decided that the investigation decision should also be set aside due to a reasonable apprehension of bias and because the decision was partly based on a breach of a Code of Conduct, which had not occurred.
Key takeaways from the decision
The decision in Bay v Australian Health Practitioner Regulation Agency (AHPRA) [2024] QSC 315 was a significant victory for the self-represented doctor - the suspension and investigation decisions were set aside, and his registration suspension was lifted.
In his Supreme Court decision, Justice Bradley stated that the unprecedented nature of the pandemic did not grant the Medical Board the right to deny Dr Bay procedural fairness, or to place him before a potentially biased tribunal.
Importantly, Bradley J emphasised that the Court’s role was to deal only with the legality of the Board’s conduct. Indeed, the case was predominantly concerned with the Medical Board and AHPRA's poor decision-making and potentially biased procedures, rather than Dr Bay's statements about COVID-19 vaccines.
Whilst therefore there may be a perception that the decision provides vindication for doctors wanting to espouse their personal views on vaccines and other government backed health initiatives which may not fit within mainstream medicine, the decision should be viewed cautiously in this regard as this was not directly addressed.
Bay v Australian Health Practitioner Regulation Agency (AHPRA) [2024] QSC 315
