The Charter vs professional discipline

My thanks again to Gabrielle McKinnon at ACTHRA for keeping tabs on tabloids and spotting yet another front page Charter article by the Herald Sun. (It’s interesting – not to mention inconvenient – to me that the Age doesn’t have the same level of interest in the Charter’s use in legal proceedings.) Here’s the news:

A SUBURBAN GP charged with raping a female patient claims authorities who tried to stop him from practising as a doctor breached his human rights. Dr Ahmed Mohamed Sabet has taken Supreme Court action using Victoria’s new Human Rights Charter to fight the Medical Practitioners Board’s interim decision to stop him treating patients. Barrister Jeremy Ruskin, QC, told the court yesterday that Dr Sabet was innocent until proven guilty of the rape charges, but the board had ignored this by suspending his registration in April. “The (board) is bound to uphold the presumption of innocence every time it deals with a criminal charge,” Mr Ruskin said.

The court has heard Dr Sabet’s legal challenge is a test case of the charter that will determine the power of several medical, sporting and professional tribunals to discipline a person charged with a crime. Dr Sabet, who works at Duff St Medical Clinic in Cranbourne West and at a laser hair removal clinic in Princes St, Kew, is allowed to continue practising while his case is before the court. He is not allowed to see female patients. Mr Ruskin told Justice Elizabeth Hollingworth that his client faced three charges of rape and five of indecent assault arising from a consultation with a woman known only as YZ in October 2007. Another woman, known as AB, had made a complaint of sexual assault by Dr Sabet arising out of a consultation in July 2006. That case was already under investigation by the board.

Mr Ruskin took the court on a Cook’s tour of human rights charters around the world and said in most jurisdictions the presumption of innocence was binding on tribunals. He said that in its decision to suspend Dr Sabet’s registration, the board found the circumstances of the examinations of of AB and YZ were disturbingly similar. “They have assumed guilt and that is our complaint,” he said. Tim Ginnane, SC, for the board, told the judge that protection of the public was a very important part of its functions. “The board’s function is protective rather than punitive,” Mr Ginnane said.

AS the Hun righty points out, this case appears to raise a very big question about the role of disciplinary tribunals under the Charter, where those tribunals are concerned with conduct that could be the subject of criminal charges. More broadly, it raises the vexed question of parallel criminal and non-criminal proceedings.

The key provisions at issue are these:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Some threshold issues. First, it seems clear enough that the Medical Practitioners Board is a public authority for the purposes of the Charter, as it is established by a statute (s. 65 of the now-repealed Medical Practice Act 1994, continued by s. 117 of the Health Professions Regulation Act 2005) and I don’t think it’s much of a stretch to regard its various functions, notably its function of investigating and sanctioning misconduct by doctors, as public functions according to the test in Charter s. 4(2). So, the Board is obliged to act compatibly with all rights, including Charter s. 25(1), unless it has a defence.

Second, there is an issue about the scope of Charter s. 25(1). The heading of s. 25 is ‘rights in criminal proceedings’ and a Medical Practitioners Board hearing isn’t a criminal proceeding. This issue (in a different context) was the subject of correspondence between the Attorney-General and the Scrutiny of Acts and Regulations Committee (whom I advise), after SARC raised the question of whether a new power to stop people working with children (WWC) on the basis of (dropped) criminal charges in ‘exceptional circumstances’ was contrary to Charter s. 25(1):

The Committee reported that the Statement of Compatibility did not address the compatibility of the new ‘exceptional circumstances’ discretion in light of Charter s25(1), which gives “a person charged with a criminal offence.. . the right to be presumed innocent until proved guilty according to law.” The Committee noted that “the European Court of Human Rights has held that an equivalent provision under the European Convention on Human Rights and Fundamental Freedoms ‘may be infringed not only by a judge or court but also by other public authorities’ …”

Response: I note that the right to be presumed innocent is a right in criminal proceedings, and accordingly, protects a person in the context of a trial. It has also been held to be relevant to pre-trial matters such as bail, and post-trial matters such as sentencing. These are all, however, stages of the criminal process. The cases cited by the Committee involve statements made in the context of, or in close connection with, criminal proceedings. As noted above, the presumption of innocence does not apply outside of this context. Taking into account proceedings for certain crimes in assessing an application for a WWC does not engage the right, as it is a process which occurs outside of the criminal process.

Suffice it to say that I’m dubious about using the title of a section to read it down (especially when the section gives a fundamental right.) Rather, surely the ECtHR was right when it said:

[T]he Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory. That also applies to the right enshrined in Article 6 para. 2 (art. 6-2). 36. The Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.

The case involved a press conference held by a government minister stating matter-of-factly that a businessman had been involved in the murder of a French MP. The businessman had just been arrested but charges of murder were later dropped. The Court held that it was sufficient that the press conference referred to the pending charges to engage the right to be presumed innocent. In short, there can be no technical knock-out for a claim of a breach of Charter s. 25(1) just because a particular proceeding is or isn’t criminal. Rather, the issue is the substance of the right.

So, third, there’s the subtance of Charter s. 25(1). While I don’t think that Charter s. 25(1) is limited to criminal proceedings, it is clearly limited to criminal charges. That’s what you’re presumed innocent of. So, the real question is whether a finding by the Medical Practitioners Board was a finding that Sabet was guilty of the rape charges. And there’s a further problem: the ECtHR has said that it’s OK to state suspicions (unless the defendant has been acquitted of charges). This is a tricky matter and there are plenty of ECtHR cases where the court has had a good long look at a public authority’s pronouncement (be it a press conference, or a bail hearing, or a compensation claim, or whatever) to work out whether the wording – or the reasoning behind it – crossed the line. As the ruling against Sabet does not appear to be publicly available, it’s hard to judge the merits in this case. The Hun article only mentions the Board’s reliance on similar fact reasoning. Personally, I don’t think that sort of reasoning, alone, counts as a finding of guilt and seems to be closer to a finding of suspicion.

Finally, if the Board’s interim ruling did amount to a finding that Sabet was guilty of the rape charge, then there’s the question of whether the conduct mandate was breached. My view (argued here) is that this issue is not to be determined by Charter s. 7(2); in other words, it’s not enough for the Board to argue that it’s ban on Sabet seeing female patients was ‘reasonable’ given the purpose of protecting future patients of Sabet from the possibility of assault. Rather, the Board needs to establish this defence:

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

The relevant provisions governing the Board’s interim decision about Sabet appear to be these:

40 (1) A responsible board may, at any time, suspend the registration of a health practitioner if the responsible board is of the opinion that it is necessary to do so because there is a serious risk that the health and safety of the public will be endangered because the responsible board believes, on reasonable grounds, that- …(c) the health practitioner has, or may have, engaged in unprofessional conduct or professional misconduct.

(5) In place of suspending the registration of a health practitioner or a student under this section, the responsible board may seek and accept an agreement in writing from the health practitioner to alter the way in which he or she practises as a health practitioner or the student to alter the way in which he or she undertakes clinical training.

Whilst I think the application of Charter s. 38(2) to discretionary powers is a tricky one, I don’t think this one is all that tricky. While s40(1) uses the term ‘may’, it seems clear that the question of necessity really completely governs the Board’s discretion. If there’s no danger, the Board cannot suspend; whereas, if there is, surely the Board must? On the other hand, I do think that s40(5) contains a clear discretion and there would be a reasonable argument that, at least where charges are pending against someone in reation to the misconduct, the Board use 40(5) if doing so would alleviate the releavant danger. Indeed, that appears to be what happened in this case.

(As an alternative, Sabet could ask for a judge to make a declaration of inconsistent interpretation about s. 40(1). That’s where Charter s. 7(2) would come in and, I think, would surely be an answer to any claim of incompatibility.)

In short, this case will be a fascinating and important application of the Charter (and such cases have been thin on the ground indeed so far.) But I don’t think the doctor’s argument has legs. There’s no problem if the Board (in both its wording and underlying reasoning) stayed clear of making a finding about whether or not Sabet was guilty of the rape he’s charged with and, e.g., stuck closely to the wordng of s.40(1) that Sabet ‘may have’ engaged in ‘unprofessional conduct’ and that there’s a serious ‘risk’ of danger as a result. And, even if such wording and findings were regarded as crossing the line, I think that s. 40(1) provides a clear (and rights-compatible) defence for the Board.

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