Victorian Civil and Administrative Tribunal|2004-07-14|Before: Mr J

Myers v Medical Practitioners Board [2004] VCAT 1358 (14 July 2004)

Occupational & Business Regulation List - Medical Practice Act 1994 ss.3(1) and 45A-review of decision of Medical Practitioners Board - unprofessional conduct of a serious nature - transgression of professional boundaries

1 The decision under review is varied in that the counselling referred to in paragraph (c) of the determinations dated 26 August 2003 is to be provided by a medical practitioner approved by the Medical Practitioners Board of Victoria and that practitioner is to forward a report to the Medical Practitioners Board upon completion of the course of counselling.

2 Otherwise, the decision under review is affirmed.

Mr J Isles of counsel instructed by Mr A Brott & Co Solicitors

Ms M Young of counsel instructed by Minter Ellison Lawyers.

4 This is an application for review of a decision of the Medical Practitioners Board of Victoria ("the Board") made on 22 July 2003. The panel of the Board found that the applicant, Dr Myers, had engaged in unprofessional conduct within the terms of paragraphs (a) and (b) of the definition of unprofessional conduct in section 3(1) of the Medical Practice Act 1994 ("the Act"). The determination of the panel was that:

Pursuant to section 45A(2) of the Medical Practice Act 1994 Dr Myers is:

(a) Reprimanded for serious transgressions of professional boundaries;

(b) Cautioned about the limits of his involvement in family situations;

(c) Required to undergo a course of counselling on professional boundaries and the limits of a doctor's role in advocacy.

The counselling is to be conducted by Dr David List, psychologist, at Dr Myers' expense and is to be completed over a period of six months with a minimum of four sessions within that time. A report is to be forwarded to the Medical Practitioners Board of Victoria by both Dr List and Dr Myers upon completion of the course of counselling; and

5 An application for review of the above decision was filed in this Tribunal on 21 August 2003. On 6 October 2003, the Tribunal made orders by consent extending the time for lodgement of the application to 21 August 2003 and staying the decision under review until further order.

6 The panel found a number of particulars of the allegation of unprofessional conduct not proven, or proven but constituting unprofessional conduct. Before me, the hearing de novo was confined to those particulars on the Amended Notice which were found proven by the panel, and which were found also to constitute unprofessional conduct within the terms of paragraphs (a) and (b) of the definition of unprofessional conduct in s.3(1) of the Act. The respondent also sought to rely on the evidence concerning a small number of the unproven particulars as relevant to the particulars in dispute before me.

7 The Amended Notice contains allegations relating to Dr Myers' treatment of two patients, Mrs A and Mr A from March 2000. Dr Myers treated Mrs A between 16 March 2000, when she was admitted to the Elsternwick Private Hospital, and 15 June 2001, the day before her death. Mr A was treated by Dr Myers from 7 May 2000, the date of Dr Jaworowski's referral, until 15 June 2001. Mr A moved to the Central Park Nursing Home on 4 April 2002 and died prior to the hearing.

8 Having heard the evidence and considered the submissions of counsel, it is clear that a large proportion of the facts surrounding the allegations are not in dispute. The difference between the parties lies mainly in the manner in which the facts are to be interpreted in assessing the conduct of Dr Myers. The following summary deals with the largely uncontested facts. Where it is necessary to traverse the contested factual matters in more detail, this has been done under the heading of the particular allegation in question.

9 Mr and Mrs A were born in 1915. In the Holocaust, Mr A lost his wife, and Mrs A lost her husband and child. Mr and Mrs A married in Bergen-Belsen, a concentration camp which was later a camp for displaced survivors, in 1945. Their son, Mr B was born in the refugee camps in Rome. They migrated to Australia in 1948. Mr A worked as a glove maker, then later as a salesman of textiles and materials. Mrs A worked as a kindergarten assistant, and helped Mr A in his business until 1978. She was an accomplished pianist. They lived together in South Caulfield until Mrs A died on 16 June 2001. Mr B had a daughter, Ms C, from his first marriage. Mr B did clerical work until 1984, and then assisted his parents in their business. He has suffered from schizophrenia since the 1970's. Ms C developed a very close relationship with her grandparents and with Mrs B and Mr B.

10 Mrs B was born in 1943. She migrated to Australia from Israel, married Mr B and supported him from 1984 onwards. She worked from 1984 until 2000 as a radiographer. When her father developed dementia in Israel, Mrs B arranged to bring her parents to Australia in 1996. Her mother died suddenly in 1998, and Mrs B cared for her father at home until his dementia became more serious and he was moved to dementia-specific residential care. By 2000, Mrs B was working full-time, caring for her own father, doing the finances and shopping for her in-laws, and supporting her husband. She was exhausted, and retired from full-time employment in June 2000.

11 Dr Jaworowski, general practitioner, commenced treating Mr A in March 1982 and Mrs A in October 1982. He treated them regularly from that time. In his clinical notes, Dr Jaworowski noted on 22 September 1999 that Mrs A was suffering from "some paranoid ideation" and "extreme anxiety". With Mrs A's agreement, Dr Jaworowski arranged a visit by the mobile aged psychiatry team, but this was cancelled the following day when Mrs A changed her mind. Dr Jaworowski said in this evidence that the features of paranoia he noted included statements about the daughter in-law, the cleaning lady, and about people doing her harm. Dr Jaworowski felt that by 2000, Mrs A's cognitive state had declined to the point where she could not make decisions about her health care needs. Dr Myers did not accept that Mrs A suffered from paranoia, but said that she was firm in her opinions and did not trust Mrs B.

12 In early 2000, Mrs A was hospitalised for the first time in Masada Hospital, suffering from a urinary tract infection and general weakness. On 16 March 2000, Dr Jaworowski admitted Mrs A to Elsternwick Private Hospital, suffering from temporal arteritis, Cushing's Syndrome, a urinary tract infection, muscular weakness and falls, reflux oesophagitis and pyelonephritis. On 23 March 2000, Mrs A was assessed by the Caulfied Aged Care Assessment Service, which noted her refusal to participate in questions involved in a mini-mental assessment, her cognitive decline, her paranoid ideations towards Mrs B, and recommended residential low level hostel placement for her, together with Mr A. Whilst at Elsternwick Private Hospital, Mrs A developed severe acute pulmonary oedema secondary to rapid atrial fibrillation. She was transferred to the Alfred Hospital for a period before returning to the Elsternwick Private Hospital. During that second admission Dr Jaworowski referred Mrs A to Dr Myers.

13 Until early 2000, Mr and Mrs A had not been separated in any significant way for 55 years. They were a close couple. They wished, regardless of their mental state or physical health, to remain together.

14 On 23 March 2000, Mr A was assessed at home by the Caulfield Aged Care Assessment Service. That assessment noted his dementia, poor orientation to time and place, his poor short-term memory, his limited insight into how he could manage at home and his poor comprehension as to his care needs, and approved low level residential care (hostel).

15 In early May 2000 Dr Myers convened a meeting to discuss discharge planning for Mrs A. Mrs B and Mr B attended the meeting. Dr Myers said Mrs A could go home with the help of carers. Mrs B had not been consulted about this proposal and believed the home was not safe for the couple. She had borne the principal responsibility for arranging cleaning, shopping and organization of Mrs A and Mr A's home for them, and was upset at the lack of consultation by Dr Myers. The relationship between Dr Myers and Mrs B was poor from that time onwards. Mrs B was angry with Dr Myers and told him in a moment of exasperation that she would wash her hands of responsibility if they came home.

16 On 3 May 2000, Mrs A was discharged from Elsternwick Private Hospital and returned home. On 7 May 2000 Dr Jaworowski referred both Mrs A and Mr A to Dr Myers for care outside the hospital setting. Without involving Mrs B, Dr Myers arranged for carers to be put in place to assist Mrs A and Mr A at home. These paid carers, who were not healthcare professionals, came to the home from 8 am to 8 pm to cook, clean, take them out and assist them with their personal care and errands. Mrs B paid for the carers from the funds of Mrs A and Mr A.

17 When Dr Myers began to treat Mr A in May 2000, there was already some evidence from Dr Jaworowski and others that Mr A had begun to suffer from dementia and that this condition continued to deteriorate. By mid-March 2000, Dr Jaworowski had assessed Mr A as suffering from moderate dementia. After March 2000, Dr Jaworowski noted a "progressive decline in cognitive functioning with confusion, poor memory and poor orientation, difficulties with self-care and mobility, and progressive muscular weakness. Mrs B and Ms C also believed he suffered from dementia and was in decline. However, Dr Myers did not concede that Mr A was suffering from dementia and believed that he could handle his everyday affairs with assistance.

18 Between May 2000 and June 2001, Dr Jaworowski said that he continued to attend to the routine medical issues involving Mr A and Mrs A, visiting them at home every two months, and prescribing medications for them. Dr Myers was the consultant. Dr Jaworowski said that Dr Myers and another doctor, Dr Mr A Taubman, also prescribed medication for Mr A and Mrs A, and that he would learn of any changes made to their medication by these doctors by inspecting the dosette box on his visits, or by phoning the pharmacist. Sometimes, he said, he and Dr Myers would ring each other about Mrs A's medication.

19 On 6 July 2000, Mrs A executed an enduring power of attorney in favour of Mr B and Mrs B. On 6 July 2000, Dr Myers witnessed the execution of wills by Mr A and Mrs A.

20 On 11 April 2001, Mrs A underwent an aspiration procedure ordered by Dr Myers. The procedure was done at Elsternwick Private Hospital, and Dr Myers discharged her home after the procedure. The pathology report indicated no malignancy, but this was subsequently proved wrong. Mrs A became unwell at home, and Dr Myers attempted to arrange for admission to two hospitals, without success.

21 On 13 April 2001, Dr Jaworowski visited her at home and decided that urgent admission to Epworth Hospital was appropriate. Mrs A was transported there by ambulance and admitted by Dr Jaworowski under the care of a the physician on call, Dr Robert Lefkovits. A terminal malignancy was diagnosed in the abdominal wall, just below the diaphragm. It was suspected that this malignancy was secondary to a primary tumour in the ovary, but no further investigations were ordered because her condition was clearly terminal.

22 On 26 April 2001, Ms Wilkie-Smith, a social worker at the Epworth Hospital, accepted a referral from Caulfield Community Health Nurse to see Mrs A while she was in hospital. Ms Wilkie-Smith's role was to assess Mrs A's care needs and organise care for her once she left hospital. She discussed the issue with Mrs B and Mr B, who agreed to an Aged Care Assessment. That assessment was conducted by Dr Michael Hum, geriatrician. His assessment, which was noted in Mrs A's medical file, was that, given her functional dependence, supporting her at home would be difficult. He recommended hospice care if her prognosis was that she had less than six months to live, or nursing home care if she required full-time nursing home care at an in-patient facility. As there were doubts about Mrs A's capacity to sign paperwork relating to nursing home care, Ms Wilkie-Smith approached Mrs B. Given the history of problems between herself and Mrs A, Mrs B was reluctant to sign the form, which was signed by Mr B with her agreement. Dr Hum also signed the form. Mr A was not asked to sign the form because of the notation made in Mrs A's medical file by nursing staff at the request of the family, to the effect that Mr A lacked the competence to sign forms for her care as he suffered from dementia.

23 On 10 May 2001, Ms Wilkie-Smith was asked by Mrs B and Mr B whether in fact palliative care, rather than nursing home care, might be more appropriate for Mrs A. After raising the matter with Dr Lefkovits, he decided on or around 13 May that palliative care would be the best option for Mrs A. Mrs A's family requested that she be placed on the waiting list at Bethlehem Hospital. Ms Wilkie-Smith did this on 15 May 2001.

24 Mrs A remained at Epworth Hospital until 15 June 2001, when she returned home. For the whole of her stay at Epworth Hospital, Mrs A was under the bed card of Dr Lefkovits, who was her treating doctor. Dr Myers had visiting rights as a medical practitioner at Epworth Hospital. Dr Lefkovits remained prepared to discuss his patient's situation with Dr Myers but did not request any assistance from Dr Myers in treating Mrs A. Dr Myers continued to attend upon Mrs A at the hospital and charged for those attendances. After Mrs A's death, her former administrators, Mrs B and Ms C, received a series of accounts from Dr Myers for services rendered, in the sum of $7293. Part of that amount was referable to the visits made by Dr Myers to Mrs A at Epworth Hospital when he was not the primary physician. Mrs B and Ms C referred the accounts to the Health Insurance Commission for advice.

25 Dr Lefkovits decided some time after admitting Mrs A that the care to be provided to her was palliative care. Part of the reason for the extended stay of Mrs A at Epworth Hospital from 13 April until 15 June 2001 was the existence of a dispute over whether or not, or when, she should go home. Dr Myers held a very firm view, although he was not the bed-card doctor treating Mrs A in hospital, that Mrs A should go home and die there. He held this view because of Mr A's wish that his wife be at home, and Mrs A's wish to go home. Dr Myers believed that Mrs A and Mr A could be appropriately cared for at home. Dr Myers saw himself as an advocate of Mrs A in this respect. Family members, including Mrs B, believed Mrs A's medical needs were high and included the care of a registered nurse. In addition, Mrs B believed that the house needed to be set up properly and aids purchased prior to Mrs A's return home. Dr Lefkovits and Ms Wilkie-Smith agreed there was a need for high level care. This issue is dealt with below in relation to allegation 1(a)(x) that Dr Myers attempted to impose his views about the appropriate manner of Mrs A's accommodation and care.

26 Around 15 May 2001, Dr Myers had contacted the Office of the Public Advocate to complain that Mr A had not been involved in the decision-making process concerning Mrs A's care. Sue Spence of the Office of the Public Advocate spoke to Ms Wilkie-Smith about this complaint on 15 May 2001, and was satisfied by Ms Wilkie-Smith's explanation of the process by which the paperwork had been signed. It was agreed that Mr A would be informed of the issues relating to palliative care for Mrs A. Ms Wilkie-Smith discussed the matter with Dr Lefkovits, who agreed that Mrs B was the most appropriate person to make decisions concerning whether Mrs A went home or to Bethlehem Hospital. His note in Mrs A's medical file dated 21 May 2001 read:

Contd unrelenting pressure from Dr Myers re discharge to home -I am happy for her to go home or Bethlehem depending on family's final decision. The daughter in-law has power of attorney.

I have d/w husband, carer and Dr Myers. I believe the most appropriate person to make decision is daughter in-law. Meanwhile, cont all nursing care.

27 The pressure applied by Dr Myers on Dr Lefkovits to have Mrs A discharged to her home is the subject of allegation 1(h)(ii). A further allegation, 1(h)(iii) is that Dr Myers misrepresented to Dr Lefkovits that the paid carers in Mrs A's home were competent to care for her upon her discharge when Dr Myers knew or ought to have known that this was not the case. Ms Wilkie-Smith met with Mr A, Mr B and one or more of the carers at Epworth Hospital on 21 May 2001to discuss palliative care out of the home, and at home. According to Ms Wilkie-Smith, there was disagreement between Dr Myers and Mrs B and Mr B over this issue, with Dr Myers believing that Mrs A's needs could be met at home and Mrs B and Mr B believing that in-patient palliative care was appropriate. Mrs B asked about the legal avenues which might clarify who could make decisions in this regard. Ms Wilkie-Smith informed Mrs B that an application for guardianship could be made.

28 On 21 May 2001, Ms Wilkie-Smith spoke to Dr Myers by telephone, and, according to her, he insisted that if the doctors were in agreement, Mrs A should be sent home. On 22 May 2001, Ms Wilkie-Smith also rang the Office of the Public Advocate to obtain advice. She then called Dr Myers to say that any discharge plan was to be put on hold until proper advice was received from the Office of the Public Advocate. That advice was to the effect that no decision should be made about discharge until the legal process was clarified. According to Ms Wilkie-Smith, Dr Myers then contacted her to say he wanted to meet with her and Mrs A and his carers to discuss a discharge plan for the following day. Dr Myers arrived at the hospital. There followed a conversation between Dr Myers and Ms Wilkie-Smith which is the subject of allegation 1(f)(iv). Dr Myers showed Ms Wilkie-Smith a document which was a revocation of power of attorney signed by Mr A. Ms Wilkie-Smith told Dr Myers there would be no discharge until after a hearing in the Guardianship List if the family had filed an application. Allegation 1(h)(iv) concerns the insistence by Dr Myers to Ms Wilkie-Smith on several occasions on 21 May and 22 May 2001, that Mrs A should be discharged home from Epworth Hospital in circumstances where Dr Myers did not have the authority to discharge her.

29 On 22 May 2001, Mrs B and Mr B applied for a guardianship and administration order. On 23 May 2001, Ms Wilkie-Smith was contacted by the Office of the Public Advocate and she requested an urgent hearing. The Public Advocate applied for revocation of the enduring power of attorney executed by Mrs A on 6 July 2000. An urgent hearing was convened in the Guardianship List of the Tribunal on 30 May 2001. On 24 May 2001, Ms Wilkie-Smith met with Associate Operations Director of the Epworth Hospital, Ms Fiona Somerville, in relation to the issue of Mrs A's discharge. Ms Somerville said no discharge was to occur until the tribunal hearing.

30 In the meantime, however, on 21 May 2001, Dr Myers witnessed a Revocation of Power of Attorney signed by Mr A, of an enduring power of attorney dated 6 July 2000 in favour of Mr B and Mrs B . This is the subject of allegation 1(f)(iv).

31 On 25 May 2001, Dr Myers also took Mr A out with him for the day after meeting Mr A and the carers in the street. The family were not informed that this would happen. Dr Myers took Mr A to Dr Myers' home, on his rounds to hospital (where Mr A sat in the waiting room for a couple of hours), to Mr A's own home to clean his pool, to Glicks bakery to pick up some food for Mrs A, and then eventually to Epworth Hospital to see Mrs A. After Dr Myers had been out with Mr A for some time, Paula Irani, of the Office of the Public Advocate, rang Dr Myers and conveyed the family's concern that Mr A had not arrived at the hospital and its concern for his whereabouts. This outing is the subject of allegation 1(f)(i),(vi) and (vii), and is dealt with further below.

32 At Epworth Hospital on 25 May 2001, Ms Wilkie-Smith met Dr Myers who was visiting Mrs A with Mr A. According to Ms Wilkie-Smith, Dr Myers told her that they did not need to wait for the outcome of the VCAT hearing to discharge Mrs A, and that discharge could occur if the doctors approved. Dr Myers also told Ms Wilkie-Smith that he was willing to assist Mr A to manage his financial affairs. This is the subject of allegation 1(f)(v) and is dealt with further below.

33 On 30 May 2001, there was a hearing at the Guardianship List of the Tribunal. Ms C walked into the hearing room with Mr A and arranged for him to sit down. As she was about to sit down next to him, it is alleged that Dr Myers pushed her out of the way and placed himself between her and Mr A and sat down. Ms C then sat on another chair. There is dispute about this incident, which is the subject of allegation 1(f)(viii), with Dr Myers contending that he was merely arranging for a place to sit around the table at the hearing. This allegation is dealt with below.

34 At the conclusion of the hearing, Deputy President Billings appointed Mrs B and Ms C as Mrs A's guardians for health care and accommodation decisions, and as her joint administrators. There is disagreement as to what was said by the Deputy President at the conclusion of the hearing by way of clarification as to the role which Dr Myers could play in relation to Mrs A, and this is dealt with below in relation to allegations 1(b)(iv) and 1(c). Dr Myers charged Mrs A for his attendance at the VCAT hearing, and allegation 1(k) is that he improperly charged for this attendance as he had not been authorised or requested by any person to attend the hearing.

35 After the hearing on 30 May, Mrs B and Ms C arranged for additional care and other facilities at Mrs A's home. It is clear on the evidence that there was a difference of opinion between Dr Myers and other family members as to the capacity in which Dr Myers could continue to see Mrs A. It is clear from the evidence that Ms C and Mrs B did not have confidence in Dr Myers as a physician and did not wish him to treat either Mrs A or Mr A. However, it is not clear from the evidence that they told him, in their capacity as health care guardians for Mrs A, that he could not do so. This issue is dealt with in more detail below.

36 Dr Myers charged Mrs A for 15 attendances at Epworth Hospital between 15 April and 15 June 2001. Allegation 1(j) is that Dr Myers improperly charged for the provision of medical services when he knew or ought to have known that he did not have the authority to provide such services to Mrs A.

37 On 15 June 2001 Mrs A was discharged from Epworth Hospital and returned home. The discharge had been planned in cooperation with Dr Jaworowski and the recommendations of the Bethlehem Hospital palliative care team in relation to the medication that might be needed. Dr Jaworowski prescribed the necessary medication. Upon Mrs A's arrival home, a carer, Ms Giannakis, telephoned Dr Myers to inform him of this Dr Myers attended the home of Mr A and Mrs A on two occasions on that day, and treated Mrs A in the absence of Mrs B or Ms C. Without consulting Dr Jaworowski, Dr Myers telephoned the pharmacist to change the prescribed medication. He also performed a medical examination of Mrs A. During the second visit, he went straight to see Mrs A and refused Mrs B's request that he leave. He left when he completed his visit to Mrs A. Dr Myers' evidence was to the effect that he had come to the home at the request of one of the carers. The attendances by Dr Myers at the home of Mr and Mrs A on 15 June 2001, the changing of the medication, and the charging for those attendances are the subject of allegations 1(c) and 1(j) and are dealt with further below.

38 Mrs A died at 6.30 a.m. on 16 June 2001. Within hours of her death, Dr Myers rang her home, and when his conversation with Mrs B was terminated by her, attended at the home. Again, there is disagreement as to whether Dr Myers tried to force his way in to the home or whether the family ( Mrs B , Mr B and Ms C ) pushed the door shut against him, with his shoe still stuck in it. There is also disagreement between the family and Dr Myers as to what then occurred, although he agreed that after the door was shut he tapped on the window of the house and tried to speak to Mr A. This issue is the subject of allegations 1(g)(viii) and 1(f)(ix) and is dealt with below in more detail below.

39 On 17 June 2001, Mrs A's funeral took place at the Jewish cemetery in Springvale. It is alleged that Dr Myers acted inappropriately at the funeral in attempting to remove Mr A from the car in which he was sitting with Ms C and ignoring her requests that Mr A be left in the car. This is the subject of allegation 1(f)(x) and is dealt with further below.

40 On the evening of 17 June 2001, a prayer service was held at the home of Mrs A and Mr A. Dr Myers attended the home for the prayer service. The family did not object to his presence, as it is customary for the mourning family to open their house to those wishing to attend the service, which is held in a lounge or family room. At some stage, Dr Myers took Mr A into his bedroom. They were alone. This is the subject of allegation 1(f)(xii). Ms C saw Dr Myers with Mr A in his bedroom, and saw Dr Myers with his hand in the drawers near Mr A's bed. According to Ms C, they left the room. She then entered it to examine the drawer. In it, she found a letter, and removed it from the drawer. Dr Myers saw her do so and said to her in the corridor: "You will go to hell". This is the subject of allegation 1(g)(ix) and is dealt with below. Dr Myers agrees he said this to Ms C.

41 The letter which Dr Myers put in the drawer of Mr A's bedside table is the subject of allegation 1(f)(xiii). The letter was in the following terms:

My sincere condolences on the passing of your dear wife [Mrs A] whom I looked after to ensure she was at home when it mattered to her. I am your doctor and your friend. Like you have similar interests and will always be here to ensure no-one invades the privacy of your home or tries to remove you from there. Call if you need help. But on Tuesday I am going into the Epworth for an operation. I love you like a son should and a doctor.

42 On 21 June 2001, the Guardianship List of the Tribunal appointed Mrs B and Ms C as Mr A's joint administrators and dismissed their application to be his guardians.

43 On 17 August 2001 Dr Myers made application to be appointed as Mr A's guardian and for State Trustees to be appointed his administrator. This application was later withdrawn by Dr Myers.

44 On 4 April 2002, Mr A was placed in the Central Park Nursing Home. Dr Myers had little contact with him after that time.

45 The standard of proof is the civil standard of proof, on the balance of probabilities, provided that the evidence must produce a reasonable or comfortable state of satisfaction in the mind of the Tribunal, taking into account the seriousness of the allegations, any inherent unlikelihood of an occurrence of the given description, and the gravity of consequences flowing from particular findings: Abdulhuque Omarjee v Medical Board of Victoria (Unreported, VSC, Hayne J, December 1992); Basser v Medical Board of Victoria [1981] VicRp 88; [1981] VR 953; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-363

46 The Amended Notice of Formal Hearing setting out the allegations made against Dr Myers alleges unprofessional conduct within the meaning of paragraphs (a) to (e) of the definition of unprofessional conduct as set out in s.3(1) of the Act. For present purposes, it is sufficient to set out only part of the definition:

"unprofessional conduct" means all or any of the following-

(a) professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or

(b) professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or

(e) providing a person with health services of a kind that is excessive, unnecessary or not reasonably required for that person's well-being;

47 In Dr David Vissenga and Medical Practitioners Board of Victoria [2004] VCAT 1044, at pages 8-9, Morris J (President) found "a great deal of overlap" between the various paragraphs contained within the definition of "unprofessional conduct". One example of such overlap referred to by his Honour was that "professional misconduct would be likely to include conduct which fell within paragraphs (a) or (b) of the definition". His Honour specifically referred to the words of paragraphs (a) and (b) of the definition of unprofessional conduct and, said, at p 9 of his judgment:

...In both of these paragraphs attention is directed at professional conduct which is of a lesser standard that that which might "reasonably" be expected of a registered medical practitioner by the public or by the peers of the practitioner. In my opinion, neither the public nor the peers of a medical practitioner expect perfection at all times. Human frailty visits every person, including those who are medical practitioners. Reasonable members of the public, and the reasonable peers of medical practitioners, understand this. Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct or, if taken separately, are insufficiently serious to warrant intervention by those charged with acting on behalf of the State.

48 The overlap between unprofessional conduct and professional misconduct, is encapsulated by the statement in Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498 where it was said, in relation to professional misconduct, that:

The test to be applied is whether the conduct violates or falls short of , to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.

49 To constitute unprofessional conduct, the conduct must be more than error of judgment: Pillai v Messiter (1989) 16 NSWLR at 200, per Kirby J.

50 Regardless of the range of penalties for unprofessional conduct and professional misconduct, it is clear that it is always a serious matter to conclude that professional misconduct has been committed: Campbell v Dental Board of Victoria [1999] VSC 113.

51 Counsel for Dr Myers opened his case on the basis that the hearing de novo concerned allegations of unprofessional conduct confined to paragraphs (a) and/or (b) of the definition of unprofessional conduct in s.3(1) of the Act, and this approach was not contradicted by counsel for the respondent in her opening or at any time during the hearing. Accordingly, in this case, it is appropriate to consider whether, if the conduct alleged against Dr Myers is proven, it constitutes unprofessional conduct within the meaning of paragraphs (a) and (b) of s.3(1) of the Act.

52 Section 45A of the Act provides as follows:

45A. Finding and determinations of a formal hearing into conduct

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered medical practitioner the panel may find that--

(a) the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature; or

(b) the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature; or

(2) If the panel finds that the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature, the panel may make one or more of the following determinations--

(a) require the practitioner to undergo counselling;

(d) require the practitioner to undertake and complete specified further education within a specified period;

(e) impose any condition, limitation or restriction on the registration of the practitioner;

(f) impose a fine on the practitioner of not more than $2000;

(g) suspend the registration of the practitioner for the period specified in the determination;

(i) disqualify the practitioner from applying for registration under section 5 within a specified period if the practitioner's registration is cancelled by the Board or by a medical registration authority of another State or Territory of the Commonwealth or of New Zealand.

(3) If the panel finds under sub-section (1)(b) that the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature, the panel may make any determination which a panel at an informal hearing is able to make upon such a finding.

(4) The panel must not impose a fine if the conduct which is the subject of the finding has resulted in a fine being imposed by another tribunal or court of law.

(5) If the panel has made a determination under sub-section (2)(a) or (d) and the practitioner has not complied with the determination within the time specified in the determination, the Board may suspend the practitioner's registration until the determination is complied with.

53 In Parr v Nurses Board of Victoria, [1998] 16 VAR 118, at 123, Kellam J (President) considered that the decision as to whether a nurse had engaged in unprofessional conduct of a serious nature must depend on the facts of the case. His Honour continued:

Clearly such conduct would not be serious if it was trivial, or of momentary effect only at the time of the commission or omission by which the conduct was so defined. It must be a departure, in a substantial manner, from the standards which might be reasonably expected of a registered nurse. The departure from such standards must be blameworthy and deserving of more than passing censure.

54 In Domburg v Nurses Board of Victoria [2000] VSC 369 at [59], Ashley J noted that the analysis by Kellam J referred to in the previous paragraph was an "accurate and useful guide to the application of that legislation".

55 Persistence in unprofessional conduct is a factor to be taken into account in determining whether unprofessional conduct is "of a serious nature": Gee v General Medical Council [1987] 1 WLR 564 at 569-570; Felix v General Dental Council [1960] AC 704, 721.

56 In these reasons, I have considered each allegation in the light of the evidence and indicated whether the conduct, if proven, constitutes unprofessional conduct within paragraphs (a) and/or (b) of the definition of unprofessional conduct in s.3(1) of the Act. I then turn to the appropriate determinations under s.45A and consider whether the unprofessional conduct found proven is unprofessional conduct of a serious nature or not of a serious nature.

57 The hearing before me took place over 10 days, and was transcribed. The material tendered by the respondent included the transcript of the hearing before the Board, the Board's reasons for decision, the affidavit material relied upon before the Board, Dr Myers' written response to the charges, and a report of Professor O'Connor dated 28 May 2004. The applicant relied on a number of additional affidavits (from carers Soula Papas and Helen Mylonakos, and from experts Professor Kincaid-Smith and Dr Burrows); a response to the charges by Dr Myers; some unpublished writings of Dr Myers on diagnosis of dementia and the problem of elder abuse; a bundle of articles about humanistic medicine and care of elders in the community; and an extract from the Schedule of Pharmaceutical Benefits effective from 1 November 2003. Counsel for the parties made lengthy oral submissions which were accompanied by detailed written submissions.

58 The following witnesses gave evidence before me: Dr Myers, Mrs B, Ms C, Ms Wilkie-Smith, Dr Jaworowski, Dr Lefkovits, Ms Tremayne (carer), Ms Ball (carer), Ms Papas (carer), Ms Berc (carer), Ms Giannakis (carer), Professor Kincaid-Smith, Professor Burrows, and Professor O'Connor. I found Mrs B and Ms C to be impressive witnesses and caring family members concerned to make decisions in the best interests of Mr A and Mrs A.

Allegation 1(a)(x): Failing to exercise the care and skill of a competent geriatrician by attempting to impose his personal views about the appropriate manner of Mrs A's accommodation and care.

59 In his written response to the charges, Dr Myers denied this allegation and said:

I merely put forward the views of a competent and physically frail person, who communicated her wishes to me.

60 Counsel for Dr Myers submitted that this allegation is defective in that it does not specify the conduct in question or the acts alleged to constitute the conduct. However, pp 16-23 of the submissions on behalf of Dr Myers treat the allegation as "advocating that a patient return home". It was submitted on Dr Myers' behalf that Mrs A expressed the wish to go home, that Mr A wanted her home, that Dr Lefkovits agreed she could go home, and even Ms Wilkie-Smith acknowledged the appropriateness of acceding to her wishes to go home. Furthermore, Mrs A did go home on 15 June 2001.

61 It was submitted that the prolonged stay at the Epworth Hospital was not in Mrs A's best interests because whilst there she became depressed and de-conditioned physically. It was submitted that it was acceptable for medical practitioners to have their own views about medical matters and to advocate those views forcefully. It was submitted that Dr Myers agreed with his patient's wish to go home and in his professional capacity did so because it was in her best interests. It was submitted that there was no imposition or attempted imposition by Dr Myers in relation to the care being given to Mrs A at Epworth Hospital. In this regard, counsel relied on the evidence of Dr Lefkovits that Dr Myers made no changes to treatment of Mrs A while she was in Epworth Hospital, and, although Dr Myers wrote his impressions in the patient's progress notes, he ordered no investigations, did nothing behind Dr Lefkovits' back, acted professionally yet persisted in his view that the right thing to do was to let Mrs A die at home with her husband. Finally, it was submitted, there was no evidence to suggest that the alleged attempted imposition of Dr Myers' personal view was contrary to the interests of Mrs A or to the good practice of medicine, or that it falls within paragraph (a) of the definition of unprofessional conduct in s.3(1) of the Act.

62 Counsel for the respondent submitted that Dr Myers' view about Mrs A's right to return home did not have a clinical basis at all, that it was personally held opinion informed by Dr Myers' philosophical view about the importance of respect for rights of elderly people and religious views about the care of the sick. Counsel referred to Dr Myers' obsessive efforts to have Mrs A discharged to her home, his late night visits to her at Epworth Hospital in April 2001, his participation in and exacerbation of the tense relationship between Mrs A and Mrs B, his refusal to properly assess Mrs A's mental state or to accept that she became incompetent, his failure to raise with her the option of supported accommodation or hospice care (as Dr Jaworowski had done), his attendance at the VCAT hearing on 30 May 2001, his application to be appointed guardian of Mr A, along with the medical papers tendered by Dr Myers and the language used by him in his evidence. Counsel submitted that these matters point to a likelihood that Dr Myers was motivated by a personal commitment to carry out the wishes of his elderly or dying patients, by a philosophical view that the wishes of the elderly are not sufficiently respected, by a conviction that the family were abusive or not caring or making appropriate decisions in relation to Mrs A, and by some kind of personal wish to engage in battle with Mrs B.

63 On the evidence before me, I am satisfied that Dr Myers' decision to advocate relentlessly for Mrs A's discharge home and the manner in which he so single-mindedly advocated for such an outcome was not based on sound clinical judgment about Mrs A's competence to make such decisions, nor on dispassionate assessment of the various options appropriate to be considered. These options must, on the evidence of Dr Lefkovits and Dr Jaworowski, have included hospice care. Dr Myers' advocacy, however, resulted from a number of other factors: his personal views about the care of the elderly, philosophical and religious beliefs, his insistence that cognitive capacity can be found wherever the ability to express wishes is found, his commitment to acting as the mouthpiece for conveying Mrs A's wishes, his personal, yet unsubstantiated belief that the family was abusive, his adoption of Mrs A's hostility toward Mrs B even though it is clear on the evidence that she had been paranoid for some years, and not just in relation to Mrs B.

64 On the issue of Mrs A's competence, I prefer the evidence of Dr Jaworowski, her treating general practitioner for nearly 20 years, to that of Dr Myers. Dr Jaworowski's evidence was to the effect that Mrs A exhibited some paranoid ideation about Mrs B in late 1999, and was mentally mildly confused by 16 April 2000. The Aged Care Assessment in March 2000 recommended low level residential care. By 5 July 2000, Dr Jaworowski said her "longstanding paranoid personality...was getting worse as she became a bit demented." Dr Jaworowski said that in the last few months of her life Mrs A suffered a progressive mental decline in her capacity to make decisions about her own health care.

65 Dr Jaworowski said that one of Mrs A's specialists at the time, Dr Taubman, agreed she was paranoid, and that by early 2000 Dr Jaworowski's view that that she had a personality disorder as well as a deterioration in cognition, and was paranoid in relation to the way she viewed the universe, different people who came into her life including the carers, the cleaners and the daughter in-law. Such was his concern that in early 2000 Dr Jaworowski prescribed anti-psychotic medication to treat her paranoia. He considered that the medication made her calmer. By April 2001, when he saw Mrs A, he also referred to the paranoid ideations suffered by Mrs A. In late April 2001, Dr Hum found it difficult to engage Mrs A in a decision-making process, finding that she had poor insight into what had happened, and was suffering from cognitive decline

66 It is clear on the medical evidence before me that Mrs A's paranoia and cognitive decline persisted until she died. Even Dr Myers conceded that the essence of a dementing illness, regardless of its aetiology, is its progressive nature, and that Mrs A, shortly prior to her death, was much more impaired cognitively than she had been a few years earlier. However, Dr Myers insisted that Mrs A never suffered from paranoia, and that her "mind was clear until she died". I prefer the evidence of Dr Lefkovits that Mrs A was competent until approximately 2 weeks before she died. This is consistent with the decision of the Tribunal in the Guardianship List on 31 May 2001 that Mrs A lacked the capacity to make reasonable decisions about her health care, accommodation and financial affairs, and therefore required a guardian and administrator.

67 I am therefore satisfied that Mrs A lacked the capacity to make decisions about her health care and accommodation at least during the last few weeks of her stay at Epworth Hospital. However, I also find that it was clear to all who had dealings with her that Mrs A's express wish was to be at home. The existence of such a wish is a matter to which any person, clinician, or family member, would have been obliged to pay significant regard, and to weigh up in determining the appropriateness of a return home in the circumstances of Mrs A's terminal condition, along with other factors including the family matrix, and the conditions to which she would be returning if discharged home.

68 Indeed, it is clear from Dr Lefkovits' concerns expressed around 21 May 2001, that the major issue concerning a discharge to home was the appropriateness of the facilities in place at home to cope with the needs of a terminally ill patient very close to the end of her life. Those concerns were shared by Mrs B, and Ms C. The need to ensure that appropriate arrangements were in place at home was fundamental to the viability of a discharge to home. Dr Myers appeared to downplay those concerns because of a wish to fulfil a promise to Mrs A that she would go home, even though the care system in place at the home consisted of untrained carers for Mr A who would presumably care for Mrs A too.

69 Before the Board, Dr Lefkovits and Dr Jaworowski expressed reservations about Dr Myers' conduct in that he appeared to have more than a medical interest in the matter. Before me, Professor Kincaid-Smith said that in circumstances where the treating doctor, Dr Lefkovits, was concerned about the conditions at home and had not agreed to discharge to home until he was satisfied of the appropriateness of the conditions to which Mrs A would return home, in terms of providing the 24 hour care needed to minimise skin excoriation, maintain hydration, provide pain relief, and prevent pressure sores, there should be no discharge home. Professor Kincaid-Smith said that it would be unprofessional to represent oneself as the treating doctor in order to secure that end.

70 Dr Burrows said at the hearing before me that his view concerning Dr Myers' advocacy of a discharge to home for Mrs A was based on Dr Myers' assertion that Dr Lefkovits had formed the view that she could go home and that it was in her interest to do so, and that Mrs A was competent to appoint her own doctor. Dr Burrows said Dr Myers told him he believed that as a result of his discussion with Dr Lefkovits that there was clearance for Mrs A to be discharged. However, Dr Burrows agreed that if the situation was that Dr Lefkovits refused to discharge Mrs A because he was not satisfied of the safety of arrangements at home, perseverance by Dr Myers in pursuing discharge of Mrs A would be excessive and unacceptable.

71 Professor O'Connor said in his report dated 28 May 2004 that in his opinion Dr Myers sought to impose his views regarding the treatment, care and accommodation of both Mrs A and Mr A on Mrs B and other professional advisers prior to Mrs A's death in a "bullying fashion". In particular, he said that Dr Myers had insisted that Mrs A be discharged before her adequate care at home was ensured.

72 I consider, on the material before me, that the imposition by Dr Myers of his personal view concerning the appropriateness of discharge to home for Mrs A falls within paragraphs (a) and (b) of the definition of unprofessional conduct in s.3(1) of the Act. I consider the balance of the expert evidence supports the conclusion that Dr Myers's conduct was of a lesser standard than that which might be expected by his peers; and I consider that this conduct is of a lesser standard than that which the public might reasonably expect of a doctor.

Allegation 1(a)(xi) and (xv): Failing to exercise the care and skill of a competent geriatrician in that he behaved in a manner which was destructive of the relationship between Mrs A and her family and of the relationship between Mr A and his family.

73 In his written response to the charges, Dr Myers denies these allegations. Instead, he said that it was because of him alone and the arrangements made by him, against the opposition of Mrs B, that Mr A and Mrs A were able to remain in their own home for the 14 months prior to Mrs A's hospitalisation at Epworth Hospital. Further, he alleged that Mrs B sought to separate them. He also said:

...The board need to be informed that I had no trouble with Mrs B. She was not a party to either Mr or Mrs A seniors' care.

74 It was submitted by Dr Myers' counsel that the allegation was defective in not specifying some conduct which was lacking in professional care and skill because it had the effect of destroying a family relationship. It was submitted there was no evidence that Mrs A or Mr A thought any worse of any family member because of anything done by Dr Myers. In particular, it was submitted, the relationship between Mrs A and Mrs B was one of antipathy prior to Dr Myers' involvement, but could not have said to have worsened as a result of his involvement because Mrs A sought forgiveness from Mrs B before she died. It was submitted that the genesis of the case before the Board was Mrs B's vindictiveness resulting from her failure to get her way in relation to decisions concerning her parents in-law. It was submitted that Dr Myers' obligation was to his patients, and not other family members.

75 It was submitted on behalf of the respondent that Dr Myers behaved in a manner which on any reasonable view could only have been destructive of the relationships Mrs A and Mr A had with their family. A number of aspects of Dr Myers' conduct were said to support this conclusion, including:

* His views that Mrs B and Mr B were abusive, neglectful and motivated by financial gain; and therefore that he should act as advocate for Mrs A and Mr A;

* His encouragement of their dependence on him alone; for example, feeding Mrs A at Epworth Hospital; visiting her at home on the day before her death and changing medication prescribed by Dr Lefkovits and Dr Jaworowski; attending Mrs A at Epworth Hospital to explain things that Dr Lefkovits had already explained; helping Mr A from Ms C's car to the chapel at Mrs A's funeral;

* His belief that the family and social worker at Epworth Hospital were colluding to ensure that the family or Mrs B decided where Mrs A went and that the decision, if made by them, would be that she not go home;

* His involvement in the revocations by Mr A of the power of attorney in favour of Mrs B, and in favour of Mrs B and Mr B;

* His conduct towards family members in taking Mr A out on 25 May 2001 without consulting or notifying them; in his attitude towards Ms C at the VCAT hearing on 30 May 2001; his attitude towards them when visiting the home of Mrs A and Mr A on 15 and 16 June; his conduct towards them at the prayers on 17 June.

76 I accept that Mrs B and Mrs A had a poor relationship. However, I find on the material before me that Mrs B clearly recognised the desire of Mrs A and Mr A to remain together, preferably at home, and was prepared, along with other family members, to consider that option, along with other options of supported accommodation, both at the time that Mrs A went home from Elsternwick Private Hospital, and during May and June 2001 when she was at Epworth Hospital.

77 I consider that Dr Myers deliberately ignored or refused to consider the wishes or concerns of other family members or to acknowledge their relevance or importance in making decisions in relation to Mr A and Mrs A. I consider that his conduct was destructive of family relationships in that he interposed himself between Mr A and Mrs A as the sole conduit of their wishes and the sole arbiter of their best interests to the exclusion of family members concerned with their wellbeing who had been, prior to Dr Myers' intervention, the constellation which provided the necessary support to them at home. Dr Myers took a position that the only family he needed to consider were the patients he was treating, and then acted in relation to those patients as though he were their advocate, agent, friend, or devoted family member. He treated the other family members, particularly Mrs B, as though they did not have the best interests of Mr A and Mrs A at heart, but as adversaries. This was also destructive of the family relationships involved in that it introduced tension, contention and disagreement into many aspects of their treatment and care which might have been avoided through a more insightful, respectful and collaborative approach from Dr Myers. On the material before me, I consider Dr Myers' approach to the family of Mrs A and Mr A was dismissive, hostile, and arrogant. He portrayed himself as the agent, protector, friend, family substitute, and doctor of Mr A and Mrs A to the complete exclusion of the family. His evidence was to the effect that the only "family" he was concerned with were his two patients, and he had no need to consider anybody else in taking the actions he took in his various roles to do what he felt was necessary.

78 I therefore find this allegation proven. Professor Kincaid-Smith and Dr Burrows agreed that where patients cannot care for themselves, and their families have been providing support or care for them at home, it is a doctor's duty to work in a partnership with the family and care providers collaboratively, and that it was inconsistent with this duty for a doctor to participate in family disputes as if he or she were a family member or to exacerbate family tension for no good reason. Professor O'Connor said he felt Dr Myers failed to recognise the key role of family carers in the care of older persons with complex psychiatric, medical, family, accommodation and legal issues. I agree with that assessment, and consider that Dr Myers' conduct constitutes unprofessional conduct within the terms of paragraphs (a) and (b) of the definition of unprofessional conduct in s.3(1) of the Act.

Allegation 1(b): Acting or seeking to act as the medical practitioner of Mrs A when she was in Epworth Hospital, in circumstances where Dr Myers knew or ought to have known that he did not have the authority to do so because the family of Mrs A had appointed Dr Lefkovits as her doctor; in that: (i) he attended on Mrs A for consultations on 15, 16, 20, 22, 24 and 25 April 2001, and 3, 4, 6, 20, 21, 22 and 27 May 2001; and Allegation 1(j): he improperly charged for those attendances.

79 In his written response to the charges, Dr Myers said that Mrs A requested that he continue to be her treating doctor in hospital; that Dr Lefkovits had no problem with his continuing to visit her in Epworth Hospital; that they agreed on her medical management or treatment; and that Dr Lefkovits took no issue with the entries made by Dr Myers in Mrs A's progress notes.

80 It was submitted by counsel for the applicant that these charges are duplicitous. It was also submitted that family members did not appoint Dr Lefkovits, who was allocated under the hospital's rotation system as the doctor on call. It was submitted that Mrs A had originally engaged Dr Myers, had sufficient capacity to continue his engagement, and did not terminate his services in this regard. Finally, it was submitted, the bills in respect of these attendances were paid, and the complaint to the Health Insurance Commission about the attendances was dismissed following investigation. It was submitted that allegations (b)(i) and (j)(i) should be dismissed.

81 It was submitted on behalf of the respondent that although Dr Myers had accreditation at the Epworth Hospital, he agreed upon Mrs A's admission that she should be admitted under the bed-card of Dr Lefkovits. It was submitted that by the time of Mrs A's admission on 13 April 2001 she was not competent to chose him as her doctor. On this basis, it was submitted, it was inappropriate for Dr Myers to attend, and to charge for attendances made without authority. It was submitted that this conduct was unprofessional conduct of a serious kind.

82 The evidence suggests that Dr Lefkovits welcomed any input from Dr Myers in a general sense, but did not ask him to treat Mrs A, or to assist him in the treatment of Mrs A, or to continue managing her care. Dr Lefkovits said Mrs A was admitted under his bed-card only, and he did not formally welcome him to assist him with Mrs A. He considered it was inappropriate for Dr Myers to be writing notes in the patient's hospital records, and found it very unusual that Dr Myers visited Mrs A late at night on two occasions. However, he did not consider that it was inappropriate for Dr Myers to continue to provide Mrs A with comfort and support by visiting her at Epworth Hospital if she wanted him to attend.

83 Dr Myers agreed at the hearing before the Board that he was not Mrs A's treating doctor while she was in Epworth Hospital. The evidence also establishes that Dr Myers knew that for a long while prior to May 2001 Mrs B and Ms C did not want him to treat Mrs A and that this was reinforced by them at the hearing on the 31 May 2001, when they were appointed guardians to make health care and accommodation decisions for Mrs A.

84 Dr Jaworowski said that when he referred Mrs A to Dr Myers after her stay at Elsternwick Private Hospital, he did not use the words "ongoing indefinite care" which are required for a permanent referral, but that he would have been happy for Dr Myers' assistance to be ongoing. However, Dr Jaworowski said when Mrs A was admitted to Epworth Hospital he understood she was being treated by a different specialist there. He did not know that Dr Myers had visiting rights there, and mentioned her admission to Dr Myers as a professional courtesy. He did not invite Dr Myers to visit Mrs A at Epworth Hospital. Dr Jaworowski said that Mrs B told him about a legal order and asked him not to refer Mrs A to Dr Myers. He said this occurred while Mrs A was at Epworth Hospital and could have been after 30 May 2001. Dr Jaworowski said he did not convey this to Dr Myers. Dr Lefkovits said he did not know that Dr Myers was an accredited specialist at the hospital and that, if he had known that Dr Myers was attending in such a capacity, he would have offered to hand over the management of Mrs A to Dr Myers.

85 Professor Kincaid-Smith said that while Mrs A remained competent in Epworth Hospital to make health care decisions, it was appropriate for Dr Myers to continue attending her there, and to charge for those attendances, if she wished him to do so. However, if she was incompetent to make decisions concerning her medical treatment or care, and the family wanted her to be treated by Dr Lefkovits, it would probably not be appropriate for Dr Myers to continue attending her in hospital.

86 Dr Burrows said that visits by Dr Myers to Mrs A in circumstances where she was incompetent, and being treated by another specialist, could still be regarded as appropriate if she wanted him there and he was being supportive. Ideally, Dr Burrows said, such visits should not upset the family and should not undermine the family's trust in the doctor.

87 I have already found that approximately 2 weeks prior to her discharge from Epworth Hospital, and at least by 30 May 2001, Mrs A was no longer competent to make reasonable decisions about her health care and accommodation. Up till that time, she may have still had the capacity to engage Dr Myers or to request him to attend. Even without the capacity to engage him as her physician, she may have been capable of expressing her wish that he continue to visit her at Epworth Hospital. All the attendances in question predate the date when I have found Mrs A had lost capacity. There is no evidence while in the Epworth Hospital Mrs A expressly engaged Dr Myers' services. But she was a dying woman, and may have found it quite natural that the physician who had attended her at home was continuing to do so in hospital, even though he was not attending her to provide medical treatment and was not her treating doctor in the hospital.

88 Dr Myers' case was conducted on the basis that he did not attend the Epworth Hospital for the purposes of giving treatment to Mrs A. I accept that Dr Myers believed he had authority to visit Mrs A at Epworth Hospital, at least as a non-treating physician in the context of providing continuity of support, until 30 May 2001. He also had visiting rights at Epworth Hospital as a physician. Dr Lefkovits did not have concerns about Dr Myers visiting her, other than the unusual timing of a number of those visits. Dr Lefkovits felt it was inappropriate for Dr Myers to charge Mrs A for attendances made for purposes other than medical treatment.

89 Since all but one of the attendances in question predate the complete loss of capacity by Mrs A to make decisions concerning her health care, I am not satisfied in all the circumstances that Dr Myers lacked authority to continuing to visit her at Epworth Hospital in April and May up to 27 May 2001. For the same reason, I am not satisfied that he was not entitled to charge for those attendances. I therefore dismiss allegation 1(b)(i) and allegation 1(j)(i) insofar as it relates to all the attendances other than the attendance of 15 June 2001, which is dealt with below.

Allegation 1(c): Dr Myers acted or sought to act as Mrs A's medical practitioner in circumstances where he knew or ought to have known that he did not have authority to do so because he had been instructed by Mrs A's guardians that he was not to act as her medical practitioner, in that he attended on Mrs A at her home on 15 June 2001 and provided medical treatment and prescribed medication.

Allegation 1(j)(i): Dr Myers improperly charged for the provision of medical services to Mrs A on 15 June 2001 when he knew or ought to have known that he did not have authority to provide medical services to Mrs A.

90 The circumstances of Dr Myers' attendance at her home on 15 June 2001 were unusual. On 30 May 2001, Mrs B and Ms C had been appointed guardians of Mrs A for the purpose of making decisions concerning health care and accommodation. The guardians had made the necessary arrangements for Mrs A's return home. In particular, they had retained Dr Jaworowski to make the necessary arrangements for medication to be prescribed, which had been done after consultation with the palliative care team at Bethlehem Hospital. However, there was disagreement before me between the family members, Ms Wilkie-Smith and Dr Myers as to what was said by Deputy President Billings after he made his guardianship order at the conclusion of the hearing on 30 May 2001, by way of clarification of that order.

91 Dr Myers said he came away from the hearing with the understanding he could continue to visit Mrs A as both doctor and friend. At the hearing before me, there was no evidence of an express instruction by the guardians to Dr Myers that he not attend Mrs A as her doctor. But Dr Myers agreed he knew even before the hearing on 30 May 2001 that the family did not want him to be involved in the treatment of Mrs A, and he agreed that he did not provide any treatment to her while she was in the Epworth Hospital.

92 Against this background, when Mrs A arrived home on 15 June 2001, the day before she died, one of the carers in attendance phoned Dr Myers. Dr Myers conceded at the hearing before the Board that the carer merely notified him of Mrs A's arrival home, and that he took it upon himself to visit the home. He also conceded that the authority under which he attended Mr and Mrs A's home on 15 June 2001 was 'my own', and that he attended because he was sure 'the family were not caring for the dying person'. I note that this evidence is at odds with Dr Myers' written response to the charges, where he said:

I attended at the patients request and on the 15th June because of the carer's concerns, and who called for me to attend.

93 On the first of his two visits on that day, Dr Myers was present for about 40 minutes. He performed a medical examination of Mrs A. He then telephoned the pharmacist to change the medication prescribed by the doctor treating Mrs A at that time, Dr Jaworowski. During the second visit, he went straight to Mrs A's bedroom and talked to her. He was at her bedside when Mrs B asked him to leave, and he refused. Dr Myers then left when he had finished talking with Mrs B.

94 In his written response to the charges, Dr Myers denied the allegation.

95 At the hearing before me, it emerged that the guardians had not communicated directly with Dr Myers an instruction that he not attend on Mrs A. Moreover, the consensus of the experts called to give evidence was to the effect that it was not unprofessional conduct by Dr Myers to respond from a request by the carer to attend the home, if that is the basis upon which he attended at Mrs A's home.

96 Dr Myers' evidence as to why he made the change to Mrs A's medication was to the effect that he considered that the prescription of Rivotril was inappropriate in that if given in conjunction with morphine would be deleterious to the patient, and he intervened to cancel that prescription, which had been ordered by Dr Jaworowski. Dr Jaworowski gave evidence that it was not uncommon in his relationship with Dr Myers for the latter to change medication Dr Jaworowski had prescribed, and that ordinarily this would be followed by some communication by Dr Myers that such a change had been made.

97 I find on the evidence before me that the general practitioner, Dr Jaworowski, had resumed the care of Mrs A upon her discharge from Epworth Hospital, and that Mrs B had requested Dr Jaworowski not to refer Mr A and Mrs A to Dr Myers, but that Dr Jaworowski did not tell Dr Myers this. I also find that Dr Myers did not consult, or obtain the consent of Mrs A's health care guardians prior to visiting the home or telephoning the pharmacist. Professor Kincaid-Smith said the appropriate conduct in the circumstances would have been for Dr Myers to ring Dr Jaworowski, or even, if he believed that taking the medication would be deleterious, to withhold or remove the medication until he had spoken to the doctor. She said he should not have cancelled the prescription. She agreed the cancellation of the prescription could be an error of judgment rather than unprofessional conduct. Professor Burrows said it would have been 'good public relations' to have communicated with Dr Jaworowski before making the change, but that Dr Myers' conduct was not unprofessional.

98 I found Dr Myers' evidence in relation to his attendances on this day somewhat unsatisfactory. He said at the hearing before me that one of the carers rang him to say she could not cope, and he felt compelled to attend. Yet he also said that he took it upon himself to visit and that the carer merely notified him of Mrs A's arrival home. Dr Myers agreed that there was at least one registered nurse in attendance when he arrived, and that he did not speak to the nurse before examining the patient. Nor is there any evidence as to what the carer's precise concerns were. Ms Giannakis, a carer who was present when Mrs A returned home, did not mention telephoning Dr Myers in her affidavit. She said she was worried that the heating was not working when Mrs A came home, and the room was cold. Given the appointment of the guardians to make decisions concerning health care and accommodation of Mrs A, it would have been appropriate for them to be consulted or informed of any proposed visit by Dr Myers, given the background to their relationship and Dr Myers' concession that he knew that they did not want him to treat Mrs A. However, to the extent that there was some uncertainty as to the basis upon which, in the light of the Guardianship hearing, Dr Myers could attend Mrs A, I do not consider that his attendances on 15 June 2001 constitute unprofessional conduct. I have greater reservations about his conduct in changing medication, and consider that it was a serious error of judgment on his part to make that change when other actions (such as merely withholding the medication, and ringing Dr Jaworowski) were clearly available to him. On balance, however, in the light of the expert evidence before me, I do not consider that this conduct constitutes unprofessional conduct. It follows that Dr Myers' conduct in charging for the attendances on that day does not constitute unprofessional conduct.

99 For these reasons, allegation 1(c) and allegation 1(j)(i) concerning the attendance on 15 June 2001 are dismissed.

Allegation 1(b)(iv): Acting, or seeking to act as the medical practitioner of Mrs A when she was in Epworth Hospital in circumstances where Dr Myers knew or ought to have known that he did not have the authority to do so because Dr Lefkovits was the doctor appointed by the family, in that on 22 May 2001 Dr Myers ordered staff of the Epworth Hospital to discharge Mrs A

100 In his written response, Dr Myers said of the allegation concerning the events of 22 May 2001:

Denied. Dr Lefkowitz told me over the phone he was in agreement she could go home then, and I said to him "you tell the nurse" and handed over the phone to her. The social worker then arrived on the scene and heard me saying Mrs A is going home, and construed it as my directive, because she was not privy to the prior ongoing conversation. The medical board, (Mr Johnson in addressing Ms Wilkie-Smith) in particular stated there was no agreement between myself and Dr Lefkowitz, which is absolute nonsense, and does not concur with Dr Lefkowitz; own evidence, who stated at no time did I interfere with his medical treatment, which includes discharge of the patient.

101 It is clear on the evidence that Dr Myers knew that Dr Lefkovits was the treating doctor, the bed-card doctor, and the doctor authorised to discharge Mrs A from Epworth Hospital.

102 At the hearing before me, Dr Myers said (at p.638 of the transcript) that he did not order the nursing staff to discharge Mrs A. He said he had "a discussion from the ward with Dr Lefkovits" in which Dr Lefkovits told him Mrs A could be discharged, and Dr Myers told Dr Lefkovits to communicate that to the nurses. Dr Myers said that he handed the phone to a nurse, who spoke to Dr Lefkovits , but that he did not know what was said in that conversation. Dr Myers then said in his evidence (at p.639):

The indication I got from the nurse or the sister who had spoken to him was that that's what he had said to her, that Mrs A was going to go home and I guess we were at that point when the social worker came down and said she wasn't.

103 Dr Myers' account of his conversation with the social worker, Ms Wilkie-Smith (at pp 639 and 640), was as follows:

Well, I was standing with Mr A . He was next to me and Ms Wilkie-Smith was more or less opposite me, and I was holding a manilla folder with the revocation order in it, and I said, you know, "What are out doing? Why? - Look, I don't recall the exact words but essentially that she had basically come and kyboshed what Dr Lefkovits and I had just discussed, which obviously she wasn't privy to that, and she would have thought I was discharging the patient and I said to her. "How can you not discharge the patient now? I mean - and said to her, "Look if she doesn't go home" - and we had some call - we moved through the ward to a different place slightly within the ward and there were calls from the Office of the Public Advocate and I spoke to Sue Spence and we discussed the situation and there was going to be - I didn't know that there was going to be a VCAT hearing, that an application had been put for an urgent hearing. But nevertheless the fact was that I said to her, "Look, you know, if she doesn't go home now she's going to have no quality of life at home. Her condition is just deteriorating and it will be too late. You know, that's it. You know, you're stopping something which if you don't do it now when will you have the time to do it? It will just - it's not going to happen". VCAT hearings don't take two seconds to organise. There was going to be a few days' delay.

104 In his affidavit, Dr Lefkovits said at paragraphs 13-16, that he recalled a conversation in which Dr Myers requested that Mrs A be discharged. Dr Lefkovits said:

...This was a reasonable request for Dr Myers to make. However, I had made a commitment to Mrs [A] that she would be provided with sound and adequate care during her final months. I said to Dr Myers that if he could guarantee to me that Mrs [A] would be given adequate care then she could be discharged to go home to live with her husband.

Dr Myers did not have the power to discharge the patient. However, I think it was the day after the telephone conversation referred to in the paragraph immediately above, that I was telephoned by one of the nurses to tell me that they had been directed by Dr Myers to discharge the patient. I told them that there was no way that the patient was going anywhere. It was inappropriate for Dr Myers to give a direction to a nurse that the patient should be discharged as he did not have the authority to do this. I believe this incident of Dr Myers attempting to discharge Mrs [A] was recorded in the hospital records by another hospital staff member on 22 May 2001.

After this incident, Dr Myers assured me during a telephone conversation that the two carers that he had arranged to look after the patient and her husband were both very competent and would provide good support. I therefore set up meeting with two of the carers. I did not make a note of the meetings in the hospital records or patient notes. It is not normal for me to meet with a carer, but I felt that there was something not quite right about Dr Myers' assurances about the carers. His interest simply did not gel. It did not feel right. I thought that he may possibly be trying to work his way into the will. He was intensely preoccupied with getting the patient home.

At the meeting with the carers, it became apparent that at least one of them was not confident about caring for the patient and her husband. One of them said to me she did not feel equipped to look after Mrs [A]. I felt that Dr Myers had misrepresented to me the ability of the carers to adequately look after Mrs [A] and her husband.

I then pushed for the matter of Mrs [A]'s guardianship to be sorted out so it could be determined where she would receive care after she left Epworth Hospital. I insisted the Guardianship Board be involved to sort out Mrs [A]'s care. I refer to my note about Mrs [A] in the hospital records of 24 May 2001, where I wrote, 'Peaceful. Waiting instructions from guardianship board re further plan. Continue all nursing care. I will review as previously.'

105 Dr Lefkovits' note dated 21 May 2001 in the hospital records of Mrs A has been referred to above. In that note, he said, inter alia: "I am happy for her to go home or Bethlehem depending on family's final decision."

106 At the hearing before me, Dr Lefkovits said he did not instruct any nurse over the telephone on 22 May to discharge Mrs A, as by then he had discussions with the social work department and was happy to continue the necessary care in hospital till the guardianship issues were clarified.

107 Ms Wilkie-Smith's evidence was to the effect that on 21 May she spoke to Dr Myers and he insisted that if the doctors were in agreement, Mrs A should be sent home. Ms Wilkie-Smith sought advice from the Office of the Public Advocate and advised Dr Myers that no discharge would occur until the legal process was clarified. On 22 May, she arrived at the ward and saw Dr Myers telling agency staff to organise an ambulance to take Mrs A home. Ms Wilkie-Smith told Dr Myers that discharge was not appropriate until the legal position was clarified.

108 The evidence of Dr Lefkovits was to the effect that Mrs A should not be discharged until appropriate arrangements had been made for her care either at home or at Bethlehem Hospital. He was not satisfied that these arrangements were in place until 15 June 2001 when she was discharged.

109 There was no direct evidence from any of the nursing staff that Dr Myers ordered them to discharge Mrs A. However, I accept the evidence of Ms Wilkie-Smith that when she arrived at the ward she observed Dr Myers telling agency staff to arrange an ambulance to take Mrs A home.

110 I therefore find on the evidence that Dr Myers ordered staff at the Epworth Hospital to discharge Mrs A on 22 May 2001. I do not accept Dr Myers' evidence that he did not direct the discharge but requested it to implement Dr Lefkovits's agreement that she could be discharged. I accept Dr Lefkovits's evidence in relation to his conversations with Dr Myers over Dr Myers' accounts of those conversations. In particular, I note and accept the denial by Dr Lefkovits that on 22 May 2001 he directed nursing staff over the phone to discharge Mrs A.

111 I found Dr Myers' evidence in relation to this matter unsatisfactory.

112 Having found this allegation made out, I also consider that it constitutes unprofessional conduct within paragraphs (a) and (b) of the definition of unprofessional conduct in s.3(1) of the Act.

Allegation 1(h): inappropriate communications with other persons providing health services to Mrs A; in that:

(ii):Dr Myers made numerous telephone calls to Dr Lefkovits between 15 April and 15 June 2001 and applied unrelenting pressure on him to discharge Mrs A to home.

113 On 16 May 2001, Dr Lefkovits recorded in the hospital notes that "Dr Myers is out of control", and said that Dr Myers appeared desperate to get Mrs A home and this seemed strange to Dr Lefkovits. On 21 May 2001 Dr Lefkovits recorded his view in Mrs A's hospital notes that Dr Myers was continuing to apply "unrelenting pressure re discharge to home". The evidence of Dr Lefkovits is that he was not assisted by this persistence, and was concerned at the "constant pressure for her to go home both directed at the nursing staff and at myself."

114 Dr Myers' evidence was that he persistently contacted Dr Lefkovits to advocate for Mrs A's return home.

115 Dr Lefkovits' view of Dr Myers' approach was expressed at paragraphs 21 to 25 of his affidavit. Whilst he found Dr Myers' conduct in relation to Mrs A sometimes "less than optimal", he indicated that nothing Dr Myers did compromised her health. He noted that Dr Myers had "a very one dimensional approach to her situation", but that ultimately he believed Dr Myers was trying to do what Mr A and Mrs A wanted. Dr Lefkovits said he tried to support the nursing staff in the face of Dr Myers' "pressing demeanour". He said it was not appropriate for Dr Myers to write in the patient's records, as he was not the treating doctor in hospital. He did not speak to Dr Myers about this.

116 Dr Burrows and Professor Kincaid-Smith did not consider that it was unprofessional conduct for an external doctor to persistently or even forcefully advocate for a patient's discharge to home. Professor O'Connor's concerns related to the manner of the persistence and to the implications of such persistence for the objectivity of the doctor and his or her capacity to maintain appropriate focus on the clinical role.

117 It may well be that the mere acts of persistent advocacy by a doctor of a patient's wishes to go home, ought to be viewed as constituting unprofessional conduct. However, in this case, the factual matrix is more complex. Much of the material which makes it more complex has been canvassed above in the context of allegation 1(a)(x), a broader allegation which I have found proven and which I have found to constitute unprofessional conduct within paragraphs (a) and (b) of the definition of unprofessional conduct in s.3(1) of the Act. I do not consider it appropriate to make a separate finding of unprofessional conduct on the issue of mere persistent advocacy by Dr Myers to Dr Lefkovits for a discharge to home. I therefore dismiss this allegation.

Allegation 1(h)(iv): Dr Myers engaged in inappropriate communications with other persons providing health services to Mrs A in that, on several occasions on 21 and 22 May 2001, he insisted to Ms Wilkie-Smith that Mrs A should be discharged from hospital to home when he did not have the authority to discharge Mrs A.

118 In his written response to the charges, Dr Myers denied discharging Mrs A patient or instructing anyone to discharge her, but also said:

I said that she could be discharged home and that was what Mrs [A] wanted.

119 I do not accept the submission made on his behalf that Dr Myers was merely the conduit on the floor at the hospital on 22 May 2001 to convey to the ward Dr Lefkovits' approval on that day of a discharge to home of Mrs A. On the evidence before me, I find that no such approval was given by Dr Lefkovits. Before me, Dr Myers insisted that the note by Dr Lefkovits on 21 May 2001 in Mrs A's hospital records was one of the indicators that Dr Lefkovits had approved a discharge to home on 22 May. I do not accept that this was so. Nor did I accept Dr Myers' evidence that Dr Lefkovits told him over the phone on 22 May 2001 that Mrs A could go home that day or the next day. On this basis, I consider it a matter of considerable concern that Dr Myers should directly intervene with the social worker to press for a discharge of Dr Lefkovits' patient, because, on the evidence, Dr Myers was not treating Mrs A and did not have authority to give directions about her health care or discharge; Dr Lefkovits, strongly disapproved of discharge for the patient; and it was clear that any return home would require proper nursing support.

120 I consider Dr Myers' conduct in relation to Ms Wilkie-Smith on 21 May and 22 May 2001 constitutes unprofessional conduct within the terms of paragraphs (a) and (b) of the definition of unprofessional conduct in s.(3)(1) of the Act.

Allegation 1(h)(iii):Dr Myers misrepresented to Dr Lefkovits that the paid carers of Mrs A were competent to care for her at home when Dr Myers knew or ought to have known that this was not the case.

121 On 22 April 2001, Dr Myers wrote in Mrs A's hospital notes:

Mrs A has support at home. ....If Mrs A cannot manage with help then alternative arrangements may have to be made...

IF THERE IS NO FURTHER MEDICAL REASON FOR HER - Mrs A to be here she requests to go home and I will take over and arrange help & ACAS/palliative care from there....

122 By around 24 April 2001, Dr Lefkovits wrote in Mrs A's medical notes that she could be discharged to home after recovering from the procedure of pleural drainage to occur on 26 April. At that point, it was agreed by family members and the hospital treating team that an aged care assessment would be undertaken to assist with planning issue around the discharge. The assessment concluded that high level care was needed by Mrs A. The family agreed.

123 The carers in place at the home of Mr A and Mrs A prior to her admission to Epworth Hospital were untrained carers, who were present from 8 am to 8 pm, cooking, cleaning and assisting Mr and Mrs A with their personal care needs. While Mrs A was in Epworth Hospital, at least one carer continued to provide the relevant care at home to Mr A.

124 Dr Lefkovits said that Dr Myers told him a number of times after 24 April that Mrs A had carers and should go home. Dr Lefkovits said he took at face value the assurances given by Dr Myers that such carers were appropriately trained to manage a dying patient requiring 24 hour nursing care. At paragraph 15-16 of his affidavit (which is cited in full at paragraph 104 above), Dr Lefkovits gave an account of his concerns about the carers referred to by Dr Myers as being in a position to care for Mrs A when she went home. At the hearing, Dr Lefkovits said that in the last 3 weeks of her life, Mrs A was dying, not eating or drinking or responding to her husband. Dr Lefkovits understood that she wanted to go home and felt this could be achieved provided 24 hour nursing care was available to provide pain relief, prevention of bedsores, appropriate hygiene and comfort. Dr Myers conceded at the hearing that placement in a hospice was a reasonable option at the time of Mrs A's discharge on 15 June 2001.

125 Dr Lefkovits gave evidence that some time before Mrs A was discharged on 15 June he interviewed two of the paid carers who would be caring for her at home. He said that one of them cried and said she was unable to cope with Mrs A's needs. Ms Giannakis, one of the carers who was present at the home of Mr A and Mrs A when Mrs A was discharged, said she had no nursing training. She could not recall meeting Dr Lefkovits or being interviewed by him but agreed she did not want to handle oxygen without being instructed about it.

126 The evidence concerning the measures taken to provide necessary facilities at home for Mrs A includes evidence that nursing staff were to be engaged. One of the reasons that it took from 31 May and 15 June to send Mrs A home was the need to engage appropriate nursing staff, and there was some difficulty in this regard due to a shortage of agency nurses.

127 Dr Lefkovits believed that Dr Myers had misrepresented the quality of the care available to Mrs A upon discharge, because of the concern raised by one of the carers when he interviewed her shortly before Mrs A's discharge, about her capacity to provide the kind of care now needed by Mrs A. It was submitted on Dr Myers' behalf that his belief about the adequacy of the carers was a reasonable one based on their having cared for the couple in the 14 months prior to Mrs A's admission to Epworth Hospital.

128 I accept that Dr Myers believed that pre-existing carers had been adequate to care for Mrs A prior to her hospitalisation at Epworth Hospital, and I accept he may have had a genuine belief in the capacity of those carers to provide end-of-life care to Mrs A, and that he did not actually know that at least one of the carers did not consider herself up to the task. Dr Myers' reliance on the adequacy of pre-admission care provided to Mrs A suggests that Dr Myers did not appropriately reassess his view of the adequacy of carers in the light of the considerable deterioration in Mrs A's condition since her admission to Epworth Hospital, and the view of Dr Lefkovits and others that 24 nursing care at home was required. In my opinion, he ought to have known better. His judgment on this issue may have been driven more by his desire to influence the timing of Mrs A's discharge than by his obligation as a clinician to dispassionately assess the relevant circumstances around the time of that discharge. I do not consider that Dr Myers' belief about the adequacy of carers was a reasonable one in the circumstances in which Mrs A found herself on 15 June 2001, particularly in the light of Dr Lefkovits' detailed evidence as to the kind of care that was needed.

129 I find the allegation proven. I also find that the conduct constitutes unprofessional conduct within the terms of paragraphs (a) and (b) of the definition of unprofessional conduct in s.3(1) of the Act.

130 This issue is relevant to consideration of Dr Myers' conduct in relation to Mr A.

131 The evidence before me is to the effect that by mid-March 2000, when Dr Myers first met Mr A, Dr Jaworowski, who had been treating Mr A since 1982, had assessed Mr A as suffering moderate dementia. Dr Jaworowski 's opinion, as set out in paragraph 12 of his affidavit, was to the effect that from this time, Mr A suffered a progressive decline in his cognitive functioning, with confusion, poor memory and poor orientation. He also had difficulties caring for himself, progressive muscular weakness with difficulties getting up from a chair or a bed. He also developed poor vision and vascular disease in his feet. A detailed assessment of Mr A conducted by Dr Jaworowski on 31 March 2000 concluded that Mr A had "moderately advanced confusion", with a mental status score of 3 out of 18.

132 By 23 March 2000, the opinion of the Caulfield Aged Care Assessment Service, which had been requested by Dr Jaworowski, was that Mr A required respite and low level permanent residential care. The assessment noted his cognitive state as "very bad", with "poor short term memory", confusion and disorientation as to time and place, and an inability to remember conversations of an hour before.

133 Mrs B gave evidence that when she cared for Mr A between March and May 2000, while Mrs A was in Elsternwick hospital, Mr A could not prepare tea for himself, or distinguish hot from cold water in the shower. On one occasion, Mr A wandered from his home and was found six hours later some kilometres away, after police had been called. On his walk, Mr A had collected people's mail along the way.

134 In April 2001, Dr Lefkovits met Mr A when Mrs A was admitted to Epworth Hospital. Dr Lefkovits' opinion, after a number of conversations with Mr A, was that he was incompetent.

135 A further assessment on 7 June 2001 by Dr Srikanth, geriatrician for the Caulfied Aged Care Assessment Service, found that Mr A was "incompetent in regard to finances" and that "his dementia may impact on his ability to make lifestyle decisions". Dr Srikanth's report to Dr Jaworowski was that Mr A had:

....markedly impaired short-term memory, markedly impaired orientation to time especially,... no idea about his assets or income ... no understanding of the terms of enduring power of attorney or administration orders, and cannot remember details of a recently revoked enduring power of attorney,...had moderately severe dementing disorder which was ..clearly impacting on his ability to understand the nature of his financial worth and make any sensible decisions with regard to his finances.

136 All of the evidence, including that of Dr Myers, was to the effect that Mr A's short-term memory was very poor. However, Dr Myers' opinion as expressed before the Board was that Mr A was competent, able to be at home with the support of carers, and that his "mild form of dementia" did not decline and "probably stayed pretty much the same" during the time Dr Myers treated him. Dr Myers' case was run on the basis of Dr Myers' view that Mr A was competent to care for himself with little assistance. In addition, Dr Myers did not accept that Mr A's cognitive decline was progressive, although there is no evidence of any full medical assessment by Dr Myers of Mr A's cognitive state.

137 I consider that Dr Myers' evidence about Mr A's mental state is unreliable, for a number of reasons. It was not based on a full assessment, such as that conducted in June 2001 by Dr Srikanth. It appears to be influenced by Dr Myers' personal and philosophical view that an expression of wishes is an indicator of competence, a view which he expounded in some of the tendered material and which has not been the subject of peer review by the profession. It is stands at odds with the assessment of Dr Jaworowski, a practitioner who had treated Mr A for nearly 20 years and who was in a prime position to observe and comment upon the process of, and extent of, his cognitive decline. It is also of questionable independence and objectivity, given the multiplicity of roles played by Dr Myers, on his own evidence, in this case, as doctor, advocate, nemesis of Mrs B, guarantor of the rights of Mr A and Mrs A, friend, son or family member, agent and potential guardian and administrator.

Myers v Medical Practitioners Board [2004] VCAT 1358

At a glance

Court

Decision date

Before

Source

Judgment (313 paragraphs)

Myers v Medical Practitioners Board [2004] VCAT 1358 (14 July 2004)

Parties

Legislation Cited (1)

Cases Cited (2)