Mustac v The Medical Board of Western Australia [2004] WASCA 156

Mustac v The Medical Board of Western Australia [2004] WASCA 156 - WASCA 2004 case summary — Zoe

[60]

"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."

[83]

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).

[95]

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.

[216]

"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).

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (221 paragraphs)

Mustac v The Medical Board of Western Australia [2004] WASCA 156 (27 July 2004)

Was there Improper Conduct in a Professional Respect?

Parties

Cases Cited (27)