The background
A complaint was made to the Australian Health Practitioner Regulation Agency (AHPRA) by a former female employee (the Complainant) of the practitioner, Dr Freeman. The Complainant alleged that between January 2017 and September 2018, Dr Freeman engaged in ongoing sexual harassment, including unwelcome sexual advances, and bullying towards her. Dr Freeman strongly denied the allegations.
The Medical Board of Australia (the Board) considered that Dr Freeman posed a serious risk to persons and that it was necessary to take immediate action under s156 of the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law) ‘to protect public health or safety’. The Board suspended Dr Freeman’s registration on the basis that no lesser form of restriction would be adequate for the protection of the public.
Dr Freeman filed an application for a review of the Board’s decision to take immediate action. Dr Freeman also filed an interim application seeking an order for a stay of the immediate action decision. He submitted that the complaints against him were, at that stage, unsworn and uncorroborated. He also submitted that the Tribunal should grant a stay of the Board’s immediate action decision because:
(a) his appeal had reasonable prospects of success;
(b) the material before the Board was not sufficient to form the basis of a reasonable belief about his conduct for the purpose of s156 of the National Law;
(c) his conduct did not create a serious risk to persons such that suspension was necessary to protect public health or safety;
(d) suspending his practice would cause irreparable hardship to him; and
(e) the public interest and balance of convenience weighed in favour of the grant of stay.
In opposing the stay application, the Board argued that the available evidence and information demonstrated that there was a risk that Dr Freeman was a person who had a propensity to make unwelcome sexual advances to young females and that he would do so in connection with his medical practice. The Board went on to argue that the risk was a serious risk of harm to members of the public, whether they were patients or colleagues. The Board submitted that the risk to the public identified by the Board provided a proper basis for the Tribunal to refuse Dr Freeman’s application for a stay of the suspension.
The findings
The Practitioner’s application for an interim stay of the Board’s decision to suspend his registration was successful. In reaching its decision, the Tribunal noted that none of the allegations against Dr Freeman had been tested. The Tribunal found that none of the factors referred to by the Board supported the Board’s conclusion that, at least at that stage in the investigation, there was a basis to form the reasonable belief that Dr Freeman presents a risk to persons such that no lesser form of restriction than the immediate suspension, would be adequate to protect public safety.
The Tribunal noted that the Board failed to articulate how the Complainant’s safety was affected, positively or negatively, by the suspension of Dr Freeman’s registration. Furthermore, the Tribunal found it difficult to see, at that stage, how Dr Freeman should be regarded as a danger to the wider community. Other than a general reference to the safety of vulnerable young women, particularly in the context of medical practice, the Board failed to identify with any precision the nature of the risk which Dr Freeman posed to the public.
In the Tribunal’s view, when the Board’s current assessment of the risk to the safety of the public was considered in light of the effect that an immediate suspension would have on Dr Freeman, the immediate action taken by the Board should be stayed until the review application is heard.
The Tribunal acknowledged that the allegations against Dr Freeman were serious and, if established, could lead to a finding of professional misconduct, even though the Complainant was not a patient of Dr Freeman and the conduct the subject of the complaint did not concern the provision of health care services. However, the Tribunal found that that was a matter to be dealt with at another time.
The full decision in Freeman v Medical Board of Australia [2020] WASAT 64 can be read here.
