VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	vcat reference No. Z64/2021	
CATCHWORDS	
Medical practitioner – suspension of registration imposed by Medical Board of Australia by way of immediate action under Health Practitioner Regulation National Law s 156(1)(a) and (e) –  review of that decision under s 199(1)(h).	

APPLICANT	Dr Rizwan Sami	
RESPONDENT	Medical Board of Australia	
WHERE HELD	Melbourne	
BEFORE	Jonathan Smithers, Senior Member
Robyn Mason, Member
Patricia Molloy, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	7 April 2021	
DATE OF ORDER	6 May 2021	
CITATION	Sami v Medical Board of Australia (Review and Regulation) [2021] VCAT 447	

Order
Under s 202(1)(c) of the Health Practitioner Regulation National Law, the decision of the respondent of 30 July 2019 to suspend the registration of the applicant by way of immediate action under s 156(1)(a) and (e), is substituted by a decision that no immediate action be taken under those provisions.

Jonathan Smithers
Senior Member	Robyn Mason
Member	Patricia Molloy
Member	

Appearances
For applicant	Mr J Ruskin QC, with Mr B House	
For respondent	Mr J Pizer QC	

NOTE- ORDERS MADE UNDER THE OPEN COURTS ACT 2013 (VIC) WHICH ARE STILL IN FORCE
The Tribunal orders under s 17 of the Act that:
1.	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patients the subject of these proceedings, the notifiers and the respondent’s witnesses or their family members to be identified must not be published or otherwise disclosed.
2.	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia. The privacy of the persons referred to in order 1 would be breached if persons living outside Victoria know or come to know their identity.
3.	This order operates until the later of the death of all of the persons referred to in order 1.

Reasons
1	This is a review of a decision by the Medical Board of Australia (Board) to suspend the registration of a general practitioner, Dr Rizwan Sami. The suspension occurred on 30 July 2019. 
2	The suspension was imposed by the Board under s 156(1)(a) and (e) of the Health Practitioner National Law (National Law). Those provisions are set out below. In general terms however, s 156 enables the Board to make quick decisions (‘immediate action’) to protect the public, and the public interest, pending further investigation by the Board/the bringing of disciplinary allegations against a health practitioner in the Tribunal.
3	The suspension of 30 July 2019 related to a sexual encounter between Dr Sami and a patient at a nightclub at 1.00 am on 31 March 2019. While there is agreement on some matters, the complainant’s statement of 1 May 2019 alleged that key aspects of the encounter were violent, and not consensual. If that were alleged and proved in a disciplinary proceeding, such conduct would obviously raise very serious questions about Dr Sami’s dependability, ethics and suitability to practise. 
4	However, this is denied by Dr Sami. He says the encounter was wholly consensual, and further, that when he realised the complainant was his patient, he immediately desisted from sexual activity. Both were very much affected by alcohol. 
5	After a police investigation, criminal charges of rape and sexual assault were brought against Dr Sami 14 months later, on 19 May 2020. 
6	But these charges were withdrawn three months after that, on 26 August 2020, with Dr Sami being awarded costs. 
7	It is in these circumstances that this application is made by Dr Sami for his suspension to be lifted.
8	This hearing is about whether, in the present circumstances, the risk to the public and the public interest, are such that Dr Sami should not be allowed to practise as a GP during the period from now until the determination of a disciplinary proceeding which it is anticipated will be brought against him in the future.
9	The Board estimated that its investigation will take another three months to complete. Assuming it then decides to commence a disciplinary proceeding at VCAT, the best estimate at this point, given the processes which will need to be gone through, is that it will be heard and determined in early 2022. 
10	We emphasise that this hearing is not about whether disciplinary allegations against Dr Sami have been proved. That will come later. Indeed, no disciplinary proceeding has yet been brought against him. Hence this is not the occasion when any allegations which might be brought alleging professional misconduct, or that Dr Sami is not a fit and proper person to practise, are heard and determined. 
11	Nor are we making definitive findings of fact as to what did or did not occur. On the other hand, it is necessary to give consideration to the doctor’s ‘conduct’, for the purposes of determining whether we have the requisite ‘reasonable belief’ under s 156(1)(a).
12	Specifically, our task under s 156(1)(a) is to consider whether we ‘reasonably believe’ that because of the doctor’s ‘conduct’, he poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety. 
13	Under s 156(1)(e), our task is to consider whether we reasonably believe that action (such as suspending the doctor) is ‘otherwise in the public interest’. In particular, to protect the reputation of the profession and of the regulatory system.
14	Two related issues in particular arise for consideration here. First, what is the effect of the withdrawal of the criminal charges? Second, how should we characterise Dr Sami’s conduct for the purposes of this review?
15	For Dr Sami it was said that the withdrawal of the criminal charges makes the complainant’s version less credible. The Board, on the other hand, submitted that this is a neutral factor.
16	Concerning the way in which Dr Sami’s ‘conduct’ should be characterised for the purposes of this hearing, the Board said we should apply the complainant’s version. For Dr Sami, it was said we should apply his version, because it is more credible.
17	For the reasons set out below we are satisfied that the withdrawal of the criminal charges is a relevant and significant factor operating in Dr Sami’s favour under s 156. 
18	This is relevant to the way in which we approach the question of how Dr Sami’s ‘conduct’ should be characterised for the purposes of the s 156 analysis. The caselaw indicates that a complaint that is misconceived should clearly not be given weight. In our view, it cannot be said that the complaint here is misconceived. But the withdrawal of the charges is a real world consideration which we cannot ignore as part of considering whether taking immediate action under s 156 is the correct and preferable decision. 
19	In weighing up the applicable criteria under s 156, we have ultimately not formed the requisite reasonable belief under either s 156(1)(a) or (e) that immediate action should be taken against Dr Sami. 
Background
20	A brief chronology of relevant events is as follows:
•	Dr Sami was the complainant’s GP. She had consulted him on seven occasions between 27 March 2017 and 5 March 2019.
•	The incident the subject of this application occurred on 31 March 2019.
•	The complaint made a report to the Board on 1 May 2019 (having previously referred the matter to the police). She gave a sworn statement to the police dated 1 May 2019. 
•	The Board suspended Dr Sami’s registration on 30 July 2019. This was on the basis of both s 156(1)(a) and (e). 
•	On 19 May 2020, the police charged Dr Sami with two counts of rape and three counts of sexual assault. 
•	On 26 August 2020, the criminal charges against Dr Sami were withdrawn.
•	On 4 September 2020, Dr Sami wrote to the Board inquiring about having the suspension lifted. There was apparently no response to this request.
•	On 11 December 2020, via solicitors, Dr Sami requested the Board to reconsider its 30 July 2019 decision to suspend his registration. 
•	On 5 January 2021, the Board advised that its decision of 30 July 2019 to suspend Dr Sami still stood. However, his was now on the basis of s 156(1)(a) only. The Board no longer based its decision on s 156(1)(e).
•	On 2 February 2021 Dr Sami applied to VCAT for review of both the decisions of 30 July 2019, and 5 January 2021. The Board has now reverted to relying on both s 156(1)(a) and (e).
21	By the time of the hearing, it was common ground between the parties that the decision of 5 January 2021 was not reviewable under s 199 of the National Law. However, the Board consented to time being extended for Dr Sami to seek review of the original decision to suspend him, of 30 July 2019. That was on the basis that in the circumstances, ‘basic fairness’ required that time be extended.
22	The Tribunal agreed, and an order was made under s 126 of the Victorian Civil and Administrative Tribunal Act 1998 extending time for the commencement of this review of 30 July 2019 decision to suspend Dr Sami by way of immediate action. 
The legal context
23	The applicable provisions, and the principles applicable, as described in authorities commonly applied in reviews of immediate action decisions, were set out in the respondent’s submissions as follows:
20. 	Section 156 of the National Law relevantly says this: 
(1)	A National Board may take immediate action in relation to a registered health practitioner … if— 
(a)	the National Board reasonably believes that— 
(i)	because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and 
(ii)	it is necessary to take immediate action to protect public health or safety; or 
… 
(e)	 the National Board reasonably believes the action is otherwise in the public interest. … 
Example of when action may be taken in the public interest 
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.
21.	Section 155 of the National Law relevantly provides as follows: 
immediate action, in relation to a registered health practitioner … means— 
(a)	the suspension, or imposition of a condition on, the health practitioner’s … registration; or 
… 
(d)	if immediate action has previously been taken suspending a health practitioner’s … registration—the revocation of the suspension and the imposition of a condition on the registration; or 
(e)	if immediate action has previously been taken imposing a condition on a health practitioner’s … registration — the suspension of the registration instead of the condition.”
22. 	Section 3 of the National Law is relevantly in these terms: 
(2)	The objectives of the national registration and accreditation scheme are— 
(a)	to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; … 
(3)	The guiding principles of the national registration and accreditation scheme are as follows— 
… 
(c)	restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
23.	Having examined the relevant statutory provisions, the applicable legal principles will now be identified. 
The applicable principles 
24. 	Section 156 of the National Law empowers the Board to take immediate action against a medical practitioner. Immediate action is “designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded”. The purpose of that action is “to put measures in place to protect against, or ameliorate, harm pending the determination” of that process. 
25.	Immediate action may be taken in the circumstances set out in section 156 of the National Law. Here, the Original Decision was based upon section 156(1)(a) and (e). 
26. 	Those two provisions will be dealt with in turn. 
Section 156(1)(a) 
27.	The power to take immediate action under section 156(1)(a) is only enlivened if the Board (or the Tribunal on review) has formed a reasonable belief that:
27.1	because of the practitioner’s conduct, performance or health; 
27.2	the practitioner poses a serious risk to persons; and 
27.3	immediate action is necessary to protect public health or safety. 
28.	The first of these matters is a factual one; the remaining two are evaluative. All three matters, however, require the formation of a “reasonable belief”.
28.1	A reasonable belief “does not require proof of conduct” but rather “an inclination of the mind toward assenting to, rather than rejecting, a proposition”. 
28.2 	“The underlying facts giving rise to the reasonable belief … do not have to be established on the balance of probabilities, however there must be proven objective circumstances sufficient to justify the belief.”  In this regard, the VCAT has said this about decisions made under section 156(1)(a): 
In WD v Medical Board of Australia [2013] QCAT 614 Horneman-Wren J Deputy President of the Queensland Civil and Administrative Tribunal (QCAT) summarized the approach generally relevant to the merits of an IAC decision as follows: 
1.	an immediate action order does not entail a detailed enquiry; 
2.	it requires action on an urgent basis because of the need to protect public health and safety; 
3.	the taking of immediate action does not require proof of the conduct; but rather whether there is a reasonable belief that the registrant poses a serious risk; 
4.	an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations; 
5.	the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk; 
6.	the material available should be carefully scrutinised in order to determine the weight to be attached to it; 
7.	a complaint that is trivial or misconceived on its face will clearly not be given weight; 
8. 	the nature of the allegations will be highly relevant to the issue of whether the order is justified.
28.3	The Tribunal has regarded the following description — as to when it might hold the requisite reasonable belief — as “uncontroversial”:
“I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.” 
29.	Three more points may be made about section 156(1)(a). 
30.	First, in determining whether it holds a reasonable belief that — because of the practitioner’s conduct, performance or health — the practitioner poses a serious risk to persons, the Board (and the Tribunal on review) should consider these questions:
30.1		what serious risk does the practitioner pose (in short: “serious risk of what”)?; and 
30.2	to whom does the practitioner pose that serious risk (in short: “serious risk to whom”)? 
Approaching the matter in this way greatly assists the Board (and the Tribunal on review) to determine whether it holds a reasonable belief that it is necessary to take immediate action, and what form that immediate action should take. 
31.	Secondly, whilst the safety of the public must be the “prime concern” under section 156(1)(a), that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.
32. 	And thirdly, immediate action may be taken under section 156(1)(a) where the alleged conduct is the same as the conduct to which the serious risk relates. But it is not confined to that scenario. For example, immediate action has been taken under that section where the alleged conduct (of posting material on social media) was not the same as the conduct to which the serious risk relates (of harming patients in the practitioner’s practice).
33. 	Turning now to section 156(1)(e). 
Section 156(1)(e) 
34. 	The power to take immediate action under section 156(1)(e) is only enlivened if the Board (or the Tribunal on review) has formed a reasonable belief that the immediate action “is otherwise in the public interest”. 
35. 	The word “otherwise” indicates that section 156(1)(e) “provides an additional and alternative source of power that is available where none of the other specific circumstances [in section 156(1)(a) to (d)] have been established”.
36. 	The Board (or the Tribunal on review) must form the reasonable belief that the taking of the immediate action is “in the public interest”. The example attached to section 156(1)(e) reveals that “public confidence in the provision of services by health practitioners is an aspect of the public interest”. Indeed, it has been said that the “real emphasis of the example lies in the ability of the regulator to now take immediate action where required to maintain public confidence in the provision of services by health practitioners”.
37. 	As Niall JA put it in Liang Joo Leow:
“In circumstances where the allegations, if substantiated, may reflect on the practitioner’s fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges. In some cases, immediate action will be required because of a risk to patient safety or well-being. It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding. In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.” 
38. 	The fact that “it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole” reflects the fact that public confidence in the profession and its regulation is an important facet of the public interest in this context.
39.	Public confidence in the profession and its regulation relies upon:(a) “a public perception that most practitioners in the profession practise with appropriate skill, integrity and compassion”; and (b) “a public perception that those practitioners who do not meet these standards are appropriately regulated in the public interest”.  Indeed, the failure to regulate those practitioners who do not meet the requisite standards “will damage the reputation of the profession and the confidence of the public in accessing services”.
40.	There will, then, be cases where immediate action is necessary to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession.
41.	Those cases are not confined to circumstances where the practitioner has been charged with a criminal offence As the Tribunal noted in Kok, “there is no justification to limiting considerations surrounding the public interest to situations involving criminal charges”.
42.	Likewise, there is no justification for excluding the operation of section 156(1)(e) when criminal charges have been withdrawn or the practitioner has been acquitted. In Zhao, for example, a medical practitioner had been committed to stand trial for rape but a directed acquittal was entered. After the acquittal, Dr Zhao asked the Board to revoke its earlier decision to suspend his registration under section 156. The Board refused. Dr Zhao then relevantly applied to the VCAT for review of the Board’s original decision. On review, the Tribunal upheld that decision under section 156(1)(a) and (e).
24	In Kozanoglu, the Court of Appeal said that reviews of immediate action are neither an appeal in the strict sense, nor a rehearing de novo. Rather, they are a hybrid. Evidence which was not before the Board when it made its decision to suspend Dr Sami’s registration may be put before the Tribunal if it bears directly upon that decision as originally taken. Both parties contended that all the additional material that was put to the Tribunal was properly able to be accepted by it. We agree.
The incident
25	Both the complainant and the doctor say that they each independently decided to attend the same venue with their own friends, on the evening of 30 March 2019. That is, their presence at the venue was a coincidence. They had never had any social interaction together before. 
26	The complainant arrived at about 6.30 pm, and Dr Sami arrived at about 9.30 pm. Both drank heavily on the night. She ate a little, and he ate nothing during the evening. He had intended to eat, but arrived too late to order food. They described themselves as being ‘quite drunk’ (the complainant) , and ‘very drunk’ (Dr Sami).
27	The venue had a number of different areas, on different levels. Both the complainant and Dr Sami spent time at different areas within the venue during the night. Sometime after 9.30 pm, but perhaps closer to 10.30 pm, they were both standing at the same bar, purchasing drinks. The complainant said that Dr Sami didn’t recognise her at first, but then clicked, and said to her ‘you’re my patient’, and they chatted about a medical issue she had. They agree there was some discussion about him buying her a drink, but in the end he did not do so. 
28	In his statement of 11 December 2020, Dr Sami said he did not recognise his patient at the bar, nor say, ‘you’re my patient’. But he did say the following: ‘I now believe she may have said words to the effect that she was a patient of mine but I only recalled this possibility after reflection about the incident in the days after it occurred’. He denied speaking to her about her medical issue. 
29	Thus, it appears that Dr Sami says that while the complainant might have said some hours earlier that she was his patient, if she had, then by 1.00am, when the conduct the subject of the allegations occurred, he had forgotten this, or was not conscious of it. For the Board, it was submitted this was inherently unbelievable in all the circumstances, and so weighs against the doctor in the immediate action calculus. It noted he had been her GP for the two years prior, and had seen her on seven occasions, most recently, 25 days before the incident. For Dr Sami it was submitted: ‘His version being different to hers, but nevertheless to his credit, he does admit, against his interests, that the reference to [the complainant] being his patient may have been made before the sexual conduct occurred’. 
30	We are conscious of the fact that in relation to this aspect, as is the case for all aspects of the events which occurred, we do not have full evidence— far from it. 
31	Returning to the narrative of events, the complainant and Dr Sami then spent the next period of between two and three hours in different parts of the venue, each drinking with their own groups of friends, but then encountered each other again sometime prior to 1.00 am on 31 March 2019. 
32	Again there are discrepancies as to a number of matters, but it is agreed, as shown on the CCTV footage, which we viewed, that at about 12.51 am, they were embracing and kissing on the dance floor. The CCTV footage then shows her appearing to lead or pull him by the hand, off the dance floor, and down a corridor to the disabled toilets. 
33	Dr Sami and the complainant agree that in the disabled toilet she performed oral sex on him, and they had intercourse. She said his actions were violent and non-consensual. He said he was not violent, and the acts were consensual. He also said that he did not realise the complainant was his patient until they had been engaging in intercourse for about two minutes, whereupon he immediately stopped. 
34	The CCTV footage appears to show her, having emerged from the disabled toilet, coming back down the corridor, 14 minutes later, her appearance and demeanour apparently composed, with him following shortly after.
35	For Dr Sami, it was submitted the CCTV footage undermined the complainant’s version, that the acts in the disabled toilet were violent, and non-consensual. 
36	Again, we are conscious that we are far from having full evidence about this matter.
37	Shortly after, both left the venue separately. 
The effect of the withdrawal of the criminal charges
38	The material provided to us does not explain why the criminal charges were withdrawn. Mr Pizer, for the Board, said there could be a number of reasons why this occurred. He gave as an example the possibility that the complainant might have advised, perhaps on medical advice, that she did not want to give evidence in a criminal hearing. But he said the Board simply didn’t know. The Board’s position at the hearing was that the Tribunal should not speculate about this. It was submitted we should not assume they were withdrawn because the complainant’s version is inherently unreliable. It is a neutral factor.
39	For Dr Sami it was contended that the withdrawal is not a neutral factor, with the most obvious inference being that the prosecuting authority had determined that there was no reasonable prospect of conviction.
40	The Board had made an inquiry on 12 February 2021 of the police as to why the criminal charges were withdrawn, but other than a ‘holding’ response, no answer was received. The Board did not follow this up. Given the serious implications of taking, or not taking immediate action under s 156, this is not a satisfactory situation. 
41	We inquired during the hearing whether the Board was satisfied the complainant would give evidence in the anticipated future disciplinary case to be brought against the doctor. The response was that as far as the Board knows, the complainant will be providing a statement to AHPRA. The Board’s position in this case is predicated on the assumption that she will do so, and if required, give evidence consistent with her police statement of 1 May 2019, at the anticipated future hearing. As noted, the Board indicated its investigation is still underway, and it estimates it will be completed in about three months. 
42	In the hearing, the Board agreed to make further enquiries of the complainant. A week after the hearing, the Board notified the Tribunal that in response to its inquiry, the complainant had advised that the criminal charges were not withdrawn at her request, nor in response to any view or preference she had expressed or held. 
43	As the authorities make clear, mere allegations might be sufficient to create the necessary reasonable belief as to the existence of risk under s 156(1)(a). However, the material available should be carefully scrutinised in order to determine the weight to be attached to it.
44	Here, we regard the fact that criminal charges have been withdrawn as being relevant to that analysis. The situation here is obviously different to that where criminal charges are on foot, but the proceeding has not yet been resolved. Here, it has been. The possibility that Dr Sami might be found guilty of rape and sexual assault has now been excluded. We can only infer that a judgement has been made by the prosecuting authority that if the prosecution proceeded, it would not result in findings of guilt. 
45	That is not to say of course that the withdrawal of criminal charges automatically entails that the conduct alleged by the complainant’s version should be disregarded for the purpose of the s 156(1)(a) analysis. We accept the submission on behalf of the Board that even where criminal charges have been withdrawn, we are still required to consider the alleged conduct in carrying out that analysis. 
46	The withdrawal of the criminal charges also has significance for the s 156(1)(e) analysis. The threat to public confidence from a practitioner being allowed to continue to practise pending potential disciplinary action is greater where there are criminal charges on foot against that practitioner than in the situation where criminal charges have been laid, but then withdrawn. We refer to this further below. 
Section 156(1)(a)
Consideration of ‘conduct’ – authorities
47	Clearly, in determining the application, we do not make findings of fact. We do, however, need to turn our minds the nature of the ‘conduct’ which we consider for the purposes of making our evaluation under s 156(1)(a). 
48	Sometimes, the ‘conduct’, in the sense of the actions taken by the practitioner, is not in dispute. For example, there may have been social media posts which are plain for all to see (Kok and Ellis, for example).
49	In other instances, there may be allegations of criminal conduct against a practitioner which are denied, but the criminal trial is still pending (Farchshi and Leow, for example).
50	As noted in Bernadt, the first step in the s 156(1)(a) analysis involves the consideration of a factual question. In that case, the president of the Western Australian Supreme Court of Appeal said:
66 	The ‘reasonable belief’ requirement applies, in my view, to the three components, including the factual substratum ((i)(1)) on which the evaluative assessments (in (i)(2) and (ii)) are to be made. That being so, the fact or facts directly in issue concerning a practitioner’s conduct, performance or health do not have to be proven on the balance of probabilities … However, there must be proven objective circumstances sufficient to justify the belief.
51	As noted in Ellis at [51], his Honour cited George v Rockett [1990] HCA 26.  That case concerned the power to issue a search warrant.  The High Court observed that when a statute prescribes that there must be ‘reasonable grounds’ for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: at [8].  The High Court went on to say, at [14]:
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture. 
52	While we take this decision as indicating that there is a lower bar for consideration of the factual component in the s 156(1)(a) analysis than say, making findings of fact in an actual disciplinary proceeding against a doctor, we do note that the situation where it is proposed to issue a search warrant is different to the situation where immediate action by way of suspending a doctor’s registration is proposed. 
Conduct – submissions of the parties
53	We now turn to the competing submissions made by the parties about the likelihood of their preferred version of events on 31 March 2019 being the correct one.
54	The Board contended for a more serious characterisation, in which the conduct was non-consensual and violent, which of course makes it more likely that a reasonable belief will be formed that the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety.
55	Dr Sami contended for a less serious characterisation, in which the conduct was consensual and non-violent, which of course makes it less likely that the conclusion will be drawn that the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety. As noted, Dr Sami invoked the fact that the criminal charges have been withdrawn in support of this contention.
56	In particular, Mr Ruskin, for Dr Sami, referred to the CCTV footage, which appears to show the complainant and Dr Sami passionately kissing on the dance floor, and she leading or pulling him by the hand, off the dance floor, and down the corridor to the disabled toilets. He submitted that this footage shows that the complainant’s statement that she didn’t know who initiated them going into the disabled toilets undermines the credibility of her version of events. He submitted that Dr Sami’s version of the incident is more consistent with the CCTV footage than the complainant’s version. 
57	For the Board, Mr Pizer contended that Dr Sami’s position as to when he recognised, or may have, recognised that the complainant was his patient was not plausible. This was in light of the fact that he had seen her as a patient three and a half weeks earlier and on six other occasions over the preceding two years. 
58	The parties also referred to various aspects of the ‘evidence’, in its current form, as supporting their respective cases as to how the conduct should be characterised for the purpose of the s 156 analysis. 
59	Mr Ruskin referred to what he contended were inconsistencies in the statements which were provided by friends of the complainant present with her on the night of the incident, or who spoke to her around that time. He took issue with a number of aspects of the statements which Mr Pizer said corroborated the complainant’s version. 
60	Mr Pizer also referred to the statement by the complainant that the incident has caused the anxiety and depression which she had previously experienced, but was under control before the incident, to flare up again. 
Conduct – consideration
61	It is clearly the case that if the allegations of violent and non-consensual acts by Dr Sami were formally alleged and proved, this would raise very serious questions about Dr Sami’s dependability, ethics and suitability to practise. And in the event it was proved that he was aware of the doctor-patient relationship when he engaged in that conduct, that would suggest a serious breach of the Code of Conduct relating to sexual boundaries in the doctor- patient relationship. In particular, in relation to abuse of the power imbalance between the male doctor and his female patient, and abuse of the patient’s trust. 
62	However, in considering ‘conduct’ under s 156(1)(a), in our view, the withdrawal of the criminal charges is of significance, and does weigh in Dr Sami’s favour. We also note the submission that Dr Sami’s statement about recognising his patient detracts from his credibility. Beyond that, we will not deal with the opposing arguments in detail. To do so would involve inappropriately descending into a forensic analysis of the minutiae of the evidence, and whether some matters provide substantial or incremental support for one side or the other. This is clearly not the forum for that. We do not believe that at this point, any of those matters loom as factors which have a major influence on the analysis. 
63	Thus we do not draw firm conclusions about the nature of the ‘conduct’ in the way the competing submissions of the parties invited us to do. 
64	However, the limited information available to us does not cause us to conclude that the complainant’s version must be regarded as misconceived, such that it should be rejected for the purpose of the s 156 analysis.
65	Accordingly, we have regard to the allegations as put in the complainant’s statement of 1 May 2019, but taking into account the fact that the criminal charges have been withdrawn, and the fact that Dr Sami has an alternative version of the events which took place on 31 March 2019. 
66	That is, we do not regard it as obligatory for us to determine that we will base our analysis of risk on one version or the other. In our view, here, it is appropriate to undertake a more holistic analysis, which weighs the degree of risk to persons against the factual matrix in its present necessarily incomplete state. 
Does Dr Sami pose a serious risk to persons? 
67	The parties agreed that in responding to this question, we should consider the questions ‘Serious risk of what?’ and ‘Serious risk to whom?’.
Board’s submissions
68	The Board submitted that Dr Sami’s alleged conduct poses a serious risk of inflicting emotional and/or psychological harm, and that he poses that risk to all patients (and not just female patients). 
69	It contended that in engaging in significant alleged sexual boundary violations with the complainant, involving violent and demeaning non-consensual sexual activity, he had exploited his position of trust and power as a treating medical practitioner, whose ethical and moral judgement is seriously deficient. It was also said that the things the complainant had consulted Dr Sami about were not just simple run of the mill matters. They concerned matters potentially of some complexity, going to her physical and mental health.
70	The alleged conduct was said to demonstrate a complete disregard for the wellbeing of his patient, a preparedness to abuse his position of trust and power for his own sexual gratification. Partially borrowing from the language of the decision in Farshchi, the Board submitted that practitioners of this kind are a danger to all members of the community, irrespective of their gender. Such practitioners lack ethical judgement and are not dependable or trustworthy.
Dr Sami’s submissions
71	For Dr Sami it was submitted that his version of events should be accepted for the purposes of this review. The submission was that the prospect of Dr Sami now posing a serious risk is fanciful. 
72	However, it was also submitted for Dr Sami that even if the complainant’s version is given credence, there is no serious risk to persons. 
73	The matters referred to by Dr Sami as indicating little or no risk are as follows. 
74	First, the conduct did not occur in the clinical setting, but rather, at a licensed venue where Dr Sami was inebriated. 
75	Concerning alcohol, Dr Sami said he does not generally drink, perhaps on average two times per month, and in moderation. Since July 2019, he said he has not drunk alcohol at all. 
76	Second, the conduct occurred in a remarkable confluence of circumstances, the chances of which occurring again are highly remote. Dr Sami was at the time subject to a series of personal stressors, all of which he indicated have now receded. 
77	The stressors he referred to were:
•	Two days before, he had been told his young child had a 50/50 chance of having a medical condition which could significantly reduce the child’s lifespan.
•	He himself had experienced chronic pain since 2017. The day before, he had read a report from a specialist pain medicine physician, referring to profound degeneration of his neck, which might have required neurosurgery. He received injections to deal with the pain on 5 April 2019.
•	He was experiencing severe marital discord at that time. He said his wife’s parents had visited from overseas in March 2019, which had made things worse between himself and his wife. 
•	A few days before, the health of his mother, in London, had taken a turn for the worse. She was 71 years old, and had previously suffered a bleed in the brain. 
78	Third, the consequences he has suffered as a result of the incident will act as a deterrent to him behaving in this way again. These include:
•	His medical registration having been suspended for 20 months so far.
•	The loss of three medical positions, including his primary position as a GP, as a result.
•	Consequent loss of income and growing financial pressures.
•	The stress of being charged by the police with rape and sexual assault.
•	The shame and embarrassment of adverse publicity in the mainstream media. He said that while his name was supressed, in fact, many people knew the reports referred to him.
79	It was stressed these matters were put not to invoke sympathy, but rather to indicate the strength of the deterrent effect which the consequences of the incident have had for him.
80	Fourth, his own personal response to the incident reduces the risk. In this regard, he referred to:
•	His insight generally. In his statement of 11 December 2020, he said he recognises the power imbalance in the doctor- patient relationship and the fundamental importance of maintaining professional boundaries, and that abusing that could cause psychological/ emotional harm to patients and compromise their medical care. 
•	His acceptance of responsibility for the incident. In his statement of 11 December 2020, he says the following: He deeply regrets his conduct that night. He does not blame the complainant for what occurred. The very serious error of judgement was his, not hers. 
•	His profound regret at letting down the profession. 
•	His having undertaken CPD courses, including in relation to maintaining clear sexual boundaries, mental health self-care for doctors, the AMA Code of Ethics and being the doctor’s doctor. 
•	His treatment by a consultant psychiatrist, Dr Neeraj Sareen, which is continuing. 
81	In relation to this last matter, a report was provided to the Tribunal from Dr Sareen, dated 25 March 2021. It expressed the opinion that Dr Sami has been profoundly affected by events in 2019, which he believes would have undoubtedly impacted on his patient too. He said Dr Sami appears sincerely regretful about what has happened and takes responsibility for having sexual relations with a patient. He said Dr Sami’s insight into the issues raised by his actions, his sense of responsibility to manage his own health and behaviour in future and his sincerity in reflections of these events make him believe that Dr Sami does not pose an ongoing serious risk to others. 
82	Mr Pizer submitted that while this report could be taken into account, the weight accorded to it should be reduced because it was based on Dr Sami’s version of events on 30 and 31 March 2019, not the complainant’s. We accept that submission. 
83	Fifth, it is relevant to take into account the effect of continued suspension on Dr Sami personally, albeit bearing in mind the paramountcy of the factor of the protection of the public. It was noted Dr Sami was suspended on 30 July 2019, but not charged until 19 May 2020, with the criminal charges being withdrawn on 26 August 2020. Thus, for the last 20 months, Dr Sami has been suspended, although he was the subject of criminal charges for only three of those months. 
84	If he remains suspended, the most likely scenario is that he will have been prevented from practising for two and a half years, or perhaps more, before the allegations anticipated to be brought against him are able to be heard and determined (that is, from 30 July 2019 until early 2022).
85	On behalf of Dr Sami, reference was made to the statement by the Court of Appeal in Kozanoglu that while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance. 
Consideration
86	We invited Mr Pizer to provide greater specificity in his submission as to risk, in order to assist in considering the questions ‘Serious risk of what?’ and ‘Serious risk to whom?’ After seeking instructions over the lunch break, he indicated he did not have instructions to do so. He said the Board unashamedly submitted that the serious risk is to be defined broadly. He said the authorities do not require such specificity. 
87	In our view, however, the argument will always be more convincing if a more specific risk is able to be pointed to. And that is the effect of the authorities, when they endorse the notion of seeking to answer those two specific questions. 
88	There may be instances where the nature of the conduct alleged is such that it indicates a broad-ranging lack of moral integrity or ethical judgement, perhaps evidenced by calculated immoral, unethical or malevolent conduct over a period. This case, however, involves a single incident which occurred in the particular circumstances described above.
89	We do think it is appropriate to ask what specific risk there is here, and to whom. We accept that it is not simply a matter of asking whether the same circumstances are likely to arise again, and whether there is a risk of another incident of a sexual interaction occurring with a patient. The question is, in practical terms, whether, against the matrix of circumstances apparent here, we reasonably believe that Dr Sami poses a serious risk to persons. 
90	This would cover both the way in which Dr Sami conducts himself in the exercise of his professional duties, and outside that realm (as was the case here, on 31 March 2019). 
91	Looking first at the risk posed in relation to the way in which Dr Sami conducts himself in the exercise of his professional duties, this would concern mainly risks to patients, but also perhaps, to colleagues as well. 
92	Considering all the circumstances, we do not have a reasonable belief that Dr Sami poses a serious risk in that context. In this regard, we are conscious that his alleged conduct, while very serious, occurred in a social setting, away from his work, and there is no suggestion of any misuse of professional power in the consulting room, or in any other professional environment. Had the alleged conduct occurred in the consulting room, for example, instead of at a nightclub, the calculus in relation to risk to patients would be quite different. 
93	Further, we accept that the experience he has had provides a very strong deterrent against breaching professional boundaries in any similar manner again.
94	Turning to the risk posed outside the professional realm, we also do not have a reasonable belief that Dr Sami poses a serious risk in that context. In our view, the probability of Dr Sami again encountering a patient in similar or equivalent circumstances is very low. Also, to the extent the Board contended that immediate action should be taken in relation to the risk posed to non-patients as well as patients, outside the professional realm, once again, the experience he has had provides a very strong deterrent against breaching professional boundaries in any similar manner again. We also note his statement that he no longer consumes alcohol, which in our view would reduce the risk further. 
95	Nor, on the information we have, do we regard the circumstances as indicating a pervasive lack of ethical or moral integrity, such that we should in this case extrapolate from the alleged conduct, to a broad ranging risk to persons. 
96	That is a high bar, as the decision in Farshchi indicates. In that case, a lack of moral integrity of that type was suggested by the allegations, but still the Tribunal indicated, without deciding the point, that it would have struggled to find the necessary nexus between the allegations made against Dr Farshchi and the necessity to take immediate action under s 156(1)(a). That was in circumstances where Dr Farshchi had been arrested and charged with ‘forced labour’ offences under the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 (Cth) relating to exploitation of a highly vulnerable employee, who was in Australia on a bridging visa. The allegations included forcing his employee to work (in a business unrelated to Dr Farshchi’s medical practice) from 7/7.30 am to 9 pm every day, and three or four times per month, until 3 or 4 am. It was alleged that when his employee complained, he threatened to use his connections in the Iranian community to have him killed, or in the Department of Immigration, to have him sent back to Iran, where he could face death as a converted Christian. Dr Farshchi was also, amongst other things, alleged to have given his employee Suboxone and Tramadol to ‘get his power again’ so he could continue working when he was sick, and, that when his employee had a seizure and collapsed at work, to have instructed his workmates not to call an ambulance, but to take him to Dr Farshchi’s office instead, and then not seeing him or assessing him. Immediate action (comprising strict supervision conditions, but not suspension) was imposed on Dr Farshchi under s 156(1)(e), but not under s 156(1)(a). 
97	Here, in all the circumstances, in the words of Oglesby, quoted above, we do not believe there is a real possibility that Dr Sami will engage in conduct which would be harmful to persons. 
Is it necessary to take immediate action to protect public health and safety?
98	In the light of the above analysis, we do not form the reasonable view under s 156(1)(a) that it is necessary to take immediate action to protect public health and safety. 
99	We record that our conclusion has been reached without reliance on the notion that the safety of the public should be served with as little damage to the practitioner as is consistent with its maintenance.
Section 156(1)(e)
100	The second basis on which the Board contends that Dr Sami should be suspended is that the Tribunal should form a reasonable belief that suspension is ‘otherwise in the public interest’ under s 156(1)(e). As noted, this was a basis for the original decision of 30 July 2019, but the Board decided on 5 January 2021 that following the withdrawal of the criminal charges, s 156(1)(e) no longer applied. However, at this hearing, the Board reverted to its original position that s 156(1)(e) does apply.
101	While s 156(1)(a) requires us to evaluate risk to persons, s 156(1)(e) requires us to evaluate the public interest. The particular aspect which the Board invokes here is the public interest in maintaining public confidence in both the medical profession, and in the system for regulating practitioners.
102	Section 156(1)(e), with its accompanying example, was inserted into the National Law in 2018. It states:
156 Power to take immediate action
(1)	A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if —
…
(e) 	the National Board reasonably believes the action is otherwise in the public interest.
Example of when action may be taken in the public interest
A registered health practitioner is charged with a serious criminal offence, unrelated to the practitioner’s practice, for which immediate action is required to be taken to maintain public confidence in the provision of services by health practitioners.
(This is referred to below as the ‘Example’.)
103	Clause 10 of Schedule 7 of the National Law permits examples to be used in the construction of a provision.
104	While mindful that the Explanatory Memorandum and Second Reading Speech are not the first resort when it comes to statutory interpretation, both provide useful context to the addition of s 156(1)(e).   
105	The Explanatory Memorandum relevantly stated at page [13]:
The threshold for immediate action in its current form in section 156 may constrain the National Board from taking swift action where it is warranted to protect public health, public safety or the public interest. For example, if a practitioner has been charged with a serious crime, and the relationship between the alleged crime on the practitioner’s practice is not yet well established, the “public interest” may require a National Board to constrain the practitioner’s practice until the criminal matter is resolved, both for the protection of the public and for public confidence in the health profession.
106	The Second Reading Speech says:
It is important to ensure that immediate action can be taken against health practitioners where public interest considerations require it. An example of where the public interest test may be used to take immediate action is if a serious criminal charge is laid but the charges [sic] may not be directly related to the person’s conduct as a health practitioner. In cases like these it can be difficult to show that the threshold of “serious risk to persons” in the National Law is reached. However, it may be appropriate to impose conditions on the person’s registration for public protection and confidence in the health profession. 
107	The following passage from Liang Joo Leow summarises the task for the Tribunal here:
81	In circumstances where the allegations, if substantiated, may reflect on the practitioner’s fitness to hold registration and may ultimately justify suspension or cancellation, it may be necessary, in the public interest, to take immediate action rather than await the outcome of the charges.  In some cases, immediate action will be required because of a risk to patient safety or well-being.  It may be possible for the Board to conclude that there is a serious risk to persons based on the material it has, even though criminal charges remain outstanding.  In other cases, it may be necessary to take action to reassure the public that the regulatory system is safe and adequate to protect the public and the reputation of the profession as a whole.
82	As a consequence, the Board may conclude, in those circumstances, that it is in the public interest to take immediate action in order to address the question of public confidence.  The relevant public confidence to which the example is directed is confidence in the provision of services by health practitioners.   
83	Although, as I have just explained, the example forms part of the context in which s 156(1)(e) is to be understood, and it does not control the language of the provision, nor does it provide a substitute or alternative test.  So much follows from the terms of cl 10(c) of sch 7, which says that the example and provisions are to be read in the context of each other.  That is, they are to be read together for the purpose of elucidating the meaning of the public interest.
84	Sub-clauses 10(a) and (b) of sch 7 are also relevant.  They provide that an example is not exhaustive and does not limit, but may extend, the meaning of the provision.  
85	Ultimately, the question is whether or not the Board reasonably believes, in circumstances where none of the other sub-paragraphs of s 156(1) apply, that it is necessary in the public interest to take immediate action.  The meaning of public interest is informed by the example.  It is necessary for the Tribunal to proceed on the basis that public confidence in the provision of services by health practitioners is an aspect of the public interest.  However, the Tribunal does not need to apply the example as if it were a statutory test.  Specifically, the Tribunal was not required to analyse the issue of whether public confidence would be maintained, as opposed to whether, and to what extent, public confidence would be impacted and whether the extent of any such impact would require, in the public interest, that immediate action be taken.
108	In Farshchi, the Tribunal said the following:
•	The public interest is not a one-sided construct. 
•	It includes maintenance of a regulatory system which responds in a fair and proportionate manner when allegations are made.
•	There is a public interest in members of health professions, in whom training and expenditure has been made, being able to practise.
•	There is a public interest in ensuring immediate action is only taken when it is necessary to do so. Immediate action is not required every time a health practitioner’s conduct is brought into question. There will be many cases where no immediate action against a practitioner is taken, even though they may later be found to have engaged in serious misconduct.
The Board’s submissions
109	Mindful that the criminal charges against the doctor here have been withdrawn, the Board noted, correctly, that s 156(1)(e) is not limited to situations where criminal charges are on foot against the practitioner. 
110	The Board submitted that the conduct alleged by the complaint against Dr Sami demonstrated ‘a preparedness on his part to exploit a relationship of trust’, and ‘a failure to observe appropriate and requisite boundaries in his interactions with persons that accord with legal, professional and ethical standards’.
111	The Board’s submission went on to say:
Given these matters, the allegations seriously call into question Dr Sami’s suitability to hold registration as a medical practitioner. The alleged conduct, if it occurred, demonstrates a general absence of qualities essential for a medical practitioner, including the ethical exercise of judgement, integrity, and respect for personal and physical boundaries. The alleged conduct, if it occurred, reflects a man whose decision-making and judgement are so flawed that the public could not be sure that he could treat patients in a safe and appropriate fashion.
112	That being so, the Board said, allowing him to continue to practise in any form (in the interim period whilst the Board’s investigation remains ongoing) would damage public confidence in the medical profession.
113	Second, the Board submitted that to maintain public confidence in the regulation of the medical profession, the public must see that appropriate regulatory action is being taken – that the standards to which the profession is held must be upheld. In this instance, that requires immediate action in the form of suspension.
Dr Sami’s submissions
114	For Dr Sami, reference made to the decision of Naill JA in Liang Joo Leow. That was an appeal from a decision of the Tribunal refusing to maintain the Board-ordered suspension of a doctor. The doctor had been charged with rape and sexual assault arising from a ‘stealthing’ incident (sex during which a condom is removed without consent). This alleged conduct occurred during the course of otherwise consensual sex between two male doctors. The conduct was unrelated to the respondent’s practice. The suspension imposed by the Board was overturned by VCAT. VCAT’s decision was upheld on appeal to the Supreme Court.
115	Not surprisingly, emphasis was put on the fact that in Liang Joo Leow, the Supreme Court upheld a refusal to suspend, even in the face of criminal charges being on foot, whereas in the current case, criminal charges have been withdrawn.
116	It was submitted, in accordance with the reasoning of the Tribunal in the decision at first instance, which was upheld on appeal, that in considering whether public confidence in the profession or its regulation would be undermined, ‘the public’ would take into account a number of matters. These are the very unusual circumstances in which the conduct took place, the deterrent effect of the practitioner having already been suspended for 20 months, and the doctor’s acceptance of blame and responsibility and remorse, for what occurred.
117	Reference was made to the statement by Niall JA in Liang Joo Leow that:
In assessing how the public might view the facts, it is important that visceral responses, as prevalent or legitimate as they might be, do not dominate at the expense of a considered response, having regard to all the competing factors.
Consideration
118	The aspect of the public interest which the Board invokes is public confidence in the medical profession, and also, in the system for the regulation of practitioners. This notion of public confidence is commonly invoked when s 156(1)(e) is applied. Of course public confidence is what the Example refers to. 
119	The circumstances in which the Board says immediate action should be taken here vary from those referred to in the Example. The practitioner is no longer ‘charged’ with a criminal offence—the charges have been withdrawn. The alleged conduct occurred outside the carrying on of the doctor’s practice, but is related to it in that the complainant was his patient. 
120	Additionally, although it is a subtle distinction, the Board’s submissions were based more on the reputation of the profession in general being undermined, than on what is referred to in the Example, namely, a loss of public confidence in the provision of services by health practitioners. 
121	Of course, we readily acknowledge, as Liang Joo Leow stated, that the Example given in s 156(1)(e) of a practitioner being charged with a serious criminal offence, unrelated to their practice, does not control the language of the provision, nor does it provide a substitute or alternate test. But it does form part of the context in which s 156(1)(e) is to be understood. And as noted, it concerns a matter frequently invoked when s 156(1)(e) is relied on, namely, public confidence. 
122	Nor of course does the Board contend it needs to satisfy the Tribunal that the circumstances here fall within the four corners of the Example. 
123	The Board’s contention boils down to this. Even though the criminal charges have been withdrawn, the conduct alleged is so serious that it is in the public interest for Dr Sami to be suspended pending the completion of its investigation, and the hearing and determination of disciplinary allegations it expects to bring in this Tribunal.
124	This is because members of the community would not feel safe. The relevant part of the Board’s written submission both commenced (at [69]) and ended (at [73]), with references to patient safety. At [69], the proposition was put that it is self-evidently in the public interest for the community to have confidence that medical practitioners will provide safe medical treatment. The final sentence of [73] states: ‘The alleged conduct, if it occurred, reflects a man whose decision-making and judgement are so flawed that the public could not be assured that he could treat patients in a safe and appropriate fashion.’
125	The question of the extent of the actual risk to patients has already been dealt with in s 156(1)(a) analysis. It was found there is insufficient risk to justify immediate action. 
126	So the argument relevant to s 156(1)(e) is that there would be a perception by members of the public that they would not be treated by Dr Sami in a ‘safe and appropriate fashion.’
127	It is then said that allowing Dr Sami to practise in any form pending the disciplinary processes, would damage public confidence in the medical profession. 
128	And it is put that this damaging effect is so significant as to require Dr Sami to be suspended in order to maintain public confidence in the profession. 
129	In our view, the question is more complex than simply asking what is the effect on the reputation of the profession of a doctor being alleged to have raped and sexually assaulted a patient in a nightclub. 
130	We agree with Mr Ruskin that the withdrawal of the criminal charges is a matter of significance in the s 156(1)(e) calculus. 
131	In our view, it is clearly appropriate to take into account the fact that criminal charges have been laid, but, on reconsideration by the prosecuting agency, they have been withdrawn. The position here is obviously quite different to the usual situation where charges have been laid, but remain untested. Here, the allegations have in one sense been ‘tested’, and the result is that they have been withdrawn in the criminal context. The possibility of a criminal finding has now been excluded. 
132	This makes for a very different context in which a member of the public would consider a doctor being allowed to continue to practise pending the completion of a disciplinary investigation into his conduct.
133	In our view, it makes it much less likely that if the practitioner was allowed to practise now, the public’s confidence in the profession, or in its regulation, would be reduced. Similarly, it makes it less likely that a member of the public would, realistically, be deterred from seeking medical attention. 
134	That is the most significant factor militating against the notion that it is necessary to suspend Dr Sami in order to maintain public confidence in the provision of services by health practitioners. 
135	The second applicable factor is the deterrent effect of the events which have occurred since the incident. 
136	Also relevant, although of lesser significance, are Dr Sami’s response in terms of his acceptance of blame and responsibility for what occurred (albeit on the basis of his version of events) his expression of remorse, and his actions in ceasing to consume alcohol and engaging with a psychiatrist. 
137	Finally, reference has been made above to the statement by the Court of Appeal in 2012 in Kozanoglu that while the safety of the public must necessarily be the prime concern, that safety should be secured with as little damage to the practitioner as is consistent with its maintenance. That case involved a decision made under s 156(1)(a). It was prior to the enactment of s 156(1)(e) in 2018. 
138	However, the same principle applies here, when considering s 156(1)(e). Indeed, we note that under s 156(1)(e), we are not considering the safety of the public (which is what the Court of Appeal was considering on Kozanoglu)—we are considering public confidence in the profession, as an aspect of the public interest, which is a more abstract consideration.
139	Here, as noted, if Dr Sami remains suspended, he will have been prevented from practising for two and a half years, perhaps longer, before the allegations are finally heard and determined, in circumstances where he has been the subject of criminal charges for three months of that period. We are conscious that if the Board’s estimate of three months until its investigation is completed applies, and a proceeding is then commenced in VCAT, Dr Sami will have been suspended for in the vicinity of 10 months after the criminal charges have been withdrawn, but before disciplinary allegations are brought against him. We note the statement by the Court of Appeal in Kozanoglu that ‘the entire legislative scheme breaks down if there is a lengthy delay between the IAC decision and a complete hearing on the merits.’While delays can in practice occur while the criminal process takes its course, once it is completed, as here, those concerns about delay loom larger.
140	This is not the primary consideration, but it is of relevance. 
141	Weighing up all the above matters, we do not form the reasonable view under s 156(1)(e) that it is necessary to take immediate action to maintain public confidence in the medical profession, and in the system for regulating practitioners.
Conclusion
142	Accordingly, we will order that under s 202(1)(c) of the Health Practitioner Regulation National Law, that the decision of the respondent of 30 July 2019 to suspend the registration of the applicant by way of immediate action under s 156(1)(a) and (e), is substituted by a decision that no immediate action be taken under those provisions.

J Smithers
Senior Member	R Mason
Member	P Molloy
Member