Practitioner reprimanded and required to give undertaking to be of good behaviour for 12 months and to comply with condition of practice at obstetrics.

Jemielita v The Medical Board of Western Australia, unreported

NSW Bar Association v Evatt [1968] HCA 20; [1968] 117 CLR 177

Roberman v The Medical Board of Western Australia [2005] WASC 45

1 On 5 May 2005, we delivered reasons for decisions in this matter, concluding that the respondent was guilty of gross carelessness in relation to the care of a patient on 11 October 1997 in that he knew that another consultant obstetrician, a senior registrar or a registrar should attend the patient urgently to assess whether the patient's child should be delivered urgently by caesarean section but he did not arrange for another consultant obstetrician, a senior registrar or a registrar to attend the patient urgently for that purpose - see **Medical Board of Western Australia v Dr Brian Roberman [**2005] WAST 81. We also concluded that Dr Roberman was not guilty of gross carelessness in relation to 2 other allegations made in relation to the same patient on the same day.

2 The Notice of Inquiry, which formed the basis of the proceedings, was issued by the applicant on 7 July 2004. It originally comprised only two allegations. The first was that the respondent was guilty of gross carelessness in failing to attend the patient within four hours of his first attendance. The second was that he was guilty of gross carelessness or incompetency because he knew or ought to have known that at 4.45 pm on 11 October 1997 that the patient's child needed to be delivered by urgent caesarean section but failed to urgently deliver the child by caesarean himself, alternatively failed to arrange for another consultant obstetrician or a senior registrar to deliver the child by urgent caesarean.

3 The matter was originally listed for hearing before the Medical Board of Western Australia, which was the body responsible for hearing all disciplinary proceedings against medical practitioners prior to 1 January 2005. In opening the inquiry, Counsel assisting the Medical Board sought to amend the basis of the inquiry to include a further alternative to the second allegation. That application was resisted by the respondent on the basis neither he nor his expert witness's had the opportunity to properly consider the alternative allegation. The Board agreed to allow amendments to the Notice of Inquiry, but adjourned the proceedings so as to provide the respondent with a reasonable opportunity to consider the new allegation.

4 An amended notice of inquiry was provided to the respondent on 9 November 2004. We were told that the terms of the amendment differed from the form of amendment proposed by Counsel assisting on 18 October 2004. The amended notice that was submitted to the Board was not in the papers before us. We gather, however, that the substance of the new allegation in the 9 November 2004 notice was not markedly different from that foreshadowed at the 18 October 2004 hearing.

5 The allegation which we have found proved against Dr Roberman was the new allegation first foreshadowed on 18 October 2004 and set out in the amended notice 9 November [ ]. We have found that the allegations originally brought against Dr Roberman were not established.

6 On a finding of gross carelessness against a practitioner, the Tribunal may, under s 13(3) of the Medical Act 1894, do any one or more of the following:

(a) remove the practitioner's name from the register;

(b) suspend the practitioner's registration for a period of up to 12 months;

7 In addition, pursuant to s 13(4), the Tribunal may, instead of de-registering or suspending a practitioner, require the practitioner to give a written undertaking to the Medical Board to be of good behaviour for such period or the Tribunal thinks [ ] and to comply during that period, with such restrictions and conditions relating to practice and training as the Tribunal thinks fit.

8 The function of the Tribunal in imposing the sanctions provided for s 13 of the Act is to protect the public interest, and not to punish the practitioner - see NSW Bar Association v Evatt [1968] HCA 20; [1968] 117 CLR 177 at 183 - 184. The general principle applicable in determining the appropriate penalty were identified Owen J in Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library number 920584, 13 November 1992 at 146 - 147 when he said;

"The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements. See Pillai v Messiter (no 2 ) (1989) 16 NSWLR 197 at 201.

There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community see Zidermann v Genesal Dental Council (1976) 1 WLR 330 at 333. . A further consideration is the need to deter others who may be of a like mind to transgress in the future see. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Arytecko Registration Councilof UK [1957] 2 RBSSP at 563>

"There is something more important than the standing of a profession about which the counsel is naturally and properly concerned there is the right of every man to earn his living in whatever way he choses unless by the law or by his own voluntary submission his way is taken from him.'

There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalties. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly."

9 Dr Roberman is 61 years old. He has enjoyed an impressive career. He graduated from the University of Western Australian in 1966 from 1968 to 1971 he worked as a registrar in obstetrics and gynaecology at the King Edward Memorial Hospital ("KEMH"). He worked and studied in England and became a member of the Royal College of Obstetricians and Gynaecologists at the end of 1973.

10 Dr Roberman worked as senior clinical lecture in obstetrics and gynaecology in Papua New Guinea between 1974 and 1976. He then returned to KEMH and in 1977 was appointed Acting Deputy Medical Director for a period of 12 months. In 1978 he was appointed as the first full time obstetrician and gynaecologist at KEMH.

11 In 1979, Dr Roberman became a foundation fellow of the Royal Australian College of Obstetrician's and Gynaecologist's. In 1981 he completed a perinatal fellowship the Harbor Medical Centre at the University of California and Los Angeles. He became a fellow of the Royal College of Obstetricians and Gynaecologists in 1988. He was appointed the director of obstetrics at KEMH in 1996 and held that post until June 2002.

12 It is apparent from many of the references and letters of support tendered to us that Dr Roberman took a particular interest in the treatment of diabetic patients during pregnancy.

13 From June 2002 till 18 March 2004, the respondent was the director of post-graduate education at KEMH.

14 During his career, Dr Roberman has taken an active role in professional organisations and training. He is a member of the Australian Society for the Study of Hypertension in Pregnancy, the Australian Diabetes in Pregnancy Study Group, the Australian Menopause Society, the Australian Perinatal Society and the Australian Medical Association. In addition, he has in the past been a training supervisor for the Royal Australian College, an examiner for the Royal Australian College for the specialist examination of membership of the College, Chairman of the KEMH clinical Association, Chairman of the Medical Advisory Committee of KEMH, a member of the combined Boards of KEMH and Princess Margaret Hospital for Children, the Western Australian representative on the Council of Obstetricians and Gynaecologists at the Royal Australian College, and Chairman of the Health Care Committee of the Royal Australian College.

15 We have been provided with a total of 72 letters or references supporting Dr Roberman. Slightly over half of those come from patients or friends the balance are from medical colleagues who have known or who have dealt with Dr Roberman for varying length of time. Of those, approximately 10 are from other obstetricians or specialists who have worked with Dr Roberman at KEMH or elsewhere. All speak very highly of him. Although many were written before the present proceedings commenced, it is clear that all authors maintained [ ] comments in the knowledge of the finding subject to these proceedings, and also of an earlier finding of gross carelessness made against Dr Roberman in relation to an incident in 1994. It is clear that many of those who have provided letters of support have great difficulty in accepting the correctness of the Tribunal's decision. That may be simply an indication of the strength of the regard in which they hold Dr Roberman and their own experience as to the level of care and attention that he has provided to them, or in the case other medical practitioners, to their patients.

16 What emerges from the many letters of support is that Dr Roberman is admired by many for the level of commitment and devotion to his work that he has displayed over his long career. Many comment upon his dedication to service in the public hospital system at the cost of financial gains which could be made in private practice. Many patients, note their experience of finding Dr Roberman readily accessible to patients and speak of his care and compassion as well as his professional and clinical skill in his dealings with them. Many speak of Dr Roberman's expertise in the area of diabetes in pregnancy, some from the perspective of patients in that condition, and others as professional colleagues who referred diabetic patients to Dr Roberman, or worked with him in relation to such patients.

17 The sentiments of many of those who wrote letters can be summarised in a paragraph of a letter written by Dr Barry Walters, a clinical Associate Professor in obstetric and general medicine at Royal Perth Hospital who said of Dr Roberman;

"Dr Roberman is a practitioner of many years experience. His clinical ability is beyond reproach. As I provide medical input to the care of complicated pregnancies, I have seen many of his patients. I have always found his approach to be kind and caring in dealing with them, and many have spontaneously reported the same observations to me. He takes considerable time and care in his consultations. He has always given deep consideration to every clinical problem that arises in our complicated practice. He demonstrated exceptional knowledge of the world's research literature as it relates to diabetes in pregnancy, and all related obstetric problems. There is no other obstetrician in Western Australia, and few any where else, with his practical experience in the care of women with diabetes in pregnancy, his knowledge, insight or judgment in that area"

18 In 2000, the State Government established the inquiry into obstetric and gynaecological services at the KEMH, which became known as the "Douglas Inquiry". It is notorious that, during the course of that inquiry KEMH received a considerable amount of adverse publicity. The respondent was the Director of Obstetrics at the hospital at that time, and also received adverse publicity, which ultimately resulted in him resigning as Director of Obstetrics in June 2002. He has not practised obstetrics since.

19 We were told that, as a result of the Douglas Inquiry, a number of matters were referred to the Medical Board and in January 2003, the Board embarked upon an inquiry in relation to an allegation as to a matter occurring in 1994. The Board's decision in that matter was delivered on 17 March 2004. Dr Roberman was found guilty of gross carelessness and his registration was suspended for nine months. That finding, and the penalty imposed, wre the subject of an appeal to the Supreme Court of Western Australia heard in October 2004. The decision of the Supreme Court was delivered on 24 March 2005 (see Roberman v The Medical Board of Western Australia [2005] WASC 45. The finding of gross carelessness was upheld by the Court, but the appeal against the penalty was successful. In lieu of the suspension ordered by the Board, the Court concluded that a fine of $10 000 would have been the appropriate penalty in conjunction with a reprimand and a requirement that Dr Roberman not practise obstetrics for a period of 12 months as a condition of a written undertaken to be of good behaviour during that period. In view of the fact that Dr Roberman had already served 2 and ½ months of his suspension prior to a stay being obtained pending appeal, the fine was reduced from $10 000 to $7 500. In reaching that conclusion, Jenkins J said at [168];

"In my view, the respondent erred in concluding that only suspension could meet the objective of the protection of the public. The respondent accepted that a personally deterrent penalty was not required (AB 174D, RFP [34]) and that public protection in this case did not mean that the penalty should prevent the appellant from practising; the appellant having no intention to practice obstetrics in any event. Thus there were only two aspects of the protection of the public left for consideration. The first was general deterrence of like-minded practitioners and the second was restoration of the public's confidence in the high standards of the profession. I do not suggest that these are not important matters to be considered in the process of fixing penalty but they must be placed in the factual context. The context was that the misconduct occurred approximately 10 years earlier. [F's] allegations had been known to the appellant's employer and others in that period and no complaint had been made to the respondent about the appellant's conduct in regard to this matter. However, since the Douglas Inquiry the appellant had received a great deal of adverse publicity and had been dismissed from his position because of the respondent's finding. His career, at the age of 61, was effectively over. These consequences to the appellant would be a very effective deterrent to any like-minded practitioner, especially when the respondent was able to impose a significant monetary penalty and to reprimand the appellant."

20 The essence of the finding against Dr Roberman is he failed to arrange for [ ] assessment to be undertaken. The delay in the necessary assessment in taking place left the patient and her unborn child at significant risk. His failure to do what could have easily been done was, given the attendant risk, grossly careless. What occurred was a serious of error of judgment. Such to amount to gross carelessness. The conduct in this case can be contrasted to some extent with the finding in the earlier case, which was that Dr Roberman failed to attend hospital to review a patient despite a specific request from a junior doctor to do so. By comparison, this case may be thought to be a less serious case of gross carelessness. To the extent that the 2 matters have a common thread, it is that both reflect a problem of responding adequately to the needs of patients when e he was outside the hospital and consulted by telephone.

21 The conduct should also be seen in the context of being the many, probably [ ], [ ] patient's in respect of whom [ ] treatment has been adequate, and in the cases of those who letters are before the, Tribunal, has earned high praise.

22 The Applicant submits that, in light of the fact that this is a second finding of misconduct against Dr Roberman, a fine would be inadequate to preserve public confidence in the profession, even if it were coupled with an undertaking not to practise obstetrics.

23 As mentioned above, Dr Roberman has not practised obstetrics since June 2002 when he resigned as Director of Obstetrics at KEMH. He has not practiced medicine at all since his dismissal by the Health Department in March 2004. He has now apparently been offered work as a gynaecologist, but has not accepted that position pending the outcome of this matter. He received only his accumulated leave entitlements on his dismissal by the health Department. His inability to work and the burden of the fine already imposed has, we were told, resulted in a financial strain that means that any fine would be a severe penalty. The respondent's submission is that no fine is necessary to meet the public interest, and the matter can be adequately disposed of by a reprimand coupled with a requirement for Dr Roberman to be of good behaviour and not to practise obstetrics for an extended period.

24 The applicant accepts that, if Dr Roberman ceases the practice of obstetrics, any question of danger to the public posed by Dr Roberman's continued registration is removed. Its submission is not that there should be a period of suspension because practice by the Respondent generally puts the public at risk. Rather, the Applicant observes that both findings against him arose in relation to obstetrics patients, and therefore if he is not engaged in obstetrics there is no prospect of repetition. By his suggestion of an undertaking not to practise obstetrics, Dr Roberman is implicitly accepting that reasoning. It should be observed however that neither finding suggests any deficiency in the Respondent's level of knowledge or skill in the area of obstetrics. Rather the problem in both cases is related to his decisions as to management of patients when remote from the hospital. No doubt the issue of remote consultation is more likely to arise more frequently in the practice of obstetrics than it will in the practice of gynaecology, since unexpected presentation to hospital, and the unpredictability of treatment requirements are more likely with obstetric patients.

25 In the circumstances, no question of removal from the register arises. The Board urges suspension as an appropriate penalty to deter other practitioners from such conduct, and to maintain public confidence in the medical profession by demonstrating the seriousness with which such transgressions against are treated. In our view, suspension is not required to achieve either objective. The consequences to Dr Roberman of the events surrounding the 2 findings against him, the finding in this case, the attendant publicity, appropriate restrictions on his practice in future and a reprimand, are a sufficient demonstration of the seriousness in which these matters are dealt with to provide the necessary deterrence and maintain public confidence.

26 We have considered whether a fine is also appropriate. In our view a fine, on top of the other matters just referred to, would do no more than punish Dr Roberman beyond the level necessary to achieve the proper purposes of penalties in the context of disciplinary proceedings.

27 Many of the letters of support indicate, and we accept, that Dr Roberman has a high level of competence in the field of gynaecology, and has done and is capable of doing much valuable work in the area of pregnancy of diabetic patients. It is apparent that his present inclination is not to work in that field and is content to give an undertaking to that effect. If he were to wish to resume obstetrics, it would be desirable for there to be some level of monitoring, or supervision, of his practices in relation to management of hospitalised patients when he was away from the hospital. In that way, the value of his expertise might be utilised and at the same time the risk of similar conduct as has led to the two findings against him could be minimised. Just how a condition to that effect might be expressed or might operate would depend on the particular circumstances in which he proposed to work. That is a matter best left to the Medical Board to determine in the light of any proposal to work in the field of obstetrics that Dr Roberman may make in the future.

28 It follows that the penalty imposed is:

(a) Dr Roberman is required to give a written undertaking to the Medical Board to be of good behaviour for a period of 12 months and during that period not to practice obstetrics without first obtaining the approval of the Medical Board and on such restrictions and conditions as the Medical Board may impose, and

29 The applicant seeks an order that Dr Roberman pay 50% of the Board's costs of the proceedings on the basis that the Applicant has been successful on one of the alternatives in the second allegation, and has failed in the first allegation. The Respondent opposes any order for costs on the basis that s87(1) of the State Administrative Tribunal Act 2004 provides that the parties bear their own costs in a proceeding before the Tribunal in the absence an order of the Tribunal to the contrary.

30 S87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which if proved justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. It is of course a matter of discretion to be exercised in the circumstances of each case.

31 In this case the Board was unsuccessful in relation to the first allegation. It was unsuccessful in relation to that part of the second allegation that formed the whole of the second allegation prior to the amendment foreshadowed at the initial listing of the matter before the Board on 18 October 2004. That part of the second allegation involved quite discrete issues and evidence. In the circumstances it is appropriate that the Respondent pay one third of the applicants costs.

32 The Applicant prepared a bill of costs based upon the Supreme Court scale. It was submitted that the total of the Applicant's costs in fact exceed the $61,618 total of that draft bill of costs. That is an appropriate starting point for the determination of the amount to be paid. Rounded off, one third of the amount that Dr Roberman would be required to pay would be $20,000. The Respondent did not accept the total of the bill as representing the proper costs and sought the opportunity to be heard on the question of quantum if costs were to be ordered. We will hear the parties further in relation to the fixing of the amount of the costs to be paid.

I certify that this and the preceding 11 pages comprise the reasons for judgment of the State Administrative Tribunal.

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Judge J Chaney - Deputy President