Supreme Court of WA|2005-11-08|Before: Mr P, Ms J, Hasluck J

Thomas v The Medical Board of Western Australia [2005] WASC 244 (8 November 2005)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THOMAS -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2005] WASC 244

MATTER : Medical Act 1894 (WA) s 13(1)

Jurisdiction : MEDICAL BOARD OF WESTERN AUSTRALIA

Coram : PROFESSOR C A MICHAEL AO, MD, FRCOG, FRACOG, DDU; MR N J MULLANY LLB (HONS), BCL; DR P WALLACE OAM, MB CHB, FRACGP, FACRRM, DIP OBST RCOG; DR F JEFFERIES MB BS, FACRRM; MR P WALKER FIMM, FAIM

Medical practitioners - Practitioner guilty of gross carelessness and improper conduct - Various adverse findings as to four patients - Whether Medical Board erred in imposing suspension of 12 months with a fine of $5000 and reprimand

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

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

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

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

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Roberman v The Medical Board of Western Australia [2005] WASC 45

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

Walters v Nursing Board of Tasmania [2003] TASSC 122

Witham v Holloway (1995) 183 CLR 525

1 The appellant is a medical practitioner who has instituted an appeal against an order of the respondent in relation to penalty delivered 9 May 2005. The effect of the order was to suspend the registration of the practitioner for a period of 12 months commencing on 23 May 2005. The suspension and some related orders arose out of a finding that the practitioner was guilty of gross carelessness and improper conduct in the treatment of certain patients. I will turn to the details in that regard shortly. The appeal is confined to the issue concerning penalty.

2 The inquiry giving rise to the orders appealed against was conducted by the respondent Medical Board pursuant to s 13 of the Medical Act 1894 (WA). At the time the inquiry was conducted the provision in question provided that where it appears to the respondent that a medical practitioner may be guilty of improper conduct in a professional respect (s 13(1)(a)) or guilty of gross carelessness or incompetency (s 13(1)(c)) the respondent shall hold an inquiry into the matter.

3 By s 13(8), as it stood at that time, a medical practitioner who was aggrieved by any decision of the respondent was entitled to appeal to a Judge of the Supreme Court against the decision. Any such appeal was to be in the nature of a rehearing. The Judge hearing the appeal was empowered to confirm, quash or vary the order made by the respondent.

4 Section 13 of the Medical Act was amended by the State Administrative Tribunal Act 2004 (WA) (the "SAT Act"). This was brought into effect by Act 54 of 2004 commencing 1 January 2005.

5 Section 167(4)(d) of the SAT Act provides that if on the day on which jurisdiction is conferred on the Tribunal (known as the "transfer day") any matter devolved to the Tribunal has been determined by the former adjudicator, but would have been appealable had the law in force immediately before the transfer day continued to apply, then such a matter is to continue to be dealt with as if the law in force immediately before the transfer day had continued to apply.

6 Section 167(7) of the SAT Act provides that if any matter is determined by a former adjudicator and the determination would have been appealable had the law in force immediately before the transfer day continued to apply, an appeal against that determination may be made and dealt with as if that law had continued to apply.

7 It was common ground at the hearing before me that the present appeal was brought before the Supreme Court to be resolved in the manner allowed for by the former s 13(8) of the Medical Act in that the inquiry concerning the practitioner (or devolved matter) had been commenced prior to the provisions of the SAT Act coming into effect.

8 It will now be useful to look at the circumstances giving rise to the present appeal in more detail.

9 The appellant is a medical practitioner. He graduated in 1984 from the University of Western Australia with the degrees of Bachelor of Medicine and Surgery. He was elected to Fellowship of the Royal Australian College of Surgeons in 1993. He is now 45 years of age.

10 I understand from the materials in the Appeal Book that from 1994 to 1999 the appellant was a consultant urological surgeon at Sir Charles Gairdner Hospital. As from 1999 he was a consultant urological surgeon in private practice. In the period 1997 to 2003 he was Head of the Department of Urology at the Joondalup Health Campus.

11 It emerges from the respondent's reasons for decision as to penalty that the practitioner separated from his former wife on 21 February 2002. It seems that as a consequence of this separation and related proceedings in the Family Court the physical and psychiatric health of the appellant deteriorated towards the end of 2002. He had previously sought treatment from a respected psychiatrist, Dr Paul Skerritt, and he began to attend on Dr Skerritt more frequently in early 2003.

12 The allegations advanced against the appellant concern the care he provided to four former patients within a period of approximately 5½ months between early November 2002 and the end of April 2003.

13 On 23 September 2003, pursuant to s 13(1)(e) of the Medical Act, the respondent enquired into the fitness of the appellant to practice medicine. It imposed certain restrictions and conditions on his right to practice medicine pursuant to s 13(6g)(c) of the Act for a period of 3 years.

14 I will not traverse the entirety of the restrictions and conditions. Importantly, the appellant was to limit his elective clinical, elective consulting and elective operating hours to no more than 30 hours per week. He was to subject his clinical practice to supervision by Dr Cohen, Mr Culloch and Mr Weinstein or such other practitioners as might be approved by the respondent.

15 In addition, the appellant was to submit to weekly clinical and pathological review of all current urological cases with Dr Cohen and Mr Culloch. He was to provide the respondent with quarterly progress reports from each of his supervisors and the chairman of the WA Urological Society.

16 I note in passing that Mr Z Wisniewski, Chairman of the Western Australian Urological Society, completed an audit of the appellant's practice for the period 17 September 2003 to 13 February 2004 and of his practice "in rooms" for the period 1 July 2004 to 30 December 2004. It seems that his audits did not reveal "any major area of concern".

17 The inquiry giving rise to this appeal was brought on for hearing in early 2004. The allegations giving rise to the disciplinary inquiry were set out in a further amended notice of inquiry dated 11 March 2004. The subject allegations are in the principal reasons for decision of the respondent. For ease of reference, I will henceforth refer to the former document as the "notice of inquiry".

18 During the course of the disciplinary inquiry, which extended over five sitting days commencing 11 March 2004, the respondent heard evidence from 23 witnesses concerning the appellant's care of four former patients on whom he performed surgical procedures. Broadly described, it was alleged that his conduct in relation to the four cases in question constituted improper conduct in a professional respect contrary to s 13(1)(a) of the Medical Act and/or gross carelessness and/or incompetency contrary to s 13(1)(c) of the Act. The hearing concluded on 25 May 2004 whereupon the respondent reserved its decision.

19 The respondent handed down its reasons for decision 11 months later on 26 April 2005. I note in passing that in the period between finalisation of the hearing and the handing down of the respondent's decision the appellant remained subject to the previously imposed restrictive conditions. There can be little doubt that his income was adversely affected by the September 2003 regime.

20 Certain of the allegations the subject of the inquiry were not substantiated. However, there were eight adverse findings as to the appellant's treatment of the four patients in question. These were identified in a summary form by a member of the respondent Board, Mr Mullany, when the principal reasons for decision were delivered on 26 April 2005 (as appears in the transcript which is reproduced at pages 221 to 225 of the Appeal Book). They are summarised also in the appellant's outline of submissions dated 18 August 2005.

21 The facts and matters underlying the respondent's findings, and the reasoning relating to the same, are set out at considerable length in the principal reasons for decision at pages 42 to 219 of the Appeal Book. Conveniently, the respondent has provided a summary of its conclusions in respect of each patient. For present purposes, I will draw upon the appellant's outline of submissions in seeking to encapsulate the nature of the eight adverse findings. However, I note that the respondent, in an endeavour to provide an overview, made these observations at par 2 of the principal reasons (AB 43):

"Save for certain allegations concerning the failure to exercise appropriate clinical judgment and an allegation concerning a procedure said to have been performed in the absence of 'appropriate' consent, the hallmarks of the complaints levied again the practitioner were described by Senior Counsel assisting the Board as his 'lack of contactability and failure to attend upon patients when eventually contacted'."

22 As to patient A, the respondent found that the appellant was both grossly careless and guilty of improper conduct by reason of the fact that on 23 April 2003 following surgery on patient A the appellant was uncontactable when staff caring for patient A attempted to contact him (see par 2.3 of the notice of inquiry, findings at pars 118 and 119 of the reasons and conclusions at par 125).

23 It appears from the reasons for penalty, which I will come to shortly, that a suspension of 12 months was thought to be an appropriate response to this finding. For ease of exposition, after describing the nature of the adverse finding, I will, in each case, refer to the penalty that was eventually imposed by the respondent Board in respect of that matter. However, it is important to understand, as will become fully apparent later, that the penalties were imposed 12 months after the original hearing, and in the light of submissions made at a further hearing. I will continue to refer to the respondent's reasons for decision concerning the adverse finding as the principal reasons for decision; I will call the reasons handed down after the further hearing the "reasons for decision as to penalty".

24 As to patient B, the respondent found in its principal reasons for decision that the appellant was grossly careless in failing to attend on patient B on 13 February 2003 and make a personal assessment of her condition on being informed of the results of a CT (computerised tomography) scan of her abdomen and pelvis (par 3.3 of the notice, findings at pars 241, 261 and 262 of the reasons, conclusion at par 263 of the reasons). It is apparent from the respondent Board's reasons for decision as to penalty that suspension of 6 months was imposed for this offence.

25 Further, the respondent found that the appellant was grossly careless in that following receipt of a further report at 9.30 pm on 13 February 2003 as to the progress of patient B in which the appellant was told that there had been no change in the findings, the appellant provided no further advice other than to continue fluid resuscitation and antibiotic therapy and again failed to attend on and make a personal assessment of patient B (par 3.4 of the notice, findings at pars 292 to 298, conclusion at pars 299 and 300). The respondent's response was a suspension of 6 months.

26 As to this patient also, the respondent found that the appellant was grossly careless and guilty of improper conduct in that he was uncontactable at midnight on 13/14 February 2003 when a decision was made by the staff at Joondalup Hospital to transfer patient B to the Intensive Care Unit (par 3.5 of the notice, finding at 357 of the reasons, conclusion at par 361). The respondent's response was a suspension of 12 months.

27 As to patient C, the respondent found that the appellant was guilty of improper conduct by performing a left-sided ureteroscopy on patient C on 25 April 2003, without appropriate consent, having previously agreed to operate on patient C for a right-sided renal mass (par 4.1A of the notice, finding at par 367 of the reasons, conclusion at par 398 of the reasons). The respondent's response was a suspension of 6 months.

28 Further, as to this patient, the respondent found that the appellant was grossly careless in that despite having carried out a ureteroscopy and cystoscopy on patient C on 25 April 2003 and having been informed of a provisional diagnosis of a ruptured left ureter the appellant failed to immediately personally review either patient C or the CT scans (par 4.5 of the notice, findings at par 400 of the reasons, conclusion at par 426 of the reasons). The respondent's response was a suspension of 6 months.

29 In addition, the respondent found that the appellant was guilty of improper conduct in that having operated on patient C on 28 April 2003 he failed to personally review patient C following the operation or prior to his discharge (par 4.6 of the notice, findings at par 400 of the reasons, conclusion at par 427 of the reasons). The respondent's response was a fine of $5000 and a reprimand.

30 As to patient D, the respondent found that the appellant was guilty of improper conduct in relation to his care of patient D by reasons of the following matters (pars 5.1 to 5.5 of the notice, finding at par 438, conclusion at par 452 of the reasons):

"(a) On 8 November 2002 he carried out a cystoscopy with resection of bladder tumour on Patient D at Glengarry Hospital;

(b) Following Patient D's return to the ward, she commenced bleeding;

(c) Despite numerous attempts to contact the Appellant on Saturday 9 November 2002 and Sunday 10 November 2002 by staff at the Glengarry Hospital the Appellant was uncontactable and did not attend personally to examine Patient D or to give instructions as to her care on either day;

(d) As Patient D was an 88 year old woman, her daughter, Mrs E also left messages on Friday 8 November 2002 and again on Monday 11 November 2002 to discuss the findings of the cystoscopy;

(e) Despite her best efforts Mrs E was unable to talk to the Appellant until 7.15 pm on Thursday 14 November 2002, six days after her mother's operation. Mrs E did not receive a copy of the pathology results which she requested nor an alternative explanation if no specimen was sent to pathology."

31 The respondent's response to the various adverse findings in respect of patient D was a fine of $5000 and a reprimand.

32 Having handed down its principal reasons for decision on 26 April 2005, as I have indicated, the respondent proceeded to hear submissions as to penalty and costs. A few days later, on 9 May 2005, the respondent handed down its reasons for decision as to penalty. The outcome in respect of each of the adverse findings is reflected in my earlier observations. The respondent Board eventually concluded, after purporting to apply a "totality principle", that, in the end, as an 'overall' sanction, the appellant was to be suspended for a period of 12 months commencing on 23 May 2005. He was also to be fined $5000 and reprimanded. I will come to the details in that regard shortly.

33 The grounds of appeal in this matter are directed to the rulings and orders made by the respondent consequent upon its various adverse findings. Accordingly, it will be useful to look closely at the respondent's reasons for decision as to penalty.

34 The respondent noted that by s 13(3) it was empowered to impose any one or more of the following penalties, namely, (a) remove the name of the medical practitioner from the register; (b) suspend the registration of the medical practitioner for such period not exceeding 12 months as is specified in the order; (c) a fine not exceeding $10,000; (d) a reprimand. Upon the making of an order of suspension and during the period specified in such order the name of the practitioner shall be deemed to be erased from the Register and he shall be deemed not to be a medical practitioner for that period.

35 The respondent observed at par 8 that it is not part of its function to punish medical practitioners who have been found to have departed from the professional standards demanded of them. The primary function of the respondent is to protect the public interest. That interest includes the preservation of the high standards and good reputation of the medical profession generally in the eyes of the community.

36 The respondent went on to review a number of decided cases bearing upon this view. It summarised the outcome of the inquiry in this way at par 13:

"In its reasons for decision published on 26 April 2005 the Board found that the conduct of the Practitioner in relation to each of Patients, A, B, C and D warranted professional censure. Certain of the deficiencies in his care of Patient A were found to constitute gross carelessness within the meaning of s.13(1)(c) of the Medical Act 1894 (WA) and improper conduct in a professional respect within the meaning of s.13(1)(a) of the statute. So too was his misconduct in relation to the care of Patients B and C. His misconduct in relation to the care of Patient D was found to have been improper in a professional respect. In summary, the Practitioner was found to have engaged in conduct of a grossly careless nature in five respects in relation to three former patients (i.e., Patients A, B and C) and in conduct of an improper nature in three respects in relation to two former patients (i.e., Patients C and D). Certain of his misconduct in relation to his care of Patients A and C was found to constitute both gross carelessness and improper conduct in a professional respect."

37 The respondent then proceeded to describe its approach to the issue of penalty. It said that it was appropriate to approach the issue of penalty on the basis that the transgressions, certainly those in relation to each of the four former patients, were separate episodes of misconduct; individual penalties should be imposed in the first instance for each of the allegations proved viewed in isolation and then "consideration given to the principle of totality and as to whether, in the light of all the circumstances of this case, the objectives to be served at the penalty stage of proceedings can be met adequately by the imposition of one 'overall' sanction." (see par 14 of the reasons).

38 In the course of reviewing submissions by counsel for the practitioner, the respondent observed that it might reasonably be argued that the suspension of the registration of the practitioner was required in this case in order to protect each of the aspects of the public interest. It said at par 20 that "the temporary removal of the right to practice medicine may, in all the particular circumstances, not only constitute a proportionate response to the findings made but be both necessary and appropriate".

39 The respondent gave careful attention to the appellant practitioner's personal and domestic circumstances with reference being made to the restrictive conditions imposed by the respondent pursuant to its September 2003 regime. It gave careful consideration to recent reports prepared by the supervising practitioners Dr Cohen and Mr Tulloch. However, in addressing a report from Mr Tulloch to the respondent dated 27 April 2005 which suggested that the appellant was now "a safe practitioner" the respondent expressed reservations in the light of evidence Dr Cohen gave during the inquiry concerning the continuing problems of contactability in the period to February 2004. It observed (at par 35) that having regard to all the circumstances of the case, the respondent was not prepared to entertain any suggestion that the restrictions and conditions on the right of the practitioner to practice medicine be lifted or varied to minimise the level of supervision or audit of his practice.

40 The respondent was of the opinion that, should the appellant retain his right to practice medicine, it was necessary that that right continue to be subject to restrictions and conditions for an extended period. It said that "we remain unconvinced that the practitioner possesses true insight into the seriousness of his misconduct and the ramifications of his repeated and significant failures to discharge obligations owed by him as a consultant urologist". The respondent said later (at par 41) that "it may be accepted that he has the capacity to practice medicine safely within the parameters of the type of strict regime imposed from September 2003".

41 The respondent noted (at par 45) that the appellant had no source of income other than that derived from his medical practice and reviewed his financial circumstances upon the basis that his capacity to pay a fine was relevant to any decision to impose one. Reference was also made to other adverse consequences such as negative publicity and uncertainty concerning his professional future. It was noted also that he had not previously been the subject of adverse findings by the respondent.

42 The respondent was of the opinion that to permit the appellant to continue to practice subject to an extended regime of the kind imposed in September 2003, even after reprimanding him and imposing a substantial fine, would be insufficient in the light of the seriousness of the misconduct involved and the need to serve important aspects of the public interest other than protection of the community from the risk of physical harm (par 56).

43 The respondent concluded that anything less than suspension for 12 months would be inadequate and that such a period was warranted and proportionate to the adverse findings made. The respondent was of the opinion that the appellant should also be fined the sum of $5000 and reprimanded.

44 The respondent concluded that as to the individual adverse findings, viewed in isolation, the penalties I mentioned in earlier discussion were the appropriate response. The respondent then observed (at par 62) that it was necessary to give consideration to the "total effective" penalty imposed on the appellant. It concluded that having regard to all of the considerations the "objectives to be served by the sanction of the practitioner" could be met adequately by the imposing of one "overall" penalty as a penalty proportionate to the adverse findings made.

45 The respondent's conclusion in that regard was that there should be a suspension of the registration of the appellant for a period of 12 months, the imposition of a $5000 fine to be paid within 60 days and the reprimand of the appellant.

46 Accordingly, the respondent proceeded to make the following orders:

"(a) The registration of the Practitioner is suspended for a period of 12 months commencing on 23 May 2005;

(b) The Practitioner is fined $5,000.00 to be paid within 60 days of the date of the publication of these reasons for decision;

(c) The Practitioner is hereby reprimanded;

(d) Subject to order (e), the Inquiry is otherwise adjourned to a date to be fixed by the Registrar in April 2006 to allow the Board to then determine whether any restrictions and/or conditions should be imposed on the Practitioner's practice upon the expiration of the period of suspension of registration pursuant to the powers of the Board under s.13(9a)(b) of the Medical Act 1894 (WA);

(e) The Board reserves the right to reconvene the Inquiry at any time before April 2006 if thought necessary;

(f) The Practitioner shall pay the reasonable costs of the Inquiry to be agreed or, if not agreed, to be fixed by the Board after written submissions have been received in relation to this issue from the Practitioner and those assisting the Board. In the absence of agreement the written submissions are to be filed within 30 days of the date of the publication of these reasons for decision."

47 It was against this background that the appellant instituted the present appeal on the grounds set out in its minute of proposed amended notice of appeal dated 18 August 2005. I will turn to the grounds of appeal in a moment. It will now be useful to look at the legal principles bearing upon an appeal of this kind.

48 I noted in earlier discussion that by s 13(8) of the Medical Act (as it was formerly) the appeal is in the nature of a rehearing. Order 65 rule 10 of the Rules of the Supreme Court 1971 provides that 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 direction.

49 Further, by O 65 r 10(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. 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.

50 I pause to note that the parties to this appeal were both represented by counsel and it was not suggested to me that I should proceed other than by determining the matter upon the basis of the materials in the Appeal Book.

51 The decided cases establish that the appellant must persuade the Court that the decision appealed from was in error: Srna v The Medical Board of Western Australia [2004] WASCA 198 per Pullin J at par 4. In the context of the orders made by the respondent in the present case it is apparent that the Court must be persuaded that the discretion to impose an appropriate sanction has miscarried: Walters v Nursing Board of Tasmania [2003] TASSC 122 at par 12.

52 I note in passing that counsel for the respondent relied upon certain authorities to the effect that in determining the appeal the Court should attach considerable weight to the respondent's findings on penalty where its reasons clearly demonstrate that the imposition of the penalty was arrived at after proper consideration of all relevant matters and the application of the principles applicable to the imposition of penalties of this kind. An appellate court should be slow to overturn a specialist Tribunal's findings on penalty unless the Tribunal's discretion has clearly miscarried: Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 at 327 and 335; Re Hodgekiss (1959) 62 SR (NSW) 340 at 343.

53 This brings me to various decided cases bearing upon the proper approach to matters of penalty in professional disciplinary proceedings including certain decided cases mentioned by the respondent itself in its reasons as to penalty.

54 The High Court of Australia has described disciplinary decisions as entirely protective, and notwithstanding that they may involve a great deprivation to the person disciplined, there is no element of punishment involved: New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183.

55 In Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 Doyle CJ observed at 554 that a disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.

56 His Honour went on to observe that the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct.

57 In Jemielita v Medical Board of Western Australia, unreported; SCt of WA; Library No 920584; 13 November 1992 Owen J set out the considerations properly to be taken into account by the Board in determining the appropriate sanction of a practitioner following a finding that he or she is guilty of a matter referred to in s 13(1) of the Medical Act. His Honour indicated that the primary consideration is the protection of the public interest. Further considerations are as follows: the consequence of an adverse finding is drastic for the practitioner, the purpose of providing such a drastic consequence is not punishment of the practitioner but protection of the public, the public needs to be protected from delinquents and wrongdoers within the professions. The public also needs to be protected from seriously incompetent professional people. The further considerations include also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community. There is a need to deter others who may be of a like mind to transgress in the future. Every man has a right to earn his living in the way he chooses unless by the law or by his own voluntary submission his way is taken from him. The Board is required to consider all of the circumstances surrounding the act or omission of the practitioner and to exercise its discretion accordingly.

58 In Srna v The Medical Board of Western Australia (supra) Pullin J stated principles applicable to an appeal against a penalty imposed by The Medical Board to be as follows:

"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 R [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 R [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 R (1989) 38 A Crim R 337 at 342; Staunton v R [2004] WASCA 21."

59 In Roberman v The Medical Board of Western Australia [2005] WASC 45 Jenkins J gave consideration to principles of the kind I have just mentioned. She noted at par 161 that it is not appropriate to apply at a disciplinary proceedings of this nature the sentencing principles that are applicable to criminal matters. The overriding issue is the protection of the public. However, in deciding the extent to which the public needs protection it is relevant to take into account the appellant's personal circumstances.

60 Her Honour accepted that significant weight had to be given to the personal circumstances of the practitioner in the case before her including, that the subject allegations were the first allegations of such a kind made against the practitioner in over 30 years of practice as an obstetrician and gynaecologist during which time he had managed tens of thousands of labours. Her Honour went on to observe that the subject allegations related to only one patient and events which occurred in a relatively short period in the early hours of the morning. Prior to the allegations he had a long, distinguished and unblemished career with a significant record of service to the community.

61 In that case, her Honour held that the respondent Board erred in concluding that only suspension could meet the objective of the protection of the public. The appeal was allowed in part by substituting for the penalty of 9 months' suspension imposed by the respondent Board a reprimand, a fine of $7500 and a requirement that the appellant enter into an undertaking to be of good behaviour for a period of 12 months and comply with a condition that he not practice obstetrics during that period.

62 On the other hand, in Mustac v The Medical Board of Western Australia [2004] WASCA 156 Simmonds J dismissed an appeal against the Board's determination that the practitioner in question be suspended from practice as a forensic psychiatrist for a period of 6 months. He was of the view that in the circumstances of that case a fine and conditions on the practitioner's practice would not give an indication, both to the practitioner and to the public, sufficient to preserve the standing and reputation of the profession of psychiatry. In his view, a suspension of one-half of the maximum allowable would be appropriate as the Board had in fact determined.

64 Ground 1 of the appeal is expressed in this way:

"1. Having found that the Appellant had the capacity to practice medicine safely within the parameters of the type of strict regime imposed by the Respondent's orders made on 23 September 2003, to which the Appellant volunteered to submit, the Respondent erred in holding, in effect, that

(a) the public interest in maintaining the confidence of the public in the medical profession by demanding and upholding the highest standards of professional conduct necessitated the suspension of the Appellant's registration as a medical practitioner for a period of 12 months; and

(b) the orders to be imposed by the Respondent had to be proportionate to the adverse findings made by it.

65 It emerges from earlier discussion that in determining the appropriate penalty the respondent gave considerable weight to the need to maintain the high standards and good reputation of the medical profession generally in the community.

66 In the course of argument before me counsel for the appellant appeared to accept that weight should be given to considerations of that kind. However, counsel for the appellant submitted that the respondent erred in allowing this aspect of the public interest to displace other elements of the public interest as identified by Owen J in Jemielita's case (supra). The heavy, and perhaps excessive, reliance placed by the respondent on the need for its orders to maintain the good standing and high reputation of the profession was said to be evidenced by the citation of a lengthy passage from the judgment of Doyle CJ in Craig v Medical Board of South Australia (supra).

67 Counsel submitted that the need to suspend in order to maintain standards is readily understandable in cases involving moral turpitude such as Craig's case (supra). However, in a case of the present kind, which was concerned principally with the practitioner's competence in circumstances where that competence had been compromised temporarily by psychiatric illness, and where the practitioner had demonstrated a willingness and capacity to rehabilitate himself, the approach reflected in Craig's case (supra) was not appropriate. It was said that a heavy fine would have adequately addressed the public interest embodied in the need to maintain high standards and the good reputation of the profession.

68 Counsel supported this submission by referring to the respondent's findings that the appellant had the capacity to practice medicine safely within the guidelines established by the September 2003 regime. Counsel referred to the appellant's affidavit sworn 1 October 2004 concerning compliance with the conditions imposed by the September 2003 regime.

69 The appellant said in his affidavit (at par 17) that he had voluntarily ceased undertaking surgical procedures in June 2004 save for local procedures conducted in his rooms. His practice, as at the date of the affidavit, was essentially a consulting practice. He would only resume surgical practice upon the advice of his supervisors, Dr Cohen and Mr Tulloch, at a time when they believed that resumption was appropriate. He had made a commitment to maintaining currency of his medical knowledge by spending a great deal of time reading journal articles and making sure that he was up to date with urological developments. He had improved his risk management practice and procedures. Since the making of the relevant orders he had observed the 30 hour limit upon his clinical practice and kept up weekly meetings with his supervisors.

70 Counsel for the appellant referred also to later events. I was informed that since the suspension was imposed on 23 May 2005 the appellant has not been practising as a medical practitioner at all. Having maintained a skeletal practice in the period between May 2004 and April 2005 (while waiting on the outcome of the inquiry), the appellant felt that it was not appropriate or viable to apply for a stay in respect of the suspension order as it was likely to prove too disruptive to the care and management of his patients if it was held eventually that the suspension had to take effect.

71 I pause here to note that in an affidavit sworn 28 April 2005, being an affidavit verifying financial matters relevant to the respondent's determination of penalty, the appellant provided particulars of the income received from his practice in the period 1 June 2004 to 31 March 2005 and particulars of his practice expenses. It is apparent from the figures that the practice was running at a monthly loss. It was said that he funded the shortfall by drawing down upon the equity in his residential property but the equity has now been substantially eroded.

72 As at the date of the April 2005 affidavit, the appellant's practice was a consulting practice with such a day surgery as could be safely undertaken in his rooms. He provided particulars as to the removal or suspension of his accreditations at various hospitals. I note in passing, as it bears upon a matter I will come to later, that the accreditation was withdrawn in June or July 2003 at Joondalup Hospital, The Mount Hospital, Glengarry Hospital and Osborne Park Hospital. Accreditation lapsed or was withdrawn in mid-2004 at St John of God Hospital and Hollywood Private Hospital.

73 As to this first ground of appeal, counsel for the appellant submitted forcefully that it was apparent from the provisions of the September 2003 regime that the appellant was thought to have the capacity to practice medicine safely within such a regime and this demonstrated that the respondent had given undue weight to the maintenance of the high standard and good reputation of the medical profession. Further, in referring to the diminution in public confidence as a result of "significant publicity" associated with this and other enquiries into misconduct, the respondent had revealed a flaw in its reasoning (respondent's reasons at par 50 AB1/35).

74 In dealing with this ground of appeal it will be useful to begin by making some general observations. It will be apparent from earlier discussion that, in the respondent's view, the various matters of misconduct complained of could not reasonably be considered as part of the same episode or a single course of misconduct. The respondent found that there were various departures from the duties that the appellant owed to his patients which included failure to exercise appropriate clinical judgment, carrying out surgical procedures without appropriate consent, failing to attend on patients when circumstances demanded that he do so, and being uncontactable when obliged to be contactable. To my mind, it was consistent with the reasoning in the decided cases that the specific matters be viewed in context with a view to arriving at an appropriate or proportionate response overall. Indeed, it was this approach that led the respondent to apply the so-called totality principle in a way that worked to the benefit of the practitioner.

75 It is apparent from the respondent Board's reasoning including its review of the relevant legal principles that the Board gave careful attention to weighing up what was said on the appellant's behalf during the hearing convened to consider penalties. The submissions made by counsel for the appellant and the various written testimonials and other documents put before the respondent are referred to expressly in the respondent's reasons at pars 21 to 34, 45 to 47 and 49. The respondent set out the principles mentioned in Jemielita's case (supra) and clearly addressed the question of whether some penalty other than suspension would satisfy the purposes for which the disciplinary penalties have been created. I noted in my review of the decided cases that an appellate court should be slow to overturn a specialist tribunal's findings as to penalty unless the tribunal's discretion has clearly miscarried.

76 These general observations bring me now to the specific issues raised by ground 1 of the appeal.

77 I feel obliged to keep steadily in mind that the initial inquiry and the imposition of the conditions comprising the September 2003 regime arose out of circumstances in which the appellant was thought to be not coping as a consequence of physical and mental shortcomings. The regime was instituted by the respondent as a matter of urgency pending the hearing of a formal inquiry into the appellant's clinical competence. It follows that the issues of professional misconduct which were brought into play by the notice of inquiry dated 11 March 2004, and the later issues as to penalty, were not before the Board when the September 2003 regime was created.

78 It emerges, then, that in turning to the question of penalty the Board was not necessarily constrained by its earlier ruling; that is, its decision to set up the September 2003 regime as a means of allowing the appellant to carry on his practice subject to supervision pending further action. When it came to the question of penalty at a later stage (after a full inquiry) the respondent was entitled to give proper weight to the notion that the public interest had to be considered in determining what penalty should be imposed on the appellant.

79 To my mind, the reasoning in the previously decided cases including Craig's case (supra) does not suggest that the need to suspend is confined to misconduct which amounts to moral turpitude. The statutory provisions and the decided cases indicate that the power to suspend can be exercised where there has been gross carelessness and improper conduct in a clinical sense.

80 It is apparent from the reasoning in Jemielita's case (supra) and the other cases that the primary consideration is the protection of the public interest. I am not persuaded that in the circumstances of the present case the respondent gave undue weight to that aspect of the task before it or overlooked other considerations. Indeed, the contrary appears to be the case. Further, I am not persuaded that the respondent gave weight to publicity in a manner that prejudiced the appellant's entitlement to a determination of penalty having regard only to the circumstances of his particular case.

81 To my mind, it does not appear from the reasons as to penalty that the respondent proceeded as if the matter before it were in the nature of a sentencing process forming part of criminal proceedings. The respondent took care to remind itself that its role was to protect each of the various aspects of the public interest and not to punish the appellant. The respondent's approach demonstrated a fair and balanced assessment of what was an appropriate penalty to protect the public interest. The appellant correctly took the view, in the manner adverted to by Doyle CJ in Craig's case (supra), that in certain cases the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards. Such an order is designed to deter the practitioner from any further departure.

82 At a first glance, orders conveying a sense of admonition might look like a punishment imposed by a court exercising a criminal jurisdiction, but in professional disciplinary proceedings such orders are usually, as they are in the present case, imposed on a different basis. They are a means of conveying to other members of the profession, and reassuring the public, that a certain type of conduct is not acceptable professional conduct.

83 A number of the previously decided cases relied upon by counsel for the appellant concerned findings in respect of single incidents. However, to my mind, in the circumstances of the present case, the respondent was entitled to view its various findings in a different light when the time came to impose a penalty. I am not persuaded that the language used by the respondent in its reasons for penalty contained an echo of criminal proceedings or that the respondent in fact held that its orders had to be proportionate to the adverse findings made by it. Accordingly, I am not persuaded that the appeal should succeed on this ground.

84 Ground 1A of the appeal is expressed in this way:

"1A. The Respondent erred in that whilst acknowledging that the discretion it was required to exercise was protective in nature, its approach to the issue of penalty orders was directly analogous to the approach adopted to sentencing in the criminal jurisdiction, and the orders made by the Respondent were punitive in nature and effect."

85 The respondent said at par 14 of its reasons as to penalty that it was appropriate to approach the issue on the basis that the matters of default could be characterised as discrete incidents of misconduct. Individual penalties were to be imposed in the first instance for each of the allegations proved viewed in isolation "and then consideration given to the principle of totality and to whether, in the light of all the circumstances of this case, the objectives to be served at the penalty stage of proceedings can be met adequately by the imposition of one 'overall' sanction" (AB page 16).

86 The appellant submitted on the appeal that whilst the underlying rationale of the totality principle is to protect the offender, its application is antithetical to the principles of the protective discretion that must be exercised. It focuses attention on the relationship between the offences and punishment and not on the public interest criteria central to the protected discretion. The adoption or apparent adoption by the respondent of the totality principle was an error of principle that pervaded the ultimate conclusion reached on penalty because the totality principle is directed to punishment not protection.

87 It was said further that the respondent's approach to sentencing was equivocal. Whilst the respondent embraced the notions of proportionality and totality (these being terms used in the criminal sentencing jurisdiction), the respondent took a restrictive view of the weight to be attached to matters that are conventionally accorded weight in the context of sentencing. The respondent's decision to suspend was wrong because it was punitive in effect. Punishment is punishment whatever the rationale for its imposition.

88 In dealing with this ground of appeal I feel obliged to note that the passage concerning totality I have just mentioned must be considered in conjunction with certain other passages from the respondent's reasons for penalty. The respondent emphasised at par 59 that the temporary removal of the right to practice "is not designed to punish the practitioner". The respondent went on to acknowledge that to prevent a doctor from practising as such does operate, in a practical sense, as a punishment, but the sanction has not been imposed for this purpose or with this objective. It has been imposed because it is the only sanction which serves adequately all of the aspects of the public interest to which reference has been made. It will serve to secure the maintenance of professional standards and will emphasise to the profession and to the wider community the seriousness of the misconduct.

89 To my mind, it has not been demonstrated that a passing reference to the totality principle can be characterised as an application by the respondent Board of general sentencing principles applicable in criminal proceedings when such an approach was expressly disavowed by the respondent in the course of its reasons for penalty. Essentially, the respondent simply acknowledged that whilst it had the power to suspend the appellant for a period of up to 12 months in respect of patients, A, B and C (making a total of 3 years), this was not an appropriate response in all the circumstances.

90 I refer again to the general observations I made under ground 1. The statutory provisions required the respondent to address each of the findings made adversely to the appellant and to determine an appropriate response. However, it was then an appropriate course to determine an overall penalty by placing the various episodes in context. Indeed, by proceeding in this manner the respondent's approach was of advantage to the appellant. Use of the term "totality" does not of itself denote an intention or inclination on the part of the appellant to apply procedures transplanted from the criminal jurisdiction, bearing in mind that the respondent Board had itself, as evidenced by the passage in its reasons for penalty I referred to earlier, taken care to identify and put to one side any such tendency. This is reinforced by its further observations at par 48 "that the Board acts in the public interest and not with a view to punishment of the medical practitioner concerned".

91 I am not persuaded that the appeal should be allowed on this ground.

92 Ground 2 of the appeal is expressed in this way:

"2. The Respondent erred in that it failed to take into account, or to attach any, or sufficient weight, to following matters:

(a) the elapse of time between the conclusion of the hearing (25 May 2004) and the delivery of the Respondent's decision (26 April 2005);

(b) the adverse consequences suffered by the Appellant in terms of his professional practice in the period between 25 May 2004 and 26 April 2005;

(c) the efforts made by the Appellant to improve his professional practice and his psychiatric health and the extent to which the Appellant had improved his professional practice and psychiatric health in the period between the last episode of the conduct that lead to the adverse findings, 28 April 2003 and 26 April 2005.

93 As to this ground, the appellant submitted that the delay complained of (accompanied by corrosive uncertainty as to the outcome) was bound to be highly prejudicial. The prejudice to a consultant surgeon intent on rehabilitating himself into the profession was particularly acute and it was a matter that the respondent should have taken into account but failed to do so. This brings me to the affidavit evidence mentioned in earlier discussion.

94 The appellant acknowledged that there was some acceptance by the respondent that between May 2004 and April 2005 the appellant's practice as a consultant urological surgeon was effectively suspended, and that this had caused him significant financial pressure. The respondent must also be taken to have accepted that the appellant maintained his consulting practice at a loss pending the delivery of its reasons. However, it was said on behalf of the appellant that insufficient consideration was given by the respondent as to how the orders it made would affect the appellant. In real terms, the attempts made by the appellant to address his psychiatric illness, his family relationships and his communication skills were subordinated to the need asserted by the respondent to maintain public confidence in the profession. The appellant's affidavit evidence bears upon this aspect of the matter. It portrays his financial circumstances and the impact upon him of the September 2003 regime and the subsequent suspension.

95 The appellant submitted also that the respondent had failed to consider the wider public interest in the appellant's rehabilitation. The respondent did not direct itself to the public interest in rehabilitating a medical practitioner whose ability to practice had been impaired by psychiatric difficulties. This was a public interest factor that weighed against suspension. The impact of a period of lengthy suspension on a practitioner involved in a skills based discipline such as surgery, where the quality of operative results is directly related to ongoing experience was not considered by the respondent.

96 There is obviously room for argument as to whether the respondent gave sufficient weight to the matters brought under notice by this ground of appeal. However, I find it difficult to conclude that the respondent failed to give appropriate weight to such matters when there are various passages in its reasons for penalty specifically directed to this issue. I touched on a key passage in that regard in earlier discussion in which the Board acknowledged that, in a practical sense, the removal of the right to practice may operate as a punishment. More particularly, the respondent noted at par 45 of its reasons for penalty that the appellant has no source of income other than that derived from his medical practice. This was followed by an analysis of the figures bearing upon his financial position and the nature of the financial loss likely to be sustained.

97 The respondent also had regard to the efforts by the appellant to improve his professional practice and his psychiatric health in the period between April 2003 and April 2005. However, the respondent was of the view that, notwithstanding these matters, the seriousness of the complaints and the multiplicity of the findings against the appellant required that there be a suspension.

98 It must be kept in mind also, and this appears to be inherent in the respondent's reasoning, that certain of the appellant's financial difficulties arose from the withdrawal of his visiting rights to the hospitals where he had previously operated, and because of his own voluntary decision to cease operating until cleared to do so by those urologists who were mentoring him. I set out the relevant details in earlier discussion in respect of ground 1 of the appeal. Accordingly, I find it difficult to hold that the delay complained of should be given the emphasis attributed to it by the present ground of appeal.

99 The appellant submitted also that there was nothing on the face of the reasons for penalty to suggest that the respondent had given sufficient weight to the efforts made by the appellant to address his psychiatric illness, his family relationships and other matters favourable to him. However, I am not convinced that the respondent failed to give weight to this aspect of the matter. The appellant's circumstances were referred to explicitly at par 23 of the reasons for penalty and his progress subsequent to imposition of the September 2003 regime is canvassed at some length in pars 27 to 34. The respondent Board appears to have given careful consideration to this aspect of the matter.

100 I am not persuaded that the appeal should succeed on this ground of appeal.

101 Ground 3 of the appeal is expressed in this way:

"3. The orders made by the Respondent that the Appellant's registration as a medical practitioner be suspended for a period of 12 months and that the appellant be fined $5,000 constituted, in the context of the Appellant's circumstances, a manifestly excessive penalty in respect of the findings of gross carelessness and improper conduct made by the Respondent."

102 The appellant submitted that the relevant findings were of gross carelessness and improper conduct as distinct from the more serious forms of misconduct, namely, incompetence and infamous conduct but the penalties imposed equated in every practical sense to the most severe penalty, being that of deregistration. The appellant placed reliance upon the rulings in Jemielita's case (supra), Srna's case (supra) and the recently decided Roberman's case (supra).

103 The appellant submitted further that there were significant mitigating factors present in the circumstances of the present case which favoured a more lenient approach. These were said to include the fact that the appellant was affected by psychiatric illness at the time of the misconduct, that he was beset by difficulties of a traumatic kind in his personal life, that significant financial loss had been suffered in maintaining his consulting practice pending delivery of the respondent's reasons and that this loss flowed from what could be regarded as a de facto suspension.

104 It was said also that the appellant had made praiseworthy efforts to rehabilitate himself and enjoyed support from professionals within the urological community. He had voluntarily submitted to a regime of supervised practice and had the capacity to make a significant contribution to urological work as a consequence of his insight into his own conduct. It was said that given the magnitude of the financial loss occasioned by a 12 month suspension no element of the public interest was served by the imposition of a fine of $5000 in addition to the suspension. It was submitted that the appropriate penalty would have been either a fine or a short period of suspension coupled with a fine and a reprimand, and that an outcome of this kind should be put in place as a consequence of the appeal. It was said that the respondent had power to impose a fine of $10,000 in respect of each of the matters, and a disposition of this kind would be more appropriate than the imposition of a suspension of 12 months.

105 I noted in my review of the decided cases and in my general observations under ground 1 that an appellate court should be slow to overturn a specialist tribunal's findings on penalty unless the tribunal's discretion has clearly miscarried. Further, error is not shown on the part of a disciplinary tribunal merely because an appeal court would have exercised its discretion in a manner different from the Tribunal in question.

106 It appears from Srna's case (supra) at par 93 that in undertaking the exercise of determining whether the penalty is manifestly excessive, the Court ought to consider the penalty having regard to the maximum penalty prescribed, the type of penalty normally imposed for conduct of the same kind, the place which the appellant's conduct occupies on the scale of seriousness of conduct of that type, and the appellant's personal circumstances.

107 In the present case, there were four complaints involving four separate patients which were determined in the subject inquiry. Each complaint involved several discrete acts or default on the part of the appellant. The respondent found that the majority of the relevant details had been made out. The appropriate response to each of the four matters could be regarded as a suspension of the appellant's registration for a period of 12 months in respect of patients A, B and C and an imposition of a fine of $5000 and reprimand in respect of patient D.

108 However, the respondent accepted that if the appellant was suspended in respect of patients A, B and C on a cumulative basis, the appellant would be suspended for a total of 3 years as well as being fined $5000 and reprimanded. In the circumstances, the respondent was of the view that the overall penalty proportionate to the findings made by it was suspension of the appellant for a period of 12 months, a fine of $5000 and reprimand of the appellant.

109 When I take account of the outcome in Srna's case (supra) and Roberman's case (supra) the response of the respondent in the present case appears to be proportionate to the multiplicity of findings against the appellant. It does not appear to be manifestly excessive in the circumstances. Those earlier cases involved individual instances of default. Pullin J noted in Srna's case (supra) at par 104 that if an incident is provably representative of a course of grossly careless conduct then deregistration or suspension may be appropriate. It is important to understand also that suspension for 12 months cannot be equated with deregistration in that the former entitles the appellant to resume practice at the end of the subject period whereas deregistration merely affords a deregistered practitioner the opportunity to apply to be re-registered with the burden of persuasion being placed upon him to satisfy the respondent that re-registration is appropriate in all the circumstances.

110 I noted that in support of this ground of appeal the appellant referred to various mitigating factors. However, it will be apparent from earlier discussion, that the respondent took account of these factors. Moreover, as to the matter of rehabilitation, the respondent was concerned about some aspects of the appellant's purported rehabilitation. First, the respondent noted in its reasons for decision that the appellant's contactability had remained a problem according to Mr Tulloch, being one of the urologists mentoring him. Second, the respondent was not convinced that the appellant possessed true insight into the seriousness of his misconduct and the implications of his repeated and significant failures to discharge the obligations owed by him as a consultant urologist. Whilst taking into account the factors favourable to the appellant, the respondent noted also that the adverse findings brought with them a need for general and specific deterrence.

111 Let me now draw the various considerations bearing upon this ground of appeal together. It emerges from earlier discussion concerning the preceding grounds for appeal that, in my view, the appellant has not been able to identify specific flaws in the respondent's reasons for penalty of the kind alluded to by the appellant in his grounds of appeal. It is apparent from the length and complexity of the reasons for penalty that the respondent gave careful consideration to the various mitigating factors relied upon by the appellant.

112 The previously decided cases are not inconsistent with and, if anything, tend to support the conclusion finally arrived at by the respondent concerning penalty. Further, having regard to the maximum period of suspension which was able to be imposed on the appellant, being a period of 3 years, the imposition of a 12 month period of suspension overall fell somewhere in the lower half of the possible range and can arguably be regarded as comparable to a suspension of 4 months in respect of a practitioner who was guilty of gross carelessness or improper conduct in respect of one patient only.

113 Accordingly, for these reasons, I am not persuaded that the respondent imposed a manifestly excessive penalty in respect of the findings of gross carelessness and improper conduct. I am not persuaded that the appeal should succeed on this ground.

114 I consider that the appeal should be dismissed. I will hear from the parties as to whether any further orders are required as to costs or other matters.

Administrative Tribunal Act 2004

Thomas v The Medical Board of Western Australia [2005] WASC 244

At a glance

Court

Decision date

Before

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Judgment (143 paragraphs)

Thomas v The Medical Board of Western Australia [2005] WASC 244 (8 November 2005)

Parties

Legislation Cited (1)

Cases Cited (8)