Medical Practitioners Board of Victoria v Lal

(2009) 23 VR 702; [2009] VSCA 109

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Health practitioner registration
3. › Refusal of registration
4. › Finding of guilt of offence
5. › Whether moral culpability relevant to assessment under offence ground
6. › Whether effect on public confidence mandatory consideration
7. › Health Professions Registration Act 2005 (Vic), s 6(2)(d)
1. Statutory Interpretation
2. › Permissive and obligatory language
3. › Whether 'may' confers discretion or imposes duty
4. › Use of 'must' and 'may' in same section
5. › Residual discretion to grant registration where disqualifying ground established
6. › Health Professions Registration Act 2005 (Vic), s 6(2)
7. › Interpretation of Legislation Act 1984 (Vic), s 45(1)
1. Administrative Law
2. › Conditions on registration
3. › Whether conditions incompatible with practice of medicine
4. › Whether Wednesbury unreasonable
5. › Conditions restricting practitioner to male patients over 16
1. Appeal
2. › New point raised on appeal
3. › Whether party permitted to adopt different position on appeal from that adopted at first instance
4. › Whether respondent prejudiced
5. › Matter of public importance

Quick Take

When assessing an application for registration under s 6(2)(d) of the Health Professions Registration Act 2005 (Vic), the decision-maker must consider all circumstances of the offending including the applicant's moral culpability, not merely the finding of guilt. The decision-maker is not bound to consider the likely effect on public confidence in the profession of the particular registration decision. Where a disqualifying ground in s 6(2) is established, the word 'may' confers a residual discretion to grant registration nonetheless. Conditions restricting a practitioner to a subset of patients (e.g., males over 16) do not necessarily negate the grant of registration or demonstrate unfitness to practise.