Naim v Medical Board of Australia

[2013] VSCA 205

Victorian Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Victorian Civil and Administrative Tribunal
3. › Appeal
4. › Leave to appeal
5. › Question of law
6. › Whether findings of fact raise question of law
7. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(1)(a)
1. Administrative Law
2. › Procedural fairness
3. › Disciplinary proceedings
4. › Whether finding beyond scope of charges
5. › Whether practitioner denied opportunity to address finding of sexual purpose
6. › Whether inference of sexual gratification open on evidence
1. Medical Practitioners
2. › Professional misconduct
3. › Complaint to Medical Board
4. › Internal examination without clinical justification
5. › Whether conduct substantially below standard reasonably expected
6. › Health Practitioner Regulation National Law (Victoria) Act 2009, s 5, s 193

Quick Take

In medical disciplinary proceedings where a practitioner denies that an examination occurred and concedes there was no clinical basis for it, the Tribunal may draw the inference that the examination was conducted for sexual gratification without separately particularising that allegation. Procedural fairness does not require the Tribunal to permit the practitioner to run an alternative case (that the examination occurred for a proper purpose) after the hearing has concluded. Consent to a medical examination is vitiated where the practitioner's true purpose is undisclosed.