AYHT v MEDICAL BOARD OF SOUTH AUSTRALIA No. SCGRG-99-95 [2000] SASC 136

The functions of the Board include maintaining the highest professional standards both of competence and conduct in the practice of medicine: s 13(1) of the Act. The Board may delegate any of its functions and powers except those which are set out in Part 4 of the Act which includes the powers and functions relating to discipline of medical practitioners: s 15. The Board may determine its procedure upon the hearing of the proceedings under the Act; it is not bound by the rules of evidence; it may inform itself as it thinks fit; and upon the hearing of proceedings shall act according to equity, good conscience and the substantial merits of the case: s 17.

Part 4 of the Act (ss 50 to 65) concerns complaints against practitioners both as to competence and fitness to act as medical practitioners (ss 50 to 53), and as to unprofessional conduct (s 54). The Board is required to conduct inquiries in relation to all of these complaints except where it considers that the complaint is frivolous or vexatious: s 50(2) and s 54(2). The requirements of s 57 regulate inquiries by the Board in respect of both complaints as to competence and fitness and as to unprofessional conduct.

Complaints of unprofessional conduct may be laid before the Board by the Registrar, the Minister, the South Australian branch of the Australian Medical Association, or by a person aggrieved by the conduct of the medical practitioner: s 54(1). When such a complaint has been laid before the Board, the Board must inquire into the subject matter of the complaint, unless the Board considers that the complaint is frivolous or vexatious or unless it decides to lay a complaint before the Tribunal pursuant to s 54(2)(b). The Board may also lay a complaint before the Tribunal in the circumstances prescribed by s 54(4). Section 54(5) invests the Board with power to reprimand a practitioner if it is satisfied that the matters alleged in the complaint have been established.

Section 58(1) of the Act invests the Board with power to lay a complaint alleging professional misconduct before the Tribunal. The Tribunal has the duty to inquire into the subject matter of the complaint and, if satisfied that the practitioner is guilty of improper conduct, may discipline the practitioner: s 58(2) and (3). As the trial judge noted, it is s 58(1) which authorises the Board to lay a complaint before the Tribunal. Neither s 54(2) nor s 54(4) give that authority but, instead, specify occasions where the power to lay a complaint vested by s 58(1) may be exercised without an inquiry or without completing an inquiry.

As this review shows, the Board's functions in relation to the disciplinary provisions of Part 4 are confined to determining whether it should lay a complaint before the Tribunal or to reprimanding a practitioner. The Board may lay a complaint before the Tribunal either with or without an inquiry.

Although s 54 imposes on the Board a statutory duty to inquire into complaints, the Board is not required to do so when it considers a complaint to be frivolous or vexatious or when it decides itself to lay a complaint. When deciding to lay a complaint under s 54(2), the Board is not required to hear the medical practitioner. There are two reasons for that conclusion. First, the Board is doing no more than deciding to prosecute. As the judge noted, the Board is not determining any question which affects the rights or interests of the practitioner and its decision to lay a complaint does not affect the practitioner's rights or interests. The Board's only duty is to form an opinion whether a complaint should be laid before the Tribunal. In discharging that task, the Board is not undertaking a process that attracts the duty to accord procedural fairness: Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582 per Fullagar and Taylor JJ at 594. The decision of the Board, if adverse to the medical practitioner, does not bind the Tribunal. It is no more than a decision that the practitioner must be tried by the Tribunal. It is the Tribunal's decision, not the Board's decision, which affects the rights of the practitioner. See also Cornall v AB [1995] VICSC 7; [1995] 1 VR 372 at 398 - 401. It was open to the Board in this case to have laid a complaint against the appellant without conducting an inquiry.

We turn to examine how s 54(4) fits into this scheme. Although s 54(2) requires the Board to conduct an inquiry except where it has decided that the complaint is frivolous or vexatious or it has already decided to lay a complaint before the Tribunal, s 54(4) enables the Board to proceed to lay a complaint without conducting a full inquiry. The Board is invested with the power to "terminate the proceedings under this section" where "it considers that the allegations or evidence against the medical practitioner are sufficiently serious". The expression "the proceedings under this section" can only refer to the inquiry. Thus, the Board has express power to cut short an inquiry and lay a complaint before the Tribunal in those circumstances where it considers the allegations or evidence against the practitioner are sufficiently serious. The question is whether s 57(1) requires the Board to hear the practitioner before it decides to exercise this power.

The power to terminate the inquiry may be exercised "in the course of conducting an inquiry". Thus, the power may only be exercised after the inquiry has begun. This does not necessarily mean that, after deciding to hold an inquiry, but before the inquiry has begun, the Board could not reconsider the allegations made in a complaint and decide pursuant to s 54(2) to lay a complaint before the Tribunal. Furthermore, the power to terminate the inquiry may be exercised at any stage in the inquiry. Thus, it may be exercised immediately after or soon after the Board has opened the inquiry. If that were not so, each inquiry would have to proceed to completion and s 54(4) would be devoid of meaning. In other words, it is open to the Board at the outset of the inquiry to consider that the allegations are sufficiently serious and decide to terminate the inquiry before proceeding any further. The fact that the Board has decided to hold an inquiry instead of laying the complaint before the Tribunal pursuant to s 54(2) without an inquiry, does not preclude the Board from terminating the inquiry soon after it has begun.

Although s 57(1) is expressed in terms which clearly apply to all of the kinds of inquiries which the Board is required by the Act to conduct, the terms in which s 54(4) is expressed make it clear that it is intended to be an exception to the requirements of s 57(1). The power in s 54(4) is expressed in unambiguous terms. Furthermore, that power is not expressed to be subject to s 57(1). There is only one pre-requisite for the operation of s 54(4), namely, that the Board considers the allegations or the evidence against the practitioner to be sufficiently serious to terminate the inquiry and lay a complaint before the Tribunal. As already noted, the decision to lay a complaint does not affect the rights or interests of the practitioner and does not call for the application of the rules of procedural fairness. In that respect, it is unlike all of the other decisions the Board would be required to make after conducting an inquiry, which, because of their effect, require the application of the rules of procedural fairness.

The conclusion that s 54(4) represents an exception to the requirements of s 57(1) is further reinforced by contrasting the operation of s 54(2) with the consequences of the position for which the appellant contends. If the appellant is correct, the Board may decide to lay a complaint pursuant to its powers under s 54(2) without hearing the practitioner but it must hear the practitioner, even if it considers the allegations on the evidence are sufficiently serious to lay a complaint once an inquiry has been commenced. That produces the curious result that the Board would not have to accord procedural fairness when making a decision under s 54(2) but would have to do so when making the same decision under s 54(4). If it were the intention that the Board should accord procedural fairness when laying a complaint in the course of an inquiry, there would have been little point in enacting s 54(4). Furthermore, when the Board's powers under s 54(2) are read with those in s 54(4), it is apparent that the intention of Parliament is to allow the Board two opportunities to lay a complaint before the Tribunal -- one is without an inquiry and the other without a complete inquiry and, on either occasion, the practitioner does not have an entitlement to be heard. In other words, as the power to terminate the inquiry may be exercised at any stage in the course of the inquiry, the Board may terminate it immediately after, or very shortly after, it has been begun if the Board has the required opinion. The Board has, as it were, an opportunity to reconsider the seriousness of the complaint.

Further, the Board's power to terminate the proceedings is expressed in subjective terms. The power may be exercised if the Board considers the allegations to be sufficiently serious to lay a complaint before the Tribunal. Section 54(4) does not require that the Board have cause to believe or reasonable cause to believe or reasonable cause to be satisfied as to the seriousness of the allegations or evidence. That is consistent with the Board's powers under s 54(2) which would enable it to lay a complaint without an inquiry if it considered the allegations to be sufficiently serious.

In reaching his conclusion, the judge below did not rely on the terms of s 57(1) but on the common law rules of procedural fairness. The learned judge appears to have held that the fact that the appellant received notice of an inquiry gave rise to a legitimate expectation that he would be heard on all issues. The concept of "legitimate expectations" is not helpful and has the capacity to be misleading. The concept has been criticised by Brennan CJ on several occasions: see, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 611 and 617 - 618; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 604 - 607; and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 591 - 592. Deane and McHugh JJ have expressed doubts: Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 651 - 652 and Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 311. Undertakings or representations may give rise to a legitimate expectation: see, for example, Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Cole v Cunningham [1942] ArgusLawRp 77; (1983) 49 ALR 123; Century Metals and Mining NL v Yeomans [1989] FCA 273; (1989) 100 ALR 383; Annetts v McCann (supra). But, as those cases demonstrate, the undertaking or representation is made by or on behalf of the decision-maker whose decision will affect the rights or interest of the person seeking to be heard.

The position of the appellant differs in at least two respects. First, for the reasons already noted, although the Board is required to make a decision whether or not to lay a complaint before the Tribunal, its decision does not affect the rights or interests of the medical practitioner. Secondly, the notice of the inquiry sent to the appellant did not hold out to him that the inquiry would necessarily proceed and evidence would be called. The relevant parts of the notice were in these terms:

"TAKE NOTICE that the Medical Board of South Australia intends to inquire into a complaint which has been laid before the Board alleging unprofessional conduct on your part as set out in the annexed complaint. AND FURTHER TAKE NOTICE that subject to Section 54 of the Medical Practitioners Act, 1983, the Board shall afford to you a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses and to make submissions to the Board. You shall be entitled to be represented by a legal practitioner at the hearing of these proceedings. AND THAT, pursuant to Section 54(4) of the Medical Practitioners Act, where, in the course of conducting any inquiry, the Board considers that the allegations or evidence against a medical practitioner are sufficiently serious, it may terminate the proceedings and itself lay a complaint against the medical practitioner before the Medical Practitioners Professional Conduct Tribunal in relation to those allegations or that evidence."

It is apparent that the drafting of the notice has closely followed the terms of s 54(4) and s 57(1). The notice expressly states that the inquiry may be terminated at any time. It is apparent from the fact that notice of the power to terminate the inquiry follows notice of the inquiry that the latter paragraph qualified the manner in which the inquiry would be held. There was, therefore, no undertaking or representation that the practitioner would be heard on all matters.

To summarise, there are three reasons why the appellant did not have a right to be heard. First, the decision of the Board did not affect his rights or interests so that the common law principles of procedural fairness were not called into operation. Secondly, the appellant did not have a legitimate expectation which would attract procedural fairness. Thirdly, on the true construction of s 54(4) and s 57(1), the operation of s 54(4) is not governed by s 57(1). In other words, s 54(4) is an exception to the operation of s 57(1). For these reasons, the Board was not required to hear the appellant on the question whether it should terminate the inquiry and lay a complaint before the Tribunal.

It might be added that even if we had reached a contrary conclusion, we would not, in the particular circumstances of this case, have exercised our discretion to interfere with the decision of the court below. Ms Powell QC gave evidence in the application for judicial review that she did not seek to make a submission that the allegations in the complaint were not sufficiently serious to refer the matter to the Tribunal. As the Board has the power to lay a complaint if it considers allegations to be sufficiently serious, it would have been quite futile therefore to have set aside the decision of the Board.

It is appropriate to add that, in those cases where serious allegations are made against a practitioner, the Board should carefully consider whether it is necessary to hold an inquiry. It has the power under s 54(2) to lay a complaint without holding an inquiry and, if the allegations are sufficiently serious, there seems that little is to be gained by conducting an inquiry. This case provides a good example. On any view, the complaints against the practitioner were very serious and were clearly sufficiently serious to warrant the Board laying a complaint before the Tribunal without hearing the practitioner. Indeed, that is the course the Board ultimately adopted. It is not apparent why in this case it was necessary to conduct an inquiry. The nature of the powers vested in the Board by s 54(2) would seem to suggest that the better course for the Board to adopt on receiving a complaint is to consider whether the allegations are, on their face, sufficiently serious to justify laying a complaint before the Tribunal without an inquiry rather than to decide to hold an inquiry and then terminate the inquiry because the Board considers the allegations to be sufficiently serious to lay a complaint before the Tribunal.

Mr Gray QC submitted that the Board could not make a decision under s 54(4) unless it had first heard evidence. It was contended s 57(1) creates a mandatory obligation in the Board to hear the medical practitioner and to offer the practitioner the opportunity to call evidence. The submission ignores the plain words of s 54(4). The Board may act on either the allegation or the evidence and may do so at any stage in the course of the inquiry.

Mr Gray QC had submitted in the court below that the Board acted without jurisdiction by purporting to refer the complaint to the Tribunal instead of deciding itself to lay a complaint before the Tribunal. The judge did not accept this submission. In his notice of appeal the appellant contended that the Board acted ultra vires when it purported to refer the complaint to the Tribunal and that it had failed to fulfil its obligations under s 54(2) and s 54(4) of the Act. The issue was but faintly argued on appeal, it being contended the Board's use of the word "refer" indicated its misunderstanding of its role.

The argument focuses too much on form and ignores the substance of the matter. The Board is constituted of non-lawyers. The ruling indicates that the Board has considerable experience in these matters. It is reasonable to infer that the members of the Board were well aware that the Act required that they should determine whether the allegations were sufficiently serious that they should lay a complaint before the Tribunal. Furthermore, in the argument which had preceded the ruling, the word "refer" had once been used by counsel for the Registrar but, thereafter, he had on several occasions stated that the Board had a duty to lay a complaint before the Tribunal. Ms Powell had also on at least two occasions spoken of the Board laying a complaint before the Tribunal. In particular, she referred to "the very serious step of laying a complaint before the Tribunal". There can be little doubt, therefore, that the Board, by reason of its prior experience and reminded by the submissions of counsel, was clearly aware of the fact that its duty was to lay a complaint before the Tribunal. The judge below found:

"It is not surprising that a lay person presiding over the Tribunal did not use formal language and described the process as a reference directly to the Tribunal. In the context of the submissions I have discussed, including the use of non-technical expressions to describe the process, the reference to referring the matter directly to the Tribunal does not establish the plaintiff's proposition that the Board decided to refer the existing complaint rather than deciding to lay a complaint before the Tribunal. From a careful consideration of the transcript of proceedings before the Board, I have no doubt that the Board decided to lay a complaint before the Tribunal."

We agree with those reasons. The use of the word "refer" was perhaps unfortunate but there can be little doubt that the Board was expressing its intention to lay a complaint before the Tribunal. It would have been better if the Board had said that it was terminating the inquiry because it considered the allegations were sufficiently serious to cause it to lay a complaint before the Tribunal. The fact that it did not do so does not mean that it acted in excess of jurisdiction. The procedures prescribed by the Act for disciplinary matters must be carefully observed: Barwick v Law Society of New South Wales [2000] HCA 2; (2000) 169 ALR 236 at para 63. The Board did not by-pass these required procedures but adhered to them.

For all of these reasons, we dismiss the appeal.