A court of appeal in Australia has allowed Dr Sabi Lal, a doctor of Indian origin and who has been convicted of rape, to resume practising. The ruling has raised hackles in many circles, and the Victorian state government could appeal the decision.
Dr Lal was born in Fiji, where he had completed his schooling, but he won a scholarship to Bombay where he studied medicine. Upon graduating he returned to Fiji where he completed his internship as well as five years of medical training before migrating to Australia.
In 2002 "Doctor" Sabi Lal was found guilty of assaulting two pharmaceutical representatives (referred to as Ms DE and Ms PQ) who had visited his clinic. He was given a $1000 fine for each assault and convictions were recorded. He was also charged with digitally raping a patient six years earlier (referred to as Ms CD), indecently assaulting her and then attempting to pervert the course of justice. For these charges he was given a two and a half year suspended sentence.
Several other assaults or problematic behaviours were reported to the police or the Medical Practitioners Board, including: inappropriate comments of a social, personal and sexual nature during consultations, inappropriate personal contact outside the consultations and misuse of information during the consultations, calling the mother of a child he was treating and asking her on a date and visiting a female patients house uninvited.
In his submissions to the Medical Practioners board a year later Lal claimed that the assaults were "at the very minor end of the spectrum of assault". His counsel also claimed that there was "no infliction of physical harm by Dr Lal, that there was no evidence of force, that there was no aggression, no threat and no abuse and no physical pain."
In the case of the assaults he invited the pharmaceutical reps into his consulting room, interrogated them about their relationships, invited them on dates and then - when they refused - persisted with his questioning. In the case of Ms PQ he grabbed her by her upper arms and waist when she tried to leave the room and then followed her to the car park insisting they go for 'a drive'. When Ms DE attempted to leave the room he grabbed her by the shoulders and attempted to kiss her. When she again tried to get away from him and leave the room he pulled her hand away from the door handle and leant against the door so she couldn't leave. She finally managed to pull the door open and escape, where she ran to her car, locked it and sat there sobbing.
Dr.Lal was refused registration by the Medical Practitioners Board because of prior sexual assault convictions, including indecent assault and digitally raping a patient between 1997 and 2001.
A clinical psychologist had told the inquiry that Dr Lal suffered from a condition which put him at risk of engaging in inappropriate conduct when he was under stress and at the time when he engaged in inappropriate conduct with the two pharmaceutical representatives, he was going through a difficult and stressful period in his personal life.
Still the Board was of the opinion that there was a serious risk to the health and safety of the public, if Dr Lal continued to practise, and for that reason determined, pursuant to section 27 of the Act, to suspend Dr Lal's medical registration from midnight 16 January 2003.
This week the Victorian Civil and Administrative Tribunal (VCAT) ruled that Sabi Lal be reinstated to the medical register and be allowed to resume seeing and treating.
The tribunal found the digital rape occurred while the doctor performed a "medically necessary" internal examination after falsely telling the patient the procedure would be performed by a female doctor.
It granted Dr Lal registration on the basis he only sees male patients aged over 16.
On Thursday, Victoria's Court of Appeal rejected the Medical Practitioners Board's challenge to VCAT's ruling.
Appeal Court president Justice Chris Maxwell and Justices Mark Weinberg and Emilios Kyrou said the case was exceptional.
"In the overwhelming majority of cases, a recent conviction for rape or other serious sexual offence involving a patient would warrant the refusal of an application for registration to practise medicine,'' they said.
But the judges said the doctor's suitability to practise depended on many factors, including the circumstances of the offence and his moral culpability.
"It would be wholly inappropriate for a responsible board simply to rely on the finding of guilty and ignore, for example, what was said by the sentence court,'' the judges said.
Dr Lal was given a wholly suspended sentence in 2002 when the judge said his offending was at the lowest end of the scale.
The judge also accepted his diminished responsibility because the obsessive compulsive disorder he suffered contributed to his offending.
Many have expressed their outrage over the ruling.
The Victorian Health Minister, Daniel Andrews, says his department is examining the court's decision.
"Part of the process of looking at the judgement, getting some legal advice on it, is so that we can properly assess what options, if any, we have," he said.