Victorian Civil and Administrative Tribunal|2004-06-02|Before: Stuart Morris J

Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044 (2 June 2004)

Medical Practice Act 1994 - unprofessional conduct of a serious nature - professional conduct reasonably expected by the public or by the peers of the practitioner - weight to be given by the tribunal to the findings and determination of the panel at de novo hearing - desirability of application of medical protocols - conduct in applying established protocol concerning fatality at Grand Prix not unprofessional conduct.

The findings and determination made by the panel on 7 November 2003 in relation to Dr David Anthony Vissenga are set aside and in lieu thereof the tribunal finds that, at Albert Park on 4 March 2001, Dr Vissenga did not engage in unprofessional conduct as defined in the Medical Practice Act 1994.

(given orally at the hearing and subsequently revised)

1 On 7 November 2003 Dr David Anthony Vissenga was found by a panel constituted under the Medical Practice Act 1994 to have engaged in unprofessional conduct of a serious nature. The charge against him was that at Albert Park on 4 March 2001, as Chief Medical Officer of the Australian Grand Prix Motor Racing Circuit, he authorised an arrangement for the body of Graham Francis Beveridge to be transported, with continuing resuscitation activity, to the Alfred Hospital in Prahran, after Mr Beveridge had been correctly declared deceased by a qualified medical practitioner and that it was unnecessary and/or inappropriate to continue such activity.

2 Upon finding Dr Vissenga had engaged in unprofessional conduct of a serious nature, the panel cautioned Dr Vissenga with respect to issuing directions without taking into account the full implications of such directions.

3 The panel heard the charge against Dr Vissenga in conjunction with charges against the Deputy Chief Medical Officer of the Australian Grand Prix Motor Racing Circuit, Dr Paul Temme, and three treating doctors who I will call Drs R, V and C. The panel found that Drs Vissenga and Temme had engaged in unprofessional conduct; but found that the treating doctors had not engaged in unprofessional conduct. The panel gave detailed reasons for its decisions on 19 December 2003.

4 Dr Vissenga has applied to the tribunal for the review of the decision of the panel.

5 Most of the facts are not in dispute. The following findings are mainly based upon the findings of the panel and, in some instances, are drawn directly from the panel's reasons.

6 The matter concerns events which occurred during the 2001 Australian Formula One Grand Prix motor race when a trackside marshal, Mr Graham Francis Beveridge, was fatally injured. Dr Vissenga was the chief medical officer of the Australian Grand Prix Motor Racing Circuit on that day. Dr Vissenga had an extensive background in providing medical services for motor racing and had been the CAMS chief medical officer since 1985. He has also been the chief medical officer for the Australian Grand Prix since that time. Dr Vissenga has been a medical practitioner since 1961. He is also the Police Medical Officer for Victoria.

7 In 1995 the Alfred Hospital agreed to provide medical services for the 1996 Grand Prix, which was the first Grand Prix to be held in Melbourne. It has continued to provide medical services since that time. The Grand Prix arrangements are covered by a contract between the Australian Grand Prix Corporation and the Alfred Hospital.

8 In 1995 Dr Jenny Bartlett, then the Director of Medical Services at the Alfred, wrote to the State Coroner and advised him of certain arrangements concerning the Grand Prix. The letter included a paragraph that read:

In the unlikely event of a fatality at the track the patient will be transferred to the Alfred and subsequently certified deceased and then transferred to the Coronial Office.

There was no written response from the Coroner in response to this letter. Those associated with the provision of medical services for the Grand Prix regarded the statement in the letter as operative, including in the year 2001.

9 Under the terms of the agreement between the Alfred and the Australian Grand Prix Corporation for the 2001 Grand Prix, Dr V, as Clinical Supervisor of the trackside medical centre, was responsible to the Chief Medical Officer, Dr Vissenga. Staff provided by the Alfred agreed to comply with the FAI guidelines for the management of casualties and personnel engaged by the Alfred were to comply with a document known as the "Medical Services Handbook". This handbook, which I take to also be known as the "Medical Services Operation Manual", contained extensive details as to procedures to be followed in the event of medical emergencies at the Grand Prix. The manual contained the following statement on page 24:

Casualties becoming fatalities or suspected fatalities from any cause on the track are to be given full resuscitation including intravenous infusion and endotracheal intubation, etc. After consultation with the Chief Medical Officer, such casualties will be transported to the Alfred where appropriate reception has been arranged.

This paragraph in the manual, read with the letter from Dr Bartlett to the Coroner, together formed a protocol which had been in place since 1996 and which was operative at the time of the 2001 Australian Grand Prix.

10 Evidence was given before the panel and, also, before the tribunal, of the importance of protocols in relation to medical matters, particularly in circumstances where an emergency might be anticipated. For example, I was told that there were protocols in place in relation to the conduct of the Olympic Games in Sydney in the year 2000. Protocols are commonly in place in relation to motor racing events. It is desirable for there to be protocols in relation to such events, based upon considered reflection, in order to provide guidance to persons who need to make decisions in emergencies. That said the quoted paragraph on page 24 of the manual is not without its problems. The language used is, to be kind, ambiguous. In part this may be the result of uncertainty as to when a point is reached when death has definitely occurred and there is no prospect of resuscitation being successful. I will come back to this point later. Since the 2001 Grand Prix the protocol has been revised and, in particular, this paragraph has been revised. That reflects a common opinion, formed after the 2001 Grand Prix, that the wording of the protocol was unsatisfactory.

11 Although it has not been articulated before me, I suspect that there has been a concern that the quoted paragraph of the protocol was designed to achieve objectives other than medical objectives. There is at least a suggestion in some of the material that there was a concern that the protocol had been established to protect the image of motor racing rather than for the purpose of medical science or the appropriate treatment of persons who are injured. But in evidence before the panel Dr Vissenga explained the purpose of the quoted paragraph. First, he said that incidents that might occur at a Grand Prix were different than incidents that might occur upon the road because full medical services were provided at the Grand Prix with the result that there was an opportunity to very quickly intervene following an accident. He explained that the unique timescale involved in treating injuries in a motor racing event, compared with a typical event of road trauma, meant that there was an opportunity to apply medical science more rapidly, particularly science to stabilise a patient, with the result that there was a greater opportunity to save life by use of resuscitation. The other reason given by Dr Vissenga was as follows:

... the unique environment of a motor racing circuit, particularly in the Grand Prix where you have tens of thousands of people looking on and you have millions of people watching on the television, so what you do must not only be appropriate and be seen to be appropriate but also those looking on must be able to see that everything that can be done is being done, there's that important perception thing, that it would be unthinkable to give the impression that you were not doing everything you knew how to do at that moment on the track.[1]

12 Over the years prior to 2001 there had been numerous meetings concerning Grand Prix arrangements at the Alfred Hospital. Dr Vissenga had usually chaired these meetings. Evidence was given to the panel, and some evidence also to the tribunal, to the effect that at these meetings Dr Vissenga made it clear that in the event that there were fatalities at the Grand Prix, the protocol required that the deceased person should be transferred to the Alfred Hospital with full resuscitation.

13 Dr Vissenga told the panel that the capacity of the trackside medical centre had developed considerably over the years. He also told the panel that the protocol was written in the context where it was not envisaged that major surgery would be undertaken on the site of the motor race.

14 At approximately 1410 hours on 4 March 2001 there was a collision between two race cars in the fourth lap of the Australian Grand Prix. A wheel broke loose from one of the cars and penetrated through the safety fence and struck Mr Beveridge. The injury was a catastrophic one, the wheel travelling at high velocity and weighing a substantial amount.

15 A medical officer provided immediate resuscitation to Mr Beveridge while an ambulance was summoned. Mr Beveridge, in a parlous state, was then transported to the trackside medical centre where the trauma team of specialists from the Alfred were waiting and were ready to continue the resuscitation. From the records, it appears Mr Beveridge reached the medical centre at about 1420 hours. Dr V continued respiration assistance. Dr C, an anaesthetist from the Alfred, gained access to the venous compartment for rapid infusion of blood and crystalloid. Dr R assessed the situation and, with a cardiothoracic surgeon, immediately operated to identify and treat the serious internal injuries. The cardiothoracic surgeon opened the left chest, found all the ribs fractured, found the left lung to be deflated and lacerated, found blood in the chest cavity and identified a ruptured diaphragm. He also identified that the right heart had been ruptured and there was a laceration to the left side of the heart. Dr R meantime opened the abdomen and determined that the left hemi-diaphragm was broken and ruptured, that the spleen was damaged and ruptured and that the liver was lacerated. There was an urgent attempt to control blood loss because the hilum of the left lung had been breached and needed to be clamped. The heart could not be repaired. After what the Panel described as a frantic effort to revive Mr Beveridge, Dr R called that resuscitation be stopped at 1447 hours. As far as can be ascertained Dr R then proceeded to repair the laparotomy incision and the cardiac surgeon proceeded to close the chest. In notes it was recorded that the pupils were fixed and dilated, that there was no perceptible pulse, that the injuries were irreparable and that resuscitation had ceased. The time was also recorded.

16 The evidence before the panel indicated that a nurse communicated to Dr Temme, either by him asking her, or she volunteering to him, information to say that Mr Beveridge was dead and asking what should happen. Dr Temme could not have known that Dr R had called resuscitation to be ceased because he was not in the operating area. Nevertheless the panel found that when he learnt this Dr Temme gave the nurse a direction to cross out the time and the record of resuscitation ceasing and, perhaps, the entry that said death had occurred.

17 At all relevant times Dr Vissenga had been present in the race control office and not at the trackside medical centre. At no time did Dr Vissenga see, treat or have any direct involvement in the treatment of Mr Beveridge. Dr Temme telephoned Dr Vissenga to inform him of Mr Beveridge's injuries and treatment. While he could not recall the exact words used by Dr Temme, Dr Vissenga understood that Mr Beveridge was dead. He said that Dr Temme asked him whether they should proceed with the agreed protocol, or something to that effect, and he said "yes". Dr Vissenga did not deny before the panel that he directed that Mr Beveridge's body should be taken quickly and efficiently to the Alfred Hospital. However he denied to the panel that he knew or envisaged that, by telling Dr Temme to follow the protocol, full resuscitation was to continue to occur. He told the panel that such resuscitation was inappropriate. However he told the panel that he could see that a literal reading of the protocol could be taken to mean that continued cardiac compression should be maintained, even in a case where someone had died.

18 Dr Vissenga gave evidence to the tribunal in which he conceded that when he assented to the agreed protocol being observed he was aware that this would produce the result that Mr Beveridge's body would be taken to the Alfred Hospital on a public trolley, still intubated, still receiving CPR and in a helicopter. Further, he acknowledged (as he had before the panel) that the giving of CPR to Mr Beveridge's body was wholly inappropriate.

19 It is important to point out that there was no evidence, before the panel or the tribunal, that Dr Vissenga had any involvement in the direction given by Dr Temme that the medical records be changed.

20 After direction from Dr Temme that the protocol should be pursued Mr Beveridge was transferred to the Alfred Hospital by helicopter. During this process a treating doctor performed external cardiac massage on Mr Beveridge's body and another treating doctor supervised the airway and the intravenous infusions.

21 Mr Beveridge arrived at the Alfred at 1505 and was seen by Professor Mark Fitzgerald, the Director of the Trauma Centre at the Alfred. Mr Beveridge was declared dead, and certified dead, at 1508 hours. The Coroner was subsequently notified of the death.

22 A coronial inquiry was held into Mr Beveridge's death. This inquiry considered matters of a general nature concerning safety at the Australian Grand Prix, as well as the manner in which the medical team had handled the fatal injuries suffered by Mr Beveridge on 4 March 2001. Although I regard the Coroner's findings as useful background, it is not appropriate that I treat them as more than that as a number of witnesses, whose evidence is relevant to the present matter, did not give evidence before the Coroner.

23 On 8 February 2002 a Dr J, a consultant physician, wrote to the Medical Practictioners' Board expressing concern about certain matters. In his letter he particularly expressed concern that official medical records had been altered at the behest of a race medical officer to disguise the fact that Mr Beveridge had died at the track and not in hospital.

24 On the basis of the evidence before it the panel found that when death occurred at 14:47 the proper course would have been to accept that and to declare a fatality at the trackside. It found that, instead, Dr Vissenga gave a direct order that the protocol be pursued. It found that in giving this order Dr Vissenga compromised all other members of the medical care team, as the direction had no sensible basis. The panel found that Dr Vissenga would have realised that the giving of the order that the protocol be followed would be to initiate a process which involved continuing resuscitation upon a deceased person.

25 Before the tribunal, evidence was given by Associate Professor Braitberg. This evidence consisted of a series of opinions, based upon the witness' interpretation of the facts. This evidence was useful in some respects, but ultimately was of limited assistance because the opinions were, as they must be, dependent upon an interpretation of the facts upon which they were based. It is incumbent upon me to make my own findings and interpretations as to the material facts and it is impossible to be confident that these findings are identical to the factual sub stratum upon which Associate Professor Braitberg's opinions rest.

26 The practice of medicine in Victoria is governed by the Medical Practice Act 1994. A purpose of the Act is to protect the public by providing for the registration of medical practitioners and for investigations into the professional conduct of registered medical practitioners. There are various procedures set out in the Act in relation to the preliminary investigation of professional conduct, the constitution of a panel to conduct a hearing and the making of findings and a determination. The panel may include members of the Medical Practitioners Board of Victoria and must include at least one registered medical practitioner.

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

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

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

If the panel finds that the practitioner has engaged in unprofessional conduct of a serious nature it may make a range of determinations, from requiring the practitioner to undergo counselling to disqualification. If the panel finds that the practitioner has engaged in unprofessional conduct which is not of a serious nature, it may make a determination ranging from counselling to a reprimand.

28 A finding or determination made by a panel at a formal hearing is subject to review by this tribunal. At such a review the tribunal may set aside, vary or affirm the panel's findings and determination.

29 Section 3 of the Act contains a lengthy definition of the expression "unprofessional conduct" and specifies a number of circumstances which would constitute such conduct. For example, a finding of guilt to an indictable offence in Victoria is unprofessional conduct. For present purposes, it is sufficient to set out part only of the definition:

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

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

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

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

30 There is a great deal of overlap between the various paragraphs contained within the definition of "unprofessional conduct". For example professional misconduct would be likely to include conduct which fell within paragraphs (a) or (b) of the definition.[2]

31 I doubt whether it serves much purpose to attempt to restate the words used in the Act in order to better understand what is encompassed in unprofessional conduct. In Adamson v Queensland Law Society Incorporated[3] it was said, in relation to professional misconduct, that:

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

In Campbell v Dental Board of Victoria[4] Mandie J of the Victorian Supreme Court considered this test to be a guide. But I agree with his comment in that case that no test should be treated as replacing the words of the statute itself. I also agree with his comment, made in relation to the Dentists' Act 1972, but equally applicable to the Medical Practice Act 1994, to the effect that, even though there is a range of potential penalties for professional misconduct, it is always a serious matter to conclude that professional misconduct has been committed.

32 In Re Parr and Nurses' Board of Victoria[5] Kellam J, sitting as President of the tribunal, discussed the difference between unprofessional conduct of a serious nature and unprofessional conduct which is not of a serious nature. Clearly enough this is a matter of degree, and judgment. However, at least where a matter is considered by a panel in a formal hearing pursuant to section 45A of the Medical Practice Act, there is merit in first determining whether the practitioner has engaged in unprofessional conduct and then determining whether this is of a serious nature, or not of a serious nature, in the context of deciding what determination should be made.

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

34 Although the hearing before the tribunal is a rehearing, or what lawyers like to describe as a hearing de novo, it is appropriate for the tribunal to take the findings and determination of the panel into account and to give some weight to them. This was discussed, in the context of the Pharmacists' Act 1974, by Gillard J of the Supreme Court of Victoria in Ha v Pharmacy Board of Victoria[6] where his Honour commented:

The weight that should be attached to any finding made by the Board on an enquiry or its decision on penalty will depend upon the particular circumstances. An issue before the Board may be such that experienced members of the profession are in the best position to make an assessment as to the gravity of the misconduct and what is an appropriate penalty, not only in the public interest but in order to protect the reputation of the profession. On the other hand, the particular issue may be a matter which the Court is in just as good a position as members of the Board to make the assessment of the seriousness of the misconduct, and the appropriate penalty.

35 The nature of the issues raised in this case are such that it is appropriate to give some weight to the findings and determination of the panel, particularly as they involve an assessment as to whether Dr Vissenga's decision that a particular protocol be followed was an appropriate medical response in the circumstances. But it is necessary to put the matter in context. The applicant for review has a right to have the matter considered afresh by the tribunal. That would be a hollow right if the tribunal, having found on the facts before it that the conduct in question was not unprofessional conduct, felt weighed down by the panel's decision to make a contrary finding.

36 There is another matter which is relevant. The weight that is to be placed upon any decision must depend upon the logic of the decision, the extent to which it is supported by evidence, whether it applies the correct legal tests, and its consistency with other decisions. In the present case, it is appropriate that the logic and consistency of the panel's decision be considered in the context of the decisions it made in respect of the three treating doctors.

37 In the case of one of the treating doctors the panel found that the doctor in question was a highly qualified and respected surgeon. It then commented:

The panel also accepts that the doctors who were employees of the Alfred, and part of the Alfred's hospital team, were working under considerable pressure to treat a severely injured man and then to prepare to receive the next casualty, which had already occurred by that time.

Their understanding collectively, based on an agreed protocol, was that all suspected fatalities or casualties becoming fatalities were to be transferred to the Emergency Department at the Alfred Hospital with full resuscitation.

They were in a difficult situation in interpreting their role in the continued management of Mr Beveridge after death had occurred. Their understanding was that Mr Beveridge was to be transferred to the Emergency Department at the Alfred Hospital with continuing resuscitation.

In that case the panel then found that the doctor's actions in the circumstances were sufficient and that he had not engaged in unprofessional conduct.

38 In the case of another treating doctor the panel accepted that the doctor was acting honestly in the discharge of his duties and in accordance with what be believed at the time were the relevant and appropriate procedures. In that case the panel accepted that in all the circumstances it was appropriate for the doctor to follow established protocol, rather than act outside it, and that, accordingly, the doctor had not engaged in unprofessional conduct.

39 In the case of the third treating doctor, who the panel also found had not engaged in unprofessional conduct, the panel found:

The panel gave serious consideration to whether [the doctor's] actions amounted to unprofessional conduct. [The doctor] admitted that continuing resuscitation after Mr Beveridge had been declared deceased was unnecessary and inappropriate. In most circumstances carrying out such procedures on someone who has clearly died is conduct that both a doctor's peers and members of the public might judge adversely.

However in these circumstances the panel does not make an adverse finding.

The Alfred Hospital team at the Trackside Medical Centre was acting in a narrow timeframe. They had worked frantically to try and save Mr Beveridge's life. When Mr Beveridge's chest was opened to reveal a ruptured heart it was clear that no treatment could succeed and that Mr Beveridge had sustained a fatal injury at the trackside. In fact none of the efforts to resuscitate him were of any benefit.

Orders which were given by Dr Vissenga and Dr Temme to the clinical care team and as a result [the doctor] was caught in a most difficult situation. The orders accorded with his understanding of what was required and so he followed them.

This raises the question of whether in this situation he, as the senior clinician involved in Mr Beveridge's care, should have chosen not to follow orders or not to adhere to the protocol. Clearly, the exercise of professional responsibilities requires independent judgments to be made and each practitioner is responsible for his/her own actions. This question was a difficult matter for the panel to resolve. Ultimately the panel finds that because of the diligent efforts [the doctor] and others had made to anticipate how the protocol might apply to any scenarios they could envisage, because there was no intent to do other than to carry out his responsibilities diligently and because the situation did not allow him time for mature reflection or to seek further advice, it was not unprofessional for [the doctor] to act in the way he did.

40 I find it difficult to distinguish between the circumstances of the treating doctors, who were found to have not engaged in unprofessional conduct, and the conduct of Dr Vissenga. I have no doubt that in preparing and discussing the protocol Dr Vissenga also considered the various scenarios which might arise. I find that he had no intent other than to carry out his responsibilities diligently. Further, in the context of deciding what course should be followed, Dr Vissenga did not have time for mature reflection or to obtain advice. Although the nature of the stress that must have been experienced by the treating doctors was different than that which would have been experienced by Dr Vissenga, it was, on any measure, a stressful time for him.

41 Having regard to the way the panel dealt with the treating doctors, compared with Dr Vissenga, I do not believe it is appropriate to place significant weight on the findings and determination of the panel in relation to Dr Vissenga.

Did Dr Vissenga engage in unprofessional conduct?

42 There is no question that, in directing that the protocol be followed, Dr Vissenga made an error of judgment. At the very least, he should have directed that the protocol be followed without there being continuing resuscitation. But in determining whether his conduct constituted unprofessional conduct under the Act it is necessary to appreciate, and take account of, all the circumstances. It is also necessary to have proper regard to the legal principles discussed above.

43 The first circumstance which I regard as relevant is that the decision to agree to the protocol being carried into effect was made in circumstances which required an prompt decision. Further the circumstances were stressful. Whilst the decision in issue was made on 4 March 2001 it was subject of considerable preplanning, it was nonetheless a decision that required immediacy.

44 It also clear on the evidence that was before the panel and the tribunal that there was a perception amongst all those involved in the medical team that it was undesirable to depart from any established protocol. As I mentioned earlier, it is desirable that protocols be established in anticipation of emergency situations arising during major events. Generally speaking it is also desirable that, where such protocols are established, they are followed if the anticipated emergency occurs. In this particular case there was insufficient consideration given by all those in the medical team to whether the particular circumstances were such that the protocol should strictly apply, but it is nonetheless true that there was a common perception that it would be generally desirable to follow any protocol.

45 Clearly the protocol was deficient. But it is relevant that it was the product of extensive consultation. It would appear that the first version of the protocol emerged during the Grand Prix in Adelaide in 1985. Since that time it was the subject of refinement. As to the passage concerning the treatment of "casualties becoming fatalities", it would appear that this first found its way into the protocol many years before 2001. Although Dr Vissenga played a crucial role in the preparation and development of the protocol, its content cannot be ascribed to him alone.

46 Another factor which I regard as relevant, particularly in relation to the wording of the protocol, is that the precise time at which a person, who has been fatally injured, dies and thus becomes a fatality can sometimes be unclear. There will be circumstances where a person does not show any signs of life, yet, with the application of modern medical practices, that person might, in a sense, regain life. On the other hand there will be circumstances, such as the present case, where there could be no doubt that death had occurred. But, bearing in mind the range of possible circumstances, one should be cautious, rather than enthusiastic, in one's criticism of the protocol and the poor wording used in it.

47 This is highlighted by another fact which I believe is relevant, namely that the quality of medical care available at the trackside has dramatically changed over the years. The care which was available in 2001 included operating facilities and medical staff capable of conducting emergency exploratory operations. Evidence was given to the panel that the operation performed on Mr Beveridge following his fatal injuries was the first time this type of operation had occurred at the trackside following an accident at a motor racing event. Dr Vissenga gave evidence that when the protocol was prepared it was not envisaged that this level of medical care would be available at the trackside. I accept that evidence and I regard it as a relevant circumstance in determining whether or not the protocol was grossly deficient; and hence, whether Dr Vissenga's decision on the day to follow the protocol involved unprofessional conduct.

48 A further factor which is relevant is that since this incident on 4 March 2001, the protocol has been revised, in particular the paragraph concerning fatalities. This indicates responsible professional behaviour, consistent with acknowledging that an error was made in the content of the protocol.

49 Having regard to these matters, and the legal principles which must be applied, I conclude that, on 4 March 2001 at Albert Park, the applicant for review did not engage in unprofessional conduct. In particular, in agreeing that the protocol be followed, he did not conduct himself in a manner which was of a lesser standard than that which the public, or his peers, might reasonably expect of a registered medical practitioner, notwithstanding that he made an error of judgment. I also find that his behaviour on that day did not constitute professional misconduct. Errors of judgment do not always involve unprofessional conduct, in the sense used by the Medical Practice Act 1994.

50 My finding is consistent with the findings made by the panel concerning the three treating doctors. In that sense I am applying precisely the same standard as that applied by the panel in those cases. It is a responsible standard. It is a standard which acknowledges the importance of protecting the public; but it is also a standard which acknowledges the realities of professional life. It is a standard that accords with the law.

51 It is necessary that I comment on one other aspect of the evidence. Dr Wines who, at the time, was the Chief Medical Examiner for CAMS, gave evidence that on the day of the Grand Prix Dr Vissenga said to him:

Personnel do not die at racetracks, they die in hospitals.

The panel indicated that that evidence was unchallenged. In fact, before the panel Dr Vissenga gave evidence that he had no recollection of ever having used those words to Dr Wines, but he added that, if he did, the intention was not to indicate that a dead person should receive resuscitation.[7] In my opinion, the explanation given by Dr Vissenga is open. Certainly the quoted words appear ill-chosen, but they can readily be understood to mean that the organisation for Grand Prix events must be arranged such that any person who is injured has everything possible done to maintain their life and, to that end, should continue to receive appropriate resuscitation until they are placed in a hospital. It might also be understood to mean that it is desirable to avoid causing trauma to spectators and television viewers by unnecessarily revealing a dead body at the racetrack. In any event, a loose remark is not conclusive proof of unprofessional conduct.

52 The decision I have made does not rely upon Dr Vissenga's record. But, if I am entitled to take his record into account, I would note that he has been a medical practitioner for 43 years and had been a medical practitioner for 40 years at the time of the event. During that time he has served the community well, particularly members of the community associated with motor racing. If that record is relevant I would regard it as reinforcing the finding I have made.

53 Following my decision counsel on behalf of Dr Vissenga sought an order that the Medical Practictioners' Board pay Dr Vissenga's costs. Section 109(1) of the Victorian Civil and Administrative Tribunal Act provides that, subject to the division, each party is to bear their own costs in a proceeding. There is power in section 109(3) for the tribunal to make an order as to costs if it is satisfied that it is fair to do so. One factor, that is referred to as a possible factor to be considered, is the nature and complexity of the proceeding. However I see nothing in the nature of this proceeding which ought distinguish it from the run of the mill cases which occur in the Occupational and Business Regulation List of the tribunal. In any event I do not believe it would be fair to make an order as to costs in the circumstances. The Medical Practitioners Board has an obligation to investigate matters concerning possible unprofessional conduct. Where it discharges that obligation responsibly, then it is not fair to order it to pay the costs of another party on the basis that the tribunal has made a different judgment than a panel in relation to the matter. Like the panel I have concluded that Dr Vissenga made an error on 4 March 2001. Ultimately though, by reason of my understanding of the meaning of the term "unprofessional conduct", and by closely assessing the circumstances of what happened on the relevant day, I have made a different judgment than that which the panel made. That being so, it is not appropriate that I depart from the usual rule set out in the Victorian Civil and Administrative Tribunal Act.

[1] Transcript of Panel hearing , page 286-287.

[2] See, for example, Pillai v Mesiter [No 2] (1989) 16 NSWLR 197 at 200, per Kirby P. See also A Solicitor v Counsel of the Law Society of New South Wales [2004] HCA 1; (2004) 204 ALR 8.

[7] Transcript of Panel hearing , page 312.

Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Vissenga v Medical Practitioners Board of Victoria [2004] VCAT 1044 (2 June 2004)

Parties

Cases Cited (2)