MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26 (17 March 2016) - WASAT 2016 case summary — Zoe

[29]

On 22 April 2015 the Board wrote to Clayton Utz seeking documents relating to procedures. I attach hereto and mark 'KVWl' a copy of the letter.
Clayton Utz, on my behalf, provided documents to the Board on 24, 25 and 27 May 2015.
On 27 May 2015 the Board wrote to Clayton Utz raising alleged discrepancies in the records created by different people of the same procedures.
On 16 June 2015 Clayton Utz wrote to the Board and explained the alleged discrepancies.
I am not sure what, if any, reliance the Board intends to place on the alleged discrepancies. By email dated 21 July 2015 the Board stated that 'Enquiries are continuing in relation to the ma[t]ers raised in our letter to you dated 27 May 2015. I am not in a position to advise whether the Board will seek to make any further amendments to the grounds in relation to any of the matters raised in that correspondence'.
Had these issues been raised at any time between the procedure on 15 December 2005 (or the complaint on 22 May 2012) and shortly before Mr O'Shea's death in March 2015, 1 would have instructed my lawyers to contact Dr O'Shea and request all of his books and records regarding the relevant procedures and to obtain a witness statement from him.
I am sure that Dr O'Shea would have confirmed that my records were accurate.
At the time of the training procedures performed in the lead up to 15 December 2005, my secretary collected from Dr O'Shea the procedure reports and Mount Hospital event logs for each angioplasty patient. However, she did not collect all clinical, or any administrative, records from Dr O'Shea. For example, none of the ancillary records, such as Dr O'Shea's accreditation application records, were collected by my secretary. Further, after Dr O'Shea passed away, my secretary informed me that Dr O'Shea's wife and his secretary had told her that they had collected and then destroyed all of his administrative records stored at our rooms e.g. log books and accreditation material. Therefore, I believe that a complete set of his angioplasty files and records are no longer available.
Further, my practice is to retain only the clinical notes of my patients for more than 5 years. All the ancillary and administrative files are destroyed (e.g. log books). Therefore, I no longer have all of the written material in relation to every angioplasty procedure.

Legislation Cited (3)

Practitioners Act 1938

Administrative Tribunal Act 2004

Practitioners Act 2008

Cases Cited (23)

MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26 (17 March 2016)

Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Medical Board of Australia and Costley [2011] WASAT 171

Medical Board of Australia and Myers [2014] WASAT 137 (S)

Medical Board of Australia and Woollard [2012] WASAT 209

Medical Board of Australia and Woollard [2013] WASAT 101

The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as [i] the length of the delay, [ii] the reasons for the delay, [iii] the accused's responsibility for asserting his rights and, of course, [iv] the prejudice suffered by the accused: Barker v. Wingo [1972] USSC 146; (1972) 407 US 514; Bell v. Director of Public Prosecutions [1985] AC 937, as explained in Watson (1987) 8 NSWLR 685, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. ...

Since no time limit has been laid down under the Act, a complaint may be made at any time unless the institution of the proceedings in the circumstances is oppressive and an abuse of process. Nevertheless, while the Act contains no time limitation for lodging a complaint it does not follow that a complainant, with knowledge of the facts, can stand by and allow time to pass. The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James (at 329). A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) 'what has been forgotten can rarely be shown'. In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: 'Where there is delay the whole quality of justice deteriorates.' The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10):

The present case also gives rise to a difficult problem of what is sometimes referred to as a principle or rule against double jeopardy: cf Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 and Cooke v Purcell (1988) 14 NSWLR 51. As Mahoney JA observed in the latter case (at 68) this is a principle that informs rather than states the law, and, when it is invoked in a given case, it may be necessary to address the particular circumstances of its suggested application with some care. In the former case Gibbs CJ (at 33) warned that the rule against double jeopardy is not to be applied as a 'mere fetish', and the judgments of the various members of the High Court contain numerous examples of the wide variety of practical problems that could be grouped under the rubric of 'double jeopardy' and of the differing solutions that have resulted.

It cannot be said that the present case falls squarely within any of the settled particular instances of specific legal rules informed by the principle against double jeopardy. There was no hearing on the merits of the original charges against the claimants. Indeed the original charges, although similar, are not identical to, the present charges. This is not a case where a defence of, or analogous to, autrefois acquit could be raised.

The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at [41] (Craig); Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25 (Maraj); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G441A - B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 at [24]- [26]; New South Wales Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and [77]).

The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) ()) at [23]; () at [7]; [2004] HCA l; ; ( [2004] NSW) at [15]; at [16]).

(1991) 25 NSWLR 190

(1986) 6 NSWLR 246

(1989) 168 CLR 23

(1993) 177 CLR 378

(1987) 8 NSWLR 685

(1984) 155 CLR 21

(1988) 14 NSWLR 51

(1979) 46 FLR 386

(2001) 79 SASR 545

(1995) 15 WAR 12

(1994) 34 NSWLR 408

(2004) 216 CLR 253

MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26 (17 March 2016)

At a glance

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Catchwords

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Judgment (129 paragraphs)

Legislation Cited (3)

Cases Cited (23)

MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26 (17 March 2016)