By Stuart Eustice, Partner & Holly White, Lawyer

A GP specialising in cosmetic dermatology was charged with recklessly causing injury to and assaulting his wife. His treating psychiatrist notified the Board of the charges and it took immediate action to suspend his registration. The GP applied to VCAT to stay (suspend) the Board’s decision, which would allow him to continue to work until the final review was concluded.

The GP had previously been subject of disciplinary action including suspension and cancellation of registration and the imposition of chaperone and other conditions after serious boundary transgressions involving female patients, among other matters. The GP also had open notifications relating to allegations of practising medicine in breach of COVID-19 lockdown rules and prescribing for chaperones and family members.

The Tribunal is required to balance the following when deciding whether to grant a stay:[1]

1. ‘whether refusing the stay would render the application for review nugatory (i.e. of no value);
2. whether there is a serious question to be tried on the review;
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.’

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

The GP submitted evidence that if he were to remain suspended his company, which ran his medical practice, would become insolvent, he would be unable to support his unemployed wife and would need to withdraw his children from private school and sell his house. The Tribunal accepted ongoing suspension would have an adverse impact on the GP’s financial position however considered the public interest outweighed this concern (see below).

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

The Tribunal accepted there was a serious question to be tried because the GP maintains his innocence. However, it noted the GP had been charged with family violence offences and he did have the disciplinary history noted.

The Tribunal considered where the GP’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 an allegation of one or more offences relating to domestic violence could be sufficient to warrant immediate suspension.

3. 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 and the criminal proceeding finalised. This pointed slightly in favour of a stay.

4. Is the grant of a stay in the public interest?

The Tribunal acknowledged in some cases awaiting the resolution of criminal charges before taking any precautionary steps may adversely impact on patient safety, public confident and the public interest.  The Board submitted the GP had repeatedly engaged in conduct that appears to reflect a lack of respect for women, which is particularly concerning in the context of the domestic violence allegation and that the GP mainly treats women. The Tribunal confirmed the past disciplinary action was a relevant consideration of the public interest.

Conclusion: Balancing the considerations

The Tribunal considered the public interest outweighed the GP’s personal interests and refused his application to stay the suspension. This means the GP will remain suspended and unable to work as a doctor 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.

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2022/1194.html?context=1;query=board;mask_path=au/cases/vic/VCAT