The appeal was principally concerned with the statutory interpretation of section 156(1)(a) of the National Law.
That section provides, relevantly, that the Board may take immediate action if the Board reasonably believes that:
- because of the practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
- it is necessary to take immediate action to protect public health or safety.
The issue before the Court was whether, or to what extent or in what circumstances, in matters that involved disputed facts about past events, the Board or tribunal was obliged to form a reasonable belief that particular past events did or did not occur (although the Board submitted that there were three different sets of circumstances where such an approach would not apply).
The Court held that s.156 did not require it to form such a belief and that, by contending that it did, the Board was ‘effectively seeking to have the Court read words into the National Law’.
The Board contended that, despite no express wording in section 156(1)(a), a tribunal was obliged to make a determination of facts as a precondition to taking immediate action.
The Court disagreed with that approach, adding that the Board set out ‘various constructions’ of section 156(1)(a) that ‘are all incorrect’ and that such a position was ‘out of harmony with the text, context and purpose of that provision’.
The Court noted that, at hearing, ‘the Board found themselves having to chop and change [its] case as to the construction of s 156(1)(a) several times’ and the Board’s position was materially different at hearing to what it had contended in its written submissions filed prior to hearing.
The Court considered that the VCAT’s approach – where it did not make ‘definitive findings of fact as to what did or did not occur’ – did not constitute a misapplication of s.156.
The Court pointed out that ‘even actual past conduct of a practitioner cannot, of itself, pose any present or future risk to persons or render it necessary to take ‘immediate action’ to protect public health or safety. What is done is done. The required analysis must look mainly to the present and the (near) future’.
The Court considered that the approach contended as proper by the Board imposed ‘a complex, self-contradictory, impractical requirement…(that) would do more harm than good’.
The Court appeared to favour the approach that had been taken in two ACT Administrative Tribunal immediate action appeals where there was no cross-examination of witnesses and where it was not required to determine issues of fact – matters that would be more appropriately dealt with at future disciplinary proceedings.
The decision has implications for medical defence organisations and their members in relation to the evidence that may be relied on by the Board in taking immediate action together with how immediate action appeal hearings are likely to be conducted moving forward.