The Supreme Court of Victoria has dismissed an appeal by the Medical Board of Australia (Board) against the decision of the Victorian Civil and Administrative Tribunal (VCAT) to overturn its decision to suspend a medical practitioner’s registration by way of immediate action.

The Board had suspended the practitioner’s registration under s156(1)(e) of the Health Practitioner Regulation National Law (National Law) on the basis that it reasonably believed the action was in the public interest after the practitioner was charged with one count of rape and one count of sexual assault. The charges related to allegations that the practitioner had failed to use a condom notwithstanding being repeatedly requested to do so and repeatedly having assured the complainant that he would do so. The charges were denied by the practitioner.

The Board stated that it was in the public interest for the community to have confidence in the trustworthiness, ethics and morals of registered health practitioners and that the alleged conduct involved a breach of trust which, if proven, would call into question the respondent’s suitability to hold registration. It concluded that a failure to act when on notice of serious criminal charges would erode the public’s confidence in the protective function of the regulator and that it would be contrary to community expectations not to take action.  

The practitioner sought review of the Board’s decision.

VCAT, by majority, did not form the view that immediate action was required in the public interest. It noted that there was no presumption that immediate action be taken when a practitioner is charged with a serious criminal offence. It framed its analysis in terms of a spectrum of conduct ranging from cases in which the public would be rightly outraged if the practitioner was allowed to continue in practice pending determination of the charges and those which may not be seen as having the potential to cause public outrage. VCAT considered that the public would understand that the allegations were against one practitioner, were rare, the profession as a whole should not be judged on them, the importance of the presumption of innocence and that, where appropriate, a practitioner be allowed to get on with their life until the allegations were determined. On that basis, by majority, VCAT did not accept that permitting the practitioner to continue to practice while the charges were pending would result in a loss of public confidence. VCAT substituted the Board’s decision to suspend the practitioner with a decision not to take immediate action.

The Board sought leave to appeal the VCAT decision. Leave to appeal was granted. The Court found that VCAT had given adequate reasons for its decision when the reasons were read as a whole and that there had been no error of law. The Court did not accept that VCAT was required to analyse the issue of whether public confidence would be maintained rather than whether, and to what extent, public confidence would be impacted and whether the extent of any such impact would require action to be taken in the public interest. It had squarely addressed the issue of public confidence and had not made any error of law in so doing. The appeal was dismissed.

To read the full decision in Medical Board of Australia v Liang Joo Leow [2019] VSC 532, click here.