The key issue
Whether the risk to the public and the public interest were such that Dr Rizwan Sami (Dr Sami) should be suspended from practice until the disciplinary proceedings were concluded.
Dr Sami was a general practitioner who consulted the complainant on seven occasions. Approximately one month after their last consultation, Dr Sami and the complainant met at a nightclub and engaged in sexual relations. The complainant alleged that this encounter was violent and non-consensual, whilst Dr Sami stated it was wholly consensual.
The Medical Board of Australia (Board) took immediate action under section 156(1)(a) and (e) of the National Law to suspend the registration of Dr Sami. Criminal charges for rape and sexual assault were also brought against Dr Sami but were withdrawn three months later.
Dr Sami applied to the Board for the suspension to be revoked on the basis that the criminal charges were withdrawn. The Board refused Dr Sami’s application, after which Dr Sami applied to the Tribunal for a review of the Board’s decision to refuse to revoke the suspension.
Dr Sami submitted that the withdrawal of the criminal charges made the complainant’s version of events less credible whilst the Board submitted the withdrawal of charges was a neutral factor.
Ultimately, the Tribunal was required to consider whether there was a reasonable belief that Dr Sami posed a serious risk to persons and that it was necessary to take immediate action, or alternatively whether the immediate action was otherwise in the public interest.
The judgment noted that the argument that Dr Sami poses a serious risk will be more convincing where specific risk is identified. It was appropriate in these circumstances to consider the specific risk posed by Dr Sami.
There was no requisite reasonable belief under either limb of the immediate action provisions (i.e. “serious risk” or “otherwise in the public interest”) that justified the suspension based on the following:
- the conduct occurred in a social setting as opposed to within a consulting room;
- the experience of the immediate action and investigation provided a very strong deterrent to Dr Sami not to breach professional boundaries;
- the probability of Dr Sami again encountering a patient in similar circumstances was low;
- there was no evidence of a persuasive lack of ethical or moral integrity; and
- the possibility of a criminal finding had been excluded.
Whether the specific risk to the public or the public interest can be adequately identified may be determinative of whether immediate action against a practitioner can be justified.
The decision Sami v Medical Board of Australia (Review and Regulation)  VCAT 447 an be read here.