Background

Dr Harirchian (‘the Practitioner’) is a medical practitioner (GP) practising in Queensland and was the subject of a sexual assault complaint by a female patient in or about October 2018. The Practitioner was subsequently charged with one charge of sexual assault and pleaded not guilty. A jury returned a verdict of guilty on 6 December 2019 and the Practitioner was sentenced to eight months imprisonment to be suspended after he had served three months. Throughout all relevant proceedings, the Practitioner maintained his denial of the conduct that was the subject of his charge and conviction.

Immediately after the Practitioner was charged, the Queensland Health Ombudsman imposed conditions on the Practitioner’s registration that prevented him from treating female patients. After the Practitioner’s release from prison the Health Ombudsman suspended the Practitioner’s registration under s58(1)(d) of the Health Ombudsman Act 2013 (Qld) (‘the HOA’).

Section 58(1)(d) of the HOA enables the Health Ombudsman to take immediate registration action in relation to a health practitioner if the Health Ombudsman reasonably believes the action is in the public interest. The power under s58(1)(d) is in addition to the power to take immediate action in response to a serious risk to the public and was included in the HOA following a 2017 amendment. The analogue power in the Health Practitioner Regulation National Law (Queensland) (‘National Law’) is contained at s156(1)(e), which was also included in a 2017 amendment.

Proceedings at first instance

The Practitioner reviewed the decision to suspend his registration in the Queensland Civil and Administrative Tribunal (‘the Tribunal’) and was successful in the first instance. In those proceedings, the Tribunal decided not to suspend the Practitioner’s registration but to instead impose similar conditions to before, being that the Practitioner was prohibited from having contact with female patients and required a chaperone in other circumstances in which he might be in the company of females during the course of his practice.

In coming to its decision, the Tribunal gave weight to various references from female patients, which advised that they continue to trust the Practitioner and would continue to consult with him as their doctor. The Tribunal found that:

'It is not obvious . . . why considerations of public interest should be assessed by reference to the supposed views of the great mass of the public, who are never going to consult the [Practitioner] anyway, but the views of those whose confidence in him has not been shaken by his conviction, and want to return to him, should be disregarded'.

The appeal

The Health Ombudsman appealed the Tribunal’s decision to the Queensland Court of Appeal and maintained that:

• the public interest referred to in s58(1)(d) of the HOA did not require the identification of any specific risk to persons to be enlivened and that the references by the various patients should not have been given as much weight as the Tribunal had attributed to them;
• it is appropriate to suspend a practitioner’s registration pending the determination of any disciplinary proceedings in order to maintain public confidence in the provision of health services in circumstances where a practitioner had been convicted of a serious criminal offence; and
• section 58(1)(d) of the HOA expressly contemplates the power being utilised in such circumstances by providing that scenario as example of when action may be taken in the public interest.

The Court of Appeal agreed with the Health Ombudsman and suspended the Practitioner’s registration. In its reasons, the Court found that:

• The exercise of a power of suspension when a practitioner has committed a particular kind of offence is in the public interest if it both protects the profession against further misconduct and also demonstrates to the profession and to the public that the profession does not allow or tolerate such conduct
• The fact that some of the Practitioner’s patients continue to trust him despite his commission of the offence was of little weight
• The public interest is not to be equated with “the supposed views of the great mass of the public”. The public interest is a matter for broad judgment having regard to the nature of the profession of medicine, the demands and opportunities it presents for misconduct. The matters that may be relevant to a consideration of the demands of the public’s interest in the ethical practice of medicine are potentially unlimited and the matters that will be relevant in a particular case will depend on the circumstances of that case.
• Notwithstanding that a refusal to admit any offending is not an aggravating factor in criminal proceedings, in disciplinary proceedings the failure of a practitioner to admit proven wrongdoing may constitute an extremely significant fact if it shows a lack of the insight that is necessary for the practitioner to be regarded as a fit and proper person to continue in practice. The Court found it of ‘the greatest significance’ that the Practitioner refused to accept that he was found guilty of wrongdoing.
• Despite female patients being able to be protected against risk of any future assaults by means of conditions, the case was not one in which the safety of patients was the only concern. It was a case that was concerned with public confidence being maintained in the integrity of the profession and in the manner in which the profession is regulated.
• Against the above background, the Health Ombudsman was right to conclude that it was necessary to suspend the Practitioner’s registration.

Comments

The power under s58(1)(d) of the HOA, and its counterparts, are not commonly exercised. It can therefore be easy to revert to the ‘usual practice’ of responding to any proposed suspension with the submission that conditions would sufficiently mitigate any risk to the public and would therefore be the more suitable course of action pending the outcome of any disciplinary proceedings. However, as seen from the above, this will sometimes be insufficient and it is relevant to note that the broader powers of regulators have ‘equal bite’.

Although this case does not break new ground, it does provide a helpful overview of the relevant law and reminds us that in some instances the broader public interest of protecting confidence in the profession will be the focus of any proceedings and may be of itself sufficient to warrant the suspension of a practitioner’s registration.