A recent Supreme Court of Victoria decision has dismissed an appeal by the Medical Board of Australia to overturn Victorian Civil and Administrative Tribunal's (VCAT) decision to not suspend a doctor charged with serious criminal offences.1
In September 2018, Dr Liang Joo Leow (the respondent) was charged with one count of rape, and alternatively, one count of sexual assault. The respondent denied the allegations.
The allegations relate to an incident which occurred in 2017. The respondent and complainant were both single homosexual men who were doctors working at different hospitals. In mid-2017, they went out for dinner and later decided to have sex at the complainant's home. The complainant alleges that the respondent removed a condom during intercourse after assuring the complainant that he would use one.
Suspension of respondent's registration
The Medical Board of Australia (Board), acting pursuant to section 156(1)(e) of the Health Practitioner Regulation National Law (National Law), took immediate action and suspended the respondent's registration when charges were laid. Section 156 of the National Law allows the Board to take 'immediate action' in relation to a registered health practitioner in certain circumstances. Relevantly, these include where the Board 'reasonably believes the action is otherwise in the public interest'. An example provided in the National Law is where a 'health practitioner is charged with a serious criminal offence, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.'
The respondent appealed to the VCAT. VCAT overturned the decision of the Board, with the majority of two to one determining that the immediate action was not in the public interest. The respondent's suspension was therefore set aside.
The Board appealed to the Supreme Court of Victoria, with Justice Niall presiding over the appeal.
Grounds of Appeal
The Board appealed VCAT's decision on four bases:
- VCAT failed to give adequate reasons.
- VCAT's decision was irrational or unreasonable.
- VCAT considered irrelevant matters, including that:
- the public would know the allegations are only against one medical practitioner;
- an allegation of this nature is rare;
- the public would not judge the whole profession based on one medical practitioner's alleged conduct; and
- the public would understand that until a finding of guilt, the medical practitioner could continue working.
4. Is the Board (and VCAT) required to determine whether it has formed the reasonable belief that immediate action is required to be taken to maintain public confidence in the provision of service by health practitioners?
The Court's findings and conclusions
Justice Niall granted leave to appeal but ultimately dismissed the appeal.
The Court found that VCAT did give adequate reasons and that the decision was not irrational or unreasonable.
Justice Niall opined that for the Court to be satisfied that irrelevant considerations were taken into account, the Court would have to find that the matters listed at number 3 above were those matters that the Board and VCAT was expressly precluded from considering by section 156 of the National Law. The Court found that the matters considered by the Tribunal were not irrelevant and could be taken into account in assessing the impact of the alleged conduct on the reputation of the medical profession as a whole.
When considering the test that must be applied under section 156(1)(e), Justice Niall found that the 'issue of public confidence was squarely raised and considered by the Tribunal.' The Court found there was no substantive difference in VCAT's finding that public confidence will not be lost by allowing the respondent to continue practising and a finding that immediate action is not required to maintain public confidence in the provision of service by health practitioners. The Court confirmed that VCAT considered whether immediate action was required to maintain public confidence in health practitioners as it was required to do.
Key learnings from the case
The case found that immediate action will not necessarily be required to maintain public confidence in the health profession where a practitioner has been charged with serious criminal offences, including rape and sexual assault.
The Court also found that there is no general rule for evaluating the loss of public confidence in the health profession. The Board and VCAT will be able to consider a wide number of factors in assessing the impact on public confidence in reaching a determination as to whether immediate action is required.
The judgement provides an important precedent for insurers and lawyers assisting practitioners in the immediate action process.