Victorian Civil and Administrative Tribunal|2011-10-12

The applicant seeks an order for costs against the respondent pursuant to s.109(2) of the Victorian Civil and Administrative Tribunal Act 1998. It acknowledges the general rule that each party is to bear their own costs in the proceeding, although the Tribunal has the widest possible discretion in such an application.[22] The application is opposed.
The applicant's submission is that the respondent unnecessarily disadvantaged the Medical Board by providing a response to it in advance of the hearing which was said to be false, misleading or incomplete. This refers to a pre-hearing letter sent by Dr Skehan to the Board in which he flatly denied he had ever engaged in a sexual relationship with his patient, contending, rather, that they had only been close friends for many years. Dr Skehan failed to concede at this time that he had formed an inappropriately close personal relationship with his patient. Furthermore, the concession that he had done this was only made during the course of the hearing after telling evidence was introduced which proved the clandestine visit by the couple to Sydney. Even then, he failed to acknowledge the emotional and romantic nature of the relationship.
Next, it was said, by running a case at the hearing in relation to allegations 1 and 4, which was intended to deceive both the applicant and the Tribunal, the respondent vexatiously conducted the hearing. This involved putting the applicant to considerable and unnecessary expense in forcing it to seek, obtain, analyse and present additional evidence required to reveal the false and deceptive nature of the respondent's case. The consequence of this approach was to unreasonably take up time in the proceeding in the maintenance of such a false case, which added a degree of complexity to the proceeding that was unwarranted by the matters which were genuinely in dispute on facts which the respondent knew to be true.

The orders are as follows:
- (i) The registration of Michael John Skehan as a medical practitioner be cancelled with effect from Wednesday, 9 November 2011.
- (ii) Michael John Skehan is disqualified from applying for registration as a medical practitioner for a period of 18 months as from Wednesday, 9 November 2011.
- (iii) It is recommended to the Medical Board of Australia that in the event that Michael John Skehan successfully applies to be re-registered as a medical practitioner, a condition of his re-registration be that he undertake appropriate education and/or training as specified by the Board so as to address the issues arising from finding 3.
- (iv) No order as to costs.

[1] Medical Board of Australia v Michael John Skehan (Occupational and Business Regulation List) [2011] VCAT. So as to protect the identity of Dr Skehan's patients, the Tribunal has published a version of the judgment using pseudonyms. The references in the judgment to the issue of 'penalty', at p.2 and in [228], were in error. Those parts should have referred to the issue of 'determinations'.

[2] Respectively exhibits A and 1 on the determination hearing. The respondent's submission, at paragraph C(a), was particularly helpful as to legal principle regarding the making of determinations.

[3] S.45A, MP Act and s.77(1)(a), HPR Act.

[4] S.45A(1)(a), MP Act, adopting the test for unprofessional conduct of a serious nature set out by Kellam J in Re Parr v Nurses Board of Victoria (1998) 16 VAR 118, 123.

[5] See the cases cited by the respondent at paragraph B(b) of his submission.

[11] S.3(b), HPR Act. That provision repeats the test for professional misconduct under the MP Act set out by Mandie J in Campbell v Dental Board of Victoria [1999] VSC 113, [23]-[24].

[12] See: Mandie J in Campbell, [23]-[24], and Morris J in Vissenga v Medical Practitioners Board [2004] VCAT 1044.

[13] S.1(a), MP Act and s.1(a), HPR Act.

[14] NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177, 183.

[16] Citing Dowsett J in Re A Medical Practitioner [1995] 2 Qd R 154, 166.

[17] Citing Gillard J in Mullany v Psychologists Registration Board (unreported) Supreme Court of Victoria, 22 December 1997, p.19.

[18] Adopting the observation of Dowsett J in Re A Medical Practitioner, 163.

Professions Registration Act 2005

Medical Board of Australia v Skehan (Occupational and Business Regulation List) (No 2) [2011] VCAT 1935 (12 October 2011)

Medical Board of Australia v Skehan

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Medical Board of Australia v Skehan (Occupational and Business Regulation List) (No 2) [2011] VCAT 1935 (12 October 2011)