John Larter is a NSW paramedic who has been actively involved in opposing mandatory vaccination for health care workers as well as the response to COVID-19 generally.  Mr Larter is also a councillor in the Snowy Valleys Council and stood as a candidate at the last federal election.  He was the plaintiff in an action in the NSW Supreme Court challenging various public health orders made by NSW Health Minister Brad Hazzard – see Requiring COVID vaccines for emergency workers(April 1, 2022) and Paramedic’s appeal against NSW COVID orders dismissed (November 24, 2022).

Mr Larter has been dismissed from NSW Ambulance and I understand his claim for unfair dismissal is still proceeding.

Mr Larter’s registration as a paramedic was suspended by the NSW Paramedicine Council (‘the Council’) on 17 September 2021.  The suspension was lifted on 14 June 2022, but the Council imposed conditions on his registration placing restrictions on his ability to practice as a paramedic.  On 15 October 2021 Larter lodged an appeal against the decision to suspend his registration.  On 12 July 2022 he appealed against the decision to impose conditions on his registration.  Both matters were heard by the New South Wales Civil and Administrative Tribunal (NCAT) in November 2022. On 7 February 2023, NCAT published its reasons dismissing the appeal – Larter v Paramedicine Council of NSW [2023] NSWCATOD 12 (and I thank Bill Madden, author of Bill Madden’s WordPress, a blog about ‘Medical law, abuse law, NDIS & civil liability’ in Australia for bringing this to my attention).

The decision to suspend Larter’s registration was in response (at [8]) to:

… six complaints in relation to the Appellant (the 2021 Complaints). The 2021 Complaints all relate to the Appellant expressing his views in the media (newspaper, radio and Facebook video interviews) about the COVID-19 pandemic, public health orders for lockdowns in NSW, and the NSW Ministry of Health Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 dated 26 August 2021. In the media posts, the Appellant identifies himself as a paramedic, and in the newspaper and Facebook video interviews he is seen wearing his NSW Ambulance paramedic uniform. In one photo he is seen standing in front of a NSW Ambulance vehicle in his uniform.

Health Practitioner Regulation National Law s 150

The power to suspend a practitioner’s registration is set out in s 150 of the Health Practitioner Regulation National Law (NSW). It is a power to be used ‘where immediate action of an emergency kind requires the Council to act’ ([26]). Section 150 (quoted at [9]) says:

(1)        A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-

(a)        by order suspend a registered health practitioner’s or student’s registration; or

(b)       by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate;…

That is, there are two separate tests in s 150 – the protection of the health and safety of any person or persons, and the public interest. Finding action under s 150 is warranted by consider of either of those tests is sufficient (Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 quoted at [38]).

In Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (quoted at [27]) the Court of Appeal set out relevant principles to guide NCAT when considering appeals of this type.  They said that because of the emergency nature of the powers the decision maker, whether the Council or NCAT, is not bound by the rules of evidence, is not required to make conclusive findings about the complaints, nor determine whether the practitioner’s conduct amounts to ‘professional misconduct’ or ‘unsatisfactory professional conduct’.  The issue for the decision maker is:

… to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest.

Because the measure is protective there does not need to proof of actual harm, the potential for harm is sufficient.

With respect to the question of the public interest:

The “public interest” consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession.

The Tribunal noted that the exercise of the powers under s 150 is quite separate to the normal process of receiving complaints, giving the respondent practitioner the time to respond, conducting an inquiry, determining the issues of fact and whether the complaint is made out and then applying an appropriate sanction.  The section 150 powers are (at [41]) ‘only to be invoked as an emergency power where the circumstances are urgent’.

The appeal

Mr Larter was able to appeal on two grounds. The first, provided for in s 159 was an appeal that simply asked the Tribunal to consider the matter afresh and make its own decision. The second under s 159B was an appeal based on an claimed error of law by the Tribunal.

With respect to s 159B and an error of law, Larter’s appeal claimed (at [47]):

  1. A lack of procedural fairness;
  2. That the action of the council infringed the principal of legality as it
    1. Infringed his freedom to engage in political communication (a freedom recognised by the High Court of Australia); and
    1. Infringed his right to bodily integrity;
  3. The decision was harsh and disproportionate to any risk; and
  4. The council acted from an improper motive.

Procedural fairness

Larter appealed on the basis that he had not had a chance to obtain legal advice or to consider the documents sent to him on the 16th of September that were relevant to the hearing scheduled for the 17th.

NCAT rejected these arguments.  They noted that Larter had been advised of the date of the Council’s hearing on 9 September and had been in regular contact with his legal advisers since that time ([51]). In fact he believed his advisers had contacted the Council to seek an adjournment of the matter but that clearly did not happen.

Importantly for readers of this blog, on 16 September 2022, Larter was sent ‘a bundle of documents’ relevant to the hearing scheduled for 17 September and therefore he did not have time to consider the content of the documents.

The Tribunal said (at [52]-[53] emphasis added):

The Appellant’s concerns about “no time to consider and read the policies relied upon” must be seen in context where, as a registered paramedic he was obliged to be aware of the policies which from the time of his registration were binding on him and he was required to comply with their terms.

The bundle of documents sent to the Appellant late on 16 September 2021 was a resending of documents earlier provided to him plus the following: Paramedicine Board of Australia – Code of Conduct; AHPRA Social Media Guideline; AHPRA statement on Registered health practitioners and students and COVID-19 vaccination; and AHPRA Guidelines for advertising a regulated health service. Each of these documents were relevant to his registered status and he was required to comply with their contents, thus required to have knowledge of their contents.

Further Mr Larter was asked, before the hearing before the Council commenced whether there was any written material he wanted the council to consider. And after the hearing he was invited to make any further written submissions by 20 September.  He declined both offers ([59]).

The Tribunal said (at [62]):

In our view, the Appellant was not denied procedural fairness. He made no real effort to prepare for, or deal with, the contents of the complaints prior to 17 September 2021 despite the warnings as to the seriousness of the matter. He adopted a dismissive approach to the proceedings. He went about other business, pursuing a workers compensation claim on 16 September 2021. He clearly had every opportunity to obtain legal advice. He did not provide a response or arrange for his legal representatives to provide further information to the Council as he was advised he could do. The Appellant chose not to take up the opportunity offered to him to respond further in writing by 20 September 2021.

Legality and the implied freedom of political communication

The High Court has determined that the Australian Constitution implies a freedom of communication about governmental and political matters (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, McCloy v New South Wales (2015) 257 CLR 178 cited at [65]).  That is not however an individual right, rather it is a limit on the legislative powers of the Commonwealth – that is the Commonwealth cannot pass laws that are intended to limit that right ([66]).  But no freedoms are absolute and they can be restricted where the restriction is a proportionate response to a legitimate concern – for example the right to political communication could not extend to blowing up a federal building nor the incitement of violence.  At [68] the Tribunal said:

The Appellant made no attempt to address the legal principles, and made no submissions as to whether the “freedom” claimed was unjustifiably burdened by the exercise of legislative power …

In the circumstances where the appellant, Larter, failed to address the relevant legal issues, this ground of appeal was rejected.

Legality and the right to bodily integrity

This argument has been put and rejected in other cases including Kassam v Hazzard (discussed in Requiring COVID vaccines for emergency workers (April 1, 2022)). The gist of the argument is that everyone has the right to refuse treatment but the obligation upon employees to be vaccinated denied them that right. The problem is that none of the public health orders compel anyone to be vaccinated. The choice to be vaccinated remains, but as with all choices there are costs and one of those costs may be that the person cannot do their job.  And where they cannot do their job because their employer is required to comply with the law and the law says a person doing that job must be vaccinated, then the employer may have no option but to terminate the person’s employment. 

With respect to this case, the Tribunal said (at [74]-[75]):

… so far as the right to bodily integrity is concerned, it was not violated as the suspension did not in any way amount to an act of vaccination, or authorise the involuntary vaccination of anyone (Kasam v Hazzard at [9], [55] per Beech-Jones CJ at CL). As his Honour found in that case, a consent to vaccination “is not vitiated and a person’s right to bodily integrity is not violated just because a person agrees to be vaccinated to avoid a general prohibition on movement or to obtain entry into a construction site.” The particular Public Orders under consideration in that case, his Honour held, did not violate any person’s right to bodily integrity any more than a provision requiring a person undergoing medical examination before commencing employment does (at [63]).

We reject the Appellant’s arguments as to a failure by the Council to take account of the Appellant’s asserted right to bodily integrity, a right which has no application to the present appeals.

Harshness and Proportionality

Larter argued that he

… posed no greater risk in the workforce than a worker who had been vaccinated but who had not received a booster shot within 6 months… He then argues that he represented no greater risk than any member of the public who was not vaccinated but who presented to a hospital. No evidence was put forward to support these assertions.

In the absence of any supporting evidence, this ground was also rejected.

That the suspension led to the termination of his employment did not constitute any reason to find that the decision was too harsh or disproportionate – at [82]:

… the exercise of the powers under s 150 are to protect the health and safety of persons and to protect the public interest. The exercise of the power to suspend registration on an interim basis clearly will impact on a practitioner’s ability to work as a registered paramedic. The consequence, however, flows from the practitioner’s conduct considered to be an immediate and unacceptable risk. The Council, however, has no control over how the practitioner’s employer reacts to that outcome.

Improper Purpose and Ultra Vires

The appellant also argued (at [84]) that the actions of the Council were motivated by an improper purpose ie a desire to punish him for expressing his views.  The Tribunal said (at [85]):

The reasons published by the Council on 7 October 2021 address the risks posed by the Appellant’s repeated conduct. There is, in our view, no basis for asserting that the power was exercised “to punish” the Appellant and this argument is rejected.

Having rejected all these arguments, the Tribunal concluded there was no demonstrated error of law.

The appeal under s 159

With respect to the more general appeal, in affect an application for a rehearing, the Tribunal considered there was no value in determining the matter. The Tribunal noted (at [94]) that ‘the evidence before the Council and before us as to the state of affairs as at September 2021 justified the exercise of the s 150 powers’.  Any decision now could not affect the legality of the decision in September 2021 and the Tribunal could not make orders affecting the suspension that is no longer in force. The Tribunal said (at [100]-[103]):

… The setting aside of a decision which is no longer operative by reason of the decision of the Council in June 2022 would have no practical effect in the scheme provided by the National Law.

We take into consideration also that the making of the decision under s 150 did not involve the Council arriving at concluded views on the facts, but was simply the result of a risk assessment made at the time.

There is, in our view, no utility in the Tribunal now reconsidering the decision giving rise to the Suspension Appeal in the different circumstances which now apply.

In respect of the s 159 Suspension Appeal we therefore do not propose to rehear that appeal in circumstances where the suspension was lifted in June 2022 and there is now no record of the suspension on the publicly available registration sites which recorded the suspension in the first place.

Appeal against the imposition of conditions on his registration

Here Larter was successful. The Tribunal noted (at [107]) that Mr Larter was no longer employed by NSW Ambulance and is unable to return to that service, or any other paramedic employer, whilst he remains unvaccinated so he is not going to pose a risk to patients. The Tribunal also noted that many of the public health restrictions have now been lifted.  Finally the Tribunal noted that whilst Mr Larter continued to make the sort of public statements that brought him to the attention of the Council there is ‘no evidence of the Appellant doing so in the capacity as a paramedic and/or wearing his uniform’. 

The Tribunal said (at [110]) ‘We are not satisfied on the evidence before the Council on 14 June 2022, or now before us, … that it was or is appropriate to impose conditions on the registration of the Appellant …’. Accordingly, the Tribunal made orders replacing the decision of the Council.  On 14 June 2022 the Council had revoked Mr Larter’s suspension and imposed conditions. The new order from the Tribunal was that on 14 June 2022 Mr Larter’s suspension was revoked, but no conditions are imposed on his registration.

That is not the end of the matter

This appeal dealt only with the interim or emergency action under s 150 to first suspend Mr Larter’s registration and second, to impose conditions on his registration. As noted above the normal process for dealing with complaints about a health practitioners conduct is to conduct an inquiry to allow the relevant decision maker (in this case the Paramedicine Council) to determine whether the allegations have been established and whether the established facts constitute ‘professional misconduct’ or ‘unsatisfactory professional conduct’.  If that is established, then the Council can impose some sanctions but if the Council is of the view that the practitioner’s should be ‘struck off’ then the matter must be referred to NCAT. Again, as noted above, taking action under s 150 is an emergency measure to protect the public in circumstances of urgency, it does not replace that ‘normal’ process and in Mr Larter’s case, that process is ongoing.  We can expect that he will still be called before the Council to respond to the complaints and the Council, and if necessary NCAT, will proceed to hear and determine the matters.

Value as a precedent

This case is of little value as a legal precedent as it is a decision of NCAT, not a superior court. But it is of value to paramedics who may be called before the Council or (in other states) a committee.  Importantly paramedics should be aware that:

  1. Action under s 150 is an interim or emergency measure – a decision to suspend a practitioner’s registration or impose conditions is not a determination of ‘professional misconduct’ or ‘unsatisfactory professional conduct’.
  2. Paramedics are expected to know of and comply with documents relevant to their registration including ‘Paramedicine Board of Australia – Code of Conduct; AHPRA Social Media Guideline; AHPRA statement on Registered health practitioners and students and COVID-19 vaccination; and AHPRA Guidelines for advertising a regulated health service’ – and see also New research on paramedic use, and understanding, of the Code of Conduct (November 7, 2022).

Conclusion

No doubt Mr Larter’s issues with the Paramedicine Council will continue and there will be further reports on the outcome of his matters in due course.

In this matter the Tribunal declined to revisit the issue of his suspension on 17 September 2021 given that suspension has now been lifted. The Tribunal was satisfied that the decision to suspend him was, at the time it was made, justified by the evidence and Mr Larter was given appropriate opportunities to take part in the process and respond to the Council. The suspension was lifted in June 2022 and there was now no point reconsidering whether the Council should have made that decision given that any order of the Tribunal – dealing with his suspension – would make no difference to Mr Larter’s current position.

With respect to the decision to impose conditions on his registration, made in June 2022 the Tribunal was of the view that the change in Mr Larter’s circumstances since September 2021, and the change in the public health response meant that the Council should not have imposed conditions.  Concerns about Mr Larter’s past, and ongoing behaviour and whether that warranted any action by the Council or NCAT, should be left to the ‘normal’ processes. There was insufficient risk to warrant the imposition of conditions.  Accordingly, the Tribunal made a new order confirming that Mr Larter’s suspension was revoked and withdrawing the conditions on his registration.

For Mr Larter it was a lose one, win one outcome.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.