The criminalisation of professional misconduct under the Health Professions Registration Act 2005 (VIC): how is a fine of $50,000 not punitive?
The purpose of medical boards is to protect patients and guide doctors. Courts and tribunals have constantly emphasised that their role is entirely protective and not punitive. By a huge increase in the fine that can be imposed on health professionals in Victoria to a level more commensurate with serious criminal activity, the regulatory environment has shifted from a simple and straightforward indication of disapproval to one where a medical practitioner can be sanctioned as a criminal without the protections afforded by the criminal jurisdiction. A standard of proof beyond reasonable doubt, double jeopardy and pleading remorse and contrition in mitigation are not available. No good reasons have been advanced for this change. One can only hope that when a national Health Registration Board National Registration and Accreditation Scheme for the Health Professions, due for implementation in 2010, is completed, it will include a recognition of the true purpose of medical regulation and correct this anomaly, encouraging compliance by professionals rather than persisting with a command-and-control punitive regime. Punishment should be left to the courts.
Wheatley
Ian
I
School of Law, Deakin University.
D001315:Australia; D035881:Compensation and Redress / Q000331:legislation & jurisprudence*; D006801:Humans; D028743:Professional Misconduct / Q000331:legislation & jurisprudence*; D011678:Punishment