Background
Dr Sivathasan was a New South Wales based General Practitioner, with a background in cosmetic surgery. Between May 2020 and September 2022, Dr Sivathasan was the subject of five separate notifications relating to procedures performed by him and an allegation he offered consultations whilst holding a non-practicing registration. While these investigations were still ongoing, Dr Sivathasan applied for non-practicing registration on the basis that he intended to move overseas. However, his plans changed and he subsequently moved interstate and he applied for general registration in Western Australia on 27 August 2022.
On 28 December 2022, Dr Sivathasan was advised by the Board they would grant his application for re-registration, subject to conditions. Dr Sivathasan did not accept these conditions and applied for a review of this decision with the SAT, with the SAT inviting the Board to reconsider its decision on 3 August 2023. On 25 September 2023, the Board set aside their original decision and granted general registration but under different conditions, namely that Dr Sivathasan would:
- practice at an approved place and not perform surgery until he held admitting rights to a proximate hospital,
- that he be subject to mentoring by a registered health practitioner with experience in cosmetic surgery; and
- he submit to an audit of practice within 2 months and then on a quarterly basis.
Dr Sivathasan again sought review of this decision.
SAT Proceedings
The primary issue for SAT’s consideration was whether it was necessary or desirable for conditions to be imposed on Dr Sivathasan’s registration, pursuant to section 83(1) of the National Law.
The Board submitted that the imposition of the conditions was necessary and desirable given that investigations had started but were not finalised regarding his practice and an active performance assessment process had been commenced by the Medical Council of NSW at around the same time that the practitioner applied for non-practicing registration. It was inferred that Dr Sivathasan’s reason for applying for a non-practicing registration and then seeking registration in a different state was to avoid a performance assessment being undertaken. Submissions were also made that Dr Sivathasan had a history of failing to co-operate with regulatory authorities and practised medicine whilst holding a non-practicing registration. These matters gave rise to the question of whether Dr Sivathasan was performing to a standard reasonably expected of someone with his experience and training, and the Board considered that the proposed conditions were necessary.
Dr Sivathasan argued that the proposed conditions were not “necessary or desirable” as required by s.83 of the National Law and that the ongoing investigations should be dealt with under Part 8 of the National Law in the usual way. It was submitted that under Part 8 of the National Law the Board could only impose conditions on registration pursuant to immediate action (s.156) or if a finding was made on the evidence that his conduct was or may be unsatisfactory (s.178).
Dr Sivathasan defended himself in relation to the five current investigations against him and explained his reasons for changing to a non-practicing registration, noting that he had thought he was going to go overseas to the United Kingdom, but his plans changed quickly. It was submitted that the reliance on incomplete investigations to impose conditions was a significant departure from the intent of the National Law, and conditions could only be imposed if immediate action was undertaken because his conduct was believed to pose a serious risk and action was necessary to protect public health and safety or a finding on the evidence could be made that his conduct was or may be unsatisfactory.
SAT Decision
The SAT found there was nothing in the language of the National Law that would prevent the Board from considering incomplete Part 8 proceedings, or its equivalent, when considering an application for registration and if conditions are necessary and desirable in a suitable case.
However, it was noted that other than the content of the open notifications, the Board did not seek to lead any evidence about the notifications. It was the Board’s case that the fact of the notifications, along with the other matters it had raised, supported the imposition of conditions. Therefore, the Tribunal had no detailed evidence as to the merits of those matters.
The SAT found Dr Sivathasan to be an impressive witness. He defended his conduct and satisfactorily explained why he had obtained a non-practicing certificate and then re-applied to practice so quickly. He gave the impression of someone who did not run away from complaints made against him and his explanation of quickly changing plans was consistent in his conduct of reapplying for general registration shortly afterwards.
Ultimately, the SAT set aside the Board’s proposed conditions and granted Dr Sivathasan general registration without conditions.
It was held that when relying on incomplete Part 8 proceedings to form the basis for the imposition of conditions at the time of granting registration, what will be sufficient will depend on the seriousness of the risk which has been identified and the degree of evidence in support of any risk. On the evidence before the Tribunal, they were unable to find the proposed conditions were necessary or desirable, particularly when none of the notifications had as yet been substantiated against the practitioner.
Conclusion
In the present matter the Board argued that the proposed conditions were not onerous on the practitioner. However, as the Tribunal stated, that is not the test. It was necessary to demonstrate that the conditions were necessary or desirable to guard against the risk that the practitioner could not practice competently or safely or that he posed a risk to persons by reason of his practice. In order for the Board to hold such a view, there must be sufficient evidence in support of the identified risk. The fact of the notifications alone is insufficient.
A link to the decision can be found here.
