VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative division
Review and Regulation List	
vcat reference No. Z457/2024	
CATCHWORDS	
Review and Regulation List – health practitioner – application for stay of Immediate Action suspension decision by Medical Board pending hearing of application for review ─ stay granted on conditions – Health Practitioner Regulation National Law (Victoria) s.156; Victorian Civil and Administrative Tribunal Act 1998 (Vic) s. 50(3).	

APPLICANT	Dr Michelle Kenney	
RESPONDENT	Medical Board of Australia	
WHERE HELD	Melbourne	
BEFORE	Senior Member E Wentworth	
HEARING TYPE	Stay hearing	
DATE OF HEARING	11 June 2024	
DATE OF ORDER and reasons	14 June 2024	
CITATION	Kenney v Medical Board of Australia (Review and Regulation) [2024] VCAT 556	

Orders
1	The decision of the Medical Board of Australia dated 17 May 2024 (the immediate action decision) is stayed, pending the hearing and determination of Dr Kenny’s application for review of the immediate action decision, or further order, on condition that:
To the conditions in place immediately before the immediate action decision, are added the following:
(a)	Dr Kenney may only practise medicine in roles providing direct clinical care to patients.
(b)	Dr Kenney must not practise in any role and/or position which includes responsibility for clinical governance or the management or supervision of other health practitioners or students.

2	If the parties identify any issue with the wording (not the content) of the condition above, they may jointly propose an appropriate amendment or addition.  
3	An administrative mention is scheduled on 28 June 2024 by which date the parties may jointly request VCAT to make orders to list the proceeding for a hearing. 
4	Any request must be accompanied by the filing of a joint electronic Tribunal Book, to be compiled by the respondent, containing all the material upon which the parties will seek to rely at the hearing.  The Tribunal Book must be paginated, indexed, and hyperlinked.  No further documents may be filed after this date without the leave of the Tribunal, other than written submissions, which are to be filed three weeks before the hearing.  On review of the Tribunal Book, the Tribunal may require a double-sided hard copy in triplicate to also be provided.
5	In order for VCAT to decide whether the matter can proceed, the parties must also jointly:
(a)		identify any preliminary matters that need to be resolved;
(b)	specify the likely duration of the hearing; 
(c)	provide all available (or unavailable) dates for the period September to December 2024 when all necessary participants (ie relevant parties/counsel/witnesses) will be available to attend the hearing;
(d)	advise VCAT of any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance; and 
(e)	advise VCAT whether the parties would prefer the hearing to be held via Zoom or in-person at 55 King Street Melbourne.
6	The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with VCAT’s requirements for the conduct of the hearing.
7	All contact with VCAT must include the VCAT case number, and the date of the administrative mention and be copied to all other parties (unless otherwise ordered).

E Wentworth
Senior Member			

APPEARANCES:		
For Applicant	Ms D Price of Counsel	
For Respondent	Mr C Jacobi, KC	

Reasons

1	This is my decision about whether to stay, a decision of the Medical Board of Australia about Dr Michelle Kenney, until her application to set aside that decision can be determined at a later hearing. 
2	On 17 May 2024, the Board decided to take immediate action to suspend Dr Kenney’s registration as a medical practitioner.  Immediate action is urgent, temporary action a Board may take before it starts or completes an investigation into a health practitioner.  
3	I heard Dr Kenney’s stay application on 11 June 2024 and reserved my decision.  Because there is urgency in making and communicating the decision, these are relatively short summary reasons.  Behind this summary are detailed and helpful submissions made by the parties at short notice, and well-established legal principles set out in other cases.
4	The Board made its decision under s 156(1)(a) of the Health Practitioner Regulation National Law (Victoria) (National Law), which gives it the discretionary power to take immediate action, including suspension, if it reasonably believes that the practitioner’s conduct, performance, or health pose a serious risk to persons; and immediate action is necessary to protect public health or safety. 
5	The National Law allows appeals against immediate action decisions. In Victoria they come to VCAT and are heard by a panel of three – one legal member and two members from the relevant profession.  The tribunal members who hear the case later will make a final decision about whether the immediate action decision should be affirmed, set aside, or varied.  
6	I am deciding whether a stay should be granted, under the discretion given to me by s 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act), until that appeal can be heard.  
7	The principles are well-established.  I am not deciding whether the Board’s decision is right or wrong. I am considering questions such as whether refusing the stay will cause irreparable damage to Dr Kenney and the clinic she owns before her appeal can be heard; whether there is a serious issue to be tried here; what might be in the public and community interest, including what may be necessary now to protect the public and its safety; how long it will otherwise be until her appeal can be heard; and whether any stay granted should be subject to conditions or acceptance of an undertaking.  
8	Because this case is about a health practitioner, in making my decision about a stay, public safety is at the forefront.  It is a paramount consideration under s 3A of the National Law, and takes priority over whether damage will be caused to the practitioner if the stay is refused.  It remains essential however that any restriction on a person’s practice of a health profession only be imposed if it is necessary to do so to ensure health services are provided safely and are of an appropriate quality.  Restrictions should go no further than is necessary.
9	For the reasons which follow I have decided to grant the stay requested but with conditions limiting Dr Kenney’s practice to that of general practitioner, until her substantive application can be heard and decided.  
10	Amongst other considerations, I am satisfied that the public is sufficiently protected by action already taken by the Department of Health (the Department) set out next, together with an express limit on Dr Kenney’s scope of practice.
Relevant background
11	Dr Kenney founded the Hampton Park Women’s Health Clinic (the clinic) in 2006.  She is the sole director of Hampton Park Women’s Health Clinic Pty Ltd (the company), which is the proprietor of the clinic.  She is, effectively, the owner.  
12	According to statements from past and present colleagues, she has almost three decades’ experience and significant expertise in the area of medicine that is the focus of the clinic.
13	The clinic has operated as a day procedure/surgery service, providing surgical terminations of pregnancy, vasectomies, and other procedures; and as a reproductive health general practice, providing medical termination of pregnancies, contraception, and other services.  
14	The regulatory framework around the clinic is relevant to note here.  The day procedure operations are regulated by the Department, under the Health Services Act 1988 (Vic)(HSA).  Ahpra and the Board regulate the health practitioners who work in the day procedure service and in the general practice.
15	After some time out of practice for health and personal reasons, Dr Kenney returned to practice at the clinic in early 2023, She continues to have some health-related conditions on her registration, including limiting the number of days she works in a week.  In July 2023, she resumed the position of medical director.  
16	It appears that Dr Kenney had begun to take steps to address issues she had found on her return, and had made contact with the Department in November 2023 about the process she had started.  The Department’s 8 February 2024 site inspection report records that some issues had been rectified, but others had not. 
17	On 28 February 2024, after the site inspection, the Department suspended the registration of the clinic as a day procedure centre.  Steps are being taken by Dr Kenney to meet the Department’s requirements for the clinic to be re-registered for day surgeries.  In due course the Department will decide whether to re-register the clinic as a day procedure centre.
18	While the suspension is in place, no surgical or anaesthetic procedures can be performed there.  The clinic can continue, however, to provide medical services including to do with contraception, screening, and medical termination of pregnancy.  Dr Kenney continued to provide medical services as a general practitioner to patients coming to the clinic until her suspension by the Board.  
19	The Department’s letter states that the decision to suspend the registration of the clinic as a day procedure centre was because the writer was satisfied that the company, as proprietor of the day procedure service, was operating the service in a manner that poses a serious risk to patient health or safety; and had failed to comply with the Health Services (Health Service Establishments) Regulations 2013 (Vic).  
20	It is not in issue that Dr Kenney as sole director of the company has the responsibility to address any regulatory and safety issues with the operations of the day procedure service.
21	The Board received the Department’s report and on 17 May 2024 made the decision to suspend Dr Kenney’s registration.  
22	The Board’s decision summarises the evidence it considered and the basis of its belief that it was necessary to take the action.  It noted that the concerns expressed in the Department’s decision about the day surgery service included the following:
•	Failure to appropriately assess the credentials of medical practitioners who work at the clinic to ensure that they work within an agreed scope of practice and to ensure that health services provided by health professionals at the clinic are reviewed to ensure that they meet appropriate quality and safety standards. Of note, the anaesthetist, Dr Chow, was only approved to practise at Knox Hospital as per the current conditions on his registration.
•	Failure to retain competent nursing staff and to train current nursing staff so that they are equipped to provide the kinds of health services provided at the clinic.
•	Failure to ensure pre-admission screening and post-procedure observation by nursing staff.
•	Failure to comply with infection control procedures and hand hygiene, including serious failures in relation to the hygiene and sterilization of equipment used in surgery.
Concerns that Dr Chow was performing the role of a theatre technician as well as an anaesthetist.
23	The Board’s decision also summarises Dr Kenney’s submissions in response to the proposed immediate action.  Those and other submissions were made before me.  I say more about those reasons and submissions later.
24	I refer here to a part of the history that has been the subject of media reporting.  I do so respectfully, acknowledging the loss suffered by the family of a young mother, and understandable concern in the community.
25	The clinic was due for re-registration in June 2024, in the normal course. The Department scheduled an earlier regulatory inspection, following the death of a surgical patient, Mrs Harjit Kaur, on 12 January 2024, while she was in recovery, after a surgical termination of pregnancy.  
26	Dr Kenney was not involved in the procedure and did not provide any clinical care to Mrs Kaur.
27	Because there has been media reporting about Mrs Kaur’s tragic death, and some speculation about what the responsibilities of several medical practitioners might be, including Dr Kenney, it is important to state here some uncontentious facts.  
28	They are relevant to any assessment of whether, in the time between now and the final hearing, Dr Kenney poses a risk to public safety if she remains in practice as a general practitioner only, and does not oversee the clinical operations of a day procedure centre:
•	It is uncontentious that Dr Kenney had no clinical involvement in the surgical procedure or care that preceded Ms Kaur’s death.  
•	The Board confirmed at the hearing before me it that it did not suggest there was a link between Mrs Kaur’s death and any act or omission on Dr Kenney’s part.  
•	A coronial investigation is currently taking place into Ms Kaur’s death and is not yet concluded.  
•	An autopsy has been completed, however, and a letter dated 10 May 2024 regarding the autopsy was in the materials before me.  
•	The pathologist conducting the autopsy found no significant natural disease contributing to the death; no evidence of any complications after surgery; and ruled out adverse effects of anaesthesia, infection, and other conditions or reactions.  
•	The cause of death is stated to be ‘unascertained’ by the pathologist.  The letter states that in such circumstances, where the pathologist is not able to identify a clear cause of death, the possibility of a heart rhythm abnormality is raised.  
•	At this point, no finding has been made that the issues identified in the Department’s report and decision contributed to or caused Mrs Kaur’s death.
29	To note these matters is not to pre-empt any findings the coroner may make. 
Submissions on risk
30	The Department’s decision and report obviously raise concerns about Dr Kenney’s capacity, as medical director and proprietor of the clinic, to ensure that the day procedure service complies with the regulatory requirements it must meet to be registered; and operates in a manner that does not pose serious risk to patient health and safety.  
31	A central question here is whether in her capacity as a general practitioner she poses a serious risk, and one that is sufficient to suspend her registration.
32	On the question of serious risk, the Board, in essence, says that Dr Kenney is responsible for the failures identified by the Department and has thereby put patients at serious risk, as well as employees.  Those failures, together with what the Board says is a lack of insight into how serious the failings were, reflect on her capacity to practice medicine generally, and put all her patients at risk. Suspension of registration was therefore warranted.
33	The Board points to the breadth of the areas of deficiency the Department identified, including infection control, inappropriate practices relating to anaesthesia, failures in credentialling staff, failing to ensure adequate training of staff involved in surgery and anaesthesia, and inadequate review of events.  It says they necessarily translate into unsafe practice as a general practitioner.
34	Dr Kenney, in essence, says that the Board’s reasoning fails to make a necessary distinction between, and conflates the risk she may pose as the person in charge of clinical governance of the day surgery operations at the clinic, and the risk if she continues her practice as a general practitioner at the clinic.  When considering whether suspension of her registration is warranted or necessary, whatever may be her deficiencies in clinical governance, there is no evidence that she is anything other than a safe and experienced general practitioner.  
35	The distinction is said to be critical here because the Department’s report raised issues of patient care and staff welfare and training that relate to the day surgery operations.  Even assuming that the risks identified were serious, the suspension of the clinic’s registration to conduct surgical and anaesthetic procedures mean that such a risk to patients undergoing surgery and anaesthesia no longer exists because the clinic no longer conducts surgical and anaesthetic procedures.  In other words, the Department has already taken appropriate regulatory action to address any risk. 
36	The above is a necessarily abbreviated summary of the submissions and the issues that will be aired and determined later at the substantive hearing.  They nevertheless have relevance to two of the matters to be considered in stay applications – whether there is a serious issue to be tried, and what is necessary for the  protection of the public.  
Applying the principles in this case
37	The principles that guide the exercise of the discretion to grant a stay, under s 50(3) of the VCAT Act are well-established, and were not substantially in dispute here.
38	One matter of nuance needs to be clarified. The Board submitted that the weight to be given to the Board’s views should be ‘considerable’, referring to cases including Shvetsova (which discussed Chow v Medical Board of Australia) and Morris (which discussed Macedon Ranges Shire Council v Romsey Hotel Pty Ltd).  
39	Those cases do not support that statement as a general proposition.  Morris, in the discussion at [57]-[61] makes that clear.  See also Shvetsova at [33].
40	Both Shvetsova and Morris refer to the weight as being the ‘proper’ weight, which will depend on the circumstances and subject matter in the particular case.   Morris, for example, was an immediate action review decision which  concerned complex issues around the practitioner’s performance in multiple neurosurgeries, and their outcomes, with multiple experts giving evidence.  In that case, the proper weight was determined to be considerable.  
41	I do not take the Board to be suggesting that its view on risk (and therefore the need for suspension) is determinative.    Nor can it be to suggest that the Tribunal should abrogate its responsibility to exercise the discretion under s 50(3) on a proper basis, and under the National Law on an appeal from an immediate action decision.  I say more later about the submissions on that matter.
Submissions and consideration
Will irreparable damage be done if the stay is refused?
42	Here there was evidence that refusing the stay would be potentially disastrous for Dr Kenney personally and for the continued operation of the clinic as a general practice, providing reproductive health care to women in Melbourne.  
43	Dr Kenney is currently the only general practitioner at the clinic.  If she remains suspended and unable to generate income, her accountant’s view is that she will be unable to meet her existing liabilities within a matter of weeks and will be forced to sell her business assets, including the clinic. 
44	On the evidence before me, I was satisfied that significant, if not irreparable, damage would be done if the decision is not stayed in the short term, and this factor, considered alone, weighs in favour of the stay.
45	The clinic was described as serving a large cohort of patients in need of terminations outside the public health system, in an environment of limited availability of private clinics specialising in the work.  There was sufficient evidence that this is an area of need, and importance to women across metropolitan Melbourne, including from multicultural communities.  
46	Of course, no matter the need, it remains essential that any medical services provided, if the stay is granted, are provided safely.  It is well-established that in stay cases to do with the conduct of a health practitioner, the public interest in the protection of the public from unsafe practitioners may trump the concern to avoid a review application being rendered nugatory.   The impact on the cohort of patients is relevant, but the weight of that matter depends on the services being able to be provided safely.
47	While the safety of the public must necessarily be the prime concern, it remains the case that public safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
Serious question to be tried?
48	Here there is a serious issue to be tried.  The issues at the final hearing will likely include:
•	Whether any risk that Dr Kenney may have posed as proprietor or medical director of the day procedure service, translates into serious risk posed to patients she sees as a general practitioner.
o	The Board contends it can and does.  It says that what has been identified by the Department, and what can be drawn about insight from Dr Kenny’s responses to the Department, reflect on her as a medical practitioner in all areas of her practice. 
o	Dr Kenney contends that:
•	issues with the operation of the day surgery service should not be conflated with Dr Kenney’s safety as a general practitioner providing medical advice and treatment. 
•	The immediate action decision fails to properly address whether Dr Kenney as an individual practitioner poses a serious risk while providing medical consultations and services to patients.  
•	There is little evidence that she is other than a safe general practitioner, and certainly insufficient evidence that she poses such a risk that it is necessary to take immediate action by way of suspension.  
•	Whether the risks identified in the Department’s decision and report no longer exist as a current risk to patient safety, because they related to the day surgery operation, did not involve the general practice part of the clinic, and the clinic no longer provides surgical and anaesthetic services.  This is a related issue to the one above and will be relevant to the Tribunal’s evaluation of whether there is a current serious risk posed to patient safety, and whether suspension of Dr Kenney is necessary, given the regulatory action already taken.
o	The Board contends that the Department’s action does not address the risk posed by Dr Kenney as a medical practitioner on a global basis.
o	Dr Kenney contends that to the extent that the Department’s decision raises issues of patient care and staff welfare in the day surgery operations at the clinic, as a matter of logic, those risks no longer exist because of the regulatory action taken by the Department.
•	What will be the proper weight to be given to the Board’s judgment about risk in this case, including the issue of whether Dr Kenney’s responses to the Department can be regarded as evidence supporting a reasonable belief as to serious risk.  
o	Dr Kenney contends that it is unreasonable to say that her responses, in all the circumstances, can be relied on for any conclusion about insight.  If it were otherwise, any practitioner who expresses disagreement with a decision of the Board or another regulator, or seeks to defend themselves, will be at risk of adverse action.
o	The Board contends that it has exercised its own expert judgment as to the nature and extent of that risk in light of the explanations proffered by the practitioner.  The Tribunal is not, at this stage constituted by a panel that includes medical practitioners.  It ought to give considerable weight to the Board’s views.
•	Whether, in relation to the question of risk, sufficient attention has been paid to the steps Dr Kenney had taken from late 2023, and has taken since February this year to improve the clinical governance of the clinic including the appointment of a Quality Manager and Consultant Registered Nurse, and other steps described in the submissions and materials.
49	In considering whether there is a serious issue to be tried, it is proper to consider the likely outcome of the review application in light of what are fundamentally uncontested matters, but not to try to predict the outcome without the benefit of what further evidence there may be before the tribunal at the final hearing.
50	Proper weight will be given to the Board’s views by the Tribunal.  However, to the extent that the Board’s views involve an evaluation of Dr Kenney’s insight based on correspondence she sent, that would ordinarily be a matter about which the Tribunal would be able to make its own evaluation, whether on a stay or a panel hearing.
51	There is no doubt that, on receiving the Department’s decision and report, it was important that the Board consider whether immediate action against Dr Kenney was necessary.  As the effective proprietor, and as the medical director of the day procedure health service, she had responsibility for the oversight of the way the day procedure service operated.
52	It is uncontested, however, that the regulatory action by the Department has closed the day surgery operations at the clinic.  They will not resume until the Department is satisfied that re-registration is appropriate.  This means that any previously existing serious risk to patients undergoing surgery or anaesthesia no longer exists.  
53	Those facts mean that what is in issue is an assessment of whether, in her capacity as a general practitioner, Dr Kenney poses a sufficiently serious risk to patients who are not undergoing surgery or anaesthesia, as to warrant immediate action to be taken now, and for that action to be in the form of suspension so that she cannot practise at all. 
54	Recognising there may be further evidence before the Tribunal at a later date, I consider that in this case there is a serious issue to be tried, and Dr Kenney’s case is more than arguable, particularly if her practice is limited to being a general practitioner.
55	On what is before me, this principle weighs in favour of the application.  
56	The above matters are also relevant to the question of protection of the public, which I turn to next.
Protection of the public/ Public interest
57	I refer to without repeating the sections above setting out the parties’ submissions on risk and discussing whether there is a serious issue to be tried.  
58	Taking those matters into account, and other matters to be referred to, I consider that, in the period between now and a final hearing, the public will be sufficiently protected from any risk currently posed by Dr Kenney, by the regulatory action taken by the Department, in combination with a condition that she only practice in roles providing direct clinical care to patients, for the following reasons.
•	Dr Kenney has received several cautions but on the material before me there is no evidence that as a general practitioner she has ever harmed a patient or practices in that setting in a way that is unsafe.
•	To the extent that Mrs Kaur’s tragic death is, understandably, on everyone’s minds, it is relevant to Dr Kenney’s risk as a practitioner providing direct clinical care to patients, that she had no clinical involvement in Mrs Kaur’s admission, surgery, or recovery.
•	Further, the pathologist who conducted the autopsy found no evidence of any complications after surgery or any significant natural disease contributing to her death, and ruled out adverse effects of anaesthesia, infection, or allergic reactions.  
•	The Board does not say that Dr Kenney did anything, or omitted to do anything, that caused or contributed to Mrs Kaur’s death, and confirmed at the hearing they do not make that link.  
•	This does not mean that Dr Kenney does not have responsibility for the deficiencies found by the Department, including to address them, They were serious matters and indicate that the role and responsibility of medical director and proprietor of the day procedure centre may have been beyond her at the time.  
•	The evidence indicates she was trying to do so (unsuccessfully) before the Department’s decision, and is currently working to address the Department’s concerns, with better expert assistance than she had previously.  The Department will decide when and if the day procedure service can re-open.
•	In the meantime, any serious risk to patient safety identified by the Department (which focussed only on the requirements for the day procedure service to operate) has been addressed by the Department’s decision to suspend the clinic’s registration as a day procedure centre.
•	It is, of course, reasonable to consider, as the Board has done, whether Dr Kenney’s deficiencies as a medical director, in overseeing the operation of the day surgery service, reflect on her capacity as a medical practitioner more generally.  
•	But on what is before me, no sufficient distinction has been made between the risk the day surgery operations posed to patient safety – now removed – and any risk the general practice has ever posed to patient safety, including the medical care provided by Dr Kenney in her capacity as a general practitioner.  
•	Dr Kenney’s responses may be examined more closely at the final hearing, but I did not consider that her responses to the Department and the Board reflected such a lack of insight that means she would pose a serious risk to the safety of patients in the medical practice.  Nor that those responses necessarily reflect her insight now. 
•	She was certainly forthright (and intemperate at times), in some of her earlier responses, in protesting against some of what was happening,  I agreed with the submission on her behalf, however, that while practitioners must cooperate with the regulatory processes, they ought to be able to disagree (respectfully) with decisions made about them, and defend themselves from what they see as unreasonable or unfair action taken against them.    
•	What is in evidence, relevant to insight now, is that Dr Kenney is taking seriously all that must be done if the day procedure service is to re-open, and is cooperating with the Board and all of the other bodies that are playing their own role in the background to this case, including the Department, Safer Care Victoria, and the Coroners’ Court.
59	Taking into account the facts and circumstances of this case, the paramount consideration of public safety in the National Law, and the importance of the public interest in protection of the public in this stay application, I do not consider that the public interest weighs against granting a stay, if the stay is conditional on Dr Kenney practising as a general practitioner providing direct clinical care to patients.
How long before the final review hearing?
60	On current hearing time availability, and taking into account that this case has some urgency, the tribunal should be able to hear the immediate action appeal in three to six months’ time.  This factor does not outweigh others, but it weighs in favour of granting a stay.
Conditions
61	I discussed with the parties whether conditions would be warranted here if the stay were granted.  While maintaining their respective positions:
•	Dr Kenney submitted that conditions limiting her ability to perform in a clinical governance role could be imposed in lieu of suspension.  A similar condition was proposed to the Board before it made its immediate action decision. 
•	The Board proposed conditions that, although allowing her to work as a general practitioner, prevented her from doing so at the clinic, required her to seek approval from the Board before practising elsewhere, and other conditions.
62	I was satisfied that if Dr Kenny is not allowed to practise at the clinic, for logistical reasons raised at the hearing she will not be able to practice at all, and that the Board’s proposed conditions, including as to the level of supervision, went further than necessary.
63	I considered that conditions limiting her role to direct clinical care, and preventing practice in a role or position that includes responsibility for clinical governance and the management or supervision of other health practitioners or students, would be sufficient in all the circumstances.   The existing conditions on her registration would appear to allow the Board to seek reports as to her compliance with all of her conditions.
64	To be clear, the conditions I will order are not intended to prevent Dr Kenney from continuing to fulfil her responsibilities under the HAS, as director of the company that is the proprietor of the clinic within the meaning of the HAS, including to take any steps that the Department requires as a condition of re-registration.
Conclusion
65	In the circumstances, having regard to the matters above, I will grant the stay on the conditions set out in my order.

E Wentworth
Senior Member