When serious allegations are made against a registered professional, the public expects regulators to act decisively. Against this, the Board must balance fairness to the practitioner and the overall public interest in ensuring that highly trained medical professionals can continue to offer medical services, if they can do so safely. A recent Western Australian State Administrative Tribunal decision overturned the decision of the Medical Board of Australia to take immediate action to fully suspend from practice a doctor who had been charged with 3 counts of unlawful and indecent assault. The practitioner appealed the decision, with reference to the financial impact that his inability to practice had already had, and would continue to have, upon him and his family. He proposed instead the imposition of gender based conditions about his entitlement to practice, which the Tribunal accepted.
The decision provides important guidance on the assessment of public interest and how a Board or Tribunal will treat evidence about the financial impact on a practitioner in relation to intermediate regulatory decisions.
A medical practitioner faced 3 serious criminal charges arising from alleged conduct during consultations with 2 female patients. He denied the allegations and was entitled to the presumption of innocence while he awaited trial. Nevertheless, the Medical Board took immediate action under the Health Practitioner Regulation National Law to suspend the practitioner’s registration.
The practitioner accepted that some form of immediate action was inevitable, but challenged whether suspension was necessary, arguing that conditions could adequately manage any risk.
The Tribunal reaffirmed that immediate action powers are protective, not punitive. They exist to manage risk while investigations and disciplinary processes are underway, not to determine guilt or make findings of fact.
Crucially, the Tribunal emphasised that the particular form of immediate action taken by the Board must be either necessary to protect public health and safety, or in the public interest, and that it be the minimum necessary action to address the identified risk. Suspension is not automatic, even where allegations are serious. Conditions may be sufficient if they adequately protect the public.
The Tribunal accepted that the allegations were serious and capable of supporting a reasonable belief that the practitioner posed a risk. However, it found that the risk was not universal.
On the material before it, the Tribunal concluded that any risk was confined to unaccompanied female patients. There was no objective basis to conclude that male patients were exposed to a similar risk. The Tribunal also considered whether women who might be accompanying male patients (say, a mother bringing her minor son for a consultation) might be exposed to a risk, and concluded that they were not, and the practitioner was permitted to continue to see male patients who were accompanied by a female.
In those circumstances, a blanket suspension went further than was necessary to protect public health and safety.Gender-based conditions restricting the practitioner from treating female patients were found to be a proportionate and effective response.
An important aspect of the decision was the Tribunal’s treatment of the practitioner’s financial circumstances.
The practitioner gave evidence that suspension had caused significant financial and personal strain. He did not, however, precisely quantify his loss (or prospective loss), nor did he provide any extensive supporting evidence.
Despite this, the Tribunal accepted that prolonged suspension would obviously and inevitably have a material adverse financial impact upon the practitioner. That impact was a relevant consideration when assessing proportionality and determining whether suspension was the minimum necessary form of immediate action.
This reinforces that, in immediate action cases, practitioners are not required to prove their loss with forensic precision. The focus remains on whether the regulatory response appropriately balances public protection with fairness.
The Board argued that suspension was required in the public interest to maintain confidence in the medical profession, relying on the guiding principles in the National Law.
The Tribunal rejected the idea that public interest automatically demands suspension. It recognised that public interest is multifaceted and includes fairness, proportionality, and the principle that restrictions on practice should only be imposed where necessary.
The Tribunal concluded that a properly informed public would retain confidence in the regulatory system where serious allegations were addressed through targeted, risk-based conditions rather than an overly broad suspension.
This case is a reminder that immediate action powers are not limitless. Public confidence is not strengthened by excessive restrictions, but by regulatory decisions that are measured, transparent and proportionate. Financial impact on the practitioner is a relevant consideration in immediate action decisions, even where that impact cannot be precisely quantified.
This article was written by Hayley French, Solicitor Insurance and Risk and Narika Wicks, Senior Associate Insurance and Risk.