By Stuart Eustice, Partner & Holly White, Lawyer

Dr Lepustin was charged with ten indictable offences relating to the provision of false medical certificates to two patients so they could be paid sick leave they were not entitled to. There were also further allegations Dr Lepustin had dishonestly falsified the patients’ clinical records. Victoria Police notified the Australian Health Practitioner Regulation Agency (Ahpra) of the charges and as a result, the Nursing and Midwifery Board and the Medical Board took immediate action to suspend Dr Lepustin’s nurse and doctor registration pending a final review.

Dr Lepustin applied to VCAT to stay (suspend) the Boards’ decisions, which would allow her to continue to work until the final review was concluded.

The Tribunal must balance the following considerations when deciding to grant a stay:[1]

1. whether there is a serious question to be tried on the review;
2. whether refusing the stay would render the application for review nugatory;
3. whether the granting of the stay is in the public interest; and
4. the period that will elapse before the final hearing of the review.’

Whether there is a serious question to be tried on the review

The Tribunal accepted there was a serious question to be tried on the review because although there was considerable evidence supporting the charges, there were some gaps meaning some or all of the charges might not be proven beyond a reasonable doubt.

The Tribunal considered where Dr Lepustin’s alleged conduct fit on the spectrum considered in CJE v Medical Board of Australia,[2] ranging from allegations of ‘sexual assault of multiple young patients over many years’ (where immediate action was required), to ‘serious offences under the taxation law’ (where immediate action was not required). The Tribunal considered the allegations to be somewhat more serious than tax offending occurring outside practice.

Whether there is a serious question to be tried on the review points strongly in favour of stay, subject to the question of whether it is overridden by the public interest of maintaining public confidence in the profession.

The Tribunal did not consider the allegations were so serious that the confidence of the public would be undermined to such an extent that a suspension was required.

Will the failure to grant a stay render any review nugatory?

While unable to work, Dr Lepustin had moved in with her adult daughter in anticipation of selling her home and was reliant on Jobseeker payments. The Tribunal accepted ongoing suspension would have an adverse impact on Dr Lepustin’s wellbeing and financial position.

Dr Lepustin is a Russian and Ukrainian speaking doctor who, prior to her suspension, had been providing pro bono medical consultations to approximately six Ukrainian refugees per day. She submitted these patients would otherwise have no access to medical care due to a language barrier and a lack of access to Medicare. The Tribunal accepted Dr Lepustin’s suspension may impact adversely on the care received by those patients.

These considerations pointed moderately in favour of granting the stay.

Likely period of time that would elapse before the hearing of the review

The Tribunal noted there would likely be some months before the review would be heard by VCAT. This pointed slightly in favour of a stay.

Is the grant of a stay in the public interest?

While the Tribunal noted dishonesty by a doctor has the potential to diminish trust and confidence in the medical profession as a whole, it was not convinced the public would be so concerned about the charges against Dr Lepustin that their confidence in the medical profession would be undermined unless she were immediately suspended, noting the public understands the presumption of innocence.

The charges did not raise concerns about Dr Lepustin’s ability to practice safely or competently.

These considerations pointed moderately in favour of granting the stay.

Conclusion: Balancing the considerations

The Tribunal found the considerations all pointed in favour of staying the suspension and ordered the Boards’ ‘immediate action’ decisions stayed until the determination of the review. This means Dr Lepustin is allowed to return to practice pending the outcome of the final review.

[1] Based on Bell and Eager v Liquor Licensing Victoria and Swapnil [2000] VCAT 214.

[2] [2019] VCAT 178.