Applicant Dispute Charges of Professional Misconduct

Zhao v Medical Board of Australia [2021] VSC 763 (23 November 2021)

13 allegations of ‘professional misconduct’ were charged against the applicant.  The Tribunal ordered that the medical registration of the applicant be suspended for a period of 12 months.  The applicant made an application for a stay of the orders made by the Tribunal.  The Court, in resolving this dispute, assessed the interpretation of paragraph (c) of section 5 of the National Law.

Facts:

The applicant qualified as a medical practitioner in China and practised in that country between about 1992 and 1997.  In 1997, she moved to Australia and studied medicine at the University of Melbourne, graduating in 2001.  In December 2001, the applicant obtained general registration as a medical practitioner in Australia.  In September 2016, the applicant joined the Boroondara Medical Centre.  

In March 2018, the Medical Board of Australia (‘the Board’) received a confidential notification alleging that the applicant had prescribed testosterone replacement therapy in the absence of conducting appropriate examinations and/or investigations.  The applicant later asserted that her management of a particular patient was not unethical and was consistent with her training.    In March 2020, the Board referred the applicant’s conduct to the Victorian Civil and Administrative Tribunal (‘the Tribunal’).  The Board came to contend that 13 allegations, taken as a whole, amounted to ‘professional misconduct’.

The allegations covered the treatment of 12 different patients over specified periods, some of which spanned several years.  In ‘allegation 1’, ‘professional misconduct’ was alleged in the period 5 March 2015 to 14 March 2018 in respect of the treatment of a patient identified as Mr ZL. It was alleged that the applicant failed to provide good patient care; and/or undertake appropriate assessments and/or investigations; and/or consider therapeutic necessity; and/or maintain accurate clinical records.  In ‘allegation 5’, in respect of a patient identified as Mr GB and in the period 12 October 2017 to 23 August 2019, it was alleged that the applicant failed to do the same. 

The applicant admitted to the conduct the subject of the 13 allegations and the parties jointly submitted that the conduct, taken as a whole, constituted ‘professional misconduct’ within the meaning of paragraph (b) of the definition of ‘professional misconduct’ in s 5 of the National Law.  The Tribunal ordered that the medical registration of the applicant be suspended for a period of 12 months.  The Tribunal also ordered that the applicant undertake various education during the period of suspension and that the subsequent medical registration of the applicant be subject to various conditions. 

The applicant commenced proceedings in this Court by notice of appeal dated 1 October 2021.  The applicant made an application for a stay of the orders made by the Tribunal.  The application was resisted by the respondent.  The solution seems to have been an eminently practical one: the application for a stay was dismissed and the application for leave to appeal and, if leave is granted the appeal, was listed to be heard on an expedited basis.

Issue:

Whether or not the applicant's conduct comprises ‘professional misconduct’ within the meaning of paragraph (c) of the definition of ‘professional misconduct’. 

Applicable law:

Health Practitioner Regulation National Law Act 2009 (Vic) - gives effect to the Health Practitioner National Law Act 2009 (Qld) in Victoria. ‘National Law’ for the purposes of this judgment is used to refer to both the Victorian and Queensland legislation, as the case may be. 

Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) - provides that a party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding [..] (b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 - provides that where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.   

Medical Board of Australia v McCombe[2020] QCAT 511 - provided that a suspension of the applicant’s registration would be punitive of the applicant rather than protective of the public. 

Medical Board of Australia v Zhao (Review and Regulation)[2021] VCAT 1053 - where the Tribunal ordered that the medical registration of the applicant be suspended for a period of 12 months.

Medical Board of Australia v Arulanandarajah [2021] VCAT 85 - where the proper interpretation of paragraph (c) of the definition of ‘professional misconduct’ was considered by the Tribunal. 

Myers v Medical Practitioners Board of Victoria[2007] VSCA 163; (2007) 18 VR 48 - where the respondent contends that none of the applicant’s grounds have any real prospect of success and that leave to appeal should therefore be refused.

Patsuris v Gippsland and Southern Rural Water Corporation [2016] VSCA 109; (2016) 218 LGERA 167 - provides that it is ‘not sufficient for the parties to identify a point of law between them on appeal that was not raised before the Tribunal’.

Psychology Board of Australia v Mair [2010] VSC 628 - held that a question of law will only arise if a finding of fact was ‘not open’ in the sense that there was no evidence to support it. 

Hartley v Dental Practice Board of Victoria [2009] VCAT 2217 - provides that the jurisdiction of the Tribunal was said to be founded in s 193 of the National Law, which relevantly refers to the reference of a ‘matter’ about a registered health practitioner to the Tribunal if the Board ‘forms a reasonable belief’ that the practitioner ‘has behaved in a way that constitutes professional misconduct’. 

Ziems v Prothonotary of the Supreme Court (NSW)[1957] HCA 46; (1957) 97 CLR 279 - referred to by the applicant in submitting that the error was in the Tribunal so finding without also finding that the applicant was ‘unfit and improper’; either at the time of the conduct or at the time of the hearing.

Analysis:

The applicant contends that the Tribunal misconstrued paragraph (c) of the definition of ‘professional misconduct’, which error was said to be evident when the Tribunal held that "the conduct, taken as a whole, justifies a finding that it is inconsistent with fitness and propriety and therefore justifies a finding under paragraph (c) as well as paragraphs (b) and (c) of the definition of professional misconduct."  In Arulanandarajah, the interpretation of paragraph (c) of the definition of ‘professional misconduct’ is that it is directed to an assessment of the conduct of the practitioner and a consideration whether that is inconsistent with the practitioner being a fit and proper person; with any wider consideration or subjective consideration of the practitioner’s fitness and propriety to be undertaken at any later and discretionary stage of considering and, if appropriate, making ‘determinations’ under s 196 of the National Law.  The approach favoured by the applicant is a more strained construction and seeks to draw momentum from decisions in quite different contexts. 

Conclusion:

The Court does not accept that the Tribunal made any error in the manner in which it approached the issue.  Both the application for leave to appeal and appeal if leave is granted.  Grounds 6 and 7 are rejected.  The Court is not satisfied that any of the other proposed questions of law or grounds of appeal identify any ‘question of law’ important to the success or failure of an appeal if leave were allowed.  Notwithstanding the grant of leave in respect of ground 5, for the reasons which the Court have identified, the appeal is dismissed.  The parties will be heard concerning the appropriate form of orders and the issue of costs.