The Herald Sun has been active recently with front page excoriation of VCAT’s professional regulatory review jurisdiction for letting loose on the public again those they have described in unusually large letters as ‘sex fiends’ and ‘insane killers‘. The two decisions are SL v Medical Practitioners Board of Victoria [2008] VCAT 2077, a decision of Judge Ross’s tribunal, and XJF v Director of Public Transport [2008] VCAT 2303, a decision of Deputy President Macnamara. Given that the psychiatric evidence about the taxi driver was ’emphatically favourable’, the homicide occurred 18 years ago, and the taxi driver, whose son has leukemia and needs flexible work, has led an apparently blameless and psychiatrically acceptable life since, the Hun was a bit harsh. It surely cannot be right to call a man who committed a homicide two decades ago in the grip of a psychosis from which he has recovered an ‘insane killer’ in such a way as to refer to the present.
The taxi driver decision was reversed legislatively. The Medical Practitioners Board appealed the doctor’s success in VCAT. Justices of Appeal Redlich and Weinberg granted an unusual stay of VCAT’s decision: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. The appeal ultimately failed: [2009] VSCA 109.
The Medical Practitioners Board had cancelled the doctor’s registration following his conviction for sex offences involving patients. Years later, he had applied for re-registration, and was knocked back. He applied to VCAT for review. It granted the review, deciding that the correct and preferable decision for the Board to have made was to allow him back into practice subject to strict conditions, such as that he not treat women. The Board appealed that decision to the Court of Appeal, and applied for a stay of VCAT’s order pending determination of the appeal. More usually, of course, the professional applies for a stay of a decision disentitling him or her to practise pending appeal. The Board succeeded in its stay application: Medical Practitioners Board of Victoria v SL [2008] VSCA 264. Their Honours summarised the VCAT decision of Judge Ross’s tribunal, and then said this in granting the stay:
’14 The question that remains to be determined is whether, pending hearing and determination of the appeal, the respondent should be permitted to practise in accordance with the Tribunal’s finding. We were informed from the Bar table by counsel who appeared for the respondent that he has not engaged in any medical work since 2003, but that he now wishes to return to the practice of medicine. It appears that he is presently seeking a position with a group practice and that an interview has been arranged.
15 It goes without saying that an appeal does not of itself operate as a stay. Moreover, the jurisdiction to grant a stay pending an application for leave to appeal will only be exercised in exceptional circumstances. This Court, having already granted leave to appeal, may not be so constrained.
16 But, in any event, the factors that are relevant include the prospects that the appeal will be successful, the balance of convenience, and any prejudice that will flow to either party from granting or refusing the stay. As a general proposition, the respondent should not lightly be denied the ‘fruits’ of his success before the Tribunal. It is clear that the onus rests upon the party seeking the stay.
17 Despite the careful findings of the Tribunal, we have concluded that the Board has discharged that onus. We are influenced to some degree in arriving at that conclusion by the fact that this appeal can be expedited and heard relatively soon. Enquiries with the Registry indicate that the appeal can be listed for hearing very early on in term two next year. We propose to direct that that course be followed.
18 There is nothing to indicate that the respondent is presently suffering undue hardship by being unable to practise medicine. He is currently employed in a book-keeping capacity and appears to be able to make a living. At worst, he will face a stay of some few months, which will delay his return to practise for a relatively short time. Given that he has not been practising for some six years, a delay of a few months longer does not strike us as gravely prejudicial.
19 In addition, it should be borne in mind that this is not a commercial dispute between two private litigants. The paramount consideration must be the protection of the public. To refuse the stay would require a conclusion on our part, albeit a provisional one, that the public welfare will be adequately protected, that being the primary question which must be resolved on the appeal. The public interest will be best served, we have concluded, if the respondent does not return to his practice as a doctor, even under close supervision, until this Court has determined whether he should be permitted to do so. It would serve no one’s interest if the respondent were to treat patients for several months and then find his registration once again cancelled.’
