• David Gardner

The curious case of Dr Lee - part 2

On 6 June 2019, the Medical Board of Australia took immediate action under section 156 of the Health Practitioner Regulation National Law to suspend Dr Christopher Kwan Chen Lee from practising as a medical practitioner.

AHPRA released a public statement from the Board stating, in part, that "The Board has taken this action in the public interest to maintain confidence in the medical profession."

Section 156 of the National Law

Section 156 of the National Law is a provision that has previously been used by the Board to suspend practitioners on an interim basis while enquiries are made (e.g. an investigation) into whether or not the practitioner poses a risk to the public that would require the Board to take some form of action.

Section 156 has a reasonably low threshold for the Board to take action, in that all it requires is that a "reasonable belief" by the Board.

As a result, the suspension of Dr Lee by the Board through section 156 of the National Law would typically have meant that it was conducting an investigation or similar. In the circumstances of the Tribunal's decision, it would have meant that it was looking into further conduct issues around Dr Lee (possibly comments made after the Tribunal hearing, or any other conduct of concern).

In those circumstances, Dr Lee would have remained suspended indefinitely while the Board continued to enquire into whatever issue it had before it.

Interim power

As set out above, the power to take immediate action under section 156 is an interim power only. It has always been interpreted by Courts and Tribunals as such (e.g paragraph 193 in Hocking v Medical Board of Australia and Anor [2014] ACTSC 48).

The threshold to take immediate action is lower than would be required to suspend a practitioner in a Tribunal as a result - because it makes no final determination on a practitioner's rights.

Powers of the Board

The National Law sets up a tiered system of regulation. Put simply, if a Board wants to take action against a practitioner, it can only do so through:

  • imposing a caution; and/or

  • imposing conditions; and/or

  • accepting an undertaking; and/or

  • referring the matter to another entity, such as the police.

If the Board wants to reprimand, fine, or suspend a practitioner, it can only do so through referring the practitioner to a Panel (who generally still can't fine or suspend - although a health panel can suspend if the practitioner is impaired), or a Tribunal.

A Tribunal is the only body short of a Court who can generally suspend or fine a practitioner, except outside of the immediate action powers. A Tribunal can also cancel a practitioner's registration.

It is clear that the Board's power to suspend was only ever intended to be interim. That is how it has always been interpreted. If the Board wanted a longer period of suspension, or a cancellation, it had to refer the matter to the Tribunal.

Changes to immediate action powers

There had been a view, prior to recent (2017) changes to the National Law, that some practitioners who ought to have been suspended under immediate action powers were not, because they did not meet the specific requirements for immediate action. As a result, those changes to the National Law gave the Boards powers to also suspend practitioners under immediate action where it was in the "public interest".

However, there is no reason to interpret that change as somehow granting some extra power to the Board to suddenly use its powers under section 156 more generally - not in an interim fashion, but as granting it a licence to generally suspend practitioners if it reasonably believes that it is in the public interest to do so.

Position regarding Dr Lee

Coming back to Dr Lee, the statement by AHPRA does not indicate that there is any current investigation into Dr Lee. If there is, then the Board's use of immediate action powers has not deviated from its original purpose and from the National Law.

With that said, the timing of the suspension by the Board, on the back of a petition, appears - at best - coincidental. The wording of the statement is also unclear as to whether this is an interim suspension, or will be ongoing. Dr Lee remains suspended as of 2 July 2019.

As I previously noted, the reprehensible utterings of Dr Lee need to be dealt with, and something needs to be done to make it clearer as to the rights and obligations of practitioners in making statements of this nature. Personally, I would not want a family member of mine to ever have to be treated by someone who holds his views, and it is not clear whether he is capable of safely practising given his public statements. On the one hand, therefore, his suspension can be morally justified.

However, if the Board has, in fact, made this decision not as an interim decision, but as a quasi-permanent suspension "in the public interest", that would clearly be an unlawful "band-aid" attempt to solve a problem in response to community concerns. Whilst it could be morally justified, it could not be legally justified. It would represent an extraordinary grasp for power by AHPRA and the Board into an area that has clearly been reserved for Tribunals or Courts.

I am hopeful that the Board has not made the decision on that basis, and that it is continuing to look into Dr Lee with a view to potentially referring him back to a Tribunal for some further, as yet unknown to the public, conduct. If it has not, then the legality of its decision to suspend Dr Lee should be seriously questioned. Only time will tell.

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