You are here:
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.
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 Health Ombudsman appealed the Tribunal’s decision to the Queensland Court of Appeal and maintained that:
The Court of Appeal agreed with the Health Ombudsman and suspended the Practitioner’s registration. In its reasons, the Court found that:
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.
Further information / assistance regarding the issues raised in this article is available from the author, Ryan Nattrass – Senior Associate or your usual contact at Moray & Agnew.