Medical Practitioner unsuccessful appeal of 12-month suspension Dr Zhao v Medical Board of Australia (2012) VSC 763

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By Stuart Eustice, Partner and Holly White, Lawyer

Dr Zhao was a doctor in China who became a registered medical practitioner in Australia from December 2001. She worked in various locations across Australia between 2001 – 2008 and again 2014 – 2018.

On 23 March 2018 the Medical Board of Australia (Board) received a confidential notification alleging Dr Zhao had inappropriately prescribed testosterone replacement therapy to 12 patients over a number of years. In April 2019 the Board took immediate action, resulting in Dr Zhao providing an undertaking which permitted her to practice with conditions.

In March 2020 the Board referred Dr Zhao to the Victorian Civil and Administrative Tribunal seeking a 12-month suspension. The parties agreed to a finding of professional misconduct however Dr Zhou submitted a suspension would be punitive rather than protective of the public in the context of the pandemic. As she was presently working in general practice administering vaccinations it was more appropriate to impose a fine.

Dr Zhou chose to provide the Tribunal with a ‘reflective letter’ rather than giving evidence in person. In it, she stated that due to her overseas training she was unaware that her conduct did not accord with professional standards in Australia. She stated she had undertaken further training and education and ensured the conduct would not be repeated.

During the hearing, the Board provided the Tribunal with material relating to a prior notification involving Dr Zhou (prior notification). The Board relied on the prior notification, not because of the content of the notification (which the Board accepted was a very minor error), but because of the timing. In response to the prior notification, Dr Zhou had completed a certificate for a course on medication safety on 9 March 2018 and had provided the Board with a letter of the same date advising ‘I have changed my work processes and those within the practice to ensure that the appropriateness of medications prior to their application and use is double-checked’. The confidential notification was made to the Board on 28 March 2018. It also became apparent that the conduct in respect of 6 patients extended beyond that date.

Ultimately, the Tribunal considered there were ‘serious issues in relation to insight’, demonstrated by the fact that a reflective letter was provided ‘very, very late’, the content of the letter dated 9 March 2018 and because Dr Zhao had failed to explain what led to the errors and what changes had been made. Despite being given an opportunity to allay the Tribunal’s concerns, Dr Zao refused to give oral evidence.

The Tribunal ordered a suspension of Dr Zhao’s registration for 12 months, a reprimand, further education to be completed during the suspension and various conditions on her registration following completion of the 12-month suspension.

Dr Zhao unsuccessfully sought leave to appeal the Tribunal’s decision on 7 grounds, effectively arguing the Tribunal should not have considered the prior notification. The Court was not satisfied the bulk of grounds for appeal identified any ‘question of law’, save for one, which itself was rejected. Parties are only permitted to appeal from a Tribunal decision, with leave, on a question of law. Importantly, the Court added it would be reluctant to overturn the decision of an expert tribunal on questions of fact in respect of which it has particular expertise, and that deference would be afforded to the expert tribunal members view.

For further information, please do not hesitate to contact us.

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