Disciplinary Proceedings and the Presumption of Innocence
Sabet v Medical Practitioners Board [2008] VSC 346 (12 September 2008)
The Supreme Court of Victoria considered that the Medical Practitioners Board of Victoria was a public authority as well as a tribunal under s 4 of the Charter. The Court held that the Board did not breach a medical practitioner’s right to be presumed innocent in disciplinary proceedings determining his capacity to practice medicine.
Facts
The Board is a statutory authority which regulates the medical profession. The Board suspended the registration of a medical practitioner (Dr Sabet) pending further investigations, under s 40 of the Health Professions Registration Act 2005 (‘HPRA’). Dr Sabet had been the subject of allegations of sexual assault by two female patients, one of whom had laid criminal charges.
Dr Sabet challenged the Board's decision to suspend him from practicing medicine in the Supreme Court under the Administrative Law Act 1978 and, in addition, relied upon s 38 of the Charter claiming that the Board failed to give proper consideration to the presumption of innocence afforded by s 25(1) of the Charter.
Decision
Application of section 38 to the Board as a public authority and a tribunal
Section 38 of the Charter provides that 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. The question as to what is a ‘public authority’ is therefore critical.
Hollingworth J considered the Board to be a public authority within the meaning of s 4(1)(b) of the Charter as it performs functions of a public nature, is established by statute and is publicly funded, and its functions are inherently public insofar as it regulates and supervises medical practitioners.
Her Honour then turned to consider the application of s 4(1)(j) of the Charter, which provides that a court or tribunal is not a public authority except when it is acting in an administrative capacity (as against a judicial or quasi-judicial capacity). The Charter only applies to courts and tribunals acting in a non-administrative capacity to the extent that they have functions under Part 2 and Division 3 Part 3 of the Charter in which section 38 does not fall.
In determining the meaning of 'administrative capacity', the parties agreed that it was appropriate for the Court to analyse the concept of 'administrative capacity' in line with what is understood at common law as 'administrative power'. The essence of judicial power is the determination of disputes between parties regarding the existence of a legal right or obligation and the application of the law to facts as determined. Her Honour considered the Board to be exercising administrative power in making this decision because it was regulatory in nature and was not a final determination of Dr Sabet's right to practice medicine, nor whether he had committed any offence.
Consideration of the Board's conduct vis à vis the right
In analysing whether the Board had contravened s 38 of the Charter Hollingworth J considered the following three questions:
- Has the Charter been engaged? (The ‘engagement question’)
- If so, did the public authority oppose any limitation on the right? (The ‘limitation question’)
- Was any such limitation reasonable and justified within the circumstances set out in section 7(2)? (The ‘justification question’)
Engagement Question: Was the Board required to have regard to the presumption of innocence?
Hollingworth J did not consider the right contained in s 25(1) of the Charter to be engaged in this matter. Section 25(1) provides that ‘a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law’. In examining s 25, in the context of the Charter, Hollingworth J considered that it was likely that the section is only intended to apply to criminal proceedings and as such, did not apply to the Board.
The Court left the question open as to whether the right could have any indirect application to public authorities so as to prohibit them from making public statements affirming the guilt of the accused which may prejudice the outcome of a criminal trial.
Limitation Question: Did the Board interfere with right to presumption of innocence?
Even if the right was engaged, Hollingworth J considered that the Board could not be said to have interfered with that right, stating that the critical inquiry is whether Dr Sabet's right to the presumption of innocence was interfered with, not whether his capacity to practice medicine was interfered with.
The Court considered that the presumption of innocence would not operate to prevent a public authority from acts or decisions based on the possibility of guilt, in this case preventing the Board from evaluating material before it and forming an opinion incompatible with innocence in respect of the criminal charges.
Justification Question: Reasonableness of any limitation
If the right had been engaged and limited, the Court considered that it would be necessary to determine whether any such limitation was reasonable in accordance with s 7(2) of the Charter. This requires specific regard to be had to the factors set out in s 7(2) (not to general notions of proportionality). Hollingworth J reiterated that section 7(2)(e), which requires consideration of any less restrictive means reasonably available to achieve the purpose of the limitation, does not requirethe adoption of the least intrusive means. Instead, the relevant question is whether the chosen measure falls within a range of reasonable alternatives.
Dr Sabet argued that an agreement restraining his practice under the HPRA would be a less restrictive means of limiting his capacity to practice medicine. The Court held that this was not a means of limiting the interference with the right to be presumed innocent but the right to practice medicine. As such, it was not relevant in considering whether a less restrictive means of limitation was available pursuant to s 7(2)(e) of the Charter.
Conclusion
Sabet is the first time a court has held in relation to the Charter that 'administrative capacity' is 'administrative power' at common law. It also provides guidance as to a court's approach to determining whether a public authority has acted in contravention of section 38 of the Charter.
Monique Carroll and Helen Beatty are lawyers with Allens Arthur Robinson