Tribunal warns medical board about the presumption of guilt as it overturns another emergency suspension

The suspension of doctors under the Medical Board of Australia’s emergency powers has become a vexed topic.

These powers are meant to be employed in exceptional circumstances where there is a significant risk to patients that justifies overriding the presumption of innocence before a doctor is proven guilty.

There have been a string of cases where the courts have overturned the medical board’s decisions on appeal.

This week, another case emerged.

It concerned a neurologist who, last year, was charged with three charges of rape and one count of indecent assault.

Police alleged the crimes happened 16 years prior.

At the time, the doctor was 23 (five years before starting his medical degree) and in a relationship with a 17-year-old.

It was not until 2018 that she made a report to police.

The doctor denied the allegations and said he would be “fully contesting” the charges at his trial, expected to run next year.

The medical board suspended him in August last year under section 156(1)e of the National Law.

This is not the clause related to the board’s belief that it needs to take action to protect public health or safety.

It is the clause where the board “reasonably believes the action is otherwise in the public interest”.

An example is where the board believes it is necessary to maintain public confidence in the provision of services by doctors.

In this case, the flow-on effect for the doctor was that he was suspended without pay from his job.

The suspension was temporarily stayed by the Victorian Civil and Administrative Tribunal just a few months later.

The tribunal ruled this month that the suspension should never have been imposed at all.

During the hearings, the medical board’s lawyer argued that it would be “incongruous” for the doctor to be allowed to practise medicine — a profession where the “principles of patients’ bodily integrity, and respect for patients, are paramount”.

As such, a suspension was necessary to maintain confidence in the profession, he said.

But the doctor’s lawyer stressed there was a rival public interest argument in allowing him to practise in regional NSW, where he now lived, given that demand for neurophysiology services — his subspecialty — were high.

She also pointed to the lengthy delay between the alleged offences and the police charges, as well as the fact that police had closed the investigation into the alleged victim’s complaint, then reopened it.

Additionally, the doctor had no other criminal or disciplinary history.

Both male and female colleagues who were familiar with the charges against him attested to his competence and good character.

The tribunal appeared to agree, saying the use of emergency powers had been unjustified.

It stressed that previous emergency suspension cases involving doctors had made clear that “public interest” arguments needed to be balanced with the need to ensure the regulatory system was “fair and proportionate”.

This included two important safeguards against an error by the national boards: that tribunals received cases in appropriate time and that immediate action did as little damage to the practitioner as possible.

In this case, the tribunal said the decision to lift the emergency suspension was strengthened by the fact that the alleged offences occurred years before the doctor started his medical training.

“We accept the submission on behalf of [the doctor] that members of the public, properly informed of the details of the case and of the purpose of immediate action, would not need [him] suspended in order to have confidence in the medical profession or the regulatory system.”

In making its finding, the tribunal also appeared to echo the concerns of medical defence organisations that some immediate-action decisions were being made without regard to the presumption of innocence.

“The fact that [the doctor] has been committed to stand trial is, of course, an important consideration,” it wrote.

“Still, there is the presumption of innocence, and … it is appropriate to impute to the public an understanding that the allegations are untested (in a jury trial) and currently unproven.

“Whatever a decision-maker may perceive to be the strength of the prosecution case, it is important not to approach decision-making under section 156(1)(e) as though the presumption of innocence is not really significant,” the tribunal said.

“And as Niall JA said in Leow, ‘It is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all of the competing factors.'”

One of the most prominent wrongful emergency suspension cases in recent years was that of Dr William Pridgeon, who battled the Medical Council of NSW for nearly four years through various appeals.

It took until 2022 for the NSW Supreme Court of Appeal to find that his emergency suspension was “baseless”.

The three-judge panel ruled that emergency suspensions should be reserved for the most urgent cases and that the medical council was wrong to assume that Dr Pridgeon’s criminal charges would undermine confidence in the profession.

By then, Dr Pridgeon had lost his practice, his patients and his life savings.

Two months later, a tribunal relied on the Court of Appeal decision in Dr Pridgeon’s case when overturning a Wollongong GP’s emergency suspension, imposed after he was charged with stalking and intimidating his ex-wife.

Another high-profile case is due to conclude in the coming months — that of Dr Jereth Kok, whose emergency suspension over 85 social media posts lasted five years.

The tribunal presiding over the neurologist’s case also stressed that many doctors who were allowed to keep practising pending a formal hearing could eventually be found guilty of serious misconduct.

But it seems that tribunals consider this a natural — and acceptable — consequence of deciding against immediate action when there is no immediate risk to patients.

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