The background
Dr Shah (a pseudonym) was charged with two counts of indecent assault and one count of serious criminal trespass in a place of residence. The complainant was a receptionist employed at the Medical Practice at which the Dr Shah worked as a general practitioner.
The AHPRA investigator made three different versions of a file note of a conversation, removing references to mental illness and lack of credibility of the complainant. It was alleged that the AHPRA investigator removed references to claims the receptionist had a criminal background, that her credibility as a victim was “not reliable” and that she had been detained under the Mental Health Act 2009 (SA).
The Board commenced an investigation into Dr Shah’s conduct and suspended his registration. Dr Shah sought review by the Tribunal of the suspension decision. After the Tribunal heard the review, the Police withdrew the charges against Dr Shah. The Tribunal subsequently confirmed the Board’s decision. Dr Shah appealed to the Supreme Court of South Australia.
Appeal grounds
Among other heads of appeal, the Appellant asserted that the Tribunal erred in its formulation and characterisation of the risk posed by Dr Shah in relying on evidence given by the AHPRA investigator. The Appellant also claimed that the Tribunal had erred in finding that no conditions could adequately address the risk posed and had failed to take account of the impact of the withdrawal of the criminal charges against Dr Shah.
Findings
Risks posed by Dr Shah
The Court held that the only risk of which there was evidence was a risk of sexual harassment. Contrary to the Tribunal findings, there was no evidentiary basis to support any concern about Dr Shah’s ability to judge whether a patient was consenting to medical treatment. In fact, the evidence was universally that he had that ability. Dr Shah had, as at 2020, practised as a doctor for 25 years. There was no suggestion at any point over that period that he lacked an ability to judge whether a patient was consenting to medical treatment or more generally that there were any concerns whatsoever about his medical skills and abilities. On the contrary, the numerous references that were produced to the Tribunal attested fulsomely to his medical skills and abilities.
Editing evidence
The matters edited out by the investigator clearly weighed in favour of Dr Shah. The position in relation to the editing was exacerbated by the fact that no explanation was proffered to the Tribunal.
For the Tribunal, the investigator’s editing was a very serious matter that impacted directly on the reliability of her evidence. The Tribunal noted that she must have known that the Board would rely on her file note in making a decision whether to take immediate action. She should have known that the Board would expect her to provide a balanced account of her conversation with the detective and not edit out matters that weighed against the taking of immediate action or weighed in favour of Dr Shah.
The conduct by the investigator in editing the file note demonstrated that her “evidence” of her discussions with external parties in the course of the investigation could not be relied upon.
Relevance of withdrawal of criminal charges
The Court noted that, if the Police withdrew the charges against Dr Shah because they considered that there was no reasonable prospect of a conviction (which was the most likely reason for the withdrawal), the Tribunal was required to take that into account in its assessment of whether there was a respectable evidentiary case against Dr Shah. The fact that the Tribunal made no mention of this, and had already made its assessment about whether there was a case against Dr Shah before referring to the withdrawal, was inconsistent with the Tribunal having substantively taken the withdrawal into account.
The withdrawal was also highly relevant to the assessment of public interest under section 156(1)(e). The public perception of a doctor practising while the subject of criminal charges will necessarily be very different to the public perception of a doctor practising after criminal charges have been withdrawn but the doctor is the subject of an AHPRA investigation.
In its reasons in relation to the public interest ground, the Tribunal made no reference to the withdrawal of the criminal charges. The Court said that it was necessary for the Tribunal to take into account that public perception would be greatly influenced by the withdrawal and the fact that no disciplinary proceeding had been instituted by the Board. The fact that the Tribunal made no reference to this demonstrated that it did not substantively take the withdrawal into account.
Conditions
According to the Court, the Tribunal ought to have considered whether, if appropriate conditions were imposed, Dr Shah would pose a serious risk of sexual harassment to staff members or patients. If it had done so, it ought properly to have held that conditions could easily have been formulated to protect female staff members (or colleagues, if thought necessary) against sexual harassment by Dr Shah. For example, a condition preventing him from having social interaction with any female staff member other than in prescribed circumstances (such as the presence of a third party). The Tribunal simply gave no consideration to the potential formulation of any such conditions or the efficacy of such conditions.
If it had done so, it would have concluded that imposition of such conditions would be very likely to be efficacious. There was no reasonable basis for a belief that, on the imposition of appropriate conditions, suspension was required in the public interest.
The implications
The editing of file notes in this matter was looked upon very gravely by the Court. It infected the whole of the witness’ evidence and undermined one of the key factual pillars of the Board’s case. A key consideration for the Court here was that the investigator’s evidence was so pivotal to the Board’s decision to take immediate action.
To determine whether conditions would be adequate to protect the public interest the Tribunal must actually consider the practical operation of potential conditions and how they would function to ameliorate risks present. In most contexts, this requires potential draft conditions to be presented to the Tribunal for that consideration.
To read the decision in Shah (a pseudonym) v Medical Board of Australia [2022] SASC 140, click here.
