Myers v Medical Practitioners Board [2004] VSC 532

Supreme Court of Victoria|2004-12-15|Before: KAYE J.

Unprofessional conduct - Medical Practice Act 1994 s.3 - No error of law.

The plaintiff, Dr John Barry Myers is a medical practitioner specialising in geriatric medicine. On 22 July 2003, the defendant, the Medical Practitioner's Board of Victoria made a finding that the plaintiff had engaged in unprofessional conduct as defined by paragraphs (a) and (b) of the definition of that term in s.3(1) of the .

The Board, consequent upon that finding, made determinations whereby it reprimanded Dr Myers, cautioned him about the limits of his involvement in family situations, required him to undergo a course of counselling to be conducted by a psychologist and fined him an amount of $2000.

The findings by the Board arose out of the treatment by the plaintiff of two elderly patients who were referred to in the reasons of the Tribunal, and will be so referred by myself, as Mr and Mrs A, between March 2000 and June 2001.

The plaintiff applied to the Victorian Civil and Administrative Tribunal for review of the decision of the defendant. On 14 July 2004 the Tribunal made an order which affirmed the decision under review other than making one small variation so that the plaintiff was required to undergo counselling by a medical practitioner approved by the Board rather than by a psychologist nominated by the Board.

In reaching that conclusion the Tribunal found that the plaintiff was guilty of ten instances of misconduct which had been alleged in the notice against him, and it dismissed 14 other allegations which had been brought in that notice against the plaintiff.

The plaintiff sought the leave of a Master of this court to appeal against the decision of the Tribunal pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998. On 4 November 2004 Master Wheeler dismissed the plaintiff's application for leave to appeal. The plaintiff appealed from the decision of the Master to the Practice Court. That appeal was referred to the Causes List, and thus the plaintiff's application for leave to appeal from the decision of the Tribunal has come before me.

Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that a party may appeal from the decision of the Tribunal on a question of law. In order to succeed on such an appeal, if the plaintiff were to be granted leave by me, the plaintiff must therefore show that the Tribunal has made an error and that that error is an error of law. At the stage of the application for leave to appeal, it is not necessary of course that the plaintiff persuade me that the Tribunal actually made the errors upon which he intends to seek to rely. It is sufficient if the plaintiff is able to show to my satisfaction that there is a real or significant argument to be put that error exists. I refer to The Secretary of the Department of Premier and Cabinet v. Hulls.[1]

In the draft notice of appeal, the plaintiff has set out four grounds of appeal on which he intends to rely if he is granted leave; namely firstly that the Tribunal erred in holding that on the facts found by it, the appellant's conduct constituted unprofessional conduct within the meaning of s.3 of the Medical Practice Act 1994; secondly, the Tribunal erred in finding that the appellant's conduct amounted to unprofessional conduct to the standard of proof required by Briginshaw v. Briginshaw; thirdly, the Tribunal erred in finding that the particulars of the charges laid against the appellant had been proved on the facts found by the Tribunal; and fourthly, the Tribunal erred in finding that the facts as found constituted unprofessional conduct within the meaning of s.3 of the Medical Practice Act 1994.

The appellant submits that three questions of law are to be derived from those draft grounds of appeal, and they are as follows:

First, that it was open on the evidence to find that the appellant was guilty of unprofessional conduct within the meaning of s.3 of the Medical Practice Act; secondly, whether the facts found by the Tribunal did come within the particulars of each of the charges laid against the appellant; and thirdly, whether the facts found by the Tribunal could constitute unprofessional conduct within the meaning of s.3 of the Medical Practice Act 1994.

The grounds of appeal refer to the definition of "Unprofessional conduct" under s.3(1) of the Medical Practice Act. The conduct that was relied upon both before the Board and the Tribunal, and indeed before me, relates to sub-paragraphs (a) and (b) of the definition of "unprofessional conduct" under s.3(1). Thus the definition relied on by the defendant was that "unprofessional conduct" means the following:

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

(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".

The detailed submissions made on behalf of the plaintiff deal with each of the ten findings in order to establish the errors for which he contends. Before moving to each of those submissions, it is first necessary to briefly identify the relevant principles which are applicable to the application before me.

Firstly, in respect of a number of the allegations found proven against the plaintiff, the plaintiff seeks to contend that the Tribunal erred in law in determining on the facts as found by it, that the plaintiff was guilty of unprofessional conduct.

In some cases it may be that it is a question of law whether the facts as found by a tribunal fall within a statutory definition. However in other cases the issue which is before a Tribunal may be one on which different minds might respectably and reasonably reach different conclusions. In such a case, it has been held, if it is reasonably open to the Tribunal to reach the conclusion which it did on the facts as found by it, no error of law arises, see Vetter v Lake Macquarie City Council [2]

In this case the assessment whether the plaintiff was guilty of unprofessional conduct as defined by the Act, was in my view such a determination. Such a question does involve an element of judgment on which different minds might reasonably differ. It is also a question of mixed fact and law. Indeed a decision on such an issue may be, and in this case was, informed by expert evidence as to the standard of conduct reasonably expected of a medical practitioner by his or her peers. Thus in order to establish that the Tribunal erred, the plaintiff must establish that on the facts found by the Tribunal, it reached a conclusion which no reasonable tribunal might come to.

In the submissions advanced on his behalf, the plaintiff accepted that the test which I have just described is the correct and applicable test. It was acknowledged on behalf of the plaintiff therefore that the plaintiff must establish that it was not reasonable for the Tribunal to hold that the facts found by it fall within the statutory definition of "unprofessional conduct".

The second principle relevant to this application arises out of the attacks on the finding of the Tribunal consisting of an argument that the Tribunal erred in making particular findings of fact. In respect of those submissions the applicable principle is that an error of law in respect of findings of fact is only made out if the plaintiff is able to show that the particular finding was not open on the evidence, see S v Crimes Compensation Tribunal [3].

The third applicable principle relevant to this proceeding concerns the function of what has been described as the particulars of the allegations in the proceedings before the Tribunal. In argument the plaintiff in a number of respects relied on what it argued were two related types of error made by the Tribunal. First, it was submitted that the findings of fact by the Tribunal on which the Tribunal made determinations of unprofessional conduct did not conform with the wording of the particulars of the allegations in the notice which had been provided to the plaintiff pursuant to the provisions of the Medical Practice Act. Secondly it was submitted that the Tribunal relied on facts and evidence other than that described in the particulars in order to make the determinations of unprofessional conduct which it did.

Section 46(f) of the Medical Practice Act provides for the service of a notice on a practitioner of a formal hearing relating to the matters under investigation by the Board. Section 48(a) provides that a notice of a formal hearing under s.46 must state the nature of the hearing and the allegations made against the practitioner. Section 52(1)(b) provides that the proceedings before the Board must be conducted with as little formality and technicality as the requirements of the Act and the proper consideration of the matter permit; s.52(1)(d) provides that the panel considering the matter is bound by the rules of natural justice.

Based on those provisions and based on the applicable authorities, I consider that the following principles are relevant to the arguments made by the plaintiff in this case:

(a) The notice served on the plaintiff is required to state the allegations made the plaintiff. It is not required to state the evidence relied on to support those allegations;

(b) As the Board and thus the Tribunal are bound by the rules of natural justice, the notice must sufficiently state the allegations so that the medical practitioner is adequately informed of the substance and nature of the allegations made against him or her;

(c) Notices which are required for hearings before disciplinary tribunals such as the Board, are not treated with the same rigor as pleadings are in the cases before our courts. It is sufficient if a notice, for purposes of disciplinary proceedings, serve its primary function, namely to give the recipient of the notice fair and adequate notification of the matter alleged against him or her, see Banks v Transport Regulation Board Victoria.[4]

(d) Indeed, even in cases of pleadings before courts, such cases are ultimately determined on the evidence and not simply on the pleadings. Of course causes of action must be determined by reference to the pleadings, but it is the evidence, not the particulars, which dictate the findings of fact, see Bank Commerciale S.A. (in liquidation) v Akhil Holdings Ltd.[5]

A fourth principle applicable to this proceeding concerns how this Court should approach a consideration of the reasons of the Tribunal. In this case the reasons delivered by the Deputy President of the Tribunal were detailed, structured and lengthy; they comprised some 216 paragraphs. The Tribunal upheld ten allegations made against the plaintiff, and dismissed 14 other allegations. The hearing which had preceded the giving of reasons had lasted some ten days. The reasons could not of course recite all the evidence nor record all of the processes by which the Tribunal member reached each of her findings of fact. As with judgments, but more particularly so with reasons of tribunals, findings of fact are necessarily but a summation of the effect of a substantial body of evidence and decisions concerning them by the court or the tribunal. Our courts have long eschewed an approach which involves an unduly close or legalistic analysis of the reasons.

Before moving to the specific submissions made on behalf of the plaintiff, I note a preliminary submission which was advanced by Mr Uren of Queen's Counsel who appeared with Mr Isles for the plaintiff. Mr Uren submitted that the basic approach of the defendant from the inception of the proceedings, was wrong. He submitted that the proceedings before the Medical Practice Board arose out of the care which had been provided by the plaintiff for his two elderly patients, Mr A and Mrs A. In particular the matter rose out of the stated desire by Mrs A that she permitted to die at home and not in hospital. On the other hand, Mrs A's daughter in law, who was referred to and to whom I shall refer as Mrs B, held the view that Mrs A should not return home because of her then state of health. The plaintiff considered that the patient's view should prevail. Mr Uren submitted that the whole of the proceedings arose out of the doctor's concern that the patient's wishes prevail albeit against the views of Mrs B. He stated that the approach of the defendant was thus flawed because it, in the context of that conflict of views, sought to dissect the events which occurred in what he described as a unified relationship of doctor/patient between the plaintiff and Mrs A.

In response, Mr Bourke, who appeared on behalf of the defendant, stated that the matters before the Board did not simply arise because Dr Myers had wished his patient's wishes to prevail over that of her daughter in law. Rather, the items of unprofessional conduct alleged and found arose out of the manner by which the plaintiff conducted himself in the context of his desire that his patient's wishes be adhered to.

It is now appropriate therefore in that context, to move to the particular allegations which were upheld by the Tribunal and which are the subject of the appeal. I shall deal with each of the allegations as found and as were subject to the plaintiff's submissions, in the helpful order in which they have been collected in the written and oral submissions advanced on behalf of the plaintiff.

The first allegation upheld was that contained in paragraph 1(a)(x) of the notice to the practitioner. I shall recite that allegation, and in doing so as with all the other allegations, I shall substitute initials for names. The allegation was:

(a) you failed to exercise the care and skill of a competent geriatrician in that: (x) you attempted to impose your personal views about the appropriate manner of Mrs A's accommodation and care".

The plaintiff submitted that the reasons of the Tribunal in upholding that allegation, revealed two errors. First it was submitted that the Tribunal wrongly as a matter of fact equated its finding that the plaintiff had advocated the plaintiff's return home with the description in the allegation that he had had attempted to impose his views that she should go home. In other words it was submitted that there is a difference between advocating, even strenuously so, a particular view, and attempting to impose that view on other persons concerned about the care of the patient.

I consider that the distinction drawn by the plaintiff is overly technical and pedantic. It is particularly so in light of the findings of fact made by the Tribunal and by which this Court is bound. In paragraph 63 of the findings the Deputy President of the Tribunal found that she was satisfied on the evidence before her that the plaintiff's decision to advocate relentlessly 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 her competence to make decisions. That description of itself went beyond mere advocacy, and in my view reveals no error in equating such a description of the facts with an attempt to impose a view by a doctor. Further, as Mr Bourke pointed out, there were specific items found by the Tribunal which justified the finding that there was an attempt by the plaintiff to so impose his views. They consisted of, for example, the attempts to persuade the bed care doctor, Dr Lefkovits, the plaintiff's efforts to induce the social worker Ms Wilkie-Smith to discharge the plaintiff, and particularly his attempts to have Mrs A discharged from hospital on 22 May 2001 notwithstanding that on the finding of the Tribunal, Dr Lefkovits had not authorised such a discharge. All of that conduct combined with the finding of fact by the Tribunal to which I referred amply justify the finding by the Tribunal that there was an attempt by the doctor to impose his views in the manner thus described. There is thus no error of fact or law which I can discern could be argued if an application for leave to appeal were granted.

The second submission advanced on behalf of the plaintiff in respect of this allegation was that the facts as found and the allegation that was thus found, do not and cannot constitute unprofessional conduct. It was submitted that advocacy and even an attempt to impose a view by doctor cannot on any reasonable view constitute unprofessional conduct. The answer to that submission lies both in the wording of the allegation and in the finding made by the Tribunal in respect of the allegation. The allegation was not that the plaintiff attempted to impose his views, but that he attempted to impose his personal views. The Tribunal clearly found as a matter of fact that the views advocated by the plaintiff were personal views as distinct from professional views. As I have already adverted to, the Tribunal noted that the views advocated by the plaintiff were not based on sound clinical judgment by the plaintiff, nor on dispassionate assessment of the various options appropriate to be considered. The reasons continued at paragraph 63, and I quote:

"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 act as a 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".

It is clear on the evidence as a matter of fact by which this Court is bound, that the Tribunal found that the views being advanced by the plaintiff were well beyond professional views, but were indeed personal views. The whole gist of the allegation which was made was that he attempted to impose his personal (not professional) views in relation to the appropriate manner of Mrs A's accommodation and care. The Tribunal as a matter of fact found that that is what occurred. Based on those findings of fact I do not consider that it is arguable that it was unreasonable for the Tribunal to have concluded from those findings that the conduct of the plaintiff was unprofessional as defined in the Act.

I turn to the second group of allegations which are the subject of this application. Those allegations are contained in paragraph 1(a)(xi) and (xv) of the notice, and again I recite them: "That

(a) you failed to exercise the care and skill of a competent geriatrician in that:

(xi) you behaved in a manner which was destructive of the relationship between Mrs A and her family;

(xv) you behaved in a manner which was destructive of the relationship between Mr A and his family".

The plaintiff advanced three principal contentions in support of the proposition that the findings of the Tribunal upholding those allegations disclosed legal error. First it was submitted that there was no evidence that the plaintiff had done anything which was destructive of the relationship between Mrs A and her family, and in particular between Mrs A and her daughter in law, Mrs B. It was submitted that on the evidence the relationship was already a very bad one and there was no evidence that any conduct of the plaintiff exacerbated that relationship at all.

The short answer to that submission is that it ignores the wording of the Charge. The Charge was not that the conduct of the plaintiff had a destructive effect. The Charge was that he behaved in a manner which was destructive. The word "destructive" is descriptive of the manner and not the effect.

The second submission made by the plaintiff is related to the first submission, and that submission was that how, it was asked rhetorically, can advocating a view contrary to that of the daughter in law be acting in a manner which was destructive of the family relationship? The answer again to that submission lies in the findings of fact made by the Tribunal which are recorded at paragraph 77 of the reasons, and I quote:

"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 well being 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 may 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."

The finding of fact made by the Tribunal adequately answers the submission advanced by the plaintiff. It is clear that the plaintiff, according to the evidence as found by the Tribunal, went beyond simply advocating professionally, even strenuously, a viewpoint which was at odds with that of the rest of the family and in particular the daughter in law. The findings of fact made by the Tribunal in my view more than adequately bear out the factual allegation which is contained in the charge. I do not consider that it can be argued that there was no evidence on which the finding made by the Tribunal could have been based, and thus no error of law, even arguable, is disclosed in relation to that submission.

The third submission made in respect of these allegations on behalf of the plaintiff was that in any event the plaintiff did not owe duties to the family. His sole and only duty was to the patient; it therefore did not matter how he related to the family at all.

That contention was again, I consider, answered by the findings of fact made by the Tribunal member, based on expert evidence called from Professor Kincaid-Smith and Dr Burrows, and which is recorded at paragraph 78 of the reasons. In essence in accordance with that evidence, the Tribunal noted that it is a doctor's duty to work in partnership with the family and care providers collaboratively, and that it was inconsistent with that 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. I do not consider that the argument advanced in that respect is arguable, particularly in light of the findings to which I have just referred.

The third allegation or group of allegations subject to this application are contained in allegation 1(b)(iv) and again I recite:

(b) You acted or sought to act as a medical practitioner of Mrs A when she was in Epworth Hospital in circumstances where you knew or ought to have known that you did not have the authority to do so because the family of Mrs A had appointed Dr Robert Lefkovits as her doctor in that (iv) on 22 May 2001 you ordered staff of the Epworth Hospital to discharge Mrs A."

The plaintiff makes three principal submissions in relation to the findings upholding those allegations. First, the plaintiff submits that the family of Mrs A did not appoint Dr Lefkovits as the doctor of Mrs A. In fact he was appointed as a bed care doctor by the hospital as a matter of random selection.

The short answer to that proposition is that the allegation contained in the charge does not fail simply because one detail contained in it might be inaccurate in a particular respect. The allegation which was made in the charge, and thereby conveyed to the plaintiff, was that he ordered the discharge of Mrs A when the person who had the authority to make that order, Dr Lefkovits, had not done so.

It is plain that the plaintiff understood and recognised the allegation to have that connotation. Indeed, from the reasons of the Tribunal it is evident that the plaintiff's case at the Tribunal was that Dr Lefkovits had authorised Mrs A's discharge from hospital and that the plaintiff had been merely acting as a conduit to convey that authorisation to the relevant hospital staff. Thus there is no substance in the first submission advanced in this respect by the plaintiff.

The second submission on behalf of the plaintiff was that the finding that the plaintiff had ordered nursing staff to discharge the plaintiff had not as a matter of fact been established according to the standard of proof required in disciplinary proceedings, see Briginshaw v Briginshaw.[6] It was submitted that this was so because no member of the nursing staff was called to give evidence of the giving of that order to him or her by the plaintiff.

The submission in this respect was of course a submission that a particular finding of fact lacked evidence to support it. There is, contained in the reasons, I consider, at least two items of evidence which would support the finding of fact made by the Tribunal. The first is the evidence of Dr Lefkovits referred to at paragraph 104 of the reasons, that he was telephoned by a nurse to tell Dr Lefkovits that they had been directed by the plaintiff to discharge the patient; the second item of evidence is summarised at paragraph 107 of the reasons and is the evidence of Ms Wilkie-Smith, the social worker, that 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. That evidence is, I consider, evidence on which the finding of fact which is the subject of this argument, was adequately based. Thus, no error of law, even arguably so, is disclosed.

The third submission in respect of this allegation on behalf of the plaintiff was that there was no evidence that the plaintiff did not believe that he had no authority to order the discharge. Again the short answer to that is to be found in the reasons. The plaintiff in fact claimed that he had such an authority from Dr Lefkovits; it appears that Dr Lefkovits denied that he had given that authority to the plaintiff. The Tribunal at paragraph 110 accepted the evidence of Dr Lefkovits in preference to the evidence of the plaintiff. It therefore follows that the plaintiff on the findings made by the Tribunal knew that he did not have Dr Lefkovits' authority to order the discharge.

Accordingly, I can discern no arguable error in relation to the findings made by the Tribunal upholding allegation 1(b)(iv).

The fourth allegation which is the subject of the findings by the Tribunal is allegation 1(h)(iv). That allegation was that, and I will again quote:

"(h) You engaged in inappropriate communications with other persons providing health services to Mrs A in that (iv) on several occasions between 21 May 2001 and 22 May 2001, you insisted to Ms Karen Wilkie-Smith that Mrs A should be discharged from the Epworth Hospital to home when you did not have the authority to discharge Mrs A."

The fundamental submission made on behalf of the plaintiff, as I understand it, is that the conduct as alleged in the allegation and found as a fact by the Tribunal, is not capable of reasonably constituting unprofessional conduct. It was submitted that it cannot be unprofessional conduct simply for the doctor to have advocated to a social worker concerned with the patient, his view that the patient should be discharged home.

The answer to this submission lies in the finding of fact. The finding of fact by the Tribunal went beyond a mere expression of professional opinion by the plaintiff. As found by the Tribunal, the plaintiff sought to intervene between the bed care doctor and the social worker who, as Mr Bourke correctly submitted, formed part of a team involved in the care of the patient. The plaintiff sought to press the social worker onto his side of the argument in the manner which is described in the reasons.

In order to succeed in the submission that legal error was found in those circumstances, in finding that that conduct was unprofessional, the plaintiff would need on appeal to show that no reasonable tribunal could have so characterised the conduct. I do not consider that there is a real or sufficient argument that can be made to that effect. It may well be that that type of conclusion might be the subject of different views by different tribunals. However nothing is pointed to in the Tribunal's finding, which shows that even arguably the finding by the Tribunal is unreasonable in the sense discussed in the authorities and thus discloses an arguable error of law.

The fifth allegation subject to the Tribunal's findings was allegation 1(h)(viii). Again I quote"

(h) You engaged in inappropriate communications with other persons providing health services for Mrs A in that (iii) you misrepresented to Dr Robert Lefkovits that the paid carers of Mrs A were competent to care for her at home when you knew or ought to have known that that was not the case."

The plaintiff submitted that on the facts as found by the Tribunal, the elements of the offence charged under that allegation were not made out. It was submitted this was so because there was no finding that the plaintiff intentionally misrepresented his view of the competence of the carers to those who were concerned with the treatment of Mrs A. There was no dispute that Dr Myers had in fact made that representation, and indeed at paragraph 124 of the reasons the Tribunal noted Dr Lefkovits' evidence that Dr Myers had told him on a number of times after 24 April 2001 that Mrs A had carers and should go home.

The question was whether statements of that type were misrepresentations by the plaintiff. It is in this respect that I consider that the findings of fact made by the Tribunal foreclose the argument advanced on behalf of the plaintiff. At paragraph 128 the Tribunal effectively found that Dr Myers did not have a reasonable basis for his consideration that the carers available at home to the plaintiff were as adequate. I should quote from that paragraph because it is central to the submissions made, forcefully and cogently so by Mr Uren on behalf of the plaintiff. The Tribunal said:

"I accept that Dr Myers believed the 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 the carers in the light of the considerable deterioration in Mrs A's condition since her admission into Epworth Hospital and the view of Dr Lefkovits and others that 24 nursing [I think that should read 24 hour 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 required."

That last sentence in that quotation refers to paragraph 69 of the reasons in which Dr Lefkovits described the type of 24 hour constant care needed to look after Mrs A properly at home in order to minimise skin excoriation, maintain hydration, provide pain relief and prevent pressure sores. I note also at paragraph 68 the Tribunal had concluded that Dr Myers had appeared to downplay the concerns for the need for that type of treatment because of his wish to fulfil his promise to Mrs A that she should die at home.

It is clear in those circumstances, particularly based on the findings made by the Tribunal at paragraph 128, that the plaintiff made the representations as to the competence of the carers when he ought to have known that that was not the case. That precise wording of the allegation made was made out by the findings of fact which I have just set out. Accordingly there is no basis for the submission that the Tribunal erred in finding that the actual allegations made in paragraph 1(h)(iii) were made out. I do not understand the plaintiff to advance the further submission that if that finding of fact were made out it would be arguable that the Tribunal erred in finding that the plaintiff had been guilty of unprofessional conduct. For completeness, even if such a submission were advanced, I would readily reject it. It would seem to me to be beyond argument that such conduct would in fact constitute unprofessional conduct, and a finding by the Tribunal to that effect would in my view, not admit of any arguable error.

The sixth allegation upheld by the Tribunal was allegation 1(f)(iv), and again I quote:

(f) You engaged in inappropriate communications and activities with or in relation to Mr A such as threatened to compromise the professional boundaries which ordinarily delineate the professional relationship between medical practitioners and patients in that (iv) on 21 May 2001 you were a witness to Mr A's signing of the revocation of Power of Attorney when you knew or ought to have known that Mr A was not or may not have been competent to revoke the Power of Attorney".

The plaintiff has made two submissions in relation to the decision of the Tribunal upholding that allegation as constituting unprofessional conduct. First, the plaintiff submitted that the mere act of witnessing a document by a doctor cannot constitute unprofessional conduct, or more properly cannot be reasonably found to constitute unprofessional conduct. It was put that witnessing a document constitutes no more than attesting to the signature, to the fact that the signature is made, and it does not also carry with it any implied or other assertion as to the competence of the person whose signature is thus witnessed.

There are, I consider, two interrelated answers to that proposition. First, it is reasonable to conclude that there would be unprofessional conduct revealed were a treating geriatric specialist to witness the revocation of a Power of Attorney by an elderly patient who lacked or may lack the competence to make that decision. It is clear that the Tribunal accepted the evidence by Dr Lefkovits[7] and Ms Wilkie-Smith (at paragraph 154) as to the evident lack of capacity of Mr A to make the decision to sign the Power of Attorney.

Secondly and related to that, on the particulars and on the way in which the allegation was formulated, I consider that that the Tribunal was fully entitled to look at the fact of the attestation of the Power of Attorney by the plaintiff not in a vacuum, but informed by the factual matrix in which it occurred. In other words, the Tribunal was entitled to go beyond considering that Dr Myers was simply a passive witness. Rather, the Tribunal was entitled to take into account the fact that Dr Myers was a person who had instigated the revocation process, and that he did so to promote the return of Mrs A home, and to consider all the other factual circumstances which are referred to in the reasons of the Tribunal. The particulars or properly put, the allegation formulated in the notice, do not perform the role of blindfolding the Tribunal from considering the act of witnessing the signature on the revocation document in the factual setting in which it occurred. I do not consider that any arguable error is revealed by the Tribunal in adopting such an approach to its consideration of the allegation.

The second argument made on behalf of the plaintiff was that there was no evidence that the plaintiff lacked capacity to revoke the Power of Attorney. It was put that given the application of the Briginshaw standard of proof, the evidence by the plaintiff as to the capacity of Mr A should have been accepted. The short answer to that is that the finding made by the Tribunal was one of fact; it is not for me to say whether I agree or disagree with it. The reasons of the Tribunal disclose the evidence of Dr Lefkovits who considered Mr A was incompetent to make decisions, to administer his estate; the evidence of Ms Wilkie-Smith who saw the patient shortly after he had signed the document, and her evidence was that he did not know what the document was; and the evidence of an assessment by Dr Srikanth in June 2001 as to the lack of capacity of the plaintiff.

The existence, and the acceptance of that evidence by the Tribunal, is a sufficient evidentiary basis for the factual finding by the Tribunal in relation to the lack of capacity of Mr A to evoke the Power of Attorney. Thus no arguable error of law is revealed in that respect.

The seventh group of allegations upheld by the Tribunal are contained in paragraph 1(f)(vi) and (vii) of the notice to the practitioner. The allegation was:

(f) You engaged in inappropriate communications and activities with or in relation to Mr A such as threatened to compromise the professional boundaries which ordinarily delineate the professional relationship between medical practitioners and patients in that (vi) on 25 May 2001 you took Mr A from his carers for a purpose other than to provide medical treatment to him; (vii) on 25 May 2001 after having removed Mr A from his house and being asked by the Office of Public Advocate to return Mr A to his home, you spent several hours with him away from his home, at the end of which you took him to visit Mrs A in the Epworth Hospital".

The plaintiff submitted before me that the act of taking an old man on an outing is not per se a transgression of proper professional boundaries by the doctor. Accordingly it was submitted that on no reasonable view could the Tribunal have properly held that that act constituted unprofessional conduct.

Again I consider that the submission made by the plaintiff places an unnecessarily narrow straightjacket on the allegations contained in the notice and produces an artificiality which the principles applicable to administrative and disciplinary proceedings do not warrant. The Tribunal in my view, correctly took into account the background matrix of facts in which the outing occurred, including at paragraph 146 the facts as to where in fact the doctor took Mr A; the fact that he did so in circumstances in which Dr A knew that the family was concerned about his relationship with Mr A; and the fact that there was a real dispute between Dr Myers and the family over his role and decision-making about the care of the patient.

Again, the Tribunal's finding is one in respect of which perhaps different minds might vary. Not all tribunals might come to the conclusion reached by the Tribunal. But that is not the point before me. In order to satisfy me that there is arguable error, it must be shown at least arguably, that no reasonable tribunal in that background matrix could have reached the conclusion which it did.

I am not so satisfied. In other words, I am not satisfied that it is realistically arguable that it was unreasonable for the Tribunal, in the background facts which the Tribunal had before it, to find that there was unprofessional conduct by the doctor in taking Mr A on the outing which he did.

The second attack made on the finding by the Tribunal related to the allegation in 1(f)(vii), that after taking Mr A from his home and being asked by the Office of Public Advocate to return Mr A to his home, Dr Myers spent several hours with him away from the home.

At paragraph 147 of her reasons, the Deputy President found that although there was evidence that Mrs B contacted the Office of Public Advocate expressing concern about Mr A's outing with the plaintiff, and that a Ms Irani of that office telephoned the plaintiff to express the family's concerns about Mr A's whereabouts, there was no evidence that Ms Irani instructed the plaintiff to take Mr A home immediately or that he refused to do so. However, the Tribunal noted that it was clear that the plaintiff did not take Mr A home after that conversation.

The difference between the facts found by the Tribunal and the facts alleged in the notice, lies in the wording of the allegation that the plaintiff had been asked by the Office of Public Advocate to return Mr A to his home.

Again I consider that the difference between that and the fact found by the Tribunal is a detail rather than the central element of the allegation that was made. The essence of the allegation was that not only had the plaintiff removed the patient from his carers in the circumstances, but had persisted with keeping the patient out after concern had been relayed to him by the Office of Public Advocate concerning that act. I consider that in those circumstances the difference in the two facts, one being alleged in the notice and the other as found by the Tribunal, is a matter of detail rather than an essential element to the allegation made, and in those circumstances I do not consider that there is any arguable error revealed.

The eighth allegation upheld by the Tribunal is allegation 1(f)(ix)

(f) You engaged in inappropriate communications and activities with or in relation to Mr A such as threatened to compromise the professional boundaries which ordinarily delineate the professional relationship between medical practitioners and patients in that (ix) on 16 June 2001 you attended the home of Mr A and when you were refused entry to the house you did not leave and you ran around outside the house knocking on the windows or calling out Mr A's name".

The incident thus described and which was the subject of this allegation occurred on the day of the passing of Mr A's wife.

The plaintiff's first submission was that all the plaintiff did was merely tap on the window of the home of Mr A from which he had been precluded from entering, in order to notify Mr A that he had attended to express his condolences and that he was then leaving. It was submitted that based on that finding, no unprofessional conduct could reasonably be found.

The difficulty with that submission is that it is based on the view of the incident advanced in evidence by Dr Myers. It conforms with his description as summarised in paragraph 169 of the reasons. On the other hand, paragraph 169 of the reasons proceeds to summarise the evidence of Ms C and Mrs B that the plaintiff shouted Mr A's name over a period of ten minutes before the police departed, and that his conduct was such as to cause the family to contact the police. The Tribunal expressly preferred the evidence of Ms C and Mrs B to the evidence of Dr Myers in relation to the matter.

The second submission was that in any event the conduct could not be considered unprofessional conduct; the visit was a private visit to convey personal condolences by Dr Myers to Mr A; it did not relate to any professional medical care provided or to be provided by Dr Myers to Mr A.

The answer of course is that in order to constitute unprofessional conduct, the conduct itself need not relate directly to medical care. Such conduct can be unprofessional if it is in relation to a patient albeit when the medical practitioner is not directly involved in medical care at the time of the conduct. The plaintiff had treated the late Mrs A and Mr A until, I think, the day before this incident, and his relationship with him sprung from his professional relationship. He could not simply divest himself of his professional status or relationship entirely.

In those circumstances I do not consider it is arguable that it was unreasonable for the Tribunal to conclude that the conduct as found by it constituted unprofessional conduct on behalf of the plaintiff, and thus in respect of this finding no arguable error is disclosed.

The final allegation upheld by the Tribunal was allegation 1(g)(ix):

(g) You engaged in inappropriate communications with the relatives of Mr A and Mrs A in that (ix) on the evening of 17 June 2001 you said to Ms C ´You will go to hell' when she asked you what you were doing with Mr A in his bedroom."

I interpolate that this incident arose at or after the memorial service at the home of Mr A to commemorate the death of his wife. The plaintiff had sought to provide a letter to Mr A and that letter had been intercepted by Ms C.

The plaintiff's account was that he reacted to Ms C's intervention by taking the letter from Mr A by saying words to the effect, "That was the test you failed, you will go to hell". In substance, as I understand it, the plaintiff's case before the Tribunal was that he was expressing a religious or philosophical view.

It is clear, however, from the findings of the Tribunal that the version given by the witnesses, Mrs B and Ms C, was different. For example, at paragraph 186, the evidence of Mrs B was that, "When Ms C took the letter Dr Myers demanded loudly and abusively that we give the letter back as it was a test". Mrs B's evidence further was that the plaintiff abused Ms C and told her that she would go to hell.

The Tribunal concluded that she did not accept Dr Myers assertion of a right to abuse family members on the evening of a prayer service for their departed relative for what he adjudged to be amoral conduct on their behalf. The Tribunal was satisfied that his conduct in that regard fell short of the standard expected of a doctor by his peers and by the public, and therefore constituted unprofessional conduct.

Again, the finding made by the Tribunal in this respect is one in respect of which perhaps different tribunals might vary in their views. It is very much a matter of judgment. However, if leave were granted, the plaintiff would need to show that the conclusion made by the Tribunal of unprofessional conduct was one which no reasonable Tribunal could arrive at. I do not consider that it is arguable that it was unreasonable for the Tribunal to arrive at such a conclusion based on the short, albeit summary description of the conduct of the plaintiff as I have adverted to and as is contained in the reasons at paragraphs 185 and 186. Although the reasons in this respect are rather pithy, they convey a finding that the doctor went beyond simply expressing a philosophical or religious view, but that he expressed it in terms and in a tone which was abusive. In those circumstances I do not consider it arguable that it was unreasonable of the Tribunal to find that that conduct was unprofessional.

I have thus concluded that the plaintiff has failed to establish any arguable error in relation to any of the findings by the Tribunal. I have deliberately canvassed each of the allegations made and found by the Tribunal in some detail, as I am conscious of two things. First, that the findings made, as they are for any medical practitioner, impact on his status and are important to him; and secondly it appears, particularly from the manner in which the submissions were made on his behalf, that the plaintiff does feel a sense of grievance with the findings made against him.

I have therefore been astute to detect whether it might be arguable in accordance with the test in Hull's case that there is some legal error to be discerned from the reasons of the Tribunal. However, having given the matter the consideration I have, I am not satisfied that there is any real or significant argument that there is legal error revealed in the reasons of the Tribunal.

For those reasons I uphold the decision of the Master and I dismiss the plaintiff's appeal from the order of Master Wheeler of 4 November 2004.

[1] [1999] VSCA 117; (1999) 3 VR 331 at p.335 per Phillips JA.

[4] [1968] HCA 23; [1968] 119 CLR 222 at p.247 per Justice Taylor.

[5] [1990] HCA 11; (1990) 169 CLR 279 at 297 per Justice Dawson.

At a glance

Court

Decision date

Before

Source

Judgment (107 paragraphs)

Parties

Cases Cited (5)