Court of Appeal (WA)|2004-08-27|Before: Mr P, Templeman J, Ipp J, Owen J, Pullin J

Srna v The Medical Board of Western Australia [2004] WASCA 198 (27 August 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SRNA -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2004] WASCA 198

Medical practitioners - Practitioner guilty of gross carelessness - Whether Medical Board erred in finding complaint proved - Whether Medical Board erred in ordering suspension

Boermea v Medical Board of Western Australia, unreported; SCt of WA (Templeman J); Library No 980342; 19 June 1998

Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582

Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322

Chan v The Queen (1989) 38 A Crim R 337

Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Dyall v Medical Board of Western Australia [2001] WASCA 200

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189

Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112

Health & Community Services (NT), Department of v JWB & SMB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218

Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

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

Naxakis v Western General Hospital & Anor [1999] HCA 22; (1999) 197 CLR 269

Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362

Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434

Sakalo v Medical Board of Western Australia [2002] WASCA 178

Sheahan v Woulfe [1927] St R Qd 128

Shepherd v The Queen (No 5) [1990] HCA 56; (1990) 170 CLR 573

Sidaway v Board of Governors of the Bethlehem Hospital & Maudsley Hospital [1985] UKHL 1; [1985] AC 871

Staunton v The Queen [2004] WASCA 21

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Butterworth v Walton, unreported; CA (NSW); 19 December 1991

Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634

Quigley v Legal Practitioners Complaints Committee [2003] WASCA 228

R v Golding (1980) 24 SASR 161

Richter v Walton, unreported; CA (NSW); 15 July 1993

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1999) 160 ALR 588

Van Lan Ha v Pharmacy Board of Victoria [2002] VSC 322

Walters v The Nursing Board of Tasmania [2003] TASSC 122

1 PULLIN J: This is an appeal by a medical practitioner who conducts a practice as a consultant psychiatrist. He appeals against an order of the Medical Board on 10 September 2003, suspending the registration of the practitioner for a period of 3 months. The suspension was ordered because the Medical Board found the practitioner guilty of gross carelessness arising out of a consultation with a young patient on 8 January 1998. The effect of the order has been stayed pending the outcome of this appeal.

2 During the inquiry, the Medical Board referred to witnesses as follows. The patient was referred to as "the patient", the patient's father was referred to as "Mr A", the patient's brother was referred to as "Mr B", the patient's girlfriend as "Ms C" and the patient's mother as "Mrs D". I will do likewise where necessary.

3 The appeal to this Court is allowed by reason of s 13 of the Medical Act 1894. Section 13(8) provides that the appeal is in the nature of a rehearing. Order 65 r 10 provides that:

"(1) Subject to paragraph (2), the appeal shall be in the nature of a rehearing, and the Judge hearing the appeal may confirm, quash or vary the decision of the tribunal against which the appeal is made or remit the matter to the tribunal for rehearing, with or without directions.

(2) The Judge may determine the appeal on the material that was before the tribunal when it gave its decision or, by special order given before or at the hearing, on such additional or fresh evidence, either oral or by affidavit, as may be allowed, or partly in the one way and partly in the other, and the Judge may rehear the testimony of any witness, whether by way of examination or cross-examination, and any party to the appeal may be represented by counsel."

4 Those statutory provisions have been the subject of consideration by this Court. The decisions make it clear that the rehearing of the matter is a rehearing of the merits of the decision of the Board based on the transcript and documentary evidence which was before the Board and any additional evidence which is permitted by leave under O 65 r 10. The appellant must persuade the court that the decision appealed from was in error. In deciding whether there was an error, due weight must be given to the opinion of the Medical Board on issues such as credibility of witnesses and the characterisation of conduct found to have occurred. If error can be shown then it is the duty of the appellate Judge to make up his or her own mind as to what facts are proved and what inferences should be drawn from those fact. See Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 at 328; Cranley v Medical Board of Western Australia, unreported; SCt of WA (Ipp J); Library No 8668; 21 December 1990; Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No 920584; 13 November 1992; Sakalo v Medical Board of Western Australia [2002] WASCA 178 at [26].

5 The inquiry before the medical board concerned the conduct of the practitioner in relation to a consultation with the patient on 8 January 1998.

6 The patient was born on 28 November 1980 and he was therefore a minor at the time of the consultation. In 1991 the patient's mother and the patient's father separated. The patient and his brother then lived with their father in Mandurah. A few months later the patient's brother moved in with his mother and a person with whom she had formed a de facto relationship, a Mr Piper. This was at Como.

7 In about December 1997 the patient began displaying differences in behaviour, demeanour and mood. These differences were discernible to those close to him. This also caused the patient concern. He had been diagnosed at some earlier stage with attention deficit hyperactivity disorder (ADHD). Between 2 and 7 January 1998 the patient's father gained first-hand evidence that the patient believed he was having conversations with persons who were not present.

8 On 5 January 1998 an appointment was made for him to attend on a medical practitioner at the Halls Head Medical Centre, Dr Cathy Kan. Dr Kan referred the patient to Dr Ken Whiting, a paediatrician who had seen the patient some years earlier in relation to his ADHD. On 7 January 1998 the patient attended at Dr Kan's surgery with his father. In view of the report about the hallucinations the patient had been suffering, Dr Kan referred the patient to the practitioner. Dr Kan wrote a letter of referral which read (AB 85):

"Dear Psychiatrist,

Please see [the Patient] who has an acute episodes of hallucinations + illusions of taking to someone in the street and neighbours [sic]. He also thinks that he can read other's thought. Had had feelings of depressed and suicidal thought but never had plan or attempt. He had have some features of mania, inattention, hyperactive and flight of ideas [sic]. No paranoia. PMH [past medical history] - ADD - was on Ritalin. Please assess."

9 The patient attended the practitioner on the following day, ie on 8 January 1998. The patient was accompanied to the practitioner's waiting room by his father and brother. The practitioner came and called the patient into his room. The father stood up to go with his son but was told by the receptionist that only the patient should go in. The practitioner saw the patient for less than an hour. The consultation on 8 January 1998 was a Thursday. The uncontradicted evidence of the practitioner was that he was going on holidays on the Sunday following, for a week.

10 There was expert evidence before the Board to the effect that, on the information available, the proper management of the patient required the implementation of a management plan which took appropriate account of the likelihood or possibility that he was suffering from a psychotic illness until such time as that possibility could safely be excluded, that this management plan would have required close observation and supervision of the patient, preferably in a family environment, the implementation of steps to involve the members of the patient's family with a view to their participation in a process of observation, supervision and care of the patient in an informed way, and the consideration of the possible need to make arrangements for the observation, supervision and care of the patient to occur in a hospital setting on a voluntary admission basis in the event that this could not be achieved in a family environment.

11 The practitioner did not do this. He made arrangements for the administration of certain tests by a clinical psychologist for psychometric testing, requested that the patient make a further appointment following receipt of the test results, gave the patient a card for the Perth Clinic which listed its telephone number and told the patient that if he experienced any problems before his next visit he could attempt to contact him and that if he could not be reached, the patient should contact his general practitioner or the Perth Clinic. No follow-up appointment was made for the patient by the practitioner or anyone else.

12 The Medical Board resolved to inquire into the conduct of the practitioner. The Notice of Inquiry was amended both before the hearing and at the hearing before the Medical Board.

13 In its final form the Notice of Inquiry alleged gross carelessness in the assessment and management of the patient. It alleged that the conduct of the practitioner fell below the standards demanded of him in that he failed to recognise that the patient was suffering from an acute psychotic illness or that it was likely that he may have been so suffering, as well as other shortcomings in the assessment of the patient. The second aspect of the inquiry was concerning an alleged failure to manage the patient appropriately in the circumstances.

14 The precise terms of the finally amended Notice of Inquiry alleged that the practitioner was guilty of gross carelessness or incompetency in that on:

"8 January 1998 [he was] consulted by [a patient] for [his] assessment and that [he]:

(a) failed to recognise that the [p]atient was suffering from an acute psychotic illness, or alternatively failed to recognise that it was likely that the [p]atient was suffering from an acute psychotic illness;

(b) failed to take any or any adequate account of the concerns raised by the referring doctor that the [p]atient was suffering from hallucinations, delusions, depression, suicidal thoughts, the belief he could read the thoughts of others and had some features of mania and inattention, hyperactivity and flight of ideas;

(c) failed to take or attempt to take any corroborative history from the [p]atient's family members present at the consultation;

(d) failed to telephone the referring GP to clarify precisely what information she had, what she had observed for herself, what had been imparted to her by others and who those persons were;

(e) failed to verify who, if anyone had accompanied him to the appointment;

(f) failed to manage the [p]atient in a manner which adequately took into account the fact that the [p]atient was suffering from a psychotic illness or that it was likely that the [p]atient was suffering from a psychotic illness, and thus failed to ensure that the [p]atient's condition was stabilised and a recovery initiated, and specifically failed to:

(i) take any effective steps directed to the initiation within 48 hours of drug treatment involving the prescription of anti-psychotic or psycho-sedative medication to the [p]atient to control psychotic symptoms, or to arrange for any such steps to be taken; or

(ii) arrange appropriate intensive psychiatric supervision including the consideration of the possibility of admission of the [p]atient to hospital; or

(iii) take any steps to establish links with the [p]atient's family to enable them to participate in the process of observing the [p]atient and to participate in the care of the [p]atient in an informed way.

(g) failed to make any or adequate arrangements for the management of the [p]atient in that [he]:

(i) failed to communicate [his] clinical findings to the [p]atient or the [p]atient's family;

(ii) failed to communicate [his] clinical findings to the [p]atient's referring doctor;

(iii) failed to arrange for a colleague to take over the [p]atient's case prior to ... going on leave."

15 Before the amendments to the Notice of Inquiry which were made on the first and fourth day of the inquiry, the practitioner had filed an undated answer to the Notice of Inquiry.

16 By it, he admitted that he was consulted by the patient on 8 January 1998 but denied that he was grossly careless or incompetent as particularised or at all. His answer said that he was consulted by that patient for a medical and psychiatric assessment of "the continuation of the patient's treatment for attention deficit disorder that had been commenced by his general practitioner".

17 By his answer he admitted that he did not diagnose the patient as suffering from an acute psychotic illness, but he said he considered whether the patient was suffering from a psychotic illness but did not consider that there was evidence of psychotic features or a functional psychiatric disorder at the time of consultation, that from the history the patient gave to him and from his impression of the patient his diagnosis was "Attention Deficit Disorder complicated by episodic psychotic phenomena in the past most likely resulting from a combination of illicit substances and Ritalin which the patient said he had been taking" and "the differential diagnosis included organic psychosis and a functional psychotic illness".

18 The practitioner denied that he failed to take any adequate account of the concerns raised by the referring doctor as particularised in the Notice of Inquiry and said further that "during the consultation the patient expressly denied he had experienced any hallucinations, delusions or other psychotic phenomena, except in association with drug use."

19 The practitioner further stated in his answer that the patient "stated to him that he had never experienced depression and suicidal ideation" and that "he could not elicit any features of mania and inattention, hyperactivity and flight of ideas during the consultation".

20 The practitioner admitted that he did not take any corroborative history from the patient's family members, but otherwise denied par 1(c) of the Notice of Inquiry and said further:

"5.1 as far as he was aware, the patient had attended the consultation solely with a young female who remained in the waiting room during the consultation, and that he did not see any of the patient's family members present in the waiting room.

5.2 the patient told him during the consultation that he was responsible for the referral and he requested that the practitioner assure him that his parents, family and girlfriend would not be interviewed or involved in any way.

5.3 that during the consultation, the patient expressly told the practitioner that he was not close to his mother and that he was living separately from his mother.

5.4 although the patient was a minor (aged approximately 17 years and 2 months) at the time of the consultation on 8 January 1998, he was satisfied that the patient had the capacity to understand the nature of the proposed medical assessment and that he was sufficiently mature to make his own decisions.

5.5 he did not consider it was necessary to take any corroborative history from the patient's family against the patient's will as there was no clinical evidence of psychotic features or a functional psychiatric disorder on mental state examination and no reason for concern about the patient's safely or the safety of others.

5.6 in order that he could clarify the history about the patient's poly-substance abuse, he requested that the patient attend the next appointment with his parents."

21 The practitioner in his answer admitted that he did not telephone the referring GP but said that it was "not necessary to telephone the referring general practitioner having regard to the patent's presentation in the consultation, the information elicited from the patient during the consultation and the working diagnosis that he made".

22 The practitioner in his answer denied that he failed to verify who, if anyone, had accompanied him to the appointment and said further "that he asked the patient who had accompanied him to the appointment and the patient answered he had been accompanied by his girlfriend".

23 The practitioner in his answer denied that he had failed in his management of the patient and added that:

"8.1 he did not prescribe antipsychotic or psycho-sedative medication to the patient as the practitioner did not consider there was any clinical evidence of psychotic features or a functional psychiatric disorder on mental state examination and he wished to make further observations and investigations to clarify the diagnosis.

8.2 he offered the patient temporary treatment of his symptoms of higher arousal, anxiety, [sic] agitation by a trial low dose of an anxiolytic medication such as Zyprexa. However, the patient refused such treatment and requested Ritalin.

8.3 he requested the patient undergo a CT scan, electroencephalogram and blood tests ('the investigations') in order to exclude an organic cause of the patient's symptoms and he requested that the patient make a further appointment to see him following the performance of the investigations.

8.4 he advised the patient that he would be referring the patient to a clinical psychologist for psychometric testing at his next appointment in order to clarify the diagnosis of Attention Deficit Disorder.

8.5 he advised the patient that he would be referring the patient for drug and alcohol rehabilitation prior to any treatment with stimulants if such treatment was indicated by the results of the psychometric testing and if an organic cause for his symptoms was excluded by the investigations.

8.6 the patient's symptoms and diagnosis at the time of the assessment did not warrant intensive psychiatric supervision or hospitalisation."

24 The practitioner also denied par (g) of the particulars and further said that:

"9.1 he advised the patient of his clinical findings and diagnosis at the consultation.

9.2 the patient did not give his consent for the practitioner to communicate his clinical findings to the patient's family.

9.3 he communicated his clinical findings to the patient's referring doctor on 4 February 1998.

9.4 he advised the patient that during the practitioner's absence on leave that he should contact the Perth Clinic (which phone number he provided to the patient) who would then advise the patient of the name of the psychiatrist who covers for the practitioner during absences."

25 A few days after the consultation, namely on Sunday 17 January 1998, the patient killed his mother's de facto husband, Mr Neil Piper, at the home in Como. The death was the result of a brutal bashing. The patient was arrested, charged, and subsequently tried for wilful murder in the Children's Court of Western Australia and was found not guilty of the wilful murder of Mr Piper on account of unsoundness of mind. The patient was diagnosed as suffering from paranoid schizophrenia. It is a diagnosis with which the practitioner agreed when he gave his evidence at the inquiry on 17 April 2003.

26 The Medical Board correctly noted that the inquiry was not concerned to consider whether the catastrophe which occurred on 17 January 1998 might, or would have been avoided had the practitioner acted in a different manner on 8 January 1998.

27 After the patient was arrested and charged with wilful murder a Dr Dingle, a consultant psychiatrist at Princess Margaret Hospital, was asked to assess the patient's mental condition to determine whether he was fit to stand trial. Dr Dingle called for a report from the practitioner. The practitioner wrote a letter to Dr Dingle dated 30 January 1998. The letter follows closely the notes which were made by the practitioner at the consultation on 8 January 1998. The letter read (AB 43) :

"Dear John

Re: [Patient] DOB: 28.11.1980

Following our discussion regarding this unfortunate young man following, please, find a summary of my assessment done in my rooms at the above address on 8 January 1998.

[The patient] attended the appointment accompanied by his girlfriend. The appointment was made on an urgent basis by Dr John Robinson, [the patient's] GP. I understand that the appointment was instigated by the patient's mother who wanted him to continue a treatment for ADD and could not get an appointment with a child and adolescent psychiatrist on a short notice. Dr Robinson mentioned that [the patient] was suffering from 'acute episodes of hallucinations plus illusions of talking to someone in the street and neighbours. He also thinks that he can read other peoples thoughts and had feelings of depressed and suicidal thoughts but never had planned nor attempted to carry anything through. He had some features of mania, inattention, hyperactive and flight of ideas.'

[The patient] presented as a young male, overfamiliar and on occasions using foul language. He was reasonably cooperative with the interview yet abrupt at times. He was euthymic with perplexion at times, taking long pauses and having difficulties with grasping complex concepts. No formal thought disorder was elicited and no delusions were revealed. Some illusions and referential ideas were described (such as being hypersensitive to persons coughing and other insignificant noises) but no perceptual disturbances of a psychotic nature were elicited. A plausible explanation was received to all phenomena. Social judgement was intact.

[The patient] gave me a history of 2-3 days difficulty in keeping track of his own thoughts and some referential ideas. He said that he was seen by his GP for hyperactivity and concentration difficulties, which he has been having since his childhood, and was put on Ritalin approximately 2 months ago which he had been taking until recently. This seemed to make him feel better

The family history revealed a broken relationship between his parents in a family coming originally from Southampton in England. They came to Australia 7 years ago. He said that his father was a bricklayer and drinks quite a lot. The parents divorced when [the patient] was ten years old. He attended Mandurah High School and his performance at school was poor with a poor concentration span, difficulties with spelling and reading and writing but having excelled in physical education. He said that he was expelled for selling drugs such as ecstasy, LSD and marijuana but was never charged. His only criminal offence he admitted to was wearing no helmet whilst riding a motorbike. He said that for some time he worked with his father but lately has been on the dole but was getting a new job on Thursday. He admitted to going to clubs at night but did not admit to substance abuse with the exception of marijuana. He said that he regularly drinks up to ten beers once to twice per week for about three or four years. He admitted to having bronchial asthma.

My clinical impression was that of a young male presenting with a history suggestive of ADHD and very likely poly substance abuse with a history of transient psychotic episodes possibly linked to use of illicit and prescribed sympathomimetic and hallucinogenic agents but with no clinical evidence of florid psychosis on the day of assessment. Differential diagnosis included organic psychosis and functional psychotic illness.

I have arranged for a full organic screening including EEG, CT scan and routine bloods. The plan was to refer him to a clinical psychologist for psychometric testing and assessment with the results of special investigations. [The patient] was advised to make another appointment with me once all the results became available. The CT scan, EEG and blood tests results are enclosed.

I hope that this information will assist you in assessment and treatment of this young man. Please do not hesitate to contact me should you have any further queries."

28 The statement in the letter by the practitioner that the patient attended the appointment accompanied by his girlfriend was not correct. The practitioner does not now dispute that the patient attended at the practitioner's rooms accompanied by his father and brother and does not dispute that they were in the waiting room with the patient.

29 Counsel assisting the Medical Board called the patient to give evidence. As the Board said, the adducement and fair testing of the evidence of the patient proved "extraordinarily problematic". His illness meant that it was extremely difficult to elicit coherent evidence, he was at times unresponsive, his capacity to comprehend was limited and the ability to interpret multiple concepts was absent. The attempt to cross-examine the patient continued for some time before cooperation between counsel assisting the Board and counsel for the practitioner truncated that process, and no further effort was made by counsel for the practitioner to cross-examine. The Board accepted, and formed the clear opinion, that the patient's evidence was of such a character that no reliance could reasonably be placed upon it.

30 Counsel for the Board conceded that the practitioner should not be taken to have been "contradicted" by any evidence the patient gave as to what occurred during the consultation.

31 These events led the practitioner to make submissions through his counsel that the fact that the patient could not be cross-examined in itself prevented the Board from making findings of fact adverse to the practitioner in relation to matters within the knowledge of the patient, which matters would have been explored with him if he had been capable of answering, and secondly that the fact the patient could not be cross-examined prevented the Board from making any adverse findings as to the credit of the practitioner by reference to the determination of those disputed issues. The Medical Board rejected the submissions and concluded that the circumstances did not prevent the making of adverse findings of fact or as to the credit of the practitioner.

32 The Board received evidence from 12 other witnesses. They were the practitioner, five expert psychiatrists, Dr Cathy Kan, Mr A, Mr B, Ms C, Ms D and Ms Jan Smart, a former practice manager employed by the practitioner. The Board held that of the five expert psychiatrists who gave evidence, Professor German, Associate Professor Quadrio, Dr Allard and Dr Proud had extensive clinical experience. The Board held that Dr Rod Milton was less well-qualified in matters of clinical practice and management to the extent that where there was any conflict between Dr Milton's opinion and those of the clinicians, the Board preferred the evidence of the clinicians. The Board also noted that save for limited instances, the differences in opinion expressed by the psychiatrists were attributable to their different interpretations of the clinical presentation of the patient. The Board rejected a criticism voiced by Dr Milton that Associate Professor Quadrio and Professor German expressed opinions influenced by hindsight and "backward reasoning" and that their views were "prejudiced" due to that influence. The Board considered that Associate Professor Quadrio and Professor German gave evidence in an entirely objective and professional manner. The Medical Board found that Dr Kan was a witness on whom reliance could be placed and that there was no reason why her evidence should not be accepted. The Medical Board also accepted that Mr A, Mr B, Ms C and Ms D were candid witnesses.

33 As to the evidence of the practitioner the Medical Board said this:

"... The Board has formed the opinion that the Practitioner was a witness whose evidence in relation to critical matters requires the closest of scrutiny. The very distinct impression the Board has gleaned from the substance and effect of the evidence of the Practitioner and the manner in which it was provided is that the Practitioner attempted to diminish in various respects the significance of what he now appreciates were, or fears may be found to have been, grave deficiencies in the discharge of his professional obligations in the context of a case which proved to be a calamity. That attempt manifested itself both in confabulation in the unconscious sense described above and, in certain respects which he perceived to be critical to his case, the deliberate decision to mislead the Board. The latter, in particular, speaks very adversely to his credit. The Board accepts the submissions of counsel assisting the Board that the Practitioner recollected events in a distorted fashion with the objectives mentioned and that his evidence is to be evaluated with the utmost care."

34 The finding that the practitioner made a deliberate decision to mislead the Board is a finding which is likely to have a serious impact on his professional reputation. The finding is the subject of some of the grounds of appeal.

35 The Medical Board reached a conclusion that the facts particularised in par 1(a) and par 1(b) had not been proved to the requisite standard.

36 The Medical Board, however, found that the facts particularised in pars 1(c), 1(d), 1(e), 1(f)(i), 1(f)(ii), 1(f)(iii), 1(g)(i), 1(g)(ii) and 1(g)(iii) had been proved to the requisite standard. As to the facts particularised in par 1(g)(i), the particular alleging that the practitioner did not communicate findings to the patient himself, was not proved, but the failure to communicate the findings to the family was proved.

37 The Medical Board concluded that the facts particularised and established when viewed together and in their overall context, constituted gross carelessness on the part of the practitioner. The Medical Board concluded that the misconduct particularised in par 1(c) standing alone could be characterised as grossly careless. The same was true of the misconduct constituting mismanagement (ie par 1(f) and 1(g)). The Medical Board also concluded that the misconduct particularised in par 1(f)(ii) and par 1(f)(iii) taken together, but standing separately from other particulars of misconduct, constituted gross carelessness, and the same applied to the misconduct particularised in par 1(g)(i) (save for the allegation about lack of communication to the patient), (ii) and (iii) taken together but standing separately from the other particulars of misconduct.

38 There are 17 grounds of appeal, many of which contain numerous sub-grounds. They can, however, be put into five categories. The first category contains grounds 1 to 9, which complain about findings made concerning the process of consultation and diagnosis. The second category, namely grounds 10 to 13, relate to the findings made about the practitioner's management of the patient. The third category is ground 14 which complains about the findings made about the practitioner's credit. The fourth category is ground 15, which complains about the findings that the practitioner was grossly careless. The fifth category is ground 17, which is the ground complaining about the penalty imposed.

39 In the appellant's outline of submissions, three "preliminary matters" were addressed, namely:

"(a) the consequences of the patient's inability to give evidence;

(b) the significance of expert evidence to the effect that the appellant was not grossly careless;

(c) the importance of the appellant's observations of the patient during the consultation and the experts' necessary reliance in forming their opinions on the appellant's notes of the consultations and other documents."

40 These are referred to as "preliminary matters" but in reality they are not preliminary to the grounds; instead they are points which either appear repeatedly in different grounds of appeal or are argued in support of different grounds of appeal. For example, point (b), which is described as a point about "the significance of expert evidence to the effect that the appellant was not grossly careless", is a reference to the repeated ground or sub-ground of appeal that the Medical Board erred in making a finding in the face of a "respectable body of expert opinion".

41 Because this expression appears on numerous occasions through the grounds and sub-grounds, I agree that it would be sensible to address the point raised by the appellant concerning it. It will save me having to repeatedly deal with the same argument under different grounds. The appellant relies upon Cranley v Medical Board of Western Australia (supra), and submits that a medical practitioner could not be found to be grossly negligent merely because he employed a method of treatment different from that of other medical practitioners. It is submitted that the question to be asked was whether the practitioner had acted in accordance with the practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopted a different practice. The appellant submits that it is not to the point that the Medical Board might reach a conclusion disagreeing with the body of practitioners concerned.

42 The judgment of Ipp J in Cranley's case was based upon the decision in Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 582. His Honour noted that Bolam's case related to questions of medical negligence. Ipp J referred to Lord Diplock's views on Bolam's case where his Lordship said that the merit of the Bolam test was that the criterion of the duty of care owed by a doctor to his patient was whether he had acted in accordance with the practice accepted as proper by a body of responsible and skilled medical opinion. Ipp J said that these policy considerations applied equally in cases involving allegations of infamous or improper conduct. He also said that the essential question in that case was whether Dr Cranley acted in according with the practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopted a different practice. Ipp J said that should the evidence require such a finding to be made, it was not to point that the Medical Board might disagree with the opinion of the body of practitioners concerned. He then concluded that infamous or improper conduct was not established by preferring one respectable body of medical opinion to another.

43 These views of Ipp J in Cranley's case, based as they were on Bolam's case, were expressed before the pronouncements of the High Court on the subject. Bolam's case does not now contain a correct statement of the law in Australia. In Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (which was a case of a doctor giving advice) the High Court held that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. The High Court held that the standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade: see 487. It was said on the same page that "[e]ven in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied." For a time after Rogers v Whitaker there was a question about whether it should be confined to cases of doctors giving advice. However, Rogers v Whitaker was applied to a case of misdiagnosis in Naxakis v Western General Hospital & Anor [1999] HCA 22; (1999) 197 CLR 269.

44 In my opinion therefore, while medical opinion about whether a practitioner's conduct was of the required standard or not must be taken into account by the Medical Board, it was for the Medical Board to make the decision about whether there was gross carelessness or not. Thus, whenever a ground of appeal or sub-ground of appeal contends that the Medical Board was wrong merely because the practitioner acted in accordance with a respectable body of medical opinion, that ground cannot succeed. As Gleeson CJ said in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at 439, the relevance of profession practice and opinion is not to be denied. What is denied is its conclusiveness. The responsibility for deciding the content of a doctor's duty of care rests with the court (or in this case the Medical Board) not with professional colleagues outside the Medical Board.

45 In my opinion the decisions in Rogers v Whitaker, Naxakis and Rosenberg v Percival mean that Cranley would not now be followed insofar as Ipp J held that the "policy considerations" in Bolam's case as explained in Sidaway v Board of Governors of the Bethlehem Hospital & Maudsley Hospital [1985] UKHL 1; [1985] AC 871 "apply equally in cases involving allegations of infamous or improper conduct" and that in consequence "a medical practitioner is not guilty of infamous or improper conduct merely because he employs a method of treatment different from that of other medical practitioners" or that "[i]n the circumstances, it is an essential question whether [the practitioner] acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopted a different practice" or that "it is not to the point that the Board may disagree with the opinion of the body of practitioners concerned."

46 In my opinion these High Court cases make it clear that the court (and the Medical Board), when judging whether there has been negligence or carelessness, is not bound to find that a practitioner was not negligent or careless merely because there exists a respectable opinion among some practitioners within the profession that his conduct was acceptable. Such evidence will be relevant and usually highly relevant, but the evidence is not conclusive. In my opinion, in cases concerning questions about whether a practitioner is guilty of gross carelessness, it is for the Medical Board to decide the question. To the extent that Cranley's case is to the contrary, it cannot now stand as a binding or persuasive authority. The case of Mustac v The Medical Board of Western Australia [2004] WASCA 156 was drawn to my attention. I do not understand Simmonds J's judgment in that case to express any opinion contrary to the conclusion I have just reached: see [98] and [99]. His Honour was there dealing with an issue concerning the use to be made of expert evidence in cases before the Board.

47 Another "preliminary" point was centred around the fact that the patient was unable to give evidence. This is a point which mainly concerns grounds 1, 2 and 14. The consequence of the patient's inability to give evidence was that there was not then a contest between the practitioner and the patient about what had occurred at the consultation. The patient's evidence was so unsatisfactory because of his medical condition that the Board quite correctly decided not to have regard to it in a way which would provide evidence contradicting anything that the practitioner said. The appellant accepts that just because the patient was unable to give evidence, did not mean that the Medical Board was bound to accept the practitioner's account of what happened at the consultation. The appellant submits "[h]owever, the respondent was, as a matter of fairness, obliged to take into account and carefully consider the effect of the lost opportunity for the appellant to cross-examine the patient with a view to corroborating his evidence and putting relevant matters in context". The appellant submits that:

"The prejudice to the appellant in not being able [to put the practitioner's account to the patient] in circumstances where the respondent rejected parts of his evidence by relying on inferences drawn from indirect sources was not overcome by the reasoning adopted by the respondent at para [107] and [108] of its reasons".

48 In pars [107] and [108] the Medical Board considered the questions of procedural fairness as a result of the patient being unable to give satisfactory evidence. The outline of submissions from the appellant say that the Medical Board was bound to apply the standard referred to in Jemielita v Medical Board of Western Australia (supra) and to appreciate that it was drawing inferences from indirect sources of evidence in reaching the conclusion that it rejected part of the practitioner's testimony, and that the Medical Board was bound to give sufficient weight to the fact that the practitioner had not had the opportunity to corroborate his version by examining the patient. The practitioner argues that the Medical Board gave no weight to these matters but "rather effectively dismissed them as relevant considerations by reasoning that failed to address the real consequences of the patient's inability to give evidence."

49 My view is that the Medical Board very carefully considered the implications associated with the patient's inability to give evidence, and did everything possible to ensure that this did not prejudice the practitioner. Indeed, counsel assisting the Board made concessions which brought about the result which the Medical Board referred to in [107], namely that it was assumed that the patient's evidence:

"... accords in every respect with that of the Practitioner on the critical topic of what occurred during the consultation. To put it slightly differently, it is accepted that, for the reasons outlined, the Practitioner is not to be taken to have been 'contradicted' by the Patient as to what occurred during the consultation in relation to any aspect of that attendance. The Practitioner cannot be said therefore to have been placed in a position worse than he would have found himself had cross-examination proceeded in the ordinary course. On the contrary, he has been placed in the best position he could possibly have been in had the evidence of the Patient been tested at length and with all skill and effect ... the real complaint is simply that the witness, with whom it has been assumed would have agreed with the Practitioner in every respect as to what occurred, is unreliable and cannot assist in the determination of the matters identified."

50 In my opinion there is no validity in the practitioner's submissions about this point. As to whether the Medical Board erred in making some of its findings, is a separate question and to be considered in the context of the grounds of appeal; but the general complaint that the Medical Board did not take into account the fact that the patient could not be cross-examined, and the complaint that the Board did not carefully consider the effect of the lost opportunity is without foundation.

51 The final "preliminary" point is about the material available to the experts. The outline of written submissions from the practitioner say that each of the experts gave evidence primarily by reference to Dr Kan's letter of referral, the appellant's clinical notes and his letter to Dr Dingle. It is submitted "there are obvious weaknesses and difficulties with that approach given the significance of the patient's presentation in the consultation and the appellant's clinical assessment of him." This submission however, is an observation with no consequence. Yes, there are difficulties, but they are not difficulties which mean that evidence of all of the experts should be rejected or could not be relied upon. I now turn to deal with the grounds of appeal.

52 Ground 1 alleges that there was no evidence, or no sufficient evidence, upon which the respondent could find that no request for confidentiality was made by the patient during the consultation with the appellant, and that the Board erred in so finding. The combined effect of grounds 1 and 2 is that the Medical Board not only erred in so finding but also erred in finding that the appellant attempted to deliberately mislead it on the question of whether the patient had made a request for confidentiality during the consultation with the appellant. The appellant contends that the Medical Board ought to have found that the patient did make a request for confidentiality, or that in circumstances where it found that no reliance could be placed on the patient's evidence it was unable to make any finding about whether a request for confidentiality had been made.

53 In my view these grounds have given rise to unnecessary disputation both here and before the Board because of imprecision which results from referring to the "request for confidentiality".

54 The issue about whether there had been a "request for confidentiality" arises in the following way. Paragraph 1(c) of the complaint alleges that the practitioner was grossly careless in not taking a corroborative history from family members. The practitioner admitted that he did not take any history about the patient from the patient's family members, namely the father and brother (who the practitioner now agrees were at the practitioner's waiting room with the patient on 8 January 1998). There was general agreement between the experts concerning the importance of taking a corroborative or collateral history from the patient's family, particularly where there was a possibility of psychotic behaviour. The practitioner himself said that nothing could replace "direct ... liaison with the family ..."

55 The practitioner however, sought to justify his failure to take a corroborative history from the patient's family by saying that he had received a "request for confidentiality" from the patient which meant that he was unable to obtain the history from family members. The content of the request is of critical importance.

56 The practitioner in cross-examination agreed that the "request for confidentiality" was in terms that he was "not permitted to contact [this patient's] family because he did not want [the practitioner] to reveal to them his involvement with drugs". This was entirely consistent with par [185] of the practitioner's witness statement which became his evidence-in-chief.

57 The Medical Board found that this request, even if made, would not have prevented the practitioner from gaining the history from family members. He would have been able to gain information from them without revealing to them what the patient had said about his involvement with drugs. As the Medical Board put it at [238]:

"A competent consultant psychiatrist could have obtained a collaborative history from the family members present without breaching the confidence of the Patient in relation to his abuse of drugs. As Professor German explained, in this context, there is a world of difference between 'getting' and 'giving' information."

58 That was sufficient for the Medical Board to make a finding in terms of par 1(c) of the particulars, namely that the practitioner "failed to take or attempt to take any corroborative history from the patient's family members present at the consultation". There is no doubt that the patient's father and brother were in the waiting room. They were the only persons in the waiting room. Not only were they available, they wanted to speak to the practitioner and they were prevented from doing so by the unfortunate intervention of the practitioner's receptionist. The practitioner himself conceded the importance of speaking to family members, and the contention that he was constrained by a "request for confidentiality" is simply not supported on the evidence. In my opinion the Medical Board was entirely justified in its conclusion that there was nothing preventing the practitioner from doing what he should have done, namely to take history from the patient's family. I therefore dismiss ground 1.

59 The Medical Board, however, went much further and this is the point of complaint in ground 2 as supported by ground 14. The Medical Board decided to closely examine whether or not the patient did make any request for confidentiality. In other words it set out to decide whether any request was made by the patient that the practitioner keep information about drug use away from his family. The Medical Board found that no such request was made and that the practitioner attempted to deliberately mislead it on this point.

60 The only direct evidence consisted of the practitioner's evidence that such a request was made. The Medical Board rejected this evidence and found that it was false. Its reasoning is contained in [214] of the reasons for decision in the following terms:

"[214]. In the light of the evidence of the Practitioner, the manner in which that evidence was given including his demeanour, the absence of any reference to a request having been made in his notes or in his letter to Dr Dingle dated 30 January 19998, having taken account of the circumstances in which the notes and the letter to Dr Dingle were written, and having considered what were unconvincing explanations proffered for his failure to take or attempt to take any corroborative history from the Patient's family members and his assertion as to why there is no inconsistency between his stance concerning the need to respect the alleged request for confidentiality and his insistence on family input at the 'treatment' stage, the Board finds that no request for confidentiality was made by the patient during the consultation. It accepts the submission of Counsel assisting the Board that the Practitioner gave evidence to this effect to 'explain away what amounts to an obvious failure to take a corroborative history from the family'. The Board has concluded that, on this issue, the Practitioner attempted deliberately to mislead it."

61 I am conscious of the need to give due weight to the opinion of the Medical Board, particularly on an issue like this. I do so but, notwithstanding this, it is my opinion the Board went too far and erred in concluding that the practitioner attempted to deliberately mislead it.

62 The only other evidence the Board had before it on this point was evidence of omission from which different inferences could be drawn. This evidence consisted of the notes of the consultation and the letter to Dr Dingle. Neither document recorded or referred to any request to keep information confidential. The Board considered that there was an expectation that this request, if it had been made, "would have been recorded" in the notes.

63 The Medical Board also relied on the demeanour of the practitioner in finding that he misled it. Generally speaking, contemporary corroborative material is more reliable than demeanour in assisting to decide whether a witness should be believed: see Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189, [99]. The Medical Board did refer to the other material to which I have just referred. However the Board did not seem to appreciate that the lack of a note recording the request to keep information confidential and the lack of any reference to the request in the letter to Dr Dingle did not amount to positive evidence to contradict the practitioner's evidence. If the absence of any record of a request of any kind by the patient about confidentiality is to provide positive evidence that no such request was made, it could only do so by inference. If that is so, then the inference must be the only reasonable inference open. See Shepherd v The Queen (No 5) [1990] HCA 56; (1990) 170 CLR 573 at 579. In this case, another inference was open. An alternative reasonable inference was that the request was made, but not recorded. That being so, the state of the evidence was that the practitioner had given uncontradicted evidence that he was requested by the patient not to speak to the patient's family because he did not want his drug use disclosed. The patient gave no evidence to contradict this evidence. The lack of any notation about this in the practitioner's notes, or the lack of any reference to this request in the letter to Dr Dingle, does not provide positive evidence to contradict him. All that production of the notes and the letter proved was that they did not record any request for confidentiality.

64 There is nothing to reveal that the Board considered the circumstances in which uncontradicted evidence may be rejected. In Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362, at 371, Gibbs J said that in that case the jury was bound to accept a witnesses' evidence because it was uncontradicted and unchallenged in cross-examination. However, as explained in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, Gibbs J was not stating a rule of law that a Judge or a tribunal is bound always to accept evidence which is uncontradicted and unchallenged in cross-examination. Generally speaking, evidence which is uncontradicted should be accepted by the court or tribunal unless the evidence is of a character which makes it inherently incredible, improbable or unbelievable. See Richards v Jager [1909] VicLawRp 26; [1909] VLR 140 at 147; Sheahan v Woulfe [1927] St R Qd 128 at 131, and see the discussion in 6 Aust Bar Rev 199 at 202-203 per Young J where the authorities are collected together.

65 In my view, there was nothing inherently incredible, improbable or unbelievable about the practitioner's evidence that he was asked by the patient not to speak to his family because he did not want his drug use disclosed to his family. In my opinion the Board erred in concluding that the practitioner attempted to deliberately mislead it by giving that evidence. It was unnecessary to reach that decision once the Board had decided - correctly in my opinion - that the request made by the patient did not prevent the practitioner from speaking to family members and gaining the history. The finding that the practitioner attempted to deliberately mislead the Board was shown to be unnecessary because when it came to the topic of penalty, the Board disregarded this finding for the purpose for fixing an appropriate penalty. See [38] of the Board's reasons for decision on penalty. However, the Board was entitled to consider the issue if it chose to do so. It did choose to do so but in my opinion it erred in the finding it made on this point. In my opinion, for the reasons given above, the evidence did not at all support the damaging finding that the practitioner deliberately attempted to mislead the Board.

66 I would therefore uphold ground 2 which alleges that the Medical Board erred in find that the appellant attempted to deliberately mislead it. This conclusion is important to the practitioner and his reputation.

67 However, my conclusion has no consequence in relation to the disposition of the appeal as will be seen when I deal with grounds 3 to 7. This is because the request for confidentiality which was made provided no defence to particular (c) of the Notice of Inquiry, which was that the practitioner was grossly careless in failing to take or attempting to take any corroborative history from the patient's family members present at the consultation.

68 These grounds all challenge the correctness of the Medical Board's finding that particular 1(c) had been made out, namely that the practitioner was grossly careless in failing to take or attempt to take any corroborative history from the patient's family members. What permeates grounds 3, 4, 5 and 6 is the premise that the patient gave an instruction to the practitioner which prevented him from gaining a history from those family members. That premise is not supported by the evidence which the practitioner himself gave, and which I have already said the Board should have accepted. The effect of what the practitioner was told was that he was not to speak to the family members so as to disclose his drug use. I have already set out the point made by Professor German and accepted by the Medical Board, that he could quite easily do that, by not disclosing the information but asking the family members what they had observed about the behaviour of the patient. The weight of the evidence from the practitioner himself and the experts was to the effect that this was an important source of information. Dr Milton said that it was the duty of the practitioner to gain the information from the family members if he was able to do so. The patient's request did not constrain the practitioner.

69 The submissions made by counsel on behalf of the practitioner reveal an on-going failure on the part of the practitioner to recognise that nothing said to him by the patient prevented him from gaining a history from family members.

70 In my opinion, grounds 3 to 6, premised as they all are on the contention that an instruction had been given by the patient not to gain information from family members must therefore fail.

71 Another aspect of these grounds was the practitioner's contention that the weight of expert evidence was that it was not necessary to take a history from the family, but in my opinion, where that opinion was expressed, it was largely influenced by a view that an instruction had been given by the patient not to speak to the parents. In my opinion, the weight of the evidence (set out in the Board's reasons) was in support of the Medical Board's finding that the practitioner should have taken the history from the patient. Ground 7 was couched as an alternative to grounds 3 to 6. That ground reads that the respondent:

"... ought to have found that it could not make any finding on whether the Patient had requested the appellant not speak to family members present at the consultation and that in those circumstances it was unable to find that ... the appellant ought to have attempted to take, or ought to have taken, a corroborative history from family members ..."

72 That ground must be dismissed. It was the practitioner himself who explained what the request was that was made by the patient. I have found that the Board should not have found that the practitioner's evidence about what was said on this point was false. Ground 7 is dismissed.

73 I should add that even if the request had been a request that the practitioner not speak to family members at all, then this would not have been a request the practitioner should have acted upon because the patient was an infant at the time. The Board found that the practitioner could not have been satisfied that the patient was sufficiently competent to give such an instruction. In short, the Board found that the patient did not have sufficient integrity and maturity based on his presentation on 8 January 1998 to make a request for confidentiality which would have bound the practitioner. Only an infant with sufficient maturity and integrity may give a binding instruction to a practitioner not to communicate with the infant's guardians. See Gillick v West Norfolk & Wisbech Area Health Authority [1985] UKHL 7; [1986] AC 112; Health & Community Services (NT), Department of v JWB & SMB (Marion's case) [1992] HCA 15; (1992) 175 CLR 218 at 237.

74 The appellant's grounds complain that there was no evidence, or insufficient evidence, that the patient did lack maturity and integrity sufficient to make a binding request for confidentiality. I do not accept this. In my opinion there was ample evidence to support the Board's conclusion. Professor German pointed out that, possessed of a referral letter revealing cause for suspicion of psychosis, a competent consultant psychiatrist could not allow himself or herself to be "misdirected" by a minor's request for confidentiality. The experts called by the practitioner accepted that if there were grounds for suspecting that a patient may be psychotic, then there are grounds for suspecting that they may lack competence. In the light of that evidence, and in the light of the information given by the patient on the day about past drug taking, and the material in Dr Kan's letter of referral, the Board was not in error, in my opinion in rejecting the practitioner's evidence claiming that he concluded that the patient possessed integrity and maturity to justify a failure on his part to liaise with family members. This aspect of these grounds of appeal must be dismissed.

75 These grounds complain about the finding that par 1(e) of the Notice of Inquiry was made out. Particular 1(e) was that the practitioner "failed to verify who, if anyone had accompanied the patient to the appointment". This particular was proffered because part of the practitioner's explanation for why he did not take a family history from the patient's family members, is that they were not present and that it was the patient's girlfriend who was present. The practitioner's notes say that the patient said that he was accompanied by his girlfriend. The practitioner now accepts that it was the patient's father and brother who were in the waiting room and no-one else was present. The evidence of the patient's father revealed that the receptionist sat in one room and the waiting room was through an open doorway in another room.

76 The evidence of the patient's father was that the receptionist called the patient's name and that the practitioner "took [the patient] into the consulting room". The practitioner could not remember the event but said that it was his invariable practice to collect the patient from the waiting room because he believed that information could be learned from what was observed in the waiting room. The patient's father and brother were the only persons in the waiting room. When the patient's name was called, the father stood up and attempted to accompany the patient into the practitioner room. He was halted by the practitioner's receptionist. After the consultation the patient's father gave evidence that the practitioner came out of the consulting room and could be heard speaking to the receptionist. He then went back into his room but re-emerged when the patient's father was in the receptionist's room paying the bill. The practitioner passed a folder "over [the] side" (AB 400) of the father but made no attempt to speak to him. The evidence therefore reveals that the practitioner did not follow his usual course and make observations when he went into the waiting room. If he had, he would have questioned the patient about his suggestion that he was accompanied by his girlfriend and this in itself may have provided evidence to the practitioner about the patient's medical condition. He made no effort to see who was there when he came out of the consultation. In my opinion the Medical Board was entirely justified in finding that the practitioner failed to take steps to verify who was in the waiting room after he had been told by the patient that he had been accompanied to the waiting room by his girlfriend. It is to be observed that the Medical Board did not say that this point alone would have constituted gross carelessness warranting discipline.

78 These grounds complain about the Medical Board's findings that the practitioner failed to manage the patient appropriately in circumstances where the practitioner's differential diagnosis that the patient was suffering from organic psychosis. This meant that it was possible, or rather "likely", as the Medical Board found, that the patient was suffering from a psychotic illness and that management should have been premised on that likelihood.

79 The Medical Board found (at [294]) that the proper management of the patient required:

"(a) The implementation of a management plan which took appropriate account of the possibility that he was suffering from a psychotic illness until such time as that possibility could safely be excluded;

(b) The implementation of a management plan which ensured that the condition of the Patient was stabilised and a recovery initiated;

(c) The implementation of a management plan which involved close observation and supervision of the Patient, preferably in a family environment;

(d) The implementation of steps to involve the members of the Patient's family with a view to their participation in the processes of observation, supervision and care of the Patient in an informed way;

(e) Consideration of the possible need to make arrangements for the observation, supervision and care of the Patient to occur in a hospital setting on a voluntary admission basis in the event that this could not be achieved in a family environment."

"[296]. The management plan adopted by the Practitioner, consisting as it did of the arrangement for the administration of certain tests and a request that the Patient make a further appointment following receipt of the test results, cannot be characterised as a plan of the nature which the particular circumstances of the case demanded. What was done was insufficient. It was ill-considered. It was irresponsible. That the Practitioner asserts that he was 'satisfied' that the 'clinical situation did not require... observation of the Patient' in either a family or hospital setting (transcript 8/4/03, p 579) is a matter which, in the opinion of the Board, gives rise to serious cause for concern as to his professional judgment. To delegate the burden of management to the Patient himself by leaving it to him to organise further attendance and review in the circumstances in which he had been referred to the Practitioner (and those in which he left his rooms on 8 January 1998) was a seriously deficient response by the Practitioner to his professional obligation to implement and/or arrange for appropriate management in this case. That the Practitioner told the Patient that he could attempt to contact him before his next visit if experienced any problems, that he gave the Patient a card for the Perth Clinic which listed its telephone number and that he told the Patient that if he could not reach him he should contact his general practitioner or the Perth Clinic, does not in any way diminish the significance of the departure from the standard of management the circumstances of this case demanded of a competent consultant psychiatrist."

81 Once again, the practitioner repeats in these grounds of appeal that the "request for confidentiality" meant that the family could not be involved in observation and supervision. That contention cannot succeed in view of the findings which I have made above. There was no "request for confidentiality" which prevented the family from being involved.

82 There is also a contention that there was a "respectable body of expert opinion" that it was reasonable for the practitioner to have concluded that although the patient may have suffered "past transient episodes of psychosis" (see ground 10(d)) it was not necessary for him to arrange intensive psychiatric supervision, "nor to breach the patient's request for confidentiality by having family members participate in an immediate process of observing the patient and caring for him". On this point the Medical Board referred to the evidence given by Dr Quadrio, Dr Proud, Dr Milton and Dr Allard in relation to the particulars in relation to par 1(f) and par 1(g) of the Notice of Inquiry.

83 In my opinion there is not much difference between them. In relation to the involvement of parents, there was no difference between Dr Milton, who agreed that they should have been involved, or Professor German, who also thought so, as did Professor Quadrio, Dr Proud and Dr Allard. In my opinion, there was no error revealed in the reasoning of the Medical Board in relation to the issue of management.

84 Ground 13 complains that the Medical Board erred in finding that the practitioner was grossly careless in failing to make the arrangements for the management of the patient. I must bear in mind that the views of the Board as to the appropriate characterisation of the conduct it found, are views which must be given great weight: see Mustac (supra) [26]. The Board is partly made up of experienced medical practitioners and the judgment of the Medical Board that the level of performance fell short of the standards of professional skill and competence must for this reason be given due weight. In any event, my view of the evidence is that it supports the finding that the management of the patient was grossly careless for the reasons given by the Board. I therefore dismiss grounds 10, 11 and 12.

85 This ground contends that the Medical Board erred in making adverse findings as to the credit of the practitioner in that there was insufficient evidence to support the findings; that there were inadequate reasons for the findings; that there was a failure to take into account the fact that the practitioner's evidence was uncontradicted because no reliance could be placed on the patient's evidence; and that there was error in holding "in effect" that the circumstances that the patient was incapable of giving responsive and coherent evidence was irrelevant to the assessment of the appellant's evidence and his credibility.

86 In my opinion these contentions submissions must be rejected. In my opinion the Medical Board arrived at the best possible solution by accepting that it should proceed by assuming that the patient did not contradict the practitioner. The suggestion that the Medical Board failed to give adequate reasons for its decision is unsustainable. The Medical Board went to considerable effort to explain why it was critical of the practitioner's evidence in certain respects.

87 I have already decided that the Medical Board erred in finding that the practitioner deliberately attempted to mislead the Medical Board in relation to the "confidentiality" issue. Apart from that, it is my opinion that the Medical Board did not otherwise make any error in making adverse findings as to the credit of the appellant. I dismiss ground 14.

88 This contends that the respondent erred in finding that the practitioner was grossly careless having regard to grounds 1 and 14. I have already said that the Medical Board's opinion about the characterisation of the conduct found must be given great weight. I do give it great weight, but quite independently of the Medical Board's opinion, I agree with the Medical Board's opinion and assessment as to the findings of gross carelessness based on the facts as found by the Board. Grounds of appeal 1 and 3-14 have all been dismissed. The practitioner's success on ground 2 does not support this ground. I dismiss ground 15.

89 This ground complains that the Medical Board erred in imposing a penalty of 3 months suspension. The practitioner argues that it would have been more appropriate to have fined the practitioner.

90 The Medical Board had authority under s 13(3) to impose one or more of the following penalties, namely:

(a) to remove the name of the medical practitioner from the register;

(b) to suspend the registration of the medical practitioner for such period not exceeding 12 months as is specified in the order;

91 There is no dispute that the Medical Board correctly directed itself on the law in relation to the subject of penalty. There is no dispute that the Board took into account relevant factors such as the appellant's experience, his good previous professional standing and reputation and his previously unblemished record. The Board also found that the practitioner was not incompetent and considered the effect that the findings, the publicity and the impact of the suspension would have on the practitioner's practice and profession standing. There was no allegation that irrelevant factors were taken into account.

92 The sole issue is whether the penalty was "manifestly excessive". An error is not shown merely because the court rehearing the matter would have exercised its discretion in a manner different from the Medical Board: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. Error however, may be inferred if the result is unreasonable or unjust and if that error occurs then the sentence will be "manifestly excessive". A sentence may be manifestly excessive because the wrong type of penalty has been imposed or because the penalty is manifestly too great: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-325.

93 To determine whether the penalty is manifestly excessive, it is necessary to view it in a perspective of the maximum penalty prescribed, the standards of penalty customarily imposed for this kind of conduct, and the place which the complained about conduct occupies on the scale of seriousness of conduct of that type and the personal circumstances of the practitioner: Chan v The Queen (1989) 38 A Crim R 337 at 342; Staunton v The Queen [2004] WASCA 21.

94 The maximum penalty prescribed by the Act is set out above. The penalty imposed was not the most serious which could be imposed (ie removal of the name of the practitioner from the register) and so far as suspension of registration was concerned, the suspension was at the lower end of the scale, being 3 months when 12 months suspension was a permitted maximum suspension. Below the penalty of suspension were two other categories, namely a fine not exceeding $10,000 and a reprimand. Counsel for the practitioner did not contend either before the Board or before me, that a reprimand would have been appropriate. The issue is whether the suspension was manifestly excessive or not and if so, what fine should be imposed.

95 The conduct complained about in this case was a one-off failure by the practitioner to observe the standard required from a consulting psychiatrist. At the hearing, save for one case, no material was put before me to show what penalties have been imposed in the past in relation to a similar situation, where a practitioner of otherwise good repute is found to have failed to meet the required standard on one occasion. The case of relevance was that of Sakalo (supra). In that case the penalty imposed by the Board was suspension for 3 months plus a fine of $10,000, along with a reprimand. It was a case involving the one-off instance of gross carelessness by a surgeon in relation to a gallbladder operation following which the patient died. Wheeler J set aside the suspension and held that it was appropriate that there be a fine of $10,000 plus a reprimand.

96 I called for further information about the range of penalties customarily imposed by the Board in other similar cases.

97 The Medical Board's solicitors subsequently sent to the Court the summaries of the annual reports of the Medical Board of inquiries conducted between 1 July 1998 to 30 June 2003, a copy of the decisions in Dyall v Medical Board of Western Australia [2001] WASCA 200 and Boermea v Medical Board of Western Australia, unreported; SCt of WA (Templeman J); Library No 980342; 19 June 1998) and a copy of the Medical Board's decision in another of its decisions handed down in 2004. In my opinion, Dyall and Boermea provide no assistance. Both cases involved gross carelessness in relation to more than one patient.

98 The annual reports revealed that in 1999 there were no cases of gross carelessness.

99 In 2000 there was one case in relation to a charge where the information in the annual report does make it possible to say whether it involved several patients or one patient. In that case the Medical Board imposed a requirement that an undertaking be given for good behaviour in the future. In a second case, in the 2000 report, a practitioner was found guilty of gross carelessness in relation to five patients. There was no order for suspension. Conditions were imposed in relation to his mode of practice.

100 In 2001 there appear to have been three cases of gross carelessness. In the first case, the allegation involved five patients and a six week suspension was ordered and there was another case involving numerous patients where there was no suspension but conditions on mode of practice were imposed. There was one case in that year where there was an allegation of gross carelessness in relation to one patient. In that case the patient died. The penalty was a reprimand and a $10,000 fine.

101 The 2002 report reveals six cases of gross carelessness. Three of them involved multiple patients and only in one of those cases was there a suspension and that was for 14 days. There were three cases involving single patients. One was the Sakalo case to which I have already referred. The other two had similarities to this case. The first one involved gross carelessness in the treatment of an obstetric patient where the practitioner was found to have failed to keep adequate notes of his management of a pregnancy and findings of his examination in monitoring the pregnancy, failed to carry out a proper clinical examination and assessment of fundal height and foetal movements and a failure to take any proper consideration of serial ultrasound measurements of the progress of the pregnancy other than foetal girth. The penalty imposed was a reprimand and an undertaking to be given by the practitioner to be of good behaviour for two years and to comply with conditions relating to the practice because of concerns about his procedures generally. The other case involving a single patient involved gross carelessness in a failure to properly investigate or refer for diagnostic investigation or to a specialist or other competent medical practitioner, a patient demonstrating signs of ectopic pregnancy. That is the first case which has a similarity in general terms to the case at hand here. The Medical Board ordered that the practitioner in that case be reprimanded.

102 In 2003 the report reveals only one case of gross carelessness and that involved four patients. The practitioner was reprimanded.

103 In 2004 there was a case involving gross carelessness in relation to a single patient and the registration of the practitioner was suspended by the Board for a period of nine months. I have been informed that this decision is the subject of an appeal. It is important to note that the Medical Board said in that case,, that the failures of the practitioner were very significant because he had declined to attend on the patient when asked expressly to do so by a junior doctor and when asked a second time, failed to attend promptly. It was also noted by the Medical Board in that case, that the serious dereliction of professional responsibility was not "lessened by ... the fact that they were isolated in the sense that there is no history of such misconduct". The case I am examining has no such features.

104 In summary, if I exclude the other case decided this year (which is subject to appeal and which has features making it much more serious than this case) there has not been any instance since 1999 of a suspension of a practitioner for gross carelessness in relation to one instance in relation to one patient. So the penalty imposed here is out of line with sentences customarily imposed for a single case of gross carelessness. I should add however, that I do not mean to say that a single instance of gross carelessness cannot attract suspension or even deregistration. For example, if the incident is provably representative of a course of grossly careless conduct, if the incident has disturbing features indicating a callous disregard for the patient, if it amounts also to improper or infamous conduct to a significant degree, if it indicates incompetence or if the practitioner has a record, then deregistration or suspension may be appropriate. I am not here providing an exhaustive list of circumstances and nor am I attempting to lay down any rule on the point. The matter of penalty is within the Board's discretion.

105 However, the discretion must be exercised in a judicial manner and in my opinion, the discretion miscarried in this case.

106 This was a one-off incident of gross carelessness associated with one consultation involving one patient, in circumstances not suggesting incompetence. The practitioner has an unblemished record and good testimonials. In my opinion, the penalty imposed was unreasonable and manifestly excessive. I therefore uphold ground 17. The Medical Board regarded this as a serious case of gross carelessness and I should take that into account. In my opinion, a fine is the appropriate penalty. As a result, it would be appropriate for the fine to be fixed at $10,000 and I therefore vary the Board's order to impose that fine in place of the suspension.

Srna v The Medical Board of Western Australia [2004] WASCA 198

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Judgment (168 paragraphs)

Srna v The Medical Board of Western Australia [2004] WASCA 198 (27 August 2004)

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