WA News Guest Opinion / Editorial Public Interest and Doctors
Public Interest and Doctors
Written by Ms Morag Smith
Wednesday, 06 December 2017

Doctors may recall that in 2014 Mr Kim Snowball conducted an independent review of the Health Practitioner Regulation National Law. His final report made a range of recommendations, some of which were aimed at strengthening the management of health complaints to better protect the public.

Health Ministers around the country accepted most of the recommendations and they will be introduced in two stages. Stage one amendments were passed by the Queensland parliament on September 6, 2016, and most jurisdictions have followed. The West Australian parliament is in the process of adopting the amendments.

One of the key changes for doctors is an expansion of the immediate action powers. Previously the test was whether a practitioner posed ‘a serious risk’ to public health or safety. Now, in addition to this ground, the Medical Board can take immediate action where it is ‘in the public interest’ to do so.

The notion of ‘public interest’ is not defined and the profession is justifiably concerned about how this will be interpreted. In NSW, which has a similar provision, the power is starting to be used as a matter of routine rather than in exceptional and urgent circumstances.

One case that demonstrates how the power to protect the public interest can be used is Crickitt v Medical Council of NSW. Dr Crickitt was suspended on the grounds of ‘public interest’ after he was charged with the murder of his then wife. At the time of the suspension there was no evidence that Dr Crickitt posed a clinical risk to any person.

When this decision was considered by the NSW Civil and Administrative Tribunal, members found that in addition to the need to protect the health and safety of the public generally, the concept of ‘public interest’ could extend to matters that affected the ‘honour and integrity of the profession generally’. The examples relied on included conviction of a serious crime and failing to lodge taxation returns over a long period of time.

By way of further explanation, the Tribunal said that ‘public interest’ extended to the need for patients to have confidence in their doctors, also that patients expected medical practitioners to exhibit integrity, trustworthiness and high moral and ethical values.

The National Law has always referred to the need to protect the public and to consider the public interest when taking regulatory action.

In NSW where the concept of ‘public interest’ has been in use for some time, a legal practice note published in March 2017 may provide some comfort. This acknowledges that the ‘public interest’ is often met by imposing protective measures, for example conditions.

If there is a concern that conditions will not meet the expectations of the public, those relevant public interest considerations should be identified and judged with due weight given to each consideration.

Each case that comes before the Tribunal will involve different considerations of what is in the public interest and, over time, guidance will be given. Until then, the legal practice note from NSW is a good reference guide on how this power should be exercised.

References on request