In the case of AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401, an appeal against a decision of the Board, the Court decided as follows:
The condition for the exercise of the power pursuant to s 178 of the National Law turns on the existence of the relevant reasonable belief and does not require a finding on the balance of probabilities that the belief is correct or true.
The words “is or may be” must also be given their natural meaning. I am not required to hold a reasonable belief that the practitioner’s practice or his conduct is unsatisfactory – it is sufficient if I reasonably believe it may be. The words “or may be” clearly indicate that reasonable belief as to the possibility that the practitioner’s practice or professional conduct is unsatisfactory is sufficient [1].
This would seem to require a very low standard of proof. Another approach was taken in the case of Kapser v Psychology Board of Australia (No. 2)[2015] NTCAT 179 (Kapser (No.2)).
In the judgment in Kapser (No.2), the Northern Territory Civil and Administration Tribunal (“NTCAT”), states, at paragraph 10, that the seriousness of the consequences for the medical practitioner, in circumstances of each particular case, requires the decision maker to consider the reliability of the evidence available to it:
In the panel’s view, in the circumstances of this case, action under section 178(2) of the National Law may only be taken against Ms Kapser if NTCAT (standing in the Board’s shoes) is satisfied, on the balance of probabilities that the way she practises the health profession, or that her professional conduct, is unsatisfactory. The significance of such a finding and the seriousness of its consequences mean that there should be proof by reliable material. [2]
In that case, the judgment uses the word “facultative” to describe s178, in that the section allows for the decision maker to require more reliable evidence depending on the circumstances of the case.
The panel in Kapser (No.2) refers to the judgment in Solomon v Australian Health Practitioner Regulation Agency[2015] WASC 203 (“Solomon”) in which the Briginshaw standard is applied in disciplinary proceedings under the Act:
In my view the same standard is applicable to the panel’s functions in dealing with disciplinary matters under the National Law. Any adverse finding in a disciplinary process is a serious matter for a professional person. The serious consequences of such a finding mean that the facts showing that a person has engaged in unsatisfactory professional performance must be affirmatively established by reliable material. [3]
It may be that the legislature should reconsider the wording of the National Law. In the meantime, medical practitioners should be aware of the pitfalls when drafting a response to a complaint and seek legal advice.
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[1] AMS v Medical Radiation Practice Board of Australia (No 2) [2019] QCAT 401, paragraph 27 and 28
[2] Kapser v Psychology Board of Australia (No. 2) [2015] NTCAT 179 at paragraph 101
[3] Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 at paragraph 139