When regulatory decisions are challenged – insights from Dr Jamie Orchard of Ahpra

On a daily basis, Dr Jamie Orchard of the Australian Health Practitioner Regulation Agency (Ahpra) is faced with significant regulatory decisions around the practice of health professionals – either through his registration advisory, complaint handling, or in taking action to protect the public, following allegations of substandard care.

In the course of taking that action, it is not unusual for these decisions to be challenged or reviewed in a tribunal or higher court – and the rulings from these cases often have important implications for regulatory practice.

In recent years, however, some court rulings have stood out above the rest, prompting notable changes to Ahpra’s decision-making processes, explains Dr Orchard.

“Over the last 12 months, we have seen some significant outcomes from the Supreme Court, in which cases are considered under the Health Practitioner Regulation National Law and at an operational level.

“As a result of these outcomes, we’ve made changes to some of our processes, ensuring that what we do is not only lawful, but that it causes the least possible impact to practitioners,” he said.

Ahead of the Medico Legal Congress, Dr Orchard discusses three defining cases, which have reshaped the organisation’s decision-making process.

X versus the Psychology Board of Australia

The plaintiff, ‘X’ is a psychologist registered with the Psychology Board of Australia.

In 2021, the Board investigated X after Ahpra was notified about him, under the Health Practitioner Regulation National Law.

“These notifications cited reports in mainstream media that X, had been accused of sexual harassment, and a sexual relationship involving a power imbalance, in the context of a sporting club in which he was involved,” Dr Orchard said.

X brought this application for judicial review, in light of the Board’s decision to put his investigation – a decision which affected his ability to practice – on hold.

The hold had been pending the resolution of a civil defamation proceeding brought by X in the County Court of Victoria against the subject of his alleged sexual harassment and other misconduct.

“X contended that the Board’s decision was ultra vires its powers under the National Law. Or, that it failed to take into account relevant, or legally reasonable, considerations, and was affected by jurisdictional error.

“The outcome was that the Court set aside the decision of the Board,” Dr Orchard said.

Y versus the Medical Board of Australia

Y is a medical practitioner registered under the Health Practitioner Regulation National Law, who until his recent court proceedings, conducted a general practice in Melbourne.

In 2021, the Medical Board of Australia took immediate action under s 156(1) of the National Law, by suspending Y’s registration.

“The decision was based on its belief that Y’s conduct posed a serious risk to patients and that immediate action was necessary to protect public health and safety,” Dr Orchard said.

Y’s registration remained suspended, while the Board completed its investigation of a number of a number of complaints of misconduct.

These include allegations relating to COVID-19 vaccination exemption certificates issued during the COVID-19 pandemic. There was also allegations that Y may have been involved in publishing incorrect or misleading information about COVID-19 and the public health response to it.

Y sought judicial review in respect of the Board’s decision to suspend his registration.

“He said the Board’s decision was not an exercise of its immediate action powers under the National Law, rather a finding of professional misconduct that the Board did not have power to make,” Dr Orchard said.

He sought an order compelling the Board to refer the notifications that are under investigation to the Victorian Civil and Administrative Tribunal (VCAT), for hearing in its original jurisdiction.

The outcome was that the court dismissed the application.

Z versus the Medical Board of Australia

In 2021, the Medical Board of Australia took ‘immediate action’ against the plaintiff, Z, pursuant to s 156 of the Health Practitioner Regulation National Law.

The action taken was to suspend Z’s registration, which precluded her from general practice, following concerns that she posed a serious risk to patients.

“The Board believed it was necessary to take immediate action to protect public health and safety, and maintain public confidence in the medical profession,” Dr Orchard said.

Before taking that action, the Board sought and received submissions from Z, and later commenced an investigation under s 160 of the National Law.

The Board also referred Z to VCAT under s 193(1)(a) of the National Law, given its belief she had ‘behaved in a way that constitutes professional misconduct.’

However, it did so after Z had sought judicial review of the Board’s decision to take immediate action against her.

When that matter comes on for hearing, VCAT will not be reviewing the Board’s decision to suspend her registration, but will instead be exercising original jurisdiction and determining whether Z has in fact breached the obligations on her as a medical practitioner.

“The immediate action taken under s 156 of the National Law, being the suspension, had been in operation for almost three years. However, Z argued that she has been subject to the immediate action for too long, contending that the Board was required to refer the matter to VCAT immediately, which it did not do,” Dr Orchard said.

“She also claimed that her ‘indefinite suspension’ is unlawful on a proper construction of the legislation, particularly when read with binding authorities that have pronounced safeguards inherent in that legislation.”

In the Supreme Court Z did not seek, and was not able to seek, to have the Board’s decision to take immediate action against her, or the nature of that action, reviewed on their merits.

Instead she sought a declaration that s 156 of the National Law is “invalid in its practical operation or substance when the Board exercised the power indefinitely, that is, for years and is contrary to the very nature of the power where only interim and temporary protection for the public is envisaged.”

She also sought a declaration that “there does not exist the power to indefinitely suspend a health practitioner under the Health Practitioner Regulation National Law Act 2009 (Victoria).”

Consistently with this relief, she identified in her originating motion as a ground relied on that ‘it is ultra vires the Board to indefinitely suspend a practitioner’.

Z also sought, as a consequence of a finding that the Board has acted unlawfully, an order that the Board ‘immediately remove the suspension’ made on 4 November 2021.

The Court dismissed the application.

Further insight

Sharing more on these defining cases and the resulting regulatory changes, Dr Jamie Orchard will present at the upcoming Medico-Legal Congress, held 26-27 March at the Swissotel Sydney.

Learn more and register your place here.