Doctor successfully appeals 20-month suspension and unreasonable condition on practice

The background

In September 2021, the SAT ordered that the Appellant:

• be reprimanded;
• serve 20 months suspension of his registration (Suspension);
• have the following conditions on his practice:
  • Limits on prescription abilities;
  • Before resuming practice, the Applicant had to prove his clinical ability to safely resume practice (Condition);
  • AHPRA may obtain reports from a senior person as to compliance with the conditions; and
  • AHPRA may contact Medicare or drugs regulatory authorities to ensure compliance with conditions.

The Appellant appealed the Suspension and the Condition, arguing that the Suspension was unreasonable or plainly unjust and the Condition was beyond the powers of the Tribunal, or alternatively was unreasonable or plainly unjust.

The outcome

The Court of Appeal allowed the appeal and varied the orders as below:

• the Appellant’s registration should be suspended for 8 months; and
• the Appellant should undertake a one-month period of supervised practice as an interventional radiologist after serving the period of suspension.

Findings – suspension

The Court of Appeal found that the facts and circumstances of the Appellant’s professional misconduct were very serious.  The Court noted that the Tribunal referred to the following mitigating factors in assessing the appropriate penalty in this matter:

• The Appellant’s prescribing practices were the result of a genuine desire to offer holistic services to patients and a mistaken understanding that there was a clinical justification for prescribing the substances he did.
• The Appellant had ceased to practice integrative medicine.
• The Appellant no longer prescribed the substances in question.
• The Appellant no longer ordered blood tests for patients without examining and assessing the patient personally.
• The Appellant was genuinely remorseful for his professional misconduct.
• The Appellant was unlikely to repeat the professional misconduct.
• The Appellant had eventually gained insight into the risks to which he had exposed his patients by his prescribing practices.
• The Appellant had completed training in relation to maintaining adequate notes and records.
• The Appellant had no previous disciplinary history.
• There was no suggestion that the Appellant’s skills and experience in radiology were less than satisfactory.
• Having ceased to practice integrative medicine, the Appellant will focus on providing diagnostic radiological services and interventional radiological services.
• The Appellant did not lack the character and trustworthiness necessary to discharge the responsibilities of his profession.  The Appellant’s professional misconduct did not involve dishonesty or incompetence of a kind that would render him permanently unfit to practise his profession.

The Tribunal noted in its reasons that the following adverse consequences may occur if the Appellant’s registration as a medical practitioner was suspended for a specified period or cancelled:

• personal hardship for the Appellant and his family in that he is the sole income earner;
• if the Appellant were to be suspended from practice for more than 6 months, his staff would be likely to become unemployed; and
• the loss of the Appellant’s provision of radiological services would inconvenience Sir Charles Gairdner Hospital and cause delays in some country patients receiving affordable medical treatment.

The Court of Appeal found that the period of suspension imposed by the Tribunal was not commensurate with the overall seriousness of the Appellant’s professional misconduct.  The length of the period of suspension was not merely at the higher end of the range available to the Tribunal – it was substantially greater than the length of the period of suspension that was open to the Tribunal on a proper exercise of its discretion.

Findings – condition

The Condition was seemingly imposed by the Tribunal to ameliorate the risk that the Appellant may lose essential skills as an interventional radiologist during the suspension period.

The Court held that section 196(2)(b)(i) empowered the Tribunal to impose a condition that requires the completion of ‘specified further education or training’ within a ‘specified period’.  Section 196(2)(b)(ii) refers to a condition that requires the undertaking of a ‘specified period of supervised practice’.  Order 3(c) was not made pursuant to or authorised by s 196(2)(b)(i) or s 196(2)(b)(ii) because its terms were not specific enough.

The opening words of s 196(2)(b) (namely that, having found that the Appellant had behaved in a way that constituted ‘professional misconduct’, the Tribunal ‘may decide’, relevantly, ‘to … impose a condition on registration’) empowered the Tribunal to impose the Condition.  The Condition was capable of being regarded as related to the purpose of disciplinary proceedings against registered health practitioners because it ensured that the Appellant was sufficiently skilled to return to practise as an interventional radiologist upon expiry of the period of suspension of his registration.

Despite the Court finding that the Tribunal did have the power to impose the Condition, it was satisfied that the Condition was unreasonable or plainly unjust, for the following reasons:

1. it did not set out what the Appellant must do to satisfy the Board that he has the requisite clinical skills to resume practice;
2. it enabled the Board to decide what the Appellant must do to satisfy the Board that he has the requisite clinical skills to resume practice;
3. the requirement that the Appellant satisfy the Board was qualified by the concept of reasonableness and what the Board may require the Appellant to do was also qualified by the concept of reasonableness.  However, this did not overcome the unfairness to the Appellant that was inherent in the absence of specificity or detail in the Condition as to what the Appellant must do and what the Board may require of the Appellant.  Also, the concept of reasonableness does not avoid the real risk of a genuine dispute between the parties as to those matters.
4. the Tribunal found that the Appellant was an excellent interventional radiologist with a wide skill set and, as such, all that was reasonably required to guard against the risk that he may lose essential skills was the imposition of a condition that he undertake a specified period of supervised practice after serving the suspension.

The implications

The Court’s attitude to the ameliorating factors when considering an appropriate suspension penalty (particularly where the lack of likelihood of repetition of conduct in a context where the practitioner had ceased the type of practice giving rise to the conduct – integrative medicine) is instructive for medical practitioners who have been “dabbling” in an area that is not their primary area of specialty or interest.  Where it is easy to return to an area of primary speciality (like here – interventional radiology), this will assist to show a reduced risk to the public in allowing a practitioner to remain in practice.

The Court’s consideration of hardship in imposing a suspension was also notably not limited to the individual Applicant, but also considered hardship caused to his employees and the wider hospital system that relied on him for consistent provision of services.  The Applicant’s exceptional skills in interventional radiology were also relevant to the Court in considering both the suspension penalty and the formulation of an appropriate condition.

The Court’s comments in relation to 196(2)(b)(i) and 196(2)(b)(ii) importantly included that a condition requiring the practitioner to complete ‘specified further education or training’ must state with reasonable precision or in reasonable detail the further education or training that the practitioner must complete.  A condition requiring the practitioner to undertake a ‘specified period of supervised practice’ must state specifically or explicitly the length of the period and the date on which the period is to commence.   This should be borne in mind when formulating conditions in consultation with a Board or decision-maker for a Tribunal’s consideration.

To read the decision in Nadkarni v Medical Board of Australia [2022] WASCA 109, click here.