Hobart v Medical Board of Australia [2023] VSCA 270.

By Stuart Eustice, Partner, Holly White, Associate and Claire Lewis, Seasonal Clerk

Between December 2020 and October 2021, the Australian Health Practitioner Regulation Agency (Ahpra) received eight notifications regarding a GP raising issues relating to COVID-19, in particular vaccination exemptions and the dissemination of COVID-19 information. The Board decided to commence an investigation into each notification and on 18 November 2021 took immediate action to suspend the GP’s registration.

A health practitioner who has their registration suspended via the immediate action pathway has the right to appeal the decision to VCAT. The GP did not appeal.

Judicial review application

On 21 December 2021, the GP issued proceedings seeking judicial review of the Board’s decision in the Supreme Court of Victoria. Relevantly, section 193 of the National Law requires a Board to refer a matter about a registered health practitioner to VCAT if the Board reasonably believes the practitioner has behaved in a way that constitutes professional misconduct. The GP contended that the Board’s decision to suspend his registration, ‘when taken as a whole would constitute a finding of professional misconduct’, such finding being outside the Board’s jurisdiction and instead, the Board ought have immediately referred the matter to VCAT. Further, he submitted due to the length of time the suspension had continued for, it was no longer an ‘interim measure’ and rather became an ‘indefinite’ suspension which should be referred to VCAT.

The GP’s application was heard on 12 July 2022 and dismissed on 16 November 2022, the trial judge finding the Board’s decision did not contain any finding of professional misconduct and its actions in suspending the GP were reasonable. The trial judge also found that following immediate action, the Board is not required to immediately refer a matter to VCAT and the Board’s actions in conducting an investigation was permitted by the National Law.

Appeal

The GP sought leave to appeal on two grounds, one of which was later abandoned. The Court of Appeal considered the GP’s first ground of appeal, that the trial judge failed to order the Board to immediately refer the matter to VCAT.

Relevantly, section 156 of the National Law gives a Board the power to take immediate action against a registered health practitioner under a number of grounds. The GP submitted there was an implied constraint in section 156 requiring a referral to VCAT to be immediate if immediate action involved suspension. The Court of Appeal did not accept there was an implied constraint, noting further, other provisions of the National allow the Board to take immediate action and then undertake investigation, which cannot align with the GP’s contention of an implied constraint.

The Court of Appeal refused the GP’s leave to appeal.