Case update | Immediate action on grounds of public interest examined

by | Apr 6, 2020 | Health Blog

“There is no justification to limiting considerations surrounding the public interest to situations involving criminal charges”.

In August 2019 the Medical Board took immediate action against a doctor who had made comments on social media which the Board considered to be denigrating, demeaning and slurring of medical practitioners who provided termination of pregnancies and treated patients with gender dysphoria. Other posts were considered to endorse violence against certain groups in society. Immediate action by way of suspension was imposed on the basis that it was in the public interest pursuant to s.156(1)(e) of the National Law.

The doctor appealed the decision, arguing that the alleged conduct did not enliven s.156(1)(e) of the National Law. He argued that the type of conduct in which he had engaged was not contemplated as falling within the remit of s.156(1)(e). The submission relied on the example attached to the section, which referred to circumstances where a practitioner was charged with a serious criminal offence. The doctor also argued that even if the section did apply, a lesser form of regulatory action such as an undertaking or conditions on his registration not to post of social media would be sufficient to achieve the regulatory purpose.

The Tribunal rejected the doctor’s submissions, finding that whilst the example provided in the section forms part of the context in which construction of the public interest should be determined, it was not exhaustive. The emphasis of the example lies in the ability of the regulator to now take immediate action where required to maintain public confidence in the provision of medical services by health practitioners.

In considering what the relevant public interest considerations are, it was held that the range of cases where a reasonable belief will be formed that action is “otherwise in the public interest” is variable. The Tribunal accepted that it may be in the public interest to take immediate action to address the question of public confidence in the provision of services by medical practitioners or to ensure the standards of the medical practitioner are maintained. It is also in the public interest to ensure that the regulatory system responds proportionately and fairly when allegations are made.

The Tribunal found that it did not matter if the social media posts were made ‘tongue in cheek’ or not. As a medical practitioner, the doctor was required to abide by a Code of Conduct and uphold his obligations to his profession and patients. A medical practitioner cannot go online and express their views without care as to the potential consequences of those actions. Patients who discovered his comments on matters personal to them could question whether their own care or the care of others like them might be compromised.

In considering whether conditions on his registration not to post on social media would be a more appropriate immediate action, the Tribunal expressed grave concerns that the community would not accept that a medical practitioner could switch from airing disrespectful views online to providing respectful and appropriate treatment to those who fall within a class he had denigrated online. It therefore found that nothing short of a suspension would preserve the public confidence in the provision of services provided by the profession and ensure the standards of the profession are maintained. It held that public confidence in the profession and the willingness of members of the public to seek appropriate treatment would be significantly undermined if the doctor was permitted to continue to practice even with conditions pertaining to his use of social media.

To read the full decision in Kok v Medical Board of Australia [2020] VCAT 405, click here.

Gemma McGrath

Gemma McGrath