Res 1 v Medical Board of Queensland

SUPREME COURT OF QUEENSLAND

CITATION: Res 1 v Medical Board of Queensland [2008] QCA 152

PARTIES: RES 1 (registrant/appellant) v MEDICAL BOARD OF QUEENSLAND (registrant’s board/respondent)

FILE NO/S: Appeal No 11183 of 2007 / Appeal No 11381 of 2007 / D3186 of 2006

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Health Practitioners Tribunal at Brisbane

DELIVERED ON: 13 June 2008

DELIVERED AT: Brisbane

HEARING DATE: 2 May 2008

JUDGES: McMurdo P, Muir JA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: The decision of the Health Practitioners Tribunal on 11 December 2007 be set asideThe matter be remitted to a differently constituted tribunal for determination according to lawThe respondent pay the appellant’s costs of the appealThe costs of and incidental to the hearing at first instance be reserved for determination by the Tribunal if not agreed between the parties

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where a complaint was made against the appellant in relation to the appellant’s conduct in advising and treating a patient for a mid-trimester termination – where the Health Practitioners Tribunal determined that the appellant had engaged in unsatisfactory professional conduct – where the Tribunal ordered that the appellant’s registration be suspended for four months and conditions imposed as to the manner in which the appellant could conduct her practice pursuant to s 241(2)(h) Health Practitioners (Professional Standards) Act 1999 (Qld) – where there were ten particulars of unsatisfactory professional conduct – where the Tribunal had a duty to give reasons under s 245 Health Practitioners (Professional Standards) Act 1999 (Qld) and the common law – where the Tribunal did not indicate whether it accepted or rejected the appellant’s evidence – where the Tribunal failed to explain why it preferred the respondent’s expert evidence over the appellant’s expert evidence – where the Tribunal failed to identify the evidentiary basis for the conclusion that every particular of sub-standard professional conduct was satisfied – whether the Tribunal failed to give adequate reasons for the decision constituting a denial of natural justice / Health Practitioners (Professional Standards) Act 1999 (Qld), s 219, s 245, s 348 / Attorney-General and Minister for Justice v Kehoe [2001] 2 Qd R 350; [2000] QCA 222, applied / Bawden v ACI Operations Pty Ltd [2003] QCA 293, applied / Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, applied / Camden & Anor v McKenzie & Ors [2007] QCA 136, applied / Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 262; [1995] QCA 187, applied / Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, distinguished / Kiama Constructions Pty Ltd v Davey (1986) 40 NSWLR 639, distinguished / Martin v Rowling & Anor [2005] QCA 128, applied / Murray v Legal Services Commissioner (1999) 46 NSWLR 224, applied / Pettitt v Dunkley [1971] 1 NSWLR 376, applied / Public Service Board (NSW) v Osmond (1986) 159 CLR 656; [1986] HCA 7, cited / R v Immigration Appeal Tribunal; ex parte Khan [1983] QB 790, cited / Sasterawan v Morris [2008] NSWCA 70, applied / Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied / Sutherland Shire Council v Dietz [2004] NSWCA 53, cited

COUNSEL: D K Boddice SC for the appellant / K A McMillan SC for the respondent

SOLICITORS: Flower & Hart for the appellant / Minter Ellison for the respondent

McMURDO P: I agree with Muir JA that the appeal should be allowed with costs; the reasons of 8 November 2007¹ and the decision of 11 December 2007 set aside; and the matter remitted to a differently constituted Health Practitioners Tribunal (“the Tribunal”) for determination according to law. I also agree with Muir JA that the costs of and incidental to the hearing before the Tribunal be reserved for determination by the Tribunal if not agreed between the parties.

This is an appeal from a decision of the Tribunal under Part 9, Division 5 of the Health Practitioners (Professional Standards) Act 1999 (Qld) (“the Act”).² Such an appeal may be brought only on a question of law.³ The Tribunal is constituted under the Act by a District Court Judge,⁴ who must ordinarily be assisted by three assessors, one from the public panel of assessors and two from the professional panel of assessors for the registrant’s profession.⁵

The learned District Court judge constituting the Tribunal concluded that the appellant registrant engaged in professional conduct that was of a lesser standard than that which might have been reasonably expected of her by the public or her professional peers.⁶ The Tribunal ordered that the appellant, an experienced obstetrician and gynaecologist, have her registration suspended for four months,⁷ and that she may practice, following the period of suspension, only on the conditions that she only perform medically induced mid-trimester terminations of pregnancy in strict accordance with a standard procedure/policy approved by the Medical Board of Queensland (“the respondent”) and allow a representative of the respondent to inspect or take copies of medical records or clinical notes of patients who consult her at such time or times as the respondent shall determine for the purposes of monitoring compliance with these conditions. The Tribunal ordered that the appellant could not apply for a review of those conditions for one year.⁸ The appellant obtained a stay of those orders pending the determination of this appeal.⁹

I agree with Muir JA’s reasons for concluding that the Tribunal erred in law in failing to give adequate reasons for its finding that the registrant engaged in professional conduct that was of a lesser standard than that which might have been reasonably expected of her by the public or her professional peers. It follows that the appeal must be allowed and the orders set out in these reasons at [1] made. I wish only to add some peripheral observations.

This was an unusual case in that the patient was not the complainant to the Board and did not give evidence at the hearing. The Board ultimately received and investigated two complaints in respect of the appellant. The first was an anonymous complaint dated 1 May 2003. The second complaint was made on 17 September 2003 by an obstetrician and gynaecologist. The Board informed the appellant by letter of 27 May 2005 that only the latter complaint was to be referred to its Professional Conduct Review Panel. This appeal relates only to the second complaint.

The objects of the Act are relevantly to protect the public by ensuring health care is delivered by registrants in a professional, safe and competent way;¹⁰ to uphold the standards of practice within the health professions;¹¹ and to maintain public confidence in the health professions.¹² The registrant has continued to practice as an obstetrician and gynaecologist without interruption since the complaints in 2003. On 21 December 2006 she undertook to the Board only to perform mid-trimester terminations in a public hospital or a private health facility until such time as the matter was heard and determined by the Tribunal. She has now abided by that undertaking for over 18 months. It is approaching five years since the occurrence of the incident the subject of the complaint concerned in this appeal. It is, of course, a matter for the respondent to determine whether, in those circumstances, having regard to its obligations under and the relevant objects of the Act, the public interest will be best served by proceeding further with this investigation.

MUIR JA: By a letter dated 17 September 2003 to the respondent Medical Board of Queensland, an obstetrician and gynaecologist made a complaint in respect of the appellant, who is also an obstetrician and gynaecologist. The matter was ultimately referred to the Health Practitioners’ Tribunal by the respondent. The Referral Notice filed by the respondent on 27 October 2007 alleged that the appellant had engaged in unsatisfactory professional conduct in the provision of advice and treatment to a patient on or about 12 September 2003, in that the appellant engaged in:

“(a)Professional conduct that is of a lesser standard than that which might reasonably be expected of the Registrant by the public, or the Registrant’s professional peers; and/or

(b)Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of the Registrants profession; and/or

(c)Misconduct in a professional respect; and/or

(d)Conduct discreditable to the Registrant’s profession; and/or

(e)Other improper or unethical conduct.”

Reliance on sub-paragraphs (c) (d) and (e) of the referral notice were abandoned at the hearing.

After a hearing of one day the Tribunal found that the appellant had engaged in professional conduct of a lesser standard than that which might reasonably be expected of her by the public or her professional peers (“unsatisfactory professional conduct”). It was ordered that the appellant’s registration be suspended for a four month period and, pursuant to s 241(2)(h) of the Health Practitioners (Professional Standards) Act 1999 (Qld) (“the Act”), conditions were imposed as to the manner in which the appellant could conduct her practice.

The appellant appeals from that decision. The right of appeal is restricted to questions of law.¹³ The conduct the subject of the finding was the “unsatisfactory professional conduct” particularised in the Referral Notice and set out in paragraph [34] of the reasons, namely:

“(1)The Registrant failed to provide adequate and appropriate health care and advice to the patient.

(2)The Registrant failed to adequately investigate the patient’s condition and history prior to the provision of Misoprostol.

(3)The Registrant failed to provide the patient with adequate advice concerning the risks associated with inducing a miscarriage at 19 weeks gestation in an outpatient setting.

(4)The Registrant failed to establish appropriate communication arrangements with the patient following the. administration of Misoprostol.

(5)The Registrant failed to arrange appropriate hospital care for the patient following the administration of Misoprostol.

(6)The Registrant permitted the administration of Misoprostol at 19 weeks gestation in an outpatient setting.

(7)The Registrant failed to ensure that the patient had a competent and informed support person throughout the procedure.

(8)The registrant failed to provide adequate information regarding the physical experience of miscarriage at 19 weeks gestation and failed to provide adequate information about that pain the patient might expect and its management.

(9)The Registrant failed to provide adequate information and instructions regarding potential complications, a management plan in the event of complications and an appropriate hospital to attend in case of such complications.

(10)The Registrant failed to adequately follow up in a timely way the care of the patient.”

There were a number of grounds of appeal. Some of them overlapped substantially and some were specific instances of the general ground now set out.

The Tribunal erred in law in failing to give any or any adequate reasons for its findings that each of the particulars of sub-standard professional conduct had been made out.

The appellant’s argument in respect of this ground was as follows. Except in one respect, the Tribunal, which had received oral and affidavit evidence from the appellant, did not indicate whether it accepted or rejected the appellant’s evidence.

By linking its findings to the particulars in the Referral Notice the Tribunal failed to identify in her reasons the aspects of the appellant’s conduct which failed to satisfy the relevant standards. The Tribunal failed, also, to identify the evidence which, in each case, supported its conclusion. For example, the appellant gave evidence that she took a history from the patient. The Tribunal did not indicate whether it accepted that evidence and why it failed to constitute an adequate investigation of the patient’s condition and history.

Courts and Tribunals have a duty to give reasons.¹⁴ A judicial decision should enable the parties to see the extent to which their arguments have been understood and accepted, as well as the basis for the decisions.¹⁵ The Tribunal’s failure to identify in its reasons whether it accepted the appellant’s evidence, coupled with failure to identify the evidentiary basis for its conclusion that every particular was satisfied, leaves the appellant without any adequate explanation of the reasons for the Tribunal’s conclusion that her conduct constituted unsatisfactory professional conduct. The failure to provide such reasons constitutes an error of law.

It was submitted on behalf of the respondent that the Tribunal’s duty to give reasons is prescribed in the Act.¹⁶ It is accepted that the seriousness of the consequences of adverse determinations and the nature of the sanctions which can be imposed by the Tribunal require reasons to be given. However, the content of that duty is circumscribed by the matters in issue between the parties to the litigation. In that regard, reliance was placed on the following passage from the reasons of Lord Lane CJ in R v Immigration Appeal Tribunal; ex parte Khan ¹⁷ quoted with approval by Gibbs CJ in Public Service Board (NSW) v Osmond ¹⁸:

“The important matter which must be born in mind by Tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons. First of all they have considered the point which is at issue between the parties, and that they should indicate the evidence upon which they come to their conclusions.”

The Tribunal set out the evidence of the appellant and the respondent in some detail. Explicit findings were made that the evidence of Dr Edwards, the gynaecologist and obstetrician called as an expert by the respondent, was preferred over that of the appellant’s expert, Dr Keeping. A number of other explicit findings were also made. It is submitted, that in addition to these considerations, if one goes to the Tribunal’s reasons, support for each of the particulars can be found.

There is one argument advanced on behalf of the appellant which can be dismissed at the outset. It is that the Tribunal has, in effect, given no reasons for the conclusions expressed in paragraph [34] that each particular of unsatisfactory professional conduct has been established. The basis of the submission is that there are no words in paragraph [34] or elsewhere which relate the conclusions in paragraph [34] to any other part of the reasons.

The final topic dealt with in the reasons before the statement of the Tribunal’s conclusions is the question of whether the termination could have taken place in a public hospital. The reasons thus contain; a statement of material background facts, discussion of facts and expert evidence relevant to the matters, some findings of fact and a finding in favour of the evidence of Dr Edwards. The conclusions in paragraph [34] are plainly linked with and are derived from what has gone before. It is implicit, on a fair reading of the reasons, that the particularised allegations have been made out by virtue of the previous findings in the reasons. Were it otherwise, most of the fairly extensive reasons would be without any point.

Rather than considering the general ground of appeal now, it will be convenient to describe the general structure of the reasons and to then discuss the parties’ respective arguments in the context of the more specific grounds of appeal.

The structure of the reasons

After a brief statement of the matter referred to the Tribunal, the reasons contain a narrative account of the patient’s initial consultation with the appellant, including reference to; the history provided by the patient to the appellant in the appellant’s rooms on 12 September 2003, the advice given by the appellant concerning the proposed procedure for terminating the patient’s pregnancy at 19 weeks by the administration of Misoprostol outside a hospital and details of the medications and materials supplied to the patient in connection with the proposed procedure.¹⁹ The narrative continues with the description of events on the evening of 12 September including; the patient’s admission to the Mater Hospital, the treatment provided at that hospital, the appellant’s attempt to contact the patient, the appellant’s telephone contact with the patient and the advice then given. There is a summary of a discussion between the appellant and the hospital doctor treating the patient and an explanation of the patient’s further treatment. The explanation includes the advice given by the appellant on 15 September over the telephone to the patient in the Mater Hospital that the patient should take her four remaining Misoprostol tablets at once. The reasons record the departure of the appellant for a conference in New Zealand on early 16 September, the making of the complaint by an obstetrician at the Mater Hospital and the progress of the complaint.²⁰

The report of Dr Keeping dated 7 December 2003 is discussed and reference is made to discussions between the representatives of the appellant and the respondent concerning a protocol to be entered into by the appellant in respect of the treatment of patients requiring similar procedures.²¹ The reasons summarise Dr Edwards’ advice.²²

The reasons do not analyse in any detail the differences of opinion of Dr Keeping and Dr Edwards or the views expressed by either expert specialist in relation to the opinions of the other specialist. Nor do the reasons touch upon the appellant’s evidence in respect of questions of appropriate medical practice. The reasons then make reference to the ultrasound which was conducted on the patient at the Mater Hospital and note that the report of the ultrasound showed the presence of a low lying placenta.²³ I will return to a consideration of this aspect of the reasons and of the evidence later.

The next topic dealt with is a submission provided by the appellant’s solicitors to the respondent on 4 April 2005.²⁴ A conclusion drawn from the submission was that the appellant “accepted that her failure to insist on meeting the support person and discussing the procedure with her was an error of judgment.” The “support person” to whom reference is made is the person referred to in particular (7). The evidence described such a person as one who was competent and reliable and who could stay with and support a patient throughout such a procedure.

A further report of Dr Edwards is then discussed in a little detail, including that part of Dr Edwards’ report which responds to Dr Keeping’s report.²⁵ Brief reference is made also to the oral evidence of Dr Edwards and Dr Keeping. After referring to Dr Keeping’s evidence to the effect that a low lying placenta would not increase the risk of heavier bleeding, the Tribunal stated a preference for Dr Edwards’ evidence over that of Dr Keeping:

“[26]I prefer the evidence of Dr Edwards in relation to these matters. In general, I found Dr Edwards more definite, objective and balanced.

[27]In relation to the risks associated with the low lying placenta he is supported by the events which did occur and to a certain extent, by the medical opinion of the complainant. In relation to the analogy with home birth, I formed the view that Dr Keeping holds very strong views about home births but nevertheless conceded in the passage quoted above that both procedures are dangerous. There is an unanswerable logic to the proposition that in a planned home birth, trained health professional are present to observe symptoms. (emphasis added)

Paragraph [28] concerns the allegations in particular (10).

“[28]One of the areas of concern is the follow-up or lack of it from the Registrant. Her notes have an entry for 15 September 2003 concerning the phone call with the patient when the patient asked for more tablets. The note that appears after that is dated 13.9.04 and notes:

Treat m/carriage

Spoke with Dr G Pecoraro at Women’s Health Conference/Bardon

He is on for weekend

Refer to me when discharged”

In paragraph [30] it is concluded that the appellant’s evidence that she had designated the Royal Women’s Hospital as the hospital the patient should attend, if necessary, was inconsistent with her instructions to the patient “which stated that the patient would be given a letter of admission to her nearest public hospital in case admission was required. The letter itself was not addressed to any particular hospital.” It was noted that the patient attended the nearest public hospital, which was the Mater, and the Tribunal found “it highly likely that the [appellant] did not designate the Royal Brisbane Women’s Hospital and that is an afterthought by the [appellant] who is aware of the policies of the Mater Hospital in such matters.” ²⁶

Paragraph [32] of the reasons refers to the appellant’s counsel’s submissions and states:

“The submission, in my view, overstates the evidence because no application was made to the Royal Brisbane Women’s Hospital for a termination on psychiatric or other therapeutic grounds. This is despite the fact that the submission goes on to say that the Registrant formed the opinion that the termination was appropriate on therapeutic grounds. In addition, as submitted on behalf of the Board, the evidence suggests that the Registrant has a general procedure in relation to mid-trimester terminations on the grounds of the restrictions to hospital for terminations at that stage of gestation.”(emphasis added)(footnote deleted)

Paragraph [33] sets out some of the purposes of the Act. Paragraph [34] contains the Tribunal’s findings of unsatisfactory professional conduct in terms of the 10 particulars.

There was no evidence to support the implicit finding that the patient’s mid-trimester termination could have been performed in a hospital in Queensland**.**

Before the Tribunal the respondent’s primary case was that the performance of mid-trimester terminations outside a hospital constituted unsatisfactory professional conduct. Further or alternatively, it was submitted that the management of the patient in the course of the procedure outside a hospital “showed a lack of skill or judgment and was of a standard less than expected of the [appellant’s] peers.”²⁷

The Tribunal, by finding that the allegation in paragraph (6) of the particulars had been substantiated, found in favour of the respondent’s primary contention. A matter of relevance to this question was whether it would have been possible for the patient’s procedure to have been conducted in a public hospital in Brisbane and, if so, whether the appellant’s practice was unique to her or conformed to that of at least some professional colleagues. The evidence was that the patient could not afford private hospital care.

The Tribunal appears to have concluded, implicitly, that the subject procedure could have been conducted in a public hospital. There is a discussion in paragraph [32] of the reasons on the question of whether a hospital termination was possible in the subject circumstances. In that discussion the Tribunal implicitly rejected the submission of the appellant’s counsel that “there is no doubt that the evidence is that this termination could not have been achieved as an inpatient in a hospital.”

Dr Keeping’s opinion, given in a report dated 21 May 2007, was that a mid-trimester termination which was “medically indicated” “could not be done in a hospital in Queensland.” The appellant swore in an affidavit:

“I knew from my experience that the Royal Brisbane and Womens’ Hospital (RBWH) would not assist patients seeking such a mid-trimester termination.

“I would much prefer to perform mid-trimester terminations in a hospital environment for patient comfort and peace of mind, however, given the restriction on admission to hospital for mid-trimester terminations in Queensland, this is simply denied.”

In cross-examination the appellant admitted that the continuation of the pregnancy would have endangered the patient’s mental health.²⁸ She also gave evidence of the understanding that a termination of a pregnancy could be performed legally in Queensland if the continuation of the pregnancy endangered the mental and physical health or life of the patient. She was not cross-examined, however, on the paragraphs of her affidavit just quoted. In particular, it was not suggested to her that the patient could have obtained a place in a public hospital for the procedure to be carried out. Dr Keeping’s clear evidence on the point was also unchallenged.²⁹ Dr Edwards conceded in cross-examination that he did not know whether the patient could have had the procedure carried out as an inpatient.

The patient’s treating doctor at the Mater Hospital recorded on 14 September 2003 in his clinical notes:

“Today is Sunday and will telephone to . . . discuss with Director of OBST at RWH until tomorrow. RWH may decline to accept referral and patient can’t afford . . . termination at planned parenthood.”

On 15 September the notes record, “I will phone director obstetrics at RWH but they may decline referral at 20 weeks gestation.”³⁰ On 15 September 2003 the notes record the following telephone conversation between the treating doctor and a doctor at the Royal Women’s Hospital:

“Discussion with Dr C Portman at RWH, unable to continue with social . . . TOP at 20/40, unless there’s a likelihood of a foetal abnormality.”

The notes, although referring to a “social” termination of pregnancy, provide further support for the evidence of Dr Keeping and the appellant. They certainly offer no support for the conclusion that any termination of pregnancy which is lawful is available in public hospitals. It is possible, one would think, to gain some appreciation of the position of the Royal Women’s Hospital in relation to procedures from the fact that the enquiry which was given a negative response concerned a woman who had been admitted to hospital with complications after an attempted termination of pregnancy.

It was not part of the respondent’s case before the Tribunal that the patient could have had her procedure in a public hospital in Brisbane. That explains why the appellant’s evidence as to the unavailability of a hospital place for the purposes of this termination was unchallenged. In my view, the Tribunal’s implicit finding that the patient could have been admitted to a public hospital for the termination constituted a denial of natural justice. For such a finding to be made, it would have been necessary to alert the appellant’s counsel to the possibility of such a finding. It would have been necessary also to give the appellant and Dr Keeping the opportunity of explaining their evidence on the point.³¹

The evidence of whether it was proper for the procedure to be conducted outside a hospital was treated by the respondent as relevant to the allegations in paragraph (1) of the particulars as well as to the allegations in paragraph (6). It is apparent that (1) is broader in scope than (6), otherwise (1) would be otiose. That being the case it is necessary to find in the reasons other conduct which satisfies particular (1).

It is not possible to determine from the reasons, however, if, or to what extent, the finding in paragraph [32] has a role in establishing the allegations in particular (1). The finding also raises questions which are unanswered in the reasons. For example, was it conduct within the allegations in particular (1) that the appellant failed to advise the patient to seek admission to a public hospital for the procedure or failed to assist in obtaining admission for the procedure? What bearing, if any, did such considerations have on the quality of the appellant’s conduct in carrying out the procedure outside a hospital? Did the appellant know or ought she reasonably have known, despite Dr Keeping’s evidence, that the patient could have had the procedure in a public hospital?

The findings were inadequate in respect of the allegation that the appellant failed to adequately investigate the patient’s condition and history prior to the provision of Misoprostol – particular (2)

In paragraph [17] of the reasons, the Tribunal said:

“One matter raised in this report calls for further discussion. An ultrasound was conducted at the Mater hospital. The Registrant did not have a written report of the results. The report specifically noted a low lying placenta. The Registrant made a clinical assessment of the fundal height and in evidence said that she also performed and [sic] ultrasound in her surgery. She said that she did not particularly notice the low lying placenta and she did not remember looking for a foetal heartbeat. Dr Edwards opined that the presence of a low lying placenta increases the risks of excessive bleeding during the labour process and that while that may occur, it is not a contraindication to proceeding to the termination, it increases the need for observation and careful surveillance during the procedure.”

That paragraph is relevant to the second particular. There was some divergence of opinion concerning the significance to the procedure of a low lying placenta. The appellant did not regard its existence as being of any relevance to the procedure. Dr Keeping was of the same opinion. Dr Edwards, however, was of the opinion that a low lying placenta would “certainly increase the risk of excessive bleeding” which would increase the risk that a medical intervention would be necessary. He did state in cross-examination, however, that “a low lying procedure [sic] doesn’t contradict totally – totally contradict the case for a mid-trimester termination [of] pregnancy just on the medical grounds.”

When Dr Edwards gave his first report, he was unaware that the appellant had conducted an ultrasound examination of the patient in her rooms. The first report relevantly stated:

“(2) [The appellant] failed to adequately investigate [the patient’s] condition and history prior to the provision of Misoprostol.

[The appellant] did take a history and examined [the patient] and was aware that an ultrasound investigation had been performed. She did not, however, obtain either a verbal or written report from the Mater Hospital where this had been performed and this ultrasound examination demonstrated a low lying placenta. [The appellant] had adequately enquired about [the patient’s] history and had performed an adequate examination, but should have obtained either a verbal or written report on the ultrasound findings.

(3) [The appellant] failed to provide adequate advice to [the patient] regarding the risks associated with inducing miscarriage at 19 weeks pregnancy in an outpatient setting.

I consider that the information given to [the patient] was inadequate in view of the management that she implemented in order for [the patient] to achieve a pregnancy termination. [The patient] did not appear to be aware of the degree of pain that she would experience, there was no discussion about potential complications and she was not given appropriate advice about what measures to take if complications developed.”

Dr Edwards’ concluding comment in relation to particular (1) was³²:

“I consider that [the appellant] did not provide [the patient] with enough information for her to be prepared for the subsequent course of events involved in a mid trimester termination of pregnancy.”

The appellant swore to having taken a history from the patient. Her evidence in this regard was as follows. She ascertained that the patient “desperately sought to have the pregnancy terminated” and explained her circumstances. The appellant described the patient as “anxious and depressed”. She noted that the patient could not afford the money for a dilation and curettage procedure. The patient said that she had been counselled at the Mater Hospital where she had been advised that a termination of pregnancy was not available at that hospital.

The appellant conducted an examination of the patient, including performing the ultrasound. She informed the patient how she would initiate the termination and explained that a further four doses of Misoprostol were to be taken orally at intervals of three hours. She explained that the patient would need a support person throughout the process. The patient said she had a friend who would support her and observed that the friend had driven her to the appellant’s rooms. The patient explained that the friend was not present because she was unable to find a park and did not have the money to park in a parking station. She said that the friend was a competent woman who would be able to drive her to hospital at short notice, if required.

The appellant explained that she would communicate with the patient by telephone half an hour after each dose of Misoprostol. She went on to explain, “that pain and bleeding were to be expected”. She gave the patient Voltaren for pain relief and advised how Panadeine tablets could be taken for pain relief. She advised that if these pain relief measures were inadequate the patient would need to be admitted to hospital and that admission could be arranged by her. She said that she designated the Royal Brisbane Women’s Hospital as the hospital the patient should use.

An explanation was given about the likely extent of bleeding and the patient was instructed that if heavy bleeding occurred, the appellant was to be contacted by telephone immediately. Further advice was given in relation to dietary matters and what could be expected if an admission to hospital was required. Advice was given also about what could be expected to take place as the tablets took effect and abortion occurred. There was further extensive discussion between the appellant and the patient concerning the procedure. The patient’s visit lasted approximately one and a half hours whereas the normal length of a consultation by the appellant with a patient in relation to a termination was in the order of 30 to 45 minutes. At the conclusion of the consultation the patient was given a handwritten instruction list to take with her.

In cross-examination the appellant gave evidence of having assessed the patient’s mental state, “By the manner in which she spoke, by the manner in which she looked at me. How she was dressed. How she sat. How she interacted with her child . . . and other things she told me.”

After considering Dr Keeping’s report of 21 May 2007 and the appellant’s affidavit, Dr Edwards gave a further report dated 10 September 2007. It, relevantly, stated³³:

“1.In relation to the registrants affidavit the adequacy of the history of the registrant obtained from the patient particularly issues as to the medical or social necessity for the termination.

[The appellant’s] history obtained of the patient rests on the patients apparent desperation for a pregnancy termination at this gestation. I consider that the history obtained at a single consultation was deficient in making an adequate assessment of the medical and/or social necessity for the termination of the pregnancy.

. . .

In relation to the registrants affidavit the evidence of a lack of social support in the patient life given the patient was noted to barely cope with her current child.

It would appear that [the appellant’s] assessment of the social support in this patient’s life was minimal.

In relation to the registrants affidavit where (sic) the social circumstances of the patient were adequately assessed by the Registrant.

Answered above.

. . .

In relation to the registrants affidavit whether it would be normal practice to enquire of a patient whether they had undergone a scan and if so would it be routine to request the scan from the hospital or medical practitioner if conducted.

I consider it would be normal practice to obtain the report of a previous scan if it had been performed in management. I have stated this in my previous reports.”

It is impossible to tell from the Tribunal’s reasons the extent to which the Tribunal took into account, in respect of particulars (1), (2), (3), (8) and (9), the failure to obtain the Mater Hospital’s ultrasound results and Dr Edwards’ evidence of the risk of increased bleeding as a result of a low lying placenta. As those matters were referred to specifically in paragraph [17] of the reasons, it is probable that they were regarded as of some significance to the Tribunal’s determination in respect of one or more of the particulars.

Dr Edwards’ criticism concerning the Mater Hospital ultrasound report in his second report was limited to observing that obtaining a copy of the Mater Hospital’s ultrasound results would have been “normal practice”. That opinion fell short of an opinion that the failure amounted to unsatisfactory professional conduct. Nor was it the evidence of Dr Edwards that increased risk of excessive bleeding, in itself, caused the procedure to be inappropriate, or that this matter was relevant to particulars (1) or (2).

It is not possible either to determine from the reasons if or how the evidence of the low lying placenta or the evidence in relation to the ultrasound is used by the Tribunal as evidence supporting the allegation in particulars (3), (8) or (9).

Dr Edwards’ opinion in relation to particular (2) in his second report differed from the opinion expressed in his first report. In the first report Dr Edwards concluded that the appellant had adequately enquired about the patient’s history. In his second report, given after receipt of more detailed information about the extent of the history obtained by the appellant, he concluded that the history was “deficient in making an adequate assessment of the medical and/or social necessity for the termination of the pregnancy.” Dr Edwards’ conclusion did not amount to an opinion that there had been unsatisfactory professional conduct and did not identify the deficiencies or inadequacies found to exist. Dr Edwards’ opinion did not take into account any of the appellant’s oral evidence.

Queried as to whether the knowledge that the patient had previously attempted suicide would militate against the procedure or should have caused further inquiry to be made, Dr Edwards answered³⁴:

“I do not think I could adequately answer this question. In principle I would consider that a patient who has had previous suicide attempts should be assessed completely in consultation with a psychiatrist to adequately make an opinion about her current mental state. In view of this I would consider that further inquiry with consultation with a psychiatrist should be made.”

That opinion was rather tentatively given. Again, it was not an opinion that there had been unsatisfactory professional conduct in relevant respects and the opinion pre-dated the appellant’s oral evidence.

In reaching its finding that the appellant engaged in unsatisfactory professional conduct in respect of each aspect of the Referral Notice the Tribunal did not specify whether it had regard to the evidence of the appellant and did not detail why the conduct of the appellant constituted professional conduct that was of a lesser standard than that which might reasonably be expected of her by the public or her professional peers.

It was argued on behalf of the appellant that in failing to refer to the appellant’s evidence at all, when determining there was a failure to satisfy the standard expected by the public and her professional peers, the Tribunal failed to have regard to, and give due weight to, the appellant’s evidence. Rather, the course the Tribunal took was to consider the evidence of the two expert witnesses and choose the evidence of Dr Edwards over that of Dr Keeping.

Counsel for the respondent submitted that the primary judge’s finding in paragraph [26] of the reasons relates to the evidence of the appellant, as well as that of Dr Keeping. Paragraph [26] is as follows:

“I prefer the evidence of Dr Edwards in relation to these matters. In general, I found Dr Edwards more definite, objective and balanced.”

Although it is not completely clear, it does appear to me that in paragraph [26] the Tribunal was dealing with the expert opinion evidence. The Tribunal commenced its discussion of the evidence of Dr Edwards at paragraph [15]. Paragraph [16] refers to a number of criticisms made by Dr Edwards. Paragraph [17] states some factual matters in relation to the appellant’s examination of the patient without a finding which indicates acceptance of the appellant’s evidence. The paragraph contains Dr Edwards’ opinion as to the effect of a low lying placenta.

Paragraphs [18], [19] and [20] deal with the submission received by the respondent from the appellant’s solicitors. Paragraph [21] refers to the conduct of the respondent. Paragraphs [22] and [23] deal further with Dr Edwards’ opinions. Paragraph [24] deals with the evidence of Dr Keeping and Dr Edwards and paragraph [25] deals with an aspect of Dr Keeping’s evidence. The context then of paragraph [26] is one of consideration of the expert opinion evidence. The same context is maintained by paragraph [27].

If the Tribunal rejected the opinion evidence of the appellant where it conflicted with the opinions of Dr Edwards, no reasons were given for taking this course. The questions in issue in the proceedings, the nature of Dr Edwards’ reports, the nature of the appellant’s evidence and the way the case was conducted all provide something of an explanation for the Tribunal’s approach.

There was no real contest about some of the factual matters. Dr Edwards’ report of 19 April 2006 took the form of an expression of very brief opinions, in respect of the allegations in the particulars, on whether the appellant had acted or failed to act adequately or appropriately. Some of the opinions were of a quite general nature and the reasoning behind them was not revealed. The appellant’s opinion evidence in cross-examination was brief and was not referred to in counsel’s oral submissions.

The opinions expressed by Dr Edwards in the 19 April 2006 report in relation to particular (1), (3) and (5) were as follows:

“I provide the following opinion on the questions provided to me in the Instructions to Expert. This opinion is based upon the management of [the appellant] of [the patient] on or about 12th September, 2003.

(1) [The appellant] failed to provide adequate and appropriate health care and advice to [the patient] on 12th September, 2003.

I consider that [the appellant’s] treatment of [the patient] is consistent with professional conduct that is of a lesser standard than that which might be reasonably expected for the registrant by the public of the registrants professional peers. I do not consider it medically appropriate to discharge a patient home to undergo a mid trimester termination of pregnancy and that the patient having this procedure should be an inpatient receiving both medical and emotional support from qualified professionals. I consider that [the appellant] did not provide [the patient] with enough information for her to be prepared for the subsequent course of events involved in a mid trimester termination of pregnancy.”

“(3)[The appellant] failed to provide adequate advice to [the patient] regarding the risks associated with inducing miscarriage at 19 weeks pregnancy in an outpatient setting.

I consider that the information given to [the patient] was inadequate in view of the management that she implemented in order for [the patient] to achieve a pregnancy termination. [The patient] did not appear to be aware of the degree of pain that she would experience, there was no discussion about potential complications and she was not given appropriate advice about what measures to take if complications developed.

(5)[The appellant] failed to arrange appropriate hospital care for [the patient] following the administration of Miprostol when at 19 weeks gestation.

As stated above I consider it not appropriate to perform a Misoprostol termination of pregnancy in an outpatient setting. However, if it was considered appropriate to commence this procedure at home [the patient] should have been advised by [the appellant] what steps she should take if complications developed and appropriate hospital admission should have been pre arranged. This clearly was not the case.”

­It is only in respect of particular (1) that Dr Edwards expressly concludes that the appellant’s conduct was unsatisfactory professional conduct. That conclusion appears to be linked to the undertaking of the procedure outside a hospital. Dr Edwards’ report of 10 September 2007 does not address the question of whether any of the appellant’s conduct, variously described as “deficient”³⁵, “minimal”³⁶ and not “normal practice”³⁷, amounted to unsatisfactory professional conduct.

The first sentence of paragraph [3] of Dr Edwards’ report is obscure. It does not appear to address the allegation in the particulars, at least not directly. The second sentence commences with an opinion on the patient’s state of mind. Dr Edwards appears, rather speculatively, to draw conclusions about the extent of the appellant’s advice to the patient from the conduct of the patient in the course of the procedure, as revealed by hospital records. The opinion that there was “no discussion about potential complications” overstates the position. Paragraphs [13], [14], [15] and [16] of the appellant’s affidavit deal directly and indirectly with potential complications. The concluding comment that the patient “was not given appropriate advice about what measures to take if complications developed”, was not accompanied by any indication of how the advice given was inappropriate or any identification of the advice which, in Dr Edwards’ opinion, should have been given.

In relation to particular (5), Dr Edwards concludes that the patient was not advised “what steps she should take if complications developed.” As observed above, the appellant’s affidavit did address these matters. Dr Edwards may have regarded the advice given as inadequate but the nature and extent of any such inadequacies were not identified by Dr Edwards.

As the 19 April 2006 report of Dr Edwards pre-dated the appellant’s affidavit and her cross-examination, the opinions in the report were not given on all the facts before the Tribunal. That deficiency was not remedied by the 10 September 2007 report. Item 1 of the 10 September report is discussed above. The 10 September report does not address the matters dealt with in item (3) of the April 2006 report or the alleged lack of advice in the event of complications referred to in item (5) of that report.

Neither of Dr Edwards’ reports addresses the allegations in particular (10). Counsel for the respondent relied on evidence that the appellant had had no further contact with the patient after the appellant was advised on 13 September that the patient had been admitted and was under the care of a consultant obstetrician and gynaecologist, Dr Pecoraro. The appellant spoke to Dr Pecoraro about the patient on the morning of 13 September. He “indicated that when appropriate, the patient would be returned to [her] care.” The appellant in fact had a telephone conversation with the patient on the morning of 15 September. The appellant requested the patient to come to her rooms. The patient declined and the appellant advised her to take the remainder of her tablets. The appellant had no further contact with the patient. There was no evidence of the patient ever having been referred back to the appellant.

In support of the Tribunal’s finding, the respondent’s counsel referred to the appellant’s expression of regret over not having communicated with the patient’s general practitioner for approximately a year after the procedure. That has little, if anything, to do with the allegation in the particular.

The reasons do not refer to any facts which might support the finding in respect of particular (10) beyond noting that the appellant had no contact with the patient after 15 September 2003.

Was it a denial of natural justice for the Tribunal to treat an opinion of the complainant as expert opinion evidence?

The appellant complains of the reliance by the Tribunal on the expert opinion of the complainant. In his letter of complaint to the respondent of 17 September 2003, the complainant, referring to the appellant’s bleeding, observed, “It is not surprising she had vaginal bleeding as ultrasound at 19 weeks had demonstrated the placenta to be low lying.”

The complaint was before the Tribunal as an exhibit to an affidavit of the executive officer of the Office of Health Practitioners’ Registration Board. The respondent did not rely on the letter of complaint as expert opinion evidence on the hearing and the complainant did not give evidence. Although the Tribunal is not bound by the Rules of Evidence, it must observe natural justice.³⁸ The appellant’s legal advisors could not have reasonably anticipated that the complaint would be used as expert opinion evidence and its use in this way constituted a denial of natural justice.

Application of the principles to the above findings

Counsel for the respondent properly accepted that the Tribunal was obliged to give reasons. That obligation is implicit in s 245(2) of the Act and would arise also at Common Law, having regard to the judicial nature of the subject hearing³⁹ and the existence of a right of appeal.⁴⁰ Inadequacy of reasons constitute an error of law.⁴¹

The appellant makes no complaint about the Tribunal’s preference for the evidence of Dr Edwards over the evidence of Dr Keeping. In explaining why one witness is to be preferred over another the circumstances may be such that no elaborate reasons are called for. It has been said that in such a case that the question is often “a matter not of reasoning but of judgment”.⁴² In relation however to the implied rejection of the evidence of Dr Keeping and the appellant as to the impossibility of the procedure being conducted in a hospital, the position is different. The Tribunal’s implicit findings rejected the uncontested opinion evidence of two experienced medical specialists, well qualified to give informed evidence on the point as a result of their respective years of practical experience. If that evidence, which was on a material issue, was not to be accepted it was incumbent on the Tribunal to explain and justify the Tribunal’s conclusions.⁴³ Failure to inform the appellant’s counsel that there may be an adverse finding on such an uncontested point also constituted a denial of natural justice.

An assessment of whether an act or omission constitutes unsatisfactory professional conduct will normally involve a question of judgment and it may not always be possible for an expert witness’s reasoning on the point to be articulated to any great degree. But it is implicit in a finding that an act or omission constitutes unsatisfactory professional conduct, that what was done or omitted to be done, falls short of the conduct or standard of conduct which is satisfactory. That observation applies also to opinions that conduct is inadequate or inappropriate. Where there is no explanation of why conduct found to be unsatisfactory is unsatisfactory, unless the conduct or standard of conduct said to be satisfactory, adequate or appropriate is identified, there are no criteria against which the validity of the Tribunal’s findings can be judged. Nor is it possible for the parties, the public, an Appellate court or even the Tribunal itself, to reach an informed conclusion about the extent and gravity of the unsatisfactory professional conduct.

The Act’s stated objects include the upholding of standards of practice and the protection of the public “by ensuring health care is delivered by registrants in a professional, safe and competent way.” The achievement of those objects will be assisted if the reasons contemplated by s 245 of the Act inform the registrant in question, the profession and the public of the reasons why conduct is found to be unsatisfactory. That will often require identification of at least the minimum content of the standards required for satisfactory professional conduct. The giving of such reasons will also serve the public interest by enabling the Tribunal, any Appellate court and other relevant bodies to deal more effectively with appeals, disciplinary considerations, applications of reinstatement and the like.⁴⁴ Where there is a right of appeal only on a question of law it may be that the reasons need not canvass the facts as extensively as would be appropriate where an appeal lies on questions of fact and law.⁴⁵ The extent of the duty to give reasons is “related to the function to be served by the giving of reasons.”⁴⁶

Having regard to the Tribunal’s role under the Act and the purposes served by its reasons, it appears to me that the reasons are deficient in not identifying how and the extent to which the appellant’s conduct in respect of particulars (1), (2), (3), (8) and (10) fell short of acceptable conduct.

As earlier discussion illustrates, the resolution of ultimate issues may involve determination of sub-issues. Such sub-issues included whether the procedure could have been performed in a public hospital and whether, accepting Dr Edwards’ opinion as to the significance of the low lying placenta, the appellant should have known of the risks identified by Dr Edwards and/or should have altered her conduct. When such issues arise, it will normally be the duty of the Tribunal to make appropriate findings of fact and explain its resolution of such matters by reference to the facts.⁴⁷ In this case, the potential significance of the two matters just mentioned required appropriate findings of fact.

Even if the statements of fact in Dr Edwards’ reports were taken to have been adopted implicitly by the Tribunal, the reasons, thereby, will not be rendered sufficient. As explained earlier, the 2006 report is not based on the evidence before the Court. The 2007 report was prepared after Dr Edwards saw the appellant’s affidavit but it sets out very few material facts as the basis for the opinions expressed and does not deal with some of the areas covered by the earlier report. Also, as the above discussion shows, some of the matters asserted by Dr Edwards are inaccurate. Dr Edwards gave evidence before the appellant and therefore his evidence could not deal with relevant evidence given by the appellant in cross-examination. There is the additional consideration that many of the opinions of Dr Edwards, although relevant to the assessment of whether the conduct in question was “unsatisfactory professional conduct” fell short of an opinion as to whether such conduct was of a “lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers.”⁴⁸ And, of course, it is for the Tribunal to find the facts. That is not the role of an expert called by one of the parties.

In these circumstances a finding that the allegations in the 10 particulars of unprofessional conduct had been made out required a much greater factual base than a preference for Dr Edwards’ opinions over those of Dr Keeping “in relation to these matters.” “These matters” are a reference to the contents of the reports of the two doctors and the oral evidence referred to in paragraphs [24] and [25]. Also required was an explanation of how the facts justified the findings.

Conclusion

For the above reasons the appellant has established material errors of law. The effect of the errors identified is that there are no, or substantially no, valid reasons for the Tribunal’s decision and it is therefore appropriate that the Tribunal’s decision be set aside. It is not appropriate that this Court make any findings of its own and I would order that:

The decision of the Health Practitioners’ Tribunal on 11 December 2007 be set aside.

The matter be remitted to a differently constituted Tribunal for determination according to law.

The respondent pay the appellant’s costs of the appeal; and

The costs of and incidental to the hearing at first instance be reserved for determination by the Tribunal if not agreed between the parties.

It will be for the respondent to consider, having regard to lapse of time since the events in question occurred, whether this matter should proceed any further.

DOUGLAS J: I have had the advantage of reading the reasons for judgment of Muir JA and agree with them and the orders proposed.

The Victorian Court of Appeal has given some useful recent guidance in respect of the obligation of a judge or tribunal member to provide reasons for his or her decision. In Hunter v Transport Accident Commission⁴⁹ Nettle JA criticised the “mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings …” Earlier in that decision his Honour also made some general comments:⁵⁰

“[21] When a judge decides an application under s 93(4)(d) of the Act [the Transport Accident Act 1986 (Vic.)] the judge is under a duty to provide reasons for his or her decision. Furthermore, while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion. It should also be understood that the requirement to refer to the evidence is not limited to the evidence that has been accepted and acted upon. If a party has relied on evidence or material which the judge has rejected, the judge should refer to that evidence or material and, in giving reasons which deal with the substantial points that have been raised, explain why that evidence or material has been rejected. There may be exceptions. But, ordinarily, where a judge rejects or excludes from consideration evidence or other material which is relevant and cogent, it is simply not possible to give fair and sensible reasons for the decision without adverting to and assigning reasons for the rejection or exclusion of that material. Similarly, while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case, where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue. Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law.

[22] These points are encapsulated in the judgment of Chernov JA in Barlow v Hollis. As his Honour there said, the fact that a judge may not mention some matter relevant to the disposition of a s 93(4)(d) application does not necessarily mean that his or her judgment is deficient. For example, matters which are obvious need not be restated, and the element of value judgment involved in the determination of such an application does not always lend itself to the degree of precision in expression that can be achieved in other matters.”

That approach was also endorsed in the more recent decision of the Victorian Court of Appeal, constituted as five judges, in Kelso v Tatiara Meat Co Pty Ltd⁵¹; see the decision of Dodds-Streeton JA in particular.⁵² Her Honour emphasised “the fundamental requirement that the appellate court and the litigant, professionally advised, must be able to ascertain why the particular result was reached.”⁵³

In my view those decisions provide useful guidance for the provision of reasons in cases of this nature also.

Footnotes

1. Medical Board of Queensland v Res 1 [2007] QHPT 008 ↩

2. The relevant reprint is No 3A, which commenced on 1 July 2007 ↩

3. The Act, s 348 ↩

4. The Act, s 27 ↩

5. The Act, s 31 ↩

6. [2007] QHPT 008 at [34] ↩

7. Under s 241(2)(g) of the Act ↩

8. Under s 241(3)(a) of the Act ↩

9. RES 1 v Medical Board of Queensland, unreported, McMurdo P (in chambers), Qld, Appeal No 11381 of 2007, 13 December 2007 ↩

10. The Act, s 6(a) ↩

11. The Act, s 6(b) ↩

12. The Act, s 6(c) ↩

13. The Act, s 348 ↩

14. Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 262 at 476 – 477; 482 – 484; [2001] 2 Qd R 350 and [2005] QCA 128