Australia, State Administrative Tribunal of Western Australia, 21 September 2022, Board of Australia and Narin [2022] WASAT 86
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Instance
Area
Further areas addressed
- Consumer protection
- Industrial relations / Labor law
- Healthcare management (Covid related, excluding vaccination)
- Health law
Outcome of the decision
Link to the full text of the decision
General Summary
The Respondent was a dentist who travelled interstate to practice in breach of COVID-19 border restrictions. The main right involved is freedom of movement. The remedy sought by the Applicant was a declaration that the Respondent be reprimanded for professional misconduct, suspension of the Respondent’s registration and upon re-commencing practice that the Respondent be subject to 12 months of mentoring from a senior practitioner. The Applicant was successful in seeking the orders.
Facts of the case
In 2020 the Respondent was a dentist living in Canberra but practicing as a dentist in Western Australia. At the time, Australian States had closed their borders in order to prevent the spread of COVID-19 in its communities. During this time the Respondent made multiple trips to Western Australia to practice and made false declarations to the police in regards to her mandatory quarantine. In doing so she was charged and convicted of eight criminal offences, namely breaches of the Emergency Management Act 2005 (WA).
The Respondent was sentenced to 9 months’ prison and served 7 weeks with the balance being suspended. On 23 March 2022 the Tribunal found that the Respondent had behaved in a way that constituted professional misconduct within the meaning of s 5 of the Health Practitioner Regulation National Law (WA) (National Law) set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The Respondent was suspended from practice for a period of 7 months and ordered to undergo 12 months of mentoring / supervision upon her return to practice. The Respondent was ordered to pay $7500 of the Applicant’s costs.
Type of measure challenged
Measures, actions, remedies claimed
- Order that the Respondent’s conduct constituted professional misconduct, 7 months’ suspension and an order for supervision on return to practice
- Cost order
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Private individual
Type of procedure
Reasoning of the deciding body
The Tribunal referred to the twelve possible considerations relevant when determining an appropriate penalty as outlined in Medical Board of Australia and Singh [2017] WASAT 33. These considerations put protection of the public as paramount as opposed to punishment of the practitioner. In addition to protection of the public another important consideration was maintaining public confidence in the profession by adherence to high professional standards. The Tribunal concluded that cancellation of the Respondent’s registration was not warranted but a suspension plus conditions as to supervision would serve as an adequate penalty.
Conclusions of the deciding body
The Tribunal made the Orders sought by the Applicant.
Fundamental Right(s) involved
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. freedom of movement of persons
- Health v. freedom to conduct a business
General principle applied
Balancing techniques and principles (proportionality, reasonableness, others)
The Tribunal had reference to twelve considerations in Medical Board of Australia and Singh [2017] WASAT 33 which placed great weight in protection of the public rather than punishment of the practitioner. In balancing these considerations, the Tribunal determined the practitioner be reprimanded and registration suspended rather than cancelled.
Other notes
On "type of Court": The State Administrative Tribunal (SAT) is an independent body that reviews a wide range of government decisions and determines disputes. SAT's jurisdiction extends to guardianship and administration, equal opportunity, vocational regulation, resources and development, including town planning, and commercial and civil disputes.
SAT has both original jurisdiction and review jurisdiction. In exercising its original jurisdiction, SAT is to deal with a matter in accordance with the enabling Act and the SAT Act. Where review jurisdiction is conferred by an enabling Act, SAT can review the merits of a decision made by the original decision-maker under the enabling Act.
SAT is not a Court but a Tribunal. SAT’s functions and powers are conferred by the State Administrative Tribunal Act 2004 (SAT Act) and its jurisdiction is governed by more than 150 Acts (known as enabling Acts). Applicants may only apply to SAT if an enabling Act gives SAT power to make a decision on the matter that is the subject of the application.
