Applicant Opposes Interim Suspension Imposed Against Him
Appanna v Medical Board of Australia [2021] VSC 679 (21 October 2021)
The Medical Board of Australia imposed an interim suspension upon the applicant’s registration in Australia where an 'immediate action' was taken since the Board reasonably believes that conduct of a registered health practitioner poses a serious risk to persons and action is necessary to protect public health and safety and/or action otherwise in the public interest. The Tribunal ordered that the decision of the Medical Board dated 23 June 2020 be confirmed. The applicant filed a leave to appeal on a question of law.
Facts:
In about May 2019, the applicant, a medical practitioner and specialist obstetrician and gynaecologist, made contact with a woman referred to as ‘J’ via a website entitled ‘Seeking Arrangement’. The applicant deposes that the website is ‘a sugar daddy website where woman (sic) seek an allowance or some reimbursement usually in return for “sexual” favours’. On 15 May 2019 the applicant met ‘J’ at a restaurant and they drank some alcohol before attending his professional premises, the ‘Womens (sic) Health Centre’. He says that they went to his office in order to print a contract which stipulated ‘J’ ‘giving full consent to everything that she had agreed prior to us meeting’.
The applicant says that no ‘penetrative intercourse’ took place on that or any other occasion. However, subsequent text communications suggest that oral sex took place on the first occasion and further text communications suggest that on other occasions ‘sex toys’ were used on ‘J’ in a context that seems to have involved her being tied up. On the first occasion, the applicant performed a vaginal swab on the applicant. At the end of the meeting, it seems, the applicant ‘reimbursed’ ‘J’ in the sum of $100.
The applicant offered $300 for a sex act that ‘J’ had not previously undertaken. He seems also to have been seeking unprotected sex. The second meeting occurred on 22 May 2019, again at the applicant’s professional premises. This meeting involved ‘sex toys’ and bondage, and was videoed. There was no payment on this or any subsequent occasion.
In the course of events on this second occasion, the applicant says that ‘J’ ‘became sore’ and the applicant gave her 3.75mg of Midazolam, without a prescription, in order, he says, to make her pain ‘more tolerable’. He acknowledges that Midazolam is not an analgesic and that when giving it to ‘J’ he described it as a ‘date rape drug’. ‘J’ described this as having been ‘a scary thing to say to someone’ and said that she had been ‘weirded out’ by it and had only taken half of the Midazolam tablet provided. On 24 May 2019 the applicant offered to refer ‘J’ to a pain clinic and obtained her permission to obtain her medical records from Waikato Hospital.
The applicant referred to the contemporaneous text messages, in which, in respect to the notes and proposed referral, he said ‘anything for my new baby’. They met again on 26 May 2019, again at the applicant’s professional premises. There was ‘intimacy’, which was again videoed but with no payment.
After 5 June 2019, the applicant travelled to Australia and undertook locum duties in a rural location. In that context, he sent to ‘J’ a photograph of a patient taken after a forceps delivery. He says that he took the photograph ‘with full permission of the patient’. That said, he also says that the patient was told that it was being taken to ‘send to a partner to show her what I had been doing’.
On about 1 July 2019, ‘J’ requested that the applicant delete the videos. The applicant says that he ‘offered to remove the video part of the recording but to keep the audio track’. However, at another point he said that he told ‘J’ that he would not delete the videos but would ‘blur’ them so that she was not identifiable. In August 2019, ‘J’ went to the New Zealand Police, principally concerning the videos. There seems to have been a suggestion – denied by the applicant – that he had threatened to release them.
J’’s approach to the police led to the provision of the substance of ‘J’’s account of events to the Medical Council of New Zealand (the Medical Council). In September 2019, the Medical Council notified the applicant that it had referred the matter to a Professional Conduct Committee (PCC) and that it proposed to suspend the applicant’s practising certificate on an interim basis. The Medical Council resolved to suspend the applicant’s practicing certificate. Prior to that coming into effect, the applicant obtained a stay of the suspension by order of the District Court of New Zealand upon him abiding the terms of a voluntary undertaking.
The police have since confirmed that no charges would be laid concerning the videos, but it seems that the PCC investigation remains on foot. On 19 September 2019, the applicant notified AHPRA of the developments in New Zealand. In that email, he described ‘J’ as ‘an ex-partner of mine’ who was not a patient. He said that undertaking the swab, ‘technically at least, engages the doctor-patient relationship’, but that ‘any other allegations are vigorously denied’. The email appears to have enclosed the voluntary undertaking proposed to be given by him in New Zealand.
On 1 October 2019, the Medical Board of Australia (the Board) imposed an interim suspension upon the applicant’s registration in Australia on the basis that he had been suspended in New Zealand. On 20 March 2020, the District Court of New Zealand essentially upheld the applicant’s contention that an interim suspension was too severe in effect, and accepted that the conditions of a voluntary undertaking would be sufficient. On 21 May 2020, the applicant sought that AHPRA review the interim suspension of his registration in Australia.
On 23 June 2020, the Medical Board re-imposed the interim suspension of the applicant’s registration in Australia where ‘immediate action’ was taken under s 156(1)(a) and (e) of the Health Practitioner Regulation National Law (the National Law) believing that because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons. On the applicant's appeal to the Tribunal on 26 March 2021, the Tribunal ordered that the decision of the Medical Board dated 23 June 2020 be confirmed and published its reasons. By notice of appeal dated 28 April 2021, the applicant seeks leave to appeal from the order of the Tribunal on a question of law.
Issue:
Whether or not the VCAT erred by not considering ruling the first Immediate action illegal and not awarding costs as requested by the Appellant.
Applicable law:
Health Practitioner Regulation National Law (Victoria) Act 2009 s 156(1)(a) & (e) - provides that a National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if –
(a) the National Board reasonably believes that –
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety; or
...
(e) the National Board reasonably believes the action is otherwise in the public interest.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) - provides that an applicant must identify and rely upon questions or errors of law involved in the decision of the Tribunal. There must be a real or significant argument that such error exists. Even if questions of law are identified, that does not mean that leave should be granted.
Appanna v Medical Council of New Zealand [2020] NZDC 4844 (CB292-305) - where the District Court of New Zealand essentially upheld the applicant’s contention that an interim suspension was too severe in effect, and accepted that the conditions of a voluntary undertaking would be sufficient.
Appanna v Medical Board of Australia (Review and Regulation) [2021] VCAT 277 (‘Appanna’) (CB156-171) - where the Tribunal ordered that the decision of the Medical Board dated 23 June 2020 be confirmed and published its reasons.
Transport Accident Commission v Hoffman[1989] VicRp 18; [1989] VR 197 - provides that the applicant must identify and rely upon questions or errors of law involved in the decision of the Tribunal. There must be a real or significant argument that such error exists. Even if questions of law are identified, that does not mean that leave should be granted.
S v Crimes Compensation Tribunal[1998] 1 VR 83 - provides that a question of law will arise only if the Tribunal arrived at a conclusion that was not open on the evidence.
Analysis:
The applicant complains that, he says, the photograph which he took of a patient after an obstetric procedure while he was conducting a locum in regional Australia in about June 2019 was not relied upon by the Medical Board when initially suspending the applicant, but came subsequently to be relied upon in respect of the later ‘immediate action’. The applicant asserted that he took it with the ‘full permission of the patient’. In that, he asserted that he told the patient that it was to be taken to ‘send to a partner’. However, it is, quite frankly, not easy to see how such an exchange could be said to amount to the giving of ‘full permission’. The applicant has since repeatedly acknowledged that in sending the photograph he breached the privacy of his patient. In that, he has acknowledged that he did not ‘exercise appropriate judgement’.
Much of the applicant’s argument in respect of this ‘question’ is directed to assertions concerning what he describes as being the ‘catastrophic’ economic and other effects upon him of the ‘immediate action’. The Tribunal considered the appropriate form of ‘immediate action’, in the course which it took into account the extent of the applicant’s presently continuing right to practice in New Zealand including the effect upon him of any suspension of his ability to practise in Australia. No error of law can be said to arise from the decision or order of the Tribunal.
In respect of the Tribunal, it is not bound by the rules of evidence and may consider its own procedure. The Tribunal was entitled to consider, take into account and act upon statements made to it by the applicant, just as it evidently did so in respect of the submissions that must have been made by counsel for the respondent.
Conclusion:
The applicant has identified no ‘question of law’ involved in the order or decision below, and certainly no question of law that might be accepted. For these reasons, leave to appeal must be refused. The parties are to be heard concerning the form of orders, and costs.
