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[2004] WASCA 156
Court of Appeal (WA)
2004-07-27
Mr J, Ipp J, Simmonds J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MUSTAC -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2004] WASCA 156
MATTER : Medical Act 1894 (WA)
Inquiry held by the MEDICAL BOARD OF WESTERN AUSTRALIA pursuant to s 13 of the Medical Act 1894 (WA)
Medical practitioners - Forensic psychiatry - Psychometric testing in medicolegal practice - Test of memory malingering (the TOMM) - Whether practitioner guilty of infamous or improper conduct - Whether practitioner guilty of gross carelessness or incompetency - Whether suspension was appropriate penalty
Medical Act 1894 (WA), s 13
Rules of the Supreme Court 1971 (WA), O 43 r 16, O 65 r 10
Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545
Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990
Daubert v Merrell Dow Pharmaceuticals, Inc [1993] USSC 99; (1993) 509 US 579
Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992
Law Society of South Australia v Murphy (1999) 201 LSJS 456
Legal Practitioners Conduct Board v Trueman (2003) 225 LSJS 503
Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Watt v Thomas [1947] AC 484
Archer v Howell (No 2) (1992) 10 WAR 33
Australian Securities Commission v McLeod [2000] WASCA 101; (2000) 22 WAR 255
Chan v Medical Board of South Australia (1986) 41 SASR 434
Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8610; 27 November 1990
Executive Director of Health v Lily Creek International Pty Ltd [2000] WASCA 258; (2000) 22 WAR 510
Isaachsen v The Medical Board of Western Australia (1991) 4 WAR 303
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Kalil v Bray [1977] 1 NSWLR 256
Kerrin v Legal Practice Complaints Committee [1996] SASC 5650; (1996) 67 SASR 149
Langridge v The Queen (1996) 17 WAR 346
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Maynard v West Midlands Regional Hospital Authority [1984] 1 WLR 634
McMullin v Crawford [1921] HCA 22; (1921) 29 CLR 186
Medical Board of South Australia v Heinrich [1996] SASC 5899
Medical Board of Victoria v Meyer [1937] HCA 47; (1937) 58 CLR 62
Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
New South Wales Bar Association v Evatt (1968) 117 CLR 77
Powell v Streatham Manor Nursing Home [1935] AC 243
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Qidwai v Brown [1984] 1 NSWLR 100
R v Aolia [1983] WAR 133
R v Syme; Ex parte Page [1970] WAR 153
R v Wright [1980] VicRp 56; [1980] VR 593
Re Medical Board of Western Australia; Ex parte P [2001] WASC 103; (2001) 24 WAR 127
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Sakalo v The Medical Board of Western Australia [2002] WASCA 178
Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1
Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239
1 This is an appeal from the decision of the respondent ("the Board") under the Medical Act 1894 (WA) ("the Act"), s 13(8). This decision followed an Inquiry under s 13(1) of the Act. The Board determined that the appellant ("the Practitioner") had engaged in conduct improper in a professional respect for the purposes of the Act, s 13(3). Based on that determination, the Board suspended the Practitioner from practice for a period of six months commencing 1 December 2003 under the Act, s 13(3), par (b) while ordering him to pay the reasonable costs of the Inquiry. By consent of the parties to the appeal, it was ordered under O 43 r 16 of the Rules of the Supreme Court 1971 (WA) that the penalty be stayed until the determination of the appeal or further order, subject to certain conditions. The appeal was against that determination and that penalty.
2 The appeal was largely about a particular context - forensic psychiatry for the purposes of medico-legal practice - in which a particular use of a recognised form of psychometric testing was employed by the Practitioner. This form of psychometric testing was the Test of Memory Malingering (the "TOMM"), a commercial product of Multi-Health Systems Inc, and accepted for the purposes of the appeal as having been developed principally by Professor Tom N Tombaugh, PhD, professor of psychology and director, Centre for Memory Assessment and Research at the Carlton University, Ottawa, Ontario, Canada.
3 The material provisions of the Act for the purposes of this appeal are the following:
"13. Inquiries into, and striking off and suspension of, medical practitioner
(1) Where it appears to the Board that a medical practitioner, not being a body corporate, may be -
(a) guilty of infamous or improper conduct in a professional respect; [or]
...
(c) guilty of gross carelessness or incompetency;
...
the Board shall hold an inquiry into the matter.
...
(3) Where after an inquiry the Board is satisfied in relation to a matter referred to in subsection (1)(a), (b), (c) or (d) with respect to a medical practitioner the Board may by order impose any one or more of the following penalties, namely -
(a) remove the name of the medical practitioner from the register;
(b) suspend the registration of the medical practitioner for such period not exceeding 12 months as is specified in the order;
(c) a fine not exceeding $10 000;
(d) a reprimand.
(4) Notwithstanding subsection (2) or (3), the Board may, in lieu of imposing a punishment referred to in subsection (2) or (3)(a) or (b) on a medical practitioner, require the medical practitioner to give a written undertaking to be of good behaviour for such period as the Board thinks fit and to comply, during that period, with such restrictions or conditions, or both, if any, relating to the practice of medicine and training for that practice as the Board thinks fit.
...
(8) (a) Any person who is or was registered as a medical practitioner and who is aggrieved by any decision of the Board may in accordance with Rules of Court, which the Judges of the Supreme Court are hereby authorized to make or prescribe, appeal to a Judge of the Supreme Court against such decision.
(b) Any such appeal shall be in the nature of a rehearing, and the Judge hearing the same may confirm, quash or vary the order made by the Board.
(c) The decision of the Judge shall be final and the Board shall give thereto according to the tenor thereof."
4 The parties agreed that the correct approach of a Judge of the Court to an appeal under s 13(8) and O 65 r 10 is the one set out in the Practitioner's submissions. That approach was couched in a series of propositions which are largely drawn from a quotation from Re Hodgekiss (1959) 62 SR (NSW) 340 at 343, per Owen J. This passage was described as "most helpful", as an exposition of the approach that should be followed on an appeal "in the nature of a rehearing" under the Act, s 13(8), by Kennedy J in Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 at 327; see also per Rowland J at 335 and Ipp J at 338. Kennedy J sets out the passage from Owen J's judgment. I do the same, interpolating numbering to correspond with that used in the Practitioner's submissions, par 8, subpar (g)(i) to (vii). The passage contains a further item, which I have referenced using a number and a letter, to do with the use I should make of a finding of the Board with respect to the demeanour of witnesses appearing before it. Although this item does not appear in the Practitioner's list, I did not understand there to be any disagreement with it:
"Before proceeding to deal with the facts and in view of certain submissions which were made to us, I think it desirable to state shortly my view as to the way in which the Court should approach an appeal of this nature. [(i)] The Statutory Committee is a tribunal of practising solicitors of standing appointed by the Chief Justice under the terms of the Legal Practitioners Act for the purpose of hearing charges of professional misconduct referred to it by the Court or a judge or by the council of the Incorporated Law Institute. [(ii)] For the purposes of punishing members of the profession who fail to maintain proper standards of honour and honesty and of protecting members of the public, the Committee is given wide powers, including the power to strike the names of offenders from the roll. [(iii)] Such a tribunal is eminently fitted to decide whether the conduct of a solicitor in any given set of circumstances amounts to professional misconduct and to determine what is the proper penalty to be imposed in any particular case. [(iv)] While an appeal from its decision to the Court is in the nature of a rehearing, the Court should give great weight to and be slow to differ from the Committee's opinion that particular acts or omissions by a solicitor do or do not amount to professional misconduct, and [(v)] the court should attach the same weight to a decision of the Committee as to the appropriate order to be made in a particular case. (See Re A Solicitor (No 2) (1924) 93 LJKB 761; Re A Solicitor (No 2) [1956] 1 WLR 1312; [1956] 3 All ER 516.) [(vi)] In determining, however, what are the facts on which a finding of professional misconduct has been based, the findings of the Statutory Committee should be regarded by the Court in the same way as are those made, for example, by a judge sitting without a jury. [(viA)] The Committee may, and frequently does, have the opportunity, which is denied to the Court, of seeing and hearing the witnesses, and when the Court comes to consider and decide, for itself, what are the facts established by the evidence, that is a consideration which must be borne in mind. [(vii)] But it is for the Court to make up its own mind what facts are proved by the evidence and what inferences should be drawn from those facts, and it would not, in my opinion, be proper for it merely to satisfy itself that there is evidence which could justify the findings against which the appeal is brought. It must make up its own mind what the facts are. To do otherwise would be to disregard the legislative direction that the appeal shall be in the nature of a rehearing. It is with these considerations in mind that I approach the present case."
5 It is, of course, necessary to adapt the quotation from Owen J's judgment of the context of the Act, most importantly to note that the Board is, in the words of the Practitioner's written submissions, "a specialist disciplinary tribunal comprised, in the main, of experienced medical practitioners". In this case, the Board was made up of three medical practitioners, a lay practitioner and a legal member.
6 As I have indicated, the Board had conducted an inquiry into whether or not the Practitioner was guilty of conduct improper in a professional respect and of gross carelessness by reason of his use of the TOMM in his psychiatric assessment of two patients. One patient ("Patient M") was a person who had been involved in a motor vehicle accident and who was the subject of the report of the Practitioner by letter dated 21 September 1999 (following an interview on 14 September 1999) to the liability insurers in respect of that accident. The other psychiatric assessment was of a patient ("Patient P") who had been involved in a workplace accident with a recurrence of the injury suffered and who was the subject of a report by the Practitioner by letter dated 23 March 2001 (following an interview on 22 March 2001), and a further letter about that assessment dated 12 July 2001, in both cases to solicitors for the insurer in respect of the liability for those injuries.
7 The letter of request for the 1999 assessment of Patient M had specifically asked the Practitioner for his findings as to the consistency between her claimed symptoms and those the Practitioner observed, and as to whether or not she was suffering from any "genuine psychiatric diagnosable condition". The 2001 psychiatric assessment in respect of Patient P was done at the request, as I have indicated, of the solicitors for the insurer in respect of his workplace accident. However, this request was not part of the papers for this appeal, nor was it before the Board, a gap remarked upon by it. That request was treated by the Board and by the parties at the appeal as having led the Practitioner to perform the same sort of assessment for Patient P as he had for Patient M. As I will explain below, the format of the two reports was indeed very similar.
8 In each case, the Practitioner had prior access to a number of reports on the Patient. These reports had been done by a range of physicians and, in the case of Patient P, a clinical psychologist. In his supplemental letter in respect of Patient P, the Practitioner commented on a report by a Professor Burvill, a psychiatrist who had treated Patient P. The records for both Patient M and Patient P showed a continuing history of pain and of depression. Antidepressants had been prescribed. The Patients' conditions had apparently rendered them unfit for work, or certain sorts of work, and had had a severe impact on their quality of life outside work.
9 The Practitioner's conduct of the assessments in relation to Patients M and P was very similar so far as appears from their reports. An interview was conducted in the presence of each Patient's spouse. The interview was audio-taped, and the Practitioner also kept contemporaneous handwritten notes. The form of the these was, however, considered by the Practitioner to be very brief, for reasons to which I will return. The Practitioner dictated his report on each Patient within a day after their respective interviews.
10 The report in each case described the interview and the participants' (the Patient and the Patient's spouse) attitudes to it. The report also described the accident, the Patients' symptoms and signs, their medical and psychiatric history, their family and social background, and their current activities and future plans. This is followed by a section setting out the report of a "Psychometric Evaluation" and of a "Mental State Examination", and a "Provisional Diagnosis" employing the scheme of the "Diagnostic and Statistical Manual IV" (DSM IV). This Manual, it was accepted at the appeal, provides a standard set of descriptions for psychiatric conditions, including "Malingering". It also appears to have been accepted that Malingering in this sense is as set out in an enclosure to the report for Patient M. That definition reads as follows:
"The essential feature of Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs. Under some circumstances, Malingering may represent adaptive behaviour - for example, feigning illness while a captive of the enemy during wartime.
Malingering should be strongly suspected if any combination of the following is noted:
1. Medicolegal context of presentation (e.g., the person is referred by an attorney to the clinician for examination).
2. Marked discrepancy between the person's claimed stress or disability and the objective findings.
3. Lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen.
4. The presence of Antisocial Personality Disorder.
Malingering differs from Factitious Disorder in that the motivation for the symptom production in Malingering is an external incentive, whereas in Factitious Disorder external incentives are absent. Evident of an intrapsychic need to maintain the sick role suggests Factitious Disorder. Malingering is differentiated from Conversion Disorder and other Somatoform Disorders by the intentional production of symptoms and by the obvious, external incentives associated with it. In Malingering (in contrast to Conversion Disorder), symptom relief is not often obtained by suggestion or hypnosis."
11 The final sections of the report are headed "Conclusions" and "Specific Questions". Under the latter is set out the answers to a series of numbered questions. In the case of Patient M, these correspond with the questions asked by the insurer. In the case of Patient P, it appears to have been assumed at the Inquiry, as it was at the appeal, that the questions corresponded with those asked by the solicitors for the insurer. However, as I have indicated, that original request was not before either the Board or myself.
12 Against this background, the Notice of Inquiry in material part was as follows:
"1. It appears to the Medical Board of Western Australia ('the Board') that you being a medical practitioner registered under the Act may be guilty of:
1.1 improper conduct in a professional respect by reason of your use of the Test of Memory Malingering ('the TOMM test') in your psychiatric assessment of [Patient M] on 4 August 1999 [it was accepted at the Inquiry that this referred to the report for her above] insofar as:
1.1.1 you used the TOMM test knowing that it had been standardised on a North American population and had little or no relevance to an Australian population;
1.1.2 you used the TOMM test to conduct a medico-legal assessment of an accident-related compensation claim contrary to the specific purpose for which the test was developed, namely detecting feigned amnesia and claims of pervasive difficulties learning new information;
1.1.3 you applied the TOMM test to questions of overall veracity in circumstances where it was not designed to generate reliable information as to overall veracity;
1.1.4 you gave [Patient M] a score of 28 out of 50 on the TOMM test and concluded she had an intention to deceive you when such conclusion was not open having regard to the proper use of the TOMM test;
1.2 gross carelessness by reason of the allegations in paragraph 1.1 above;
1.3 improper conduct in a professional respect by reason of your use of the TOMM test in the psychiatrist assessment of [Patient P] on 22 March 2001 [above] insofar as:
1.3.1 you used the TOMM Test knowing that it had been standardised on a North American population and had little or no relevance to an Australian population,
1.3.2 you used the TOMM test to conduct a medico-legal assessment of an accident-related compensation claim contrary to the specific purpose for which the test was developed, namely detecting feigned amnesia and claims of pervasive difficulties learning new information;
1.3.3 you applied the TOMM Test to questions of overall veracity in circumstances where it was not designed to generate reliable information as to overall veracity;
1.3.4 you gave [Patient P] a score of 24 out of 50 on the TOMM Test and concluded he had an intention to deceive you when such conclusion was not open having regard to the proper use of the TOMM Test;
1.4 gross carelessness by reason of the allegations in paragraph 1.3 above."
13 It will be seen that the Notice's particulars as to Patient P are identical to those for Patient M, except for their respective scores in the TOMM (P's 24, M's 28).
14 After a hearing in June 2003 over five days, the Determination of the Board was delivered on 13 November 2003 ("the Determination"). The Board found the Particulars in 1.1.1 and 1.3.1 of the Notice of Inquiry have not been proved to the requisite standard, while the Particulars in 1.1.2 to 1.1.4 and 1.3.2 to 1.3.4 were so proved. The latter sets of facts, when viewed together and in their overall context (Determination, par 191, par C), were determined to constitute improper conduct in a professional respect. The matter of gross carelessness, while considered to be arguable, was determined not to be, in the Board's view, the "most appropriate characterisation" (par 188). This was in view of the deliberate character of what the Practitioner did. This emerges most clearly, as will be shown, from the Practitioner's evidence that he had presented on his use of the TOMM to colleagues, a matter of some importance to the Practitioner, in his view. No objection to the Board's determination as to gross carelessness was taken on the appeal, with a qualification I will reach, and I do not deal further with it except in that respect.
15 The Board, after hearing further submissions as to penalty, by its decision delivered 17 November 2003 ("the Penalty Decision") imposed the penalty and ordered the costs previously referred to.
16 The Board at the Inquiry heard from five consultant psychiatrists. The Practitioner called two, a Professor Goldney and a Dr McCarthy. Senior Counsel assisting the Board called three, Professor Burvill (to whom I have previously referred), a Professor Mullen and a Dr Groves. Two of the five were academic as well as consultant psychiatrists who had a particular interest in forensic psychiatry. They were Professor Mullen, who was Professor of Forensic Psychiatry at Monash University and Clinical Director, Victorian Institute of Forensic Mental Health; and Professor Goldney, Professor of Psychiatry, the University of Adelaide and Medical Director, Adelaide Clinic, who also had expertise in psychometric testing (see transcript P-247 to P-248).
17 Of the rest, Dr McCarthy identified "medico-legal issues" as one of his professional interests; and one of his private practice areas was identified as "civil forensic assessments" (transcript P-182). Dr Groves was Director of the Office of Mental Health within the Department of Health, and he had done medico-legal work for both government and the private sector, principally in the criminal area (transcript P-219).
18 The only witness who appeared not to claim any specialist interest or practice in forensic psychiatry was Professor Burvill, who was an emeritus Professor of Psychiatry at the University of Western Australia. He had treated Patient P, and in his testimony he referred to his participation in a "forensic meeting" of the "College of Psychiatrists" at which the "use and applicability" of the TOMM had been discussed, a meeting at which he said the Practitioner was also present (transcript P-51). (It is not clear whether or not this was one of the presentations by the Practitioner on the TOMM to which I return.)
19 It was agreed at the Inquiry and on the appeal that none had used the TOMM in clinical practice or otherwise. The Practitioner was the only witness who had used it. No member of the Board was a consultant psychiatrist, or had used the test. The Board's conclusions were based in large part on the Manual for the test, and the Practitioner's use of the test. That use was determined by the Board not to be in accord with the Manual, and determined also to be the major basis on which he drew conclusions about the overall veracity of Patients M and P.
20 The appeal against the Determination Decision went largely to the use to be made of the evidence of the consultant psychiatrists, particularly the two called on behalf of the Practitioner, Professor Goldney and Dr McCarthy. The evidence of these two, as well as Professor Mullen, it was submitted, showed or at least pointed to a "respectable body of medical opinion" supporting the Practitioner's use of the TOMM test in ways of concern to the Board. This use, so supported, was said to be "a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopted a different practice" which, thus, could not be characterised as conduct improper in a professional respect for the purposes of s 13(3) of the Act: Ipp J in Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990, at 8. On this submission, it was not telling for this purpose that the three experts referred to had not themselves employed the TOMM test in their clinical practices, or at all. Nor was it telling, it was submitted, that the test was not in general use in Australia by other consultant forensic psychiatrists. (I note that there was a reference in the Practitioner's evidence before the Inquiry to two named psychiatrists in Perth whom he believed had begun to use the TOMM after he had presented on his use of it to colleagues, presentations to which I will return; he was not, however, sure whether or not they were using it as he did: transcript P-166.) Nor was it telling, it was submitted, that the Manual accompanying the test did not clearly allow for the form of use the Practitioner employed (although it was argued strenuously that the Manual, closely read, was capable of covering that sort of use). And it was not telling, it was further submitted, that the Manual did not clearly support the use of the TOMM as a means of determining overall veracity (although it was strenuously contended that, closely read, the Manual did allow for such use, as part of an overall clinical determination that drew in other probative material emerging from the clinical examination).
21 On this basis, the Board, it was submitted, was, in effect, using its own expertise in reading and applying the Manual without giving the parties an opportunity to make submissions on the matter on which it had resolved not to rely on expert evidence from either side. At the very least, it seems to have been submitted that I should approach with some reserve the matter of giving the opinion of the Board deference of the sorts allowed for under Hodgekiss (supra). And I should bear in mind the need to make up my own mind on the facts in accordance with the principle from that case numbered (vii) above without here, it seems, the benefit of any factual determination on the issue of "a respectable body of medical opinion", given the Board's rejection of the only evidence before it on that account.
22 It was contended for the Board that it had indeed considered the evidence of the experts, but almost entirely in relation to the proper approach to the Manual, where the weight assigned to the expert evidence was no greater than the Board's own view of the Manual because of the lack of personal experience of the experts referred to. It was further contended for the Board that it had indeed taken account of evidence from Dr McCarthy of "anecdotal discussions" he had had with psychiatrists in the United States to the effect that they "just used the first test as a screening test" and of the Practitioner that his use of the TOMM on the occasions the subject of the Notice of Inquiry was approved by those who in the US had "trained" him in the use of the TOMM. However, it was submitted that the Board had rejected Dr McCarthy's evidence as irrelevant because the Practitioner was not contending the test was used as a "screening" one, but rather in a "broader" context, as a, if not the major, diagnostic tool for the Practitioner's purposes. This "modified use" of the TOMM assumed some significance at the Inquiry and before me.
23 It was further submitted that the Board had given little or no weight to the Practitioner's evidence on the basis it was a "part of a process of retrospective rationalisation of his conduct", based on its assessment of the manner in which the evidence was given and his demeanour, and after consideration of his explanation of why reference to the training he testified he had received for the course he implemented had not been included in his written statement of evidence (see Determination Decision par 126).
24 For the Board, it was also argued that there was no sufficient evidence of responsible, albeit minority body of opinion within Cranley (supra). At most (apart from the evidence of the Practitioner himself), there was evidence from other practitioners who were respectable, of good repute and competent that they did not believe what the Practitioner did warranted disciplinary action. None of the experts called by either side had testified that they knew of other forensic psychiatrists who used the TOMM test as the Practitioner did "without ill-effect" or that they themselves considered that use "valid" (Determination Decision, par 175). This was apart from Dr McCarthy's reference to his "anecdotal discussions", above, which the Board characterised as "vague" and falling "very short of a respectable body of opinion approving the approach adopted by the Practitioner" (Determination Decision, par 175).
25 There was also the matter of the lack of any evidence from any "psychiatrist possessed of the relevant experience and specific expertise" to show "an established body of expert opinion that the use, application and interpretation of the TOMM employed by the Practitioner was a valid and acceptable approach to the forensic exercise he undertook" (Determination Decision, par 176). Nor was there evidence from those "involved with the design or development of the TOMM or in instruction in its use and application or the interpretation of results obtained which supports the approach of the Practitioner" (Determination Decision, par 176). The published research which had been specifically cited to the Board did not support any such use, there being nothing in that literature commenting on the validity of the approach the Practitioner used.
26 To deal with these issues, which go to the heart of the appeal, it is necessary to elaborate on the TOMM test and its use by the Practitioner subsumed by the Notice of Inquiry, including the conclusions he drew from that use. This will require me to review the evidence relevant to whether or not that use was improper conduct in a professional respect and to arrive at my own conclusions on those issues. In doing this, as I will indicate, I should bear in mind the views of the Board itself, in relation to the demeanour of the Practitioner and his manner of giving his evidence, and give great weight to the Board's determination as to the appropriate characterisation of the conduct it found and the appropriate penalty. This is what Hodgekiss (supra) indicates I should do.
27 In view of its importance to the Board and on this appeal, it is appropriate that I describe the TOMM in considerably more detail.
28 The TOMM is described in what the parties accept as the current version (1996) of the Manual for it. The Manual, which appears to have been set out in full, in material available to the Board and included in the materials for this appeal, says that the TOMM's purpose is to provide "a systematic method to assist neuropsychologists in discriminating between bona fide memory-impaired patients and malingerers" (page 1). The Manual describes "malingering" as "the intentional faking or exaggeration of symptoms for personal gain" (page 1). I note that apparently such gain need not be pecuniary, but could include the avoidance of work or other responsibilities.
29 The TOMM's method involves the test subject being told the exercise is a test of their ability to learn and remember pictures of "common objects" (page 17). Those objects are items such as a toaster, a candle and a birthday cake. This description of the nature of what the TOMM test is for is to be followed by the administration of a Sample Trial that involves the subject being presented with the pictures in succession, for three seconds each, and then being presented with a "recognition panel" for each. Each panel comprises the picture previously shown and a picture of another object, from which the subject is asked to choose the picture previously shown. This is to be followed by "Trial 1", which involves the subject being presented with 50 pictures in succession, again for three seconds each, after the last of which the subject is presented with a "recognition panel" for each with two choices and is asked to choose the correct one. After each choice, the person administering the test is to indicate if the choice was "correct" or "not right", and, in the latter case, the subject's attention is to be drawn to the correct choice. The choices are to be recorded to produce a score out of 50. The Manual indicates under "Procedure" (page 17) that both this Trial and a Trial 2 "must be" administered (page 17), about which there was considerable exchange at the Inquiry and at the appeal. There is also provision for a further "Retention Trial", which is described as "optional" (page 17).
30 Trial 2 involves the repetition of the procedure of Trial 1 with the same 50 pictures, after the subject is to be told that the same pictures will be used. The second score out of 50 is to be produced. The Retention Trial, which, if it is used, is to be administered about 15 minutes after Trial 2, involves the subject being told that they are to be tested on how many of the 50 pictures they can remember. They are not to be re-presented with the pictures, however. Instead, they are to be shown only the recognition panels and asked to choose the correct pictures. The third score out of 50 is to be produced.
31 The Manual indicates the rationale for Trial 2 is the different function feedback performs for "well motivated versus malingering patients" (page 11). For the first group, feedback permits them to work to improve, while for the second group feedback enables them to "track their performance more accurately and adjust it accordingly" (page 11). The rationale for the Retention Trial is that malingerers "typically perform lower on [it] than on Trial 2". They "incorrectly assume that some pictures should be forgotten during the retention interval" which is about 15 minutes long, as has been indicated, whereas "decreased performance on the Retention Trial is extremely rare" (page 18).
32 The Manual (at pages 12 to 16), indicates the results on "validation" tests using the TOMM appear to bear out the predicted effects of feedback as indicated. The tests involved patients with cognitive impairments, aphasia, traumatic brain injury and dementia, as well as subjects without cognitive impairments or other conditions of the sort listed. The tests also involved subjects without cognitive impairment (undergraduate students) who were given incentives to simulate malingerers. Tests also used patients with traumatic brain injury who were said to be "at-risk" for malingering. This was because they were pursuing a claim for compensation for their injury, or they had "symptoms discrepant from known neurologic disease", or both (page 16). The subjects were asked to predict their scores after having the TOMM procedure explained to them, but before taking it. Validation test results showed that, for subjects not at risk of or simulating malingering, "individuals who score in the severely impaired range on standardised tests of learning and retention perform extremely well on the TOMM" (page 14). The performance of such subjects was "not sensitive to the effects of age or years of education" (page 16). The performance of such subjects who had no cognitive impairment as well as the performance of other such subjects tended to converge on Trial 2, and even more on the Retention Trial, with reducing standard deviations. The Trial 2 results were "particularly noteworthy", with the dementia group the only one "with a relatively high percentage of scores (27 per cent) below 45" (page 13). For all such subjects, at least, "obtained scores exceeded estimated scores on each trial, showing that the TOMM was perceived to be more difficult than it actually was" (page 16). However, "the TOMM was highly sensitive to the performance of individuals simulating malingering and [patients with traumatic brain injuries] at-risk for malingering" (page 16). This sensitivity appeared from their significantly lower mean scores over Trials 1 and 2 and the Retention Trials, and the consistently higher standard deviations in those scores than the scores for other test subjects.
33 The Manual, in its concluding Chapter, "Interpretation and Case Studies", sets out two "Decision Rules" to guide interpretation of TOMM scores. This Chapter also indicates how to approach the interpretation of scores within either of those Rules, setting out how to communicate the results, and describing a number of case studies of the use of the TOMM. Throughout there is a stress on the need for caution in the use of TOMM results, including their communication, in view of the stakes for the subject, and of the fact that "the diagnosis of malingering should never be made exclusively on the basis of the score on the TOMM" (page 20; emboldening in original). The score on the TOMM only goes to whether the subject's symptoms to do with memory are "false or exaggerated". However, a diagnosis of malingering also indicates that the symptoms are "intentionally produced" and "motivated by external incentives" (page 20).
34 Two Decision Rules for interpretation of TOMM results are proffered. One is that "scoring lower than chance on any trial indicates the possibility of malingering" where a "chance level of responding", which could be obtained simply by guessing, is a score of 25 (page 19). However, for this Rule "application of the binomial distribution shows that the 95% confidence interval for chance performance ranges from 18 to 32", and "consequently, scores below 18 are unlikely to occur by chance" (page 19). (I note that "validation" tests for simulators show mean scores on Trials 1 and 2 and the Retention Trial of 32.5, 35.3 and 30.9, respectively, and standard deviations of 7.5, 9.4 and 10.6, respectively, while for at-risk patients with traumatic brain injuries the corresponding means are shown as 25.3, 32.8 and 35.1, respectively, and the corresponding standard deviations are 10.8, 13.4 and 11.8, respectively.)
35 The second Decision Rule is that "any score lower than 45 on Trial 2 or the Retention Trial indicates the possibility of malingering", particularly given that "performance on Trial 2 is very high for non-malingerers regardless of age, neurological dysfunction, or psychological symptom" (page 19). However, "rather than using the score of 45 as a rigid cut-off it should be viewed as a guideline, with the likelihood of malingering increasing as the score deviates further from the normative baseline for each diagnostic group" (page 19).
36 The Manual stresses, as indicated, that even scores within these Rules do not themselves justify a diagnosis of malingering. "Evidence about intentionality and the motivational basis of the behaviour must come from other sources" (page 20). This is because "false or exaggerated" symptoms may not be consciously produced, or, even if so produced, may be motivated by such as a "cry for acknowledgment" from an individual who "actually" has "an authentic impairment or disability" (page 22). I note that the requirement for these additional elements before a diagnosis of malingering can be arrived at is also referred to in the DSM IV quoted above.
37 This means that even with TOMM scores within the Decision Rules, or either of them, "the diagnosis of malingering requires considerable clinical judgment" (page 20). Such judgment must draw on "other sources" such as "disability that is disproportionate with the severity of the injury or illness" and "inconsistencies between memory complaints and behaviour observed during the test or outside the test situation" (page 20). Even if the clinician "after reviewing all the evidence" is "convinced that the individual has fabricated or exaggerated symptoms, the clinician's conclusion must be presented in the most professional manner" (page 21). The Manual says (at page 21):
"Reports should be written in a manner that is factual rather than accusatory. It is particularly important to go beyond merely labelling the person as a malingerer. Given the pejorative overtones associated with the term malingering, along with the difficulty in confirming the diagnosis, the diagnosis of malingering should only be used when the convergence of evidence provides the clinician with a high degree of confidence in the diagnosis. Carefully worded statements expressing clinical impression and reservations, along with evidence showing inconsistencies, will better serve the patient than merely stating that the patient is malingering."
38 The Notice of Inquiry, as has been indicated, apart from the Particular as to normalisation, directed the Board to consider three aspects of the Practitioner's use of the TOMM for each of Patients M and P. As has been indicated, these Particulars are in identical terms except as to the score on the TOMM reported by the Practitioner for each. Those Particulars were, for Patient M, 1.1.2 to 1.1.4, and, for Patient P, 1.3.2 to 1.3.4. It is only those aspects of the Practitioner's conduct that are relevant, as the Board and the parties agreed, and as is confirmed by the judgment of Ipp J in Cranley v Medical Board of Western Australia (supra) at 50 - 51. However, it emerged early on the first day of the Board's Inquiry that Senior Counsel assisting the Board intended to treat the Particulars in 1.1.4 and 1.3.4 as covering the Practitioner's conduct in using only Trial 1 from the TOMM in each case. It was conceded by counsel for the Practitioner at the Inquiry that the Practitioner was prepared to respond to that aspect of the Particular as so seen.
39 The Board, in its determination, also indicated that some of the expert evidence went to other aspects of the Practitioner's interview and assessment procedures, such as his note-taking. The Board considered that the Particulars did not go to such other aspects. Nor did the Board consider that there were allegations that the TOMM was a poor test, or that it could not have been used as a tool, in an inquiry by a consultant forensic psychiatrist in a medico-legal setting, a matter to which I return. In all of these cases, this approach by the Board appears to me to be the one I should follow, having regard to the way Senior Counsel assisting the Board and counsel for the Practitioner appear to have approached the Inquiry, and the way counsel before me approached the conduct of the appeal.
40 In that light, I focus my attention on the evidence, especially the expert evidence, relating to the issues arising under the Particulars. I would describe these in short form, as the Board did, as the "use [of the TOMM]" Particulars (1.1.2 and 1.3.2, and 1.1.3 and 1.3.3) and the "conclusions [from that use]" Particulars (1.1.4, and 1.3.4) (Determination Decision par 15).
41 I should add at this point that the Board itself characterised the three "important issues of fact" in the Inquiry as, "Did the Practitioner Represent that he had 'Performed' 'the TOMM'?" (at par 89), "Can the Representations Made by the Practitioner that he had 'performed' 'the TOMM' be Justified?" (par 97), and "To What Extent Did the Practitioner Rely on 'the TOMM'?" (par 142). The grounds of appeal included that the three questions were irrelevant to the Notice of Particulars, and drew out the implications of that point (grounds 11, 12 and 13).
42 I do not see these grounds as having been made out. The three questions represented the Board's approach to the issues as they emerged from the Inquiry. The Board saw the first question as a "threshold" one going to whether the Practitioner had represented he was performing a recognised scientific test as originally designed, or rather in a modified form involving just one trial rather than two. It is apparent to me that that question was the Board's entry point into the matter that the Board saw as having emerged at the Inquiry concerning the "conclusions" Particulars (1.1.4 and 1.3.4); and the Practitioner, through his counsel, as I have indicated, said he was prepared to meet this. Also, as I will indicate, the Board allowed for the fact that this matter was only clarified at the Inquiry itself.
43 The Board saw its second "important" question, as to the justifiability of the representation in question, as whether or not the particular form of use of the TOMM by the Practitioner, involving just one Trial rather than two, was justified on a proper understanding of the TOMM. It is apparent to me that this covered the matter that the Board saw as having emerged at the Inquiry and covered by the "conclusions" Particulars (1.1.4 and 1.3.4), as to whether the "modified use" that had been established was a "proper" use of the TOMM.
44 The Board saw the third of its three "important" questions, as to the extent to which the Practitioner relied on the TOMM, as how important that modified use of the TOMM was relative to other matters in reaching his conclusions. It is apparent to me that the Board treated this question as covering the matter of the "use" Particulars, being what I will call for reasons that will become apparent the "modified use" set (1.1.2 and 1.3.2), and the "overall veracity" set (1.1.3 and 1.3.3), as well as whether the conclusions the Practitioner drew from his use so characterised were "open", within the "conclusions" Particulars (1.1.4 and 1.3.4).
45 It appears to me that this method of approaching the Particulars was one that was indeed open to the Board. I have chosen, however, to follow my own approach, which deals with the matters raised in the Inquiry in the order of the Particulars. The importance attached by the Board to its approach will emerge particularly from the characterisation it made of the conduct of the Practitioner as it found it, in terms of whether or not it was conduct improper in a professional respect, as I will explain.
46 In applying this approach to the findings I need to make in this appeal by way of rehearing, I will also deal with the relevant grounds of appeal. As will become apparent, I will deal separately with the matter whether or not the findings warrant a finding of conduct improper in a professional respect.
47 The use issues in Particulars 1.1.2 and 1.3.2, as they emerged at the Inquiry, went to the matter of whether or not the Practitioner had used the scores he obtained on Patient M's and Patient P's Trial 1 as his "major diagnostic tool" for the assessments he made of them. By his "major diagnostic tool" was meant one which was the predominant basis of such conclusions, although without precluding the use of other indicators. As will be explained below, there was significant dispute at the hearing and on the appeal as to whether the Practitioner so used results on Trial 1 from the TOMM, relative to his use of other matters. There was, however, no dispute, as appears to me, that the Practitioner was engaging thereby in a "modified use" of the TOMM, if this was a "use" of the TOMM in any sense. I therefore characterise the Particulars in 1.1.2 and 1.3.2 as the "modified use" issues.
48 The overall veracity issues in 1.1.3 and 1.3.3 go, as I understand it, not to whether or not Patients M and P were assessed by the Practitioner as prone not to tell the truth generally, but rather to whether or not they were consciously exaggerating their symptoms generally, beyond their claimed difficulties with memory and concentration. That they were understood by the Practitioner to be making claims as to difficulties with their memory and concentration is clear from his reports about them. Although the claimed deficits may not be of the sorts for which the TOMM was originally designed, most of the expert evidence and the Board's own view, which I return to shortly, do not indicate that the use of the TOMM was inappropriate on that account. It is rather that under this set of Particulars its use to evaluate the veracity of other claims of a physical or psychiatric nature made by these Patients was in issue.
49 I note that assessment of overall veracity in that sense is evident from the conclusions to the respective reports for Patients M and P. In the case of Patient M, the Practitioner's conclusion was that there was an "intention to deceive" as to the bases for "her complaint of pain, weakness and concentration difficulties", as well as "impaired memory" which was not "due to any mental illness", but rather with a view to gaining "attention" and "relief from certain responsibilities such as seeking paid employment". In the case of Patient P, the Practitioner's conclusions were that he was "keen to embellish on his physical complaints" while "he clearly attempted to deceive me with regards to his impairment in concentration and memory". However, it was said in the report not to be possible to exclude the possibility of such conscious exaggeration being due to mental illness. However, the Practitioner indicated his "doubt" on that account and his suspicion that Patient P was motivated to exaggerate "to avoid a return to work and/or promote his worker's compensation claim". In any event, the use of the Trial 1 scores at least to assist to determine overall veracity was not contested on the appeal. The overall veracity issues went rather to whether such a use of the TOMM was an aspect of the Practitioner's "modified use" of the TOMM and the appropriateness of that use as that use was properly to be understood.
50 It is clear from the Manual that the TOMM was designed to test for false claims of memory deficits. The Practitioner also conceded that the TOMM was "initially developed" for such a purpose, saying this development occurred in the context of "the epidemic of litigation that was occurring in terms of head injury and abnormality in neuropsychological testing" (transcript P-122). The Practitioner also said, however, that he was using the TOMM in a "broader context" (transcript P-134), as a tool that, with other tools, permitted him to form a clinical assessment of the truth of what a patient was reporting in a medico-legal setting. This "modified" use as it came to be called at the Inquiry was said to be occurring in the United States at least, and said to have been reported on in the research literature. The Practitioner himself had presented on it to colleagues. Further, there was evidence from at least one expert that scores on the TOMM inconsistent with honest efforts to do the test could reasonably suggest the subject's general credibility should be doubted. This expert, Dr McCarthy, called on behalf of the Practitioner, indicated that scores on the TOMM within the Decision Rules could be used to "screen" for lack of overall veracity. By "screening" he appeared to mean the TOMM's use as a basis for making or not making further inquiries into whether there was such a larger exaggeration; and this was to be distinguished from using the test as a basis for diagnosis of a lack of overall veracity (see transcript P-191 to P-193, P-199 and P-219, as quoted in Determination Decision, at par 133).
51 The use of the TOMM to test claims of memory or cognitive deficits with no indicated organic basis or substantial place in the patients' presentation of their overall symptoms was, it would seem, contested by only one expert witness (Professor Burvill, transcript P-33). It was, however, strongly supported by two others (Professor Goldney, transcript P-229, and his report for the Inquiry dated 2 May 2003, page 6, referring to research literature in this connection; and Dr McCarthy), and at the least conceded by the remaining experts (Professor Mullen, transcript P-74; and Dr Groves, transcript P-96). I do not interpret the Board's Determination Decision as indicating that the Board made any finding against the weight of this evidence (in fact, to the contrary, as I have indicated), and I do not. This means that a use (if not necessarily the Practitioner's use) of the TOMM for Patients M and P, both of whom as I have said had referred to memory or concentration problems, would not have been inappropriate.
52 The use of the TOMM as a screening test was not, however, addressed in any of the literature available to me on the appeal. Nor did any of the witnesses provide citations to any such literature. The idea of a "screening" test, or the use of the TOMM as one, was referred to by two of the other expert witnesses. One was Professor Burvill, who referred to the use of a test of concentration where the patient's history and mental state examination indicated there might be some significant impairment of cognition, the test being one to indicate whether or not further testing was appropriate (transcript P-33). He was not, however, referring to the use of the TOMM as such a test, it would seem. Professor Goldney did refer to the use of the TOMM as a "screening tool", in relation to the "Commonwealth Rehabilitation Service"; however, he indicated that that use was as it was described to him, and he could not say what it meant, although he could "imagine" it was a "test of motivation" to stay in the rehabilitation program" (transcript P-233). Later I will refer to further evidence from Professor Goldney pointing to a "screening" use of the TOMM.
53 The Board indicated that the significantly reduced standard deviation scores for subjects other than simulators or at-risk malingerers did not support the use of the TOMM as a screening device (par 123). By this, it meant Trial 2 scores were significantly less likely to identify honest subjects as malingerers. In the end, I did not find it necessary to determine whether or not there was a screening use of the TOMM for overall veracity purposes among some psychiatrists or psychologists and, if so, whether any such use was established as one that would within Cranley preclude a finding of conduct improper in a professional respect in a case like this.
54 That is because the Practitioner's use of the TOMM in relation to overall veracity was not of a screening nature, but rather, in my view, as his major diagnostic tool. This was also the Board's conclusion (par 156). Like the Board, I have so concluded because of the form of the Practitioner's reports and the Practitioner's evidence as to the matters on which he relied. I have also borne in mind the Board's view as to the Practitioner's demeanour and manner of giving evidence, as I will explain.
55 The report for Patient M, dated 21 September 1999, indicates under "Psychometric Evaluation" the following:
"I performed the TOMM. She scored 28 out of 50 correct.
Comment: This indicates an intention to deceive me. A score of this range would suggest that she was completely obtunded." [footnote deleted; italics in original].
Counsel before me agreed that "obtunded" should be taken to mean "having dulled senses".
56 The Practitioner's "Provisional Diagnosis DSM-IV" at "Axis I" was "Malingering". His "Conclusions" were:
"For reasons best known to [Patient M] she has decided to exaggerate her complaint of pain, weakness and concentration difficulties. You will note that she complains of global weakness of the hand, which is a non-organic sign.
She also is complaining of concentration difficulties and impaired memory, which is also an intention to deceive into presenting herself as more disabled than in fact she is.
This is not due to an mental illness. I suspect that complaining of this type of disability provides her with attention and also a relief from certain responsibilities such as seeking paid employment. She however is not suffering from any mental illness."
57 His answer to the "Specific Question" asked of him by the insurer in respect of Patient M's motor vehicle accident as to his findings on examination of her was, "She is intentionally exaggerating her complaints". His answer to its further Specific Question whether Patient M was " ... suffering from any genuine psychiatric diagnosable condition" was, "No, she is attempting to deceive me".
58 The original report for Patient P, dated 23 March 2001, said under "Psychometric Evaluation":
"I asked [Patient P] to perform TOMM. Most of the time whilst I was showing him the drawings he was looking at them but on occasions he looked away. I draw his attention to this.
He scored 24 out of 50 correct.
Comment: This indicates an intention to perform below his ability." [footnote deleted; italics in original]
59 The "Provisional Diagnosis DSM-IV-TR" at "Axis I" was "Nil", the explanation of which emerged from his "Conclusions". They were:
"[Patient P] is a gentleman who is keen to embellish on his physical complaints.
He clearly attempted to deceive me with regards to his impairment in concentration and memory. Unfortunately, because the nature of his complaints is subjective, it is therefore impossible to determine if he has any psychiatric disturbance because a diagnosis of a depressive illness would rely on his credibility.
It is worth quoting the AMA disability guidelines with regards to motivation:
1. Diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but it is by no means the sole criterion."
60 Under "Specific Questions" (the content of which was not available to the Board or to me, as has been indicated), "Question 2" he said:
"I do not know if he has an underlying depressive illness or if he has a depressive illness, which has been successfully treated. The reason for this is that I cannot rely on [Patient P's] credibility.
He is inclined to exaggerate his claims of disability. There is also clear cut evidence that he is intentionally feigning this exaggeration."
61 In the further letter concerning his assessment of Patient P dated 12 July 2001, by the Practitioner to solicitors for the insurer, the Practitioner said, in material part:
"It is evident that [Patient P] was keen to embellish his complaints. Although he complained of psychological distress, his high self-esteem is inconsistent with it. Similarly, his intention to deceive me by scoring excessively low in a test of memory, the TOMM, indicates that he is very conscious of desire to appear more impaired than is in reality the case." [footnote deleted]
62 However, in both of the original reports (although not in the further letter concerning Patient P), there were also narratives (some carrying portions in inverted commas) and italicised comments under a number of the headings previously described that appeared also to relate to the "Conclusions" referred to in both cases. They included, for Patient M, that she appeared to have suffered no head injury or period of unconsciousness from her accident; that her descriptions of depression pointed not to the psychiatric sense of the word "but rather unhappiness in the lay sense"; the placement in inverted commas of her references to being suicidal "since the accident" and that, despite her references to concentration and memory problems, she also managed to remember "well" what she had forgotten. For Patient P, those other indications were the lack of improvement in his depression over an 18-month period, where this would be "unusual"; his description of himself in a "good light but disabled", where "depressed individuals tend to be self-blaming"; and his statements that he wanted to go back to work, but that as to the sort of work he had not given the matter "any thought".
63 Senior Counsel for the Practitioner before me placed emphasis on these other indicators, and also drew my attention to a passage in the record of cross-examination for the Practitioner, as follows:
"What I'm suggesting to you is that in fact you have placed a great deal of weight on the score on the TOMM test?---I certainly placed a great deal of weight on the TOMM and other factors, yes." (Transcript P-155)
64 Senior Counsel for the Practitioner also laid emphasis on the elaboration of this that the Practitioner provided in his evidence to the Board. This evidence was also, as counsel emphasised to me, that he had relied on a range of other matters, including of a non-verbal kind, which did not form part of his report or of his handwritten notes. These included, most significantly, aspects of the test-taking behaviour of the subjects. I also note the very strong resistance by the Practitioner to the suggestions pressed on him in his cross-examination that he placed predominant reliance on the TOMM in relation to his findings as to overall veracity (see transcript P-162 to P-163).
65 The evaluation of this evidence, to determine the significance of these non-TOMM matters, poses considerable difficulties, particularly for an appeal court that has not had the benefit of seeing and hearing witnesses. However, I must, as I have already indicated, make up my own mind what facts are proved by the evidence and what inferences should be drawn from those facts. I must do this bearing in mind, however, the Board's opportunity to see and hear the witnesses here, particularly the Practitioner: Bradshaw (supra) per Kennedy J at 327 - 328, quoting with approval Owen J in Re Hodgekiss (supra), at 343 at (viA).
66 I note, as the Board did, the particularly heavy emphasis the Practitioner placed on the TOMM score for him in relation to his overall veracity in the Practitioner's supplementary letter concerning Patient P. While there is no corresponding emphasis apparent from the report for Patient M, there is the Practitioner's own evidence as to the significance he attached to the TOMM (supra) which is somewhat at variance with his witness statement, where, in its "Summary", he indicates that he uses it as "a small part of my assessment" (par 103) and with an earlier response in his cross-examination to that previously quoted (transcript P-154). The other matters he indicates he relied upon are not as closely or clearly related to his Conclusions, including those as to overall veracity, and, in some cases, such as the test-taking behaviour of Patient M (if not Patient P, for whom the comment draws on a somewhat larger reference in his handwritten notes for P to which Senior Counsel for the Practitioner drew my attention), are not mentioned at all.
67 The difference for the factors mentioned are, of course, matters of degree; and the Practitioner explained the differences, and the failure to mention other factors, in terms of a concern not to provide the subjects with information they could use to make any subsequent assessments of them less reliable. This concern went, in part, to explain the lack of reference to such matters as test-taking behaviour ones, notwithstanding the Practitioner saying in his witness statement that "test-taking behaviour by the examinee is often as revealing if not more so than the score. Both [Patients P and M] provided dramatic but untruthful performances" (par 105).
68 I note also that the TOMM manual's reference to the matter of test-taking behaviour is, as indicated, that "inconsistencies between memory complaints and behaviour observed during the test or outside the testing situation" can be seen as a "qualitative" sign or symptom of "malingering on tests of cognitive abilities".
69 At the same time, I note, as the Board did (Determination Decision par 145, and references there), that only one of the expert witnesses appeared to disagree with the reading of the original reports I have referred to, as to their heavy reliance on the TOMM for their conclusions as to overall veracity. The expert witness who appeared to disagree, and who had been called on behalf of the Practitioner (Dr McCarthy), indicated his "understanding from the reports ... that [the Practitioner] was using [the TOMM] as a screening aid for malingering" (transcript P-183). However, later in respect of the supplementary letter for Patient P, Dr McCarthy added under cross-examination that "it does look like he does put significant, considerable perhaps, reliance on that [the TOMM], but it doesn't mention actually there what other evidence he uses" (transcript P-202).
70 I also note, as the Board did, the gaps in the Practitioner's notes, particularly as to non-verbal matters which he said were of considerable significance. One such matter the Practitioner referred to under cross-examination was Patients M's and P's "physical presentation to start off with that gives cause for belief that they are exaggerating or feigning" (transcript P-145). The Practitioner indicated that the replay of his audio-tapes or seeing the patients again, or both, would likely trigger the recall of such matters. However, if matters of this sort were of equivalent or greater significance compared with the TOMM, it does appear to me to be unlikely that no record of some kind during or shortly after the event would be maintained, except for the record for Patient P to which I have referred. As the Board noted, both expert witnesses called for the Practitioner indicated they would have expected some notes in those circumstances (Determination Decision, par 151 and references there).
71 Finally, I also note the references in the Board's reasons (Determination Decision, pars 153 and 154) to the "manner" in which the Practitioner gave his evidence and his "demeanour as a witness". The Board indicated its "very clear impression ... based on the substance and effect of the evidence of the Practitioner and the manner in which it was provided ... that he was anxious to place a different emphasis on what he wrote because he now appreciates the significance of a finding that he relied principally on the results of a partial application of a well-known and recognised psychometric test for the purposes described in the context of a forensic exercise" (Determination Decision, par 154). It was submitted to me, however, that I should ignore, or give little weight to, unsubstantiated allegations concerning the manner in which the Practitioner gave evidence (ground 14(e)).
72 However, no authority was cited to me in support of this submission. Further, in the classical account of the regard appeal courts should pay to findings based in part on witness demeanour, it is pointed out that elements such as demeanour are often "so difficult to describe": Watt v Thomas [1947] AC 484 at 490 - 491, quoted in J D Heydon, Cross on Evidence 6th Australian ed, [11150]. I note, of course, the different context in which I am placed. But that account strengthens me in the view that it would not be appropriate to require more detail than I have here before I can bear in mind the Board's assessment. This is especially the case where there is some other evidence tending to confirm the Board's inference from its view of the Practitioner's demeanour (which I would take as including the manner of his giving evidence) in the form of the measure of equivocation on the significance of the TOMM between the Practitioner's witness statement and his testimony, and within that testimony. This is a matter to which I have previously referred.
73 Weighing all of this material, I consider that the TOMM was indeed the Practitioner's major diagnostic tool used in relation to his assessment of the overall veracity of Patients M and P. I do this, as I make the other findings in this judgment, at the standard of the balance of probabilities which applies to proceedings of this nature before the Board and before me, taking account of the seriousness of the allegations made and their potential impact on the standing, reputation and livelihood of the Practitioner: Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, at 642 - 643; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, per Dixon J at 361 - 363; and the further authority cited by the Board in its Determination Decision, par 23, footnote 11. In so considering, I am in agreement with the view of the Board as to the Practitioner's use of the TOMM as his major diagnostic tool to determine overall veracity contrary to the specific purpose for which the TOMM was developed, as I have indicated from the Manual above.
74 This, in my view, disposes of the bulk of the grounds of appeal in this case. The Board properly concluded that the expert evidence from Professor Goldney and Dr McCarthy, to the extent it went to the use of the TOMM other than as a major diagnostic tool, related to a use the Practitioner had not made of it (grounds 1, 4, 5, 6 and 9). The Board properly concluded that the expert evidence, including that of Professor Goldney and Dr McCarthy, supported its view, or was in the final analysis not inconsistent with it, resting on the Practitioner's reports and the supplementary letter for Patient P, as well as the Practitioner's other evidence, that the Practitioner had used Trial 1 of the TOMM only as his major diagnostic tool (grounds 14, 15 and 16). The Board properly noted that it had no evidence before it from those who had developed the TOMM or from those who had themselves used it, other than the Practitioner (ground 10). This was other than the Manual for the TOMM itself, on whose relevance and interpretation the Board had both what it could determine from its own reading of it, and the evidence of the readings of all of the experts (grounds 2 and 3).
75 The conclusion of concern here is the Practitioner's that Patients M and P intended to deceive him, based in major part on their scores from the administration of only Trial 1 of the TOMM. I have already indicated why I have found such a conclusion was in fact so drawn in each case.
76 The issue here resolves into whether or not that conclusion was "open", having regard to the "proper" use of the TOMM.
77 As to the "proper" use of the TOMM, I put aside the matter of its use as a screening device, for the reasons I have given already. The issue of use on which there was considerable attention devoted at the Inquiry before the Board was whether or not the TOMM could properly be used as the major diagnostic tool when only Trial 1 was performed. If it could be so used, the issue would then be, in what circumstances. The evidence before the Board on those matters was of three sorts. One was the interpretation of the Manual for the TOMM, both by the Practitioner and the expert witnesses. The second was training the Practitioner was said to have received on the TOMM. The third sort of evidence was as to appropriate clinical practice for those using the TOMM, both from the Practitioner himself and from the experts. I need to approach the issues here as I approached the use issues, namely, particularly in terms of proposition (vii) from Hodgekiss (supra).
78 The Practitioner and the expert witnesses accepted that the "Administrative Guidelines for the TOMM" chapter in the Manual, read literally, required both trials to be performed. This reading is supported, of course, by the language of the chapter ("must"), that is, that part most directly relevant to the issue; and it is reinforced by the rationale for the two trials (as previously indicated). However, a "broader" meaning of the Manual was contended for by the Practitioner who rested this on the Decision Rule 1 above, the "training" he had received on the TOMM (which he indicates in his testimony identified the Rule as part of a "decision tree" to guide decisions as to the administration of the test (transcript P-137)), the inclusion of Trial 1 as well as of Trial 2 scores in much of the research literature on the TOMM, and the need in clinical practice to exercise clinical judgment. A number of the experts also gave evidence as to the needs of clinical practice.
79 The Board considered that in fact the Decision Rule 1 had no application to Patient M or to Patient P, both of whose Trial 1 scores were above the lower level of the range (18 to 32) which, as has been seen, the Manual gave as the confidence interval for chance responding. Patient M's score was above 25, if not far above it. The Board interpreted the Manual as setting 18 as the score that was relevant for the Rule, being the score below which there could be confidence at the 95 per cent level at least that the result was unlikely to have occurred by chance. This matter is not addressed in the expert evidence. I have not been able to resolve what appears to be a conflict of interpretations of the Rule in this respect. But I do not believe that resolution to be necessary, both because of the literal language of the Manual to which I have earlier made reference and to which the Board again makes reference in this context (Determination Decision, par 125), read with the rationale for Trial 2 which, as I have indicated, I see as reinforcing that reading, and the expert evidence I review below.
80 I also note that it appears to have been conceded by the expert witness with perhaps the claim to the greatest expertise in this area (Dr Goldney, whose claim I return to below) that there was no research literature on this issue (see transcript P-370), which the Practitioner confirmed in his testimony (P-156 to P-157). Further, another expert witness agreed that a reading of what appears to have been taken by Dr Goldney and himself as a leading article on the use of the TOMM in the US for forensic purposes, under the US standard for admissibility of the results of such a test, referred to its acceptability in terms of Trial 2 results (Dr McCarthy, transcript P-217 to P-218, on B Vallabhajosula and W van Gorp, "Post-Daubert [Daubert v Merrell Dow Pharmaceuticals, Inc [1993] USSC 99; (1993) 509 US 579 (US Supreme Court)] Admissibility of Scientific Evidence on Malingering of Cognitive Deficits" (2001) Journal of the American Academy of Psychiatry and the Law 207).
81 The Practitioner's evidence as to the training he received in the TOMM at a conference in 1997 in the United States at which he was first exposed to the TOMM was in his evidence at the Inquiry, not in his witness statement, which refers only to his interpretation of the Manual in terms of Decision Rule 1 in this connection. The Board characterises the omission of any reference to the training as on "one view" "surprising", after allowing for the fact that the Practitioner was not aware at the time of the preparation of the witness statement that his use of Trial 1 only would be considered to be relevant (Determination Decision, par 111). This surprise appears to be in view of the facts that this was the only training the Practitioner received in the use and interpretation of the TOMM, that it was part of his introduction to the TOMM, and that it was because of the 1997 conference, and the training, that he started to use the TOMM in his practice (Determination Decision, par 110), where the TOMM is not in general use by psychiatrists in Western Australia or it would appear elsewhere in Australia (transcript P-134). It was set by the Board alongside what it called the "somewhat vague" character of the evidence as to the training, for which no papers were published, which was informal in character, and for which the Practitioner claimed to have "very few" notes "from that long ago" and no conference notes were tendered (Determination Decision, par 110). The Board also set the training references alongside the manner in which the evidence was given by the Practitioner and his demeanour as a witness.
82 I also find myself unable to give the Practitioner's evidence as to the training relating to this aspect of the Practitioner's modified use of the TOMM very much weight, bearing in mind the Board's view as to demeanour, and especially in view of the lack of research literature addressing the use of Trial 1 only. Nor could the Practitioner's presentations on his modified use of the TOMM to professional groups to which his evidence referred, with those groups making no objection to that use, fill this gap. By hypothesis none of these colleagues could be regarded as having relevant expertise in the use of the test. I have considered the possibility that the propriety of the use of Trial 1 alone might have been so straightforward as not to warrant special mention in the research literature, and to explain the reaction to the Practitioner's reference to that use in his presentations. I have considered in this light the argument put to me by Senior Counsel for the Practitioner that the simplicity of the TOMM overall explained the character of the training to which the Practitioner testified. However, no such point appears to have been made by the expert witnesses in this respect (Trial 1 versus the two Trials) in the Inquiry, where the Practitioner, in referring to his presentations on his use of the TOMM to colleagues, appears to consider his modified use a matter of professional interest to others. Again, reference to the Manual makes an inference of this sort to explain the evidence in terms of the straightforwardness of using Trial 1 alone in administering the TOMM, in my view, extremely difficult to draw.
83 The matter of the scope for clinical judgment in the "proper" use of the TOMM went to the Practitioner's evidence and the evidence of some of the experts. The Practitioner's evidence went to the "very infrequent" incidence of "below chance" results with the TOMM in his clinical practice (transcript P-126, P-124; Determination Decision, par 113). He had set out his experience with the TOMM, including his use of Trial 1 alone, at a number of professional gatherings, as I have indicated. The Practitioner also referred to his exercise of clinical judgment in the case of Patient M (with a Trial 1 score of 28) not to have her undergo Trial 2 (Determination Decision, par 105 and transcript references there). This was in light of the lowness of her score in his experience, her unwillingness to participate in his clinical assessment, and his concern not to be seen to be "oppressive" of her given her "distressed" state as Trial 1 was being administered, a matter not addressed either in his report or in his notes, although it would appear that the distress was evident from the audio-tape of her interview.
84 The evidence of the expert witnesses was as to what proper clinical practice by a forensic psychiatrist in the setting in which the Practitioner found himself might involve. Four of those experts indicated that, in that setting, a medico-legal context involving an assessment that went to "malingering" (Determination Decision, pars 127, 128 and transcript references there), a forensic psychiatrist employing a test like the TOMM, viewed as a "very simple" one whose Manual indicated it was "obligatory" to use Trials 1 and 2, should, at least in "general terms" as Professor Goldney put it, use the test in accordance with the procedure by which it had been validated. He appears to regard that procedure, consistently with the account I gave earlier of the validation part of the Manual, as involving the use of Trials 1 and 2, but not such other elements as following the precise language given in the Manual for test administrators to use with test subjects parts of which I quoted earlier. I note in this regard the exchange between Professor Goldney and a member of the Board (transcript P-247), from which I will shortly quote.
85 However, Professor Goldney did in fact indicate, as I read his evidence, that departure from the Manual in the respect just indicated would be appropriate with scores on Trial 1 like those for Patients M and P, for clinicians at least (transcript P-247). This was a matter on which Senior Counsel for the Practitioner put considerable emphasis in his submissions to me. I have anxiously considered this point. I have concluded that it is some distance from an endorsement of the Practitioner proceeding to use Trial 1 only as a basis for drawing conclusions as to the overall veracity of Patients M and P, as opposed to raising questions that needed to be addressed and that were relevant to the matter (what I earlier referred to as a "screening" issue). I note particularly in this regard the exchange (transcript P-247) between a member of the Board and Professor Goldney to which I have previously referred, and which I need to reproduce in full:
"The only question for us is what flows from that. What was incumbent or not incumbent upon Dr Mustac having received those results? Now, you've told us, and I understand what you've said, that what flows from that is that there was no need to go any further, but can I ask you this: you indicated that had he been preparing a research paper, the situation would have been different. One's going to be published in the Peer Review Journal and so on. All t's have got to be crossed and all i's dotted - I appreciate that, but can I ask you about this: there was an equally important setting here. These were reports which were being prepared for possible litigation and these were reports which, as Dr Mustac readily accepted, to be fair to him, would have consequences for the subjects of the reports - perhaps serious and permanent consequences. Now, I would have thought - tell me if I'm wrong - that in that context the need for strict protocol, or adherence to procedure, if I can put it that way, would be paramount. I mean, isn't that in that sense analogous to the research setting, that all t's have to be crossed and i's dotted?---Yes, I agree with you, except that if we are going to allow that you don't have to say, 'No, that's not right. It was this one, and you don't have to point' - I mean, if one's making - - -"
86 Another expert (Dr McCarthy) did indicate clearly that a departure from the Manual was appropriate in relation to Trial 1, in connection with the screening test already discussed. He had a different view, in connection with the use of the TOMM as a, or the, major diagnostic tool, which is the present context (Determination Decision, par 133, transcript references in 133 footnote 123).
87 This brings me to what conclusions the Practitioner could draw, or that were "open", from the Trial 1 scores of Patient M and Patient P in light of what I have identified as the "proper" use of the TOMM, in the setting in which the Practitioner found himself. As I have indicated, I am satisfied that he did, indeed, draw the conclusion from those scores as his major diagnostic tool that Patients M and P both had the intention to deceive him, not only as to their memory, but also as to their other symptoms. I have also found that the TOMM Manual indicates that the TOMM itself only permits a conclusion to be drawn that a subject is making a false or exaggerated claim of a memory deficit. Whether or not the claimant intended to make a claim that was false or exaggerated, or whether or not such claim was motivated by external incentives, are different matters requiring other factors to be drawn upon, as the extracts from the Manual indicate. The Decision Rules in the Manual are one place where it seems to me this is reinforced. They refer to their respective guidelines as indicating the possibility of malingering only. I have already indicated my reasons for finding that, on the evidence before the Board, using only Trial 1 scores is not a "proper" use of the TOMM as the major diagnostic tool. From this, it follows that conclusions of false or exaggerated claims resting for their major support on such scores are not "open", nor would any conclusions that went beyond those to cover intentionality and motivation be "open".
88 Thus, my conclusion is that, weighing all of the evidence before the Board, I find myself in agreement with it, the Practitioner had indeed drawn the conclusions that Patients M and P had intended to deceive him based in major part on their scores on an administration of Trial 1 only, when such uses were not open to him, having regard to the proper use of the TOMM.
89 On the appeal, as I have indicated, my attention was drawn to the Board's references to the lack of personal experience in the use of the TOMM of any of the expert witnesses, and to the lack of any evidence from neuro-psychologists who did use it, or from those associated with the design of the TOMM (Determination Decision, par 55). The Board refers to these gaps in the same way as it does the lack of research literature to support the Practitioner's modified use of the TOMM (Determination Decision, pars 125, 131). This is to indicate there is no evidence from those sources to support the Practitioner's contentions. Although Senior Counsel for the Practitioner invited me to do otherwise, I do not interpret this approach as indicating the Board drew inferences from those gaps unfavourable to the Practitioner. I did not approach the matter on any such basis.
90 Nor do I believe that the Board found what the expert witnesses had to say irrelevant to the contentions of the Practitioner or not entitled to any weight. Thus, it examined closely what Dr McCarthy and Professor Goldney had to say about the "proper" use of the TOMM in the context of a "screening" use, as I have indicated. The Board took account of the way in which they read the Manual (Determination Decision, pars 128, 133). I should add, however, that I am not convinced, at least in respect of Professor Goldney, who appears to be the only expert witness with a particular claimed expertise in psychometric testing (see transcript P-247 to P-248), that no distinction can be drawn between the expert witnesses in terms of how to understand the "proper" use of the TOMM in terms of the Manual. I should also add I am not clear whether or not the Board had a different view in respect of Professor Goldney from my own (Determination Decision, par 53). Approaching the evidence myself as the authorities require me to, and so distinguishing, I do not find myself coming to a different conclusion, however. In particular, in respect of Professor Goldney, I note his reading of the Manual when pressed on the point (transcript P-231, P-232, P-233), the position at which he arrived on the use of the TOMM on issues of overall veracity (particularly transcript P-195, P-229 and P-242), and his evidence on the use of Trial 1 alone (above).
91 I should add one further matter before leaving the issues arising under the Conclusions Particular. I consider it is appropriate, given the evidence before the Board, to have focussed particular attention on the Manual for the TOMM, and I have done so. That is because it represents the best evidence before the Board as to what the TOMM was designed to test and what its designers believed were the appropriate procedures and interpretations that the test and its results allowed for.
92 On the approach to appeals of this nature, I note the requirement that the Court "should give great weight to and be slow to differ from the [Board's] opinion that particular acts or omissions by a Practitioner do or do not amount to professional misconduct": Re Hodgekiss (supra), per Owen J at 343, (iv), as quoted in Bradshaw (supra) per Kennedy J at 327. This, as I view the matter, is to differentiate the approach I should take to the ultimate issue, this one, from that I should take to the evidence bearing on it (above).
93 On the appeal, considerable attention was given by counsel to a matter going to the ultimate issue that was also argued before the Board. This was the opinion of three of the five expert witnesses that the conduct of the Practitioner, at least in certain respects, did not merit sanction by the Board (grounds 7 and 9). Professor Mullen, one of the experts, agreed with the proposition put to him in cross-examination that, if the conduct as alleged was made out, he did "not really feel that this is an issue for disciplinary tribunal as distinct from the ordinary course of this being resolved in court or by peer pressure" (transcript P-81). He was not asked to elaborate on this answer.
94 Dr McCarthy, as has been indicated an expert witness called on behalf of the Practitioner, answered "No" to the question put to him in re-examination whether the "words [the Practitioner] uses in his report in your opinion constitute a sufficient deviation from professional standards for him to incur professional disapproval from a body such as this" (transcript P-206). When asked to elaborate on his answer, Dr McCarthy pointed to the Practitioner's lack of equivocation in his report, which, while harsh for an Australian audience that was "a bit uncomfortable" with the term "malingering", did not use "terminology" or "phrasing" that was "in any way disreputable" (transcript P-207).
95 Professor Goldney, the other expert witness called on behalf of the Practitioner, in response to the question put to him in re-examination, "Having yourself considered the conduct of [the Practitioner] in his performance of the TOMM test in relation to each of these particular patients and his conduct in not proceeding to the second test in each case, do you see the need for any professional condemnation of him in failing to do so?", answered "No". In response to the question put to him in re-examination, whether in Professor Goldney's view that the Practitioner had been "unwise" in the use of the language in his report that in his "professional judgment" went "so far as to warrant professional condemnation", he also answered "No" (transcript P-253). When asked to elaborate on the first answer, Professor Goldney referred to "the results which are quite improbable" compared with "the extant literature". When he was asked to elaborate on his second answer he replied as follows (transcript P-253):
"I think one can't legislate for stupidity in the way in which one writes things, and I think some of the way in which the reports have been written are provocative, are unwise, and really not sustainable in terms of the data, and I think that there is very good data there which could have been presented in a different way which would have meant that we wouldn't be sitting here today, so I think that it's the way in which the reports have been written rather than what's preceded it is the problem."
96 The Board concluded that it would not receive this testimony (Determination Decision, par 186). This was on the basis that it was directed to the "ultimate issue" within the meaning of authorities indicating "the better view" that the "evidence of that nature should not be received in disciplinary proceedings in this forum". This was in the absence of a "statutory basis for its reception".
97 The argument on behalf of the Practitioner before me was that this evidence had to be considered on Cranley (supra), as it went to the question whether or not the conduct on the Particulars was conduct of the standard at issue here. This was of conduct which, while falling short of "serious professional conduct", the standard for "infamous conduct in a professional respect", was "nevertheless conduct which would reasonably be regarded as improper by professional colleagues of good repute and competency": Cranley (supra) per Ipp J at 6. The parties accepted that that was the appropriate standard. Further, Senior Counsel for the Practitioner argued the evidence here ought to have been acted upon by the Board having regard to the witnesses' expertise and the fact that no psychiatrist was sitting on the Board.
98 I do not consider that the Board's approach was in error, however, at least by reference to the sort of evidence in issue in Cranley. The evidence I have just referred to seems to me to fall well short of indicating that the conduct of the Practitioner, as I have indicated I would find it here, was in accordance with a body of respectable if minority opinion within Cranley, albeit one with which the witness might personally disagree. The evidence rather goes to the matter of whether the witnesses would consider professional opinion would condemn the conduct the questioner put to them at a level sufficient to warrant disciplinary action by the Board. This is not the same issue as the Cranley one of whether or not there was a minority practice of, or minority opinion to support, the conduct in question. No support for the reception or acceptance of the evidence here can, I believe, be derived from this aspect of Cranley.
99 I should add in this connection that Senior Counsel for the Board conceded before me that the authorities since Cranley on the use of expert evidence in relation to the issue of medical negligence, at least of some sorts, Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 and Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232, to which the Board made reference in its Determination Decision, pars 181 and 182, did not detract from the authority of Cranley in this respect. This concession, which is to some extent at odds with the Board's view in its Determination Decision, was correctly made, in my view, as a distinction should be drawn for this purpose between the issue of negligence and that of conduct improper in a professional respect.
100 I should further add that I do not consider that there is other evidence here that, properly understood, represents evidence of the Cranley sort to support the Practitioner's use and conclusions. At most, as I have indicated, that evidence supports the 'screening' use of the TOMM, and its use by clinicians, in ways resembling the Practitioner's. Those uses are, however, distinguishable from his, as I have also indicated. The distinctions go to the extent of the Practitioner's reliance, on Trial 1 results, and in a forensic context, to draw conclusions as to overall veracity. This makes it unnecessary for me to go into whether or not that evidence met the Cranley standard for establishing "a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopted a different practice ... and [even though] the Board may disagree with the opinion": Cranley, at 8, per Ipp J. I note, however, as Senior Counsel for the Practitioner put to me, that that standard does not demand testimony from experts who themselves so practice, or research literature in support, provided at least there is expert testimony that there is such acceptance.
101 However, this does not dispose of the question whether or not the Board should have considered the evidence on the basis that it went to how to apply the standard to the facts as I have found them. I consider that at least Professor Mullen's and Professor Goldney's evidence went that far. However, as Senior Counsel for the Practitioner conceded, this might appear to go to the application of the legal standard from Cranley, which is, of course, the function of the Board, not that of the witnesses. I refer, as Senior Counsel for the Practitioner did, to R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 34 NSWLR 129 at 130 - 131 per Giles J:
"An expert may give opinion evidence where the opinion is relevant. The distinction between fact and opinion, and what is opinion evidence, are not particularly clear, but for present purposes I think opinion evidence can be described as evidence of a conclusion, usually judgmental or debateable, reasoned from facts. The law attempts rules confining the giving of opinion evidence. One such rule has been expressed in the terms that the expert may not give an opinion upon an ultimate fact in issue. It is almost impossible for a rule in those terms to be applied, there are many cases in which an expert has given such an opinion, and a rule in those terms has been doubted in the High Court: see Murphy v The Queen [1989] HCA 28; (1989) 167 CLR 94 at 110, 126-127. A lesser restriction has been recognised, that the expert may not give an opinion on an ultimate issue where that involves the application of a legal standard - for example, that the defendant was negligent, that a risk was reasonably foreseeable, that a testator possessed testamentary capacity, that a representation was likely to deceive or that a publication was obscene. This view has been particularly espoused by Glass JA, judicially in Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 at 675-676 and R v Palmer [1981] 1 NSWLR 209 at 214, and extra-judicially in, for example Glass, 'Expert Evidence' (1987) 3 Aust Bar Rev 43 at 48."
This passage is quoted as an "accurate statement" "in light of the modern cases", in J D Heydon, Cross on Evidence 6th Australian ed at 833 - 834.
102 However, Senior Counsel for the Practitioner noted that the legal standard in this case is what "professional colleagues of good repute and competency" would "reasonably" regard as "improper": Cranley (supra). That, it was submitted, made what witnesses here said both relevant and admissible.
103 I agree that the standard here is one in respect of which expert opinion is of potential value given the nature of that standard, and to that extent the quotation in its application to the question whether or not conduct was improper in a professional respect needs to be understood differently than in relation to questions of negligence. I refer to my consideration of Rogers (supra) and Bolitho (supra). Difficult issues of degree may be involved in answering the former question, distinguishing between infamous and improper conduct, on the one hand, and improper conduct and conduct that, while perhaps not altogether appropriate, was not "improper in a professional respect", on the other. To that extent the Board was not in my view entitled to reject the evidence here as inadmissible.
104 However, I do not consider that that evidence was entitled to any significant weight in the Board's deliberations. The Board had already considered the matter on which the evidence rested, in relation to the Particulars as to the Practitioner's conduct. For Professor Mullen, it was in what respects he considered what the Practitioner did was "poor practice" (transcript P-81) (see Determination Decision par 158). For Dr McCarthy, it was in what ways the "terminology" or "phrasing" of the Practitioner's report bore on the Particulars (transcript P-206) (see Determination Decision pars 129 - 131, par 133). For Professor Goldney, it was in what ways the exercise of clinical judgment might show the Practitioner's conduct was not within the Particulars (transcript P-247, P-248) (see Determination Decision pars 128, 136, 145, 151, 156, 157).
105 To the extent the further evidence as to professional opinion on those matters added anything to that matter, it went to whether, in the witnesses' view, the Board should take disciplinary action on them. The matter of whether or not that conclusion was one to draw from the Particulars as it found them, and as I have found them, was the Board's responsibility. While I am not convinced that evidence of this sort must always be accorded no significant weight, as where it amounts to evidence of the Cranley sort, or is a way of indicating, where greater particularity would be difficult, that the conduct in question, while not necessarily appropriate, was not sufficiently serious to warrant the label "improper in a professional respect", it is, in the circumstances of this case, not evidence entitled to any significant weight. This is on the basis it added nothing significant to what the witnesses had otherwise said.
106 I should add that the Board indicated in its reasons that "it serves no purpose whatever for those advising medical practitioners the subject of disciplinary inquiry to seek the written opinion of doctors as to the appropriate legal characterisation of the professional conduct under scrutiny. Questions of the type which elicited the comments on which reliance is now placed by Counsel for the Practitioner should not be asked in disciplinary inquiries before this Board pursuant to s. 13(1)(a) and (c) of the Medical Act 1894 (WA)." (Determination Decision, par 186). It follows from what I have said that I have some sympathy with the view there expressed, but would put it differently. The role of the experts whose advice is sought is to indicate matter which is relevant to the legal characterisation so as to assist the Board to make it. It is of no assistance to provide that characterisation without that matter, except so far as it is a means of conveying it. It adds nothing significant to provide that characterisation in addition to providing the matter.
107 The Board was of the view that the Particulars I have referred to, comprising the use Particulars and the conclusion Particulars, 1.1.2 to 1.1.4, and 1.3.2 to 1.3.4, had been made out as I also find them to have been made out. The Board expressed its view on the characterisation of what it found as follows:
"[189]. Secondly, although the Board has analysed the deficiencies particularised and established together and in their overall context in reaching the conclusion that the two allegations of improper conduct on the part of the Practitioner have been made out, it is of the opinion that:
(a) The misconduct particularised in each of sub-paragraphs [1.1.2], [1.1.3] and [1.1.4] of the Amended Notice of Inquiry can, standing alone, be characterised as improper conduct in professional respect; and
(b) The misconduct particularised in each of sub-paragraphs [1.3.2], [1.3.3] and [1.3.4] of the Amended Notice of Inquiry can, standing alone, be characterised as improper conduct in professional respect.
[190]. Thirdly, the Board is of the opinion that the conduct of the Practitioner amounts to a significant departure from the standards demanded of a consultant and forensic psychiatrist. To misuse a well-known and recognised scientific instrument developed for a specific purpose and then claim support for opinion expressed by reason of the reputation of that test is to engage in a serious breach of professional protocol. It is a matter of very significant concern. The misuse by the Practitioner of the TOMM is all the more concerning when considered in the light of the expressed role of the forensic psychiatrist asked to provide an independent medico-legal opinion. The potential damage to the subject of that opinion is enormous. The approach adopted by the Practitioner in relation to his psychiatric assessments of Patient M and Patient P does not reflect sound or proper clinical practice. He engaged in conduct of a character reasonably to be regarded as improper by professional colleagues of good repute and competency. The nature of his misconduct demands that action be taken by this Board to protect the public interest."
108 Giving to the Board's opinion as to this characterisation the "great weight" the authorities indicate I should, and in view of my findings on the evidence before it, I have come to the same conclusion as to that issue. This, in my view, disposes of ground of appeal 8(a), (c) and (d), that there was no basis for such a characterisation in the relevant evidence before the Board, and no sufficient indication of such a basis in the Board's determination of this issue.
109 One of the Practitioner's grounds of appeal, however, was that the conduct so characterised was wrongly described as "intentional deliberate conduct in circumstances where it accepted the possibility that the conduct may have occurred as a result of misplaced enthusiasm or misjudgement" (ground 8(b)). In fact, the Board found, as did I, that the conduct was intentional or deliberate because of the Practitioner's commitment to his modified use and his judgment that it was an appropriate one on which he could make presentations to professional colleagues. I have already indicated why I made that finding.
110 I note from the authorities that I should attach the "same weight to a decision of [the Board] as to the appropriate order to be made in a Particular case" as I did to its decision as to the characterisation of the Practitioner's conduct: Hodgekiss (supra) per Owen J, at 143, (v), quoted in Bradshaw (supra) per Kennedy J, at 327.
111 The Board issued a separate decision as to penalty, as I have indicated, providing lengthy reasons for the one it imposed, including a review of the principles from the authorities which were the basis on which it indicated it proceeded. Those principles were not the subject of disagreement by either of the parties to the appeal, with one exception.
112 The basic principles, upon which there was agreement, were, from Jemielita v The Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992, per Owen J at 140 - 142, as follows:
"The general principles which are applicable are not difficult to state. 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 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 per Kirby P 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 Ziderman v General 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 Giordano v Medical Board (1983-4) 36 SASR 83 at 87. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of the United Kingdom [1957] 2 QB 550 at 563:
'There is something more important than the standing of a profession about which the council is naturally and properly concerned. There is the right of every man to earn his living in whatever way he chooses 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 penalty. 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."
113 I note that in the Board's summary of these factors (Penalty Decision at par 10) there is perhaps less emphasis than Owen J placed on the right to earn a living. However, no issue is made of this on the appeal. I note also that the Board did carefully weigh this factor, if not quite in the terms that his Honour used, in its deliberations (in Penalty Decision at par 45). It did so sufficiently, in my view, so that no objection can be taken to its determination as to penalty on that account, and I return briefly to this below.
114 The Board referred to a further issue of principle particularly apposite to the penalty of suspension. This was identified as one of the bases on which it was said the Board erred in applying such a penalty in this case (see Penalty Decision at par 46 and ground of appeal 19). That principle is taken from Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at 554 per Doyle CJ, quoted from in the Penalty Decision of the Board at par 11:
"Apart from emphasising that the purpose of disciplinary proceedings is the protection of the public, and not punishment for wrongdoing, th[e] passage [in New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183 - 184] makes the point that sometimes the protection of the public will require the making of an order with a greater adverse effect on the Practitioner than might be warranted if punishment alone were the relevant consideration. The protection of the public did not permit mercy to be shown in that case."
115 Senior Counsel for the Practitioner submitted that the two authorities referred to by the Board when it applied the principle to the case of the Practitioner showed the principle had a more limited application. Those authorities, the Law Society of South Australia v Murphy (1999) 201 LSJS 456, and Legal Practitioners Conduct Board v Trueman (2003) 225 LSJS 503, both involved practitioners who, it had been determined, had engaged in unprofessional conduct and who were facing what appeared to be certain removal from the role of Practitioners. Both authorities relied on the particular principle here. Here the Practitioner was not facing so drastic a sanction, as the Board had concluded (Penalty Decision at par 24).
116 However, I do not see anything in the principle from Craig itself, or the language that the Courts have used in applying it, suggesting that it is confined as suggested. Further, I note the principle appears to have played a role in Craig itself, as is indicated by the following passage also quoted by the Board, in its Penalty Decision at par 11, Craig (supra) at 556 per Doyle CJ:
"If the order [suspending the practitioner's right to practise for a period of 6 months and that he undergo a period of supervision upon his return to practice] is to be supported in point of principle ... that it must be supported on the basis of protecting the profession and maintaining public confidence by emphasising to the profession and to the public that the [the practitioner's] conduct was not acceptable and would be dealt with severely, even though the conduct did not demonstrate that [he] was unfit to practise. An order on this basis has a punitive aspect, but as I have already explained, it may be justifiable even though the public does not require protection from [the practitioner] ...
117 The Board emphasised its determination that the professional conduct here was 'very serious'. It was seen to be:
"misconduct of a character which, in the particular circumstances under consideration, had the potential to affect in a significantly adverse manner the lives of the former patients concerned and the integrity of the legal process to which they were or were liable to become a party. His misconduct is of a kind that has the capacity to 'shake' public confidence in the profession of psychiatry if it is not met with an appropriate response." (Penalty Decision par 15; citation to Craig omitted.)
118 The public interest the Board saw itself to be protecting appears to lie in this passage. Senior Counsel for the Practitioner submitted to me that it is possible to distinguish Craig on the basis that the conduct there, a romantic attachment to a former patient formed shortly after the cessation of treatment, was widely acknowledged as improper. Here the TOMM's limited use in psychiatric practice, at least in this country, meant that there was no such wide acknowledgement. However, in my view, it was appropriate to take account of the factors going to the seriousness of the conduct here even if they were not widely acknowledged. Their relative novelty needed to be balanced against the "threat" the Board, properly in my view, saw they posed, once they were understood, in relation to one of the very few if not the only forensic psychiatrists who (so far as appeared here) was employing the TOMM in Western Australia.
119 Senior Counsel for the Practitioner submitted to me that the Board's penalty acted entirely as a punishment of him, being out of all proportion to the findings against him. It was submitted in this regard that there was no evidence he was a threat to his patients, given the confined part of his practice, forensic assessment, to which it related. (See ground of appeal 17). Reference was made to the opinions of the Professors Mullen and Goldney I quoted from. I have already indicated how the Board approached those opinions. It is a view that I share. That view did indeed point to a significant threat of harm to Patients M and P and the "integrity of the legal processes to which they were or were liable to become a party". On that view the confidence of the public in the profession of psychiatry could indeed be quite shaken if the conduct were not dealt with "firmly", within Craig. The Board so proceeded. I do not find this line of argument against its approach to be made out.
120 This also deals with the first of further submissions of Senior Counsel for the Practitioner concerning the emphasis by the Board on the representations of the Practitioner as to his use of the TOMM without indicating that only Trial 1 was used. Those representations were said by the Board to be "at the very least, inaccurate and almost certain to mislead those they were intended to inform, including persons charged with the responsibility of deciding whether to accede to the claims made for relief" (Penalty Decision par 30). (Appeal ground 18, par (a).) I have already indicated how I understand the Board's concern, in relation to the findings it was called on to make, with the representations made by the Practitioner in his reports. In this context, that concern goes to the "threat" to which I referred, and properly so. The Board did not then have regard to an "irrelevant" matter. Given the way the Board approached the matter, it is not a concern that the Board did not have any evidence that any person was misled by the reports for Patients M and P (ground of appeal 18(b)). It was enough that the reports had that potential to deceive. That they had such potential is apparent from the way in which the fact Trial 1 only had been performed emerged in the Inquiry, as I have indicated, and evidence from Dr McCarthy (see transcript P-191 to P-192).
121 Counsel also submitted in this connection that the Board failed to give sufficient weight to its finding that there was no evidence that the Practitioner had intended to deceive (ground of appeal 18, par (b)). The Board did, however, refer to this finding when it said, in Penalty Decision par 33:
"Although there is no evidence that the desire to deceive motivated the Practitioner, the approach adopted by him was less than professionally honest. It was neither frank nor fair. He claimed support in the forensic setting for adverse opinion by reference to the reputation of a well-known and recognised scientific instrument in circumstances where there was no legitimate scientific foundation to do so. He engaged in misconduct which the Board regards as entirely unacceptable and as incompatible with the important role assumed by the forensic psychiatrist."
122 The Board had previously determined, as I have also indicated, that the Practitioner was knowingly making a "modified" use of the TOMM, modifications on which he had made presentations although no research publications. In that context, not to alert readers of his two forensic reports to their use of those modifications was, it seems to me, properly to be viewed as the Board did. The Board's view of the characterisation of that deficit in the presentation, for the purposes of determining the appropriate penalty to apply, is the sort of matter to which the authorities indicate I should give "great weight". I do so.
123 Senior Counsel for the Practitioner submitted to me that, on the view the Board took, a "more appropriate penalty" than suspension would have been the imposition of conditions on the Practitioner's practice, and possibly a fine (ground 18(d)). The conditions would have related to the Practitioner's forensic practice only, and could have risen to requiring as a condition of such practice, that he not use the TOMM in it. Those conditions would have been sufficient, it was submitted, to protect the public. The fine would have enabled the Board to mark its disapproval of the Practitioner's conduct sufficiently for this purpose. I take this submission to go to the matter from Craig (supra), not of whether or not the order was "supportable in point of principle", but rather whether or not the order was "excessive in the sense of being substantially more than was required to achieve the relevant purpose": Craig, per Doyle CJ at 556. I note, of course, that "excessive" is more demanding of the Practitioner than the alternative "more appropriate".
124 Even on the approach of the submission, I am not convinced that I should impose the penalty or penalties suggested rather than suspension. I begin by noting the Board's characterisation of the Practitioner's conduct, the great weight I must give it, and the purpose of the Board as I have described it. I note that the Board was informed by counsel for the Practitioner that as counsel "saw it", the Practitioner had "learnt" from "this experience" (Penalty Decision par 35). The Board was also told the Practitioner realised and accepted the "convictions" he held in relation to the TOMM on which he based his approach were "unsound", and that he had ceased to use the TOMM. However, the Board said it was left with "considerable doubt" that the Practitioner in fact believed what he had done, and particularly in relation to the TOMM, was "inappropriate and improper". In this respect, given the position the Practitioner adopted at the Inquiry, and the opportunities the Board had that were not available to me to observe him giving his evidence, I am unable to come to a different conclusion.
125 Senior Counsel for the Practitioner submitted that any lack of genuineness was irrelevant to the Board's deliberations, as the Practitioner could reasonably have maintained the position he did at the Inquiry, having regard to the expert evidence adduced there (ground of appeal 18 (par (c)). Senior Counsel for the Practitioner argued before me that the matter was one of remorse, which went to punishment, rather than the public interest which was the Board's primary concern. I do not view the matter as one of remorse, however.
126 I do not doubt that the Practitioner could maintain the position he did, although I note there was expert evidence against him also. But equally I do not doubt that it is proper to take account of whether or not the Practitioner accepted what he did was improper as a factor going to his appreciation of his professional responsibilities. I note a similar approach was taken in Jemieleta (supra), at 149, per Owen J, although in that case the expert evidence was rather more clearly against the Practitioner. The matter so viewed goes then to special deterrence, that is, deterrence of the Practitioner, which that case indicates is (like general deterrence) within the province of the Board.
127 The Board also noted (at Penalty Decision par 19), as do I, matters adduced for the Practitioner pointing to the limited part of his practice (about 15 per cent) represented by the preparation of reports relating to personal injury matters, that the fact of and publicity associated with the Inquiry had had "some considerable impact on his forensic practice, particularly insofar as a medico-legal reporting of personal injury cases was concerned", that there was no evidence of any general incompetence in relation to his treatment of patients, and that the Practitioner did not present a physical danger to patients or the community. The Board also referred to the consequences that would probably flow from suspension for the Practitioner's existing patients (Penalty Decision par 38) and the "significance of removing the right of a medical practitioner to practise his or her profession and to earn a livelihood" (Penalty Decision par 45).
128 However, these factors, while relevant - and in the case of the right to work as a medical practitioner of particular significance - must be weighed against the protection of the public interest in this area, which on Jemielita, above, per Owen J at 40 is the "primary consideration", as I have indicated. Here the Board saw there to be very serious concerns, arising out of the Practitioner's conduct as it characterised it, but also out of a number of other matters. These were the prominence of the Practitioner in "medical and legal circles" (Penalty Decision par 28), the fact that the two instances of misconduct were not "isolated" (in the sense of being the product of unusual circumstances or lack of attention: Penalty Decision par 32), and the Board's doubts as to the Practitioner's view of his conduct already referred to.
129 In addition, there was the Board's view of the significance of the professional setting in which the conduct occurred. That view of a specialist body is entitled to considerable weight in my deliberations. The Board described its view as follows:
"As emphasised, the need to maintain the high standards and good reputation of the profession generally in the eyes of the community is a matter of priority. The trust which the general public does place in the professionalism of doctors is a vital component in the overall delivery of health care services to the community. When a person consults with or attends on a registered medical practitioner the reasonable assumption is made that the practitioner is conducting himself or herself in all respects in a professional manner and that he or she will continue to do so in their dealings with that person. When that consultation or attendance takes place in a forensic context with a view to the independent assessment by the doctor of the entitlement to financial redress for alleged personal injury the requirement that professional standards and reputation be maintained is all the more important. That the integrity of the medical profession be preserved in such circumstances is imperative. It must be remembered that the Board is concerned in this Inquiry with former patients who had no choice but to attend on the Practitioner - they did not attend on him voluntarily. The relevant insurers required that they subject themselves to his assessment of their psychiatric health and, it follows, their entitlement to financial aid for alleged personal injury. The former patients were entitled to expect that the Practitioner would comply with professional standards in the fair and responsible discharge of this important function. The relationship of trust and confidence between doctor and patient was founded on the asumption that he would do so. Doctors who do not conduct themselves in this manner are unable to discharge the obligations assumed by members of the profession. Forensic psychiatrists who behave as the Practitioner did in this case undermine significantly the confidence and respect the general public should be entitled to repose in the medical profession generally and psychiatrists specifically. That is a matter of concern to the Board." (Penalty Decision par 41).
130 I have already referred to the evidence at the Inquiry in the form of the recognition by the expert witnesses of the distinctive setting represented by forensic practice, and I have quoted a passage from the evidence given by Professor Goldney in that respect. This evidence is, it seems to me, in line with the view expressed in Seaman's Civil Procedure in Western Australia, [36A.3.1B] on the duties and responsibilities of the expert. The amenability of an expert to cross-examination on the expert's evidence, a matter on which there was some evidence given to the Inquiry (transcript P-66, testimony of Professor Mullen), does not it seems to me qualify that view in any material respect.
131 Bearing all of the material I have just referred to, including the Board's view, in mind, I conclude, as did the Board, that it is appropriate to deal with the conduct "firmly and with an emphatic indication provided to the disapproval of the Board and the medical profession" (Penalty Decision par 42; citation to Craig omitted).
132 I also note the conclusion of the Board that "one consequence of the fact that the primary concern of the Board is with the interests and protection of the public - which concludes the standing and reputation of the profession within the community - is that there is less 'scope' for the adoption of a 'more merciful course' than would exist if the power of the Board were exercised based on considerations of punishment". (Penalty Decision par 46; citation to Craig omitted).
133 On that basis, I share the Board's view that a fine and conditions on the Practitioner's practice would not be sufficient to give such an indication, both to the Practitioner and to the public, so as "to preserve the standing and reputation of the profession of psychiatry in relation to which the confidence of the public will have diminished following the publicity associated with this Inquiry" (Penalty Decision par 45). A suspension of one half of the maximum allowable would be appropriate as the Board determined.
Mustac
The Medical Board of Western Australia [2004] WASCA 156
(1938) 60 CLR 336
(2000) 22 WAR 255
(1991) 4 WAR 303
(1989) 167 CLR 94
(1968) 117 CLR 77
(1937) 59 CLR 467
(1996) 67 SASR 149
(1996) 17 WAR 346
(2001) 52 NSWLR 705
(1999) 197 CLR 269
(1992) 67 ALJR 170
(2001) 24 WAR 127
(1990) 169 CLR 638
(1991) 34 NSWLR 129
(1992) 175 CLR 479
(1992) 10 WAR 33
(2000) 22 WAR 510
(1995) 12 WAR 370
(1989) 16 NSWLR 197
(1968) 117 CLR 177
(1990) 3 WAR 322
(2001) 79 SASR 545
(1921) 29 CLR 186
(1937) 58 CLR 62
(2001) 205 CLR 434
(1992) 176 CLR 239
(1986) 41 SASR 434