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[2015] WASC 332
Supreme Court of WA
2015-09-09
Allanson J
Original judgment source is linked above.
1 ALLANSON J: The applicant, Keith Victor Woollard, is a medical practitioner. On 2 November 2011, a patient suffered a stroke during a coronary angioplasty performed by Dr Woollard. In May 2014, the Medical Board of Australia brought an allegation of unsatisfactory professional performance against Dr Woollard.
2 On 29 August 2014, a panel of the Medical Board of Australia found that Dr Woollard had behaved in a way that constitutes unsatisfactory professional conduct, and cautioned him. Dr Woollard challenges the finding by this application for judicial review.
3 The Health Practitioner Regulation National Law (WA) Act 2010 (WA) applies, with modifications that are not relevant here, the Health Practitioner Regulation National Law set out in the Schedule to the Act (the National Law). In these reasons, all references to legislative provisions are to sections of the National Law.
4 The National Law provides for the establishment of the Australian Health Practitioner Regulation Agency (s 23), and National Health Practitioner Boards for the various health professions listed in the table to s 31. The Medical Board of Australia is one of the National Boards.
5 The functions of a National Board under s 35(1) include:
(g) to oversee the receipt, assessment and investigation of notifications about persons who
(i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act;
(h) to establish panels to conduct hearings about
(i) health and performance and professional standards matters in relation to persons who are or were registered in the health profession under this Law or a corresponding prior Act.
6 The functions of a National Board also include developing or approving standards, codes and guidelines for the heath profession: s 35(1)(c). Under s 39, a National Board may develop and approve codes and guidelines:
(a) to provide guidance to the health practitioners it registers; and
(b) about other matters relevant to the exercise of its functions.
7 By s 182(1)(a), a National Board may establish a performance and professional standards panel and refer a matter to the panel if it reasonably believes, because of a notification or for any other reason, that:
(i) the way a registered health practitioner practises the health profession is or may be unsatisfactory; or
(ii) the registered health practitioner's professional conduct is or may be unsatisfactory.
8 By s 191, a panel may decide that a practitioner has behaved in a way that constitutes unsatisfactory professional performance or that constitutes unprofessional conduct, and may caution or reprimand the practitioner. Unprofessional conduct and unsatisfactory professional performance are both defined in s 5 of the National Law:
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers ...
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
9 The National Law also provides for a more serious category of professional misconduct. A panel does not have power to make a finding of professional misconduct.
10 A panel is required to give notice of its decision to the National Board that established it. Within 30 days, it must give written notice of the decision to the practitioner: s 192(2). The notice to the practitioner must state the decision made by the panel and the reasons for the decision: s 192(3). It must also advise regarding rights of appeal. The decision to caution, however, is not appellable.
11 Section 41 provides that a code approved by a National Board is admissible in proceedings against a health practitioner registered by the Board 'as evidence of what constitutes appropriate professional conduct or practice for the health profession'. The Medical Board of Australia had approved a code: 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (the Code).
12 In s 1.1, the Code states its purpose in these terms:
Good medical practice (the code) describes what is expected of all doctors registered to practise medicine in Australia. It sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community. This code does not set new standards. It brings together, into a single Australian Code, standards that have long been at the core of medical practice.
13 Section 1.2, 'Use of the Code', states that it will be used:
to assist the Medical Board of Australia in its role of protecting the public, by setting and maintaining standards of medical practice ... If your professional conduct varies significantly from this standard, you should be prepared to explain and justify your decisions and actions. Serious or repeated failure to meet these standards may have consequences for your medical registration.
14 Section 2 is headed 'Providing good care'. In s 2.1, it states that providing good care includes facilitating coordination and continuity of care. In s 2.2, the Code continues that good medical practice involves:
2.2.3 Maintaining adequate records (see Section 8.4).
2.2.5 Communicating effectively with patients (see Section 3.3).
15 Section 3.3 is headed 'Effective communication'. It states a number of matters involved in effective communication in the doctor/patient relationship, including:
3.3.3 Informing patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment.
3.3.4 Discussing with patients their condition and the available management options, including their potential benefit and harm.
3.3.5 Endeavouring to confirm that your patient understands what you have said.
3.3.6 Ensuring that patients are informed of the material risks associated with any part of the proposed management plan.
16 Finally in s 8, 'Professional Behaviour', the Code deals with medical records. Section 8.4 states:
Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:
8.4.1 Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners
8.4.2 Ensuring that your medical records are held securely and are not subject to unauthorised access.
8.4.3 Ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks.
8.4.4 Ensuring that the records are sufficient to facilitate continuity of patient care.
8.4.5 Making records at the time of the events, or as soon as possible afterwards.
8.4.6 Recognising patients' right to access information contained in their medical records and facilitating that access.
8.4.7 Promptly facilitating the transfer of health information when requested by the patient.
The allegation of unsatisfactory professional performance
17 The allegation against Dr Woollard is set out in a statement of proposed facts and statement of allegations, dated 8 May 2014. The Medical Board advanced two allegations that Dr Woollard behaved in a way that constitutes unsatisfactory professional performance.
18 The allegations against Dr Woollard are that he:
19 A briefing submission dated 27 August 2014 was prepared for the panel convened to hear the allegation. It is a comprehensive document with sections on the jurisdiction of the panel, the facts, the allegations, the evidence, the practitioner's evidence, and the available findings. The briefing submission was served on the solicitors then acting for Dr Woollard on 27 August 2014.
20 Relevantly, attachments to the briefing submission included Dr Woollard's clinical notes, and copies of the consent form signed by the patient on 27 October 2011 and the Mount Hospital preadmission summary and consent form.
21 Under the subheading 'The issues', the briefing submission advised the panel:
22 The panel was referred to two further publications of the National Health and Medical Research Council (NHMRC): 'General Guidelines for Medical Practitioners on Providing Information to Patients', and 'Communicating with Patients: Advice for Medical Practitioners'.
23 Dr Woollard filed a response to the statement of proposed facts and allegations. In effect, he said that sometime after 6 October 2011, he advised the patient to undergo invasive angiography. He advised him of the risks and complications of that procedure.
24 On 20 October 2011, Dr Woollard performed the angiography. He discussed the findings with the patient, advised him that he may benefit from coronary angioplasty, and informed him of the risks associated with that procedure. Following the discussion, Dr Woollard's secretary arranged the time and date of the angioplasty with the patient, and sent him, by ordinary post, a consent form titled 'coronary angioplasty'. The consent form outlined a number of the risks of undergoing a coronary angioplasty, including those risks which Dr Woollard had discussed on 20 October 2011.
25 The patient signed the coronary angioplasty consent form, and also a Mount Hospital pre-admission summary and consent form. Dr Woollard said that the forms were 'complementary to the discussion which the practitioner had with the patient'. The patient had been expressly warned in writing about the possible side effects and complications of the procedure, and expressly acknowledged in writing that he had been advised about material risks associated with the coronary angioplasty and that he had the opportunity to ask questions about that procedure
26 Dr Woollard said that he had maintained clear and accurate medical records to enable the continuing good care of the patient, and that his records were compliant with s 8.4 of the Code.
27 Dr Woollard also provided written submissions and a statement of evidence to the panel in which he addressed both allegations that had been made against him.
28 In his statement, Dr Woollard attached a copy of his handwritten notes for consultations on 28 September and 4 October 2011, and 8 and 24 February 2012. There are no notes for 20 October 2011, the day on which Dr Woollard said he discussed the procedure and its risks with the patient, and no notes relating to a telephone call after the CT study on 6 October 2011.
29 Dr Woollard said that he performed the angiography on 20 October 2011, and attended the patient in the recovery room immediately following that procedure. He told the patient about:
30 Dr Woollard said that, in accordance with his usual practice, he dictated a letter to the patient's general practitioner. That letter is in evidence. It contains no record of any discussions with or advice to the patient.
31 Dr Woollard stated that, from his discussions with the patient, he concluded that the patient was aware that undergoing the angioplasty carried with it the same risks as the angiogram and that both procedures were very similar.
32 In written submissions to the panel, Dr Woollard expressly recognised that the allegation of failure to maintain clinical records was based on the requirements of s 2.2.3 and s 8.4 of the Code. He submitted that his clinical records or notes were in accordance with s 8.4. In particular, he submitted that the records were not required to document every risk and potential complication that was discussed with the patient, and that the consent form was itself part of the clinical records and documented the discussion with the patient in a formal manner.
33 Dr Woollard also addressed the NHMRC General Guidelines for Medical Practitioners on Providing Information to Patients, and submitted that the document suggests doctors should normally discuss material risks but says nothing about recording the risks discussed.
34 Three consent forms are in evidence. The first is for the coronary angiography. It briefly describes the procedure. Under the heading 'Risks' it states:
The procedure has a very low risk of complications.
I have read and understood this form and have had an opportunity to discuss the procedure with Dr Woollard.
36 The Mount Hospital preadmission summary and consent form (Mount Hospital form) is, understandably, completely general. It is filled in on the date of the procedure.
37 In pt A of the Mount Hospital form, the practitioner (Dr Woollard) states that he has informed the patient 'of the nature, likely results and material risks of the recommended operation/procedure and/or treatment' and identifies the treatment.
The doctor whose name appears in Part A and I have discussed my/my child's/my charge's present condition and the various alternative ways in which it might be treated.
The doctor has told me that:
I understand the nature of the operation/procedure and/or treatment and that undergoing the operation/procedure and/or treatment carries risks.
I have been advised of the material risks associated with this operation/procedure and/or treatment.
I have the opportunity to ask questions about the operation/treatment and/or procedure and I am satisfied with the answers and information I have received.
I understand that I may withdraw my consent at any time prior to the operation/procedure and/or treatment.
39 The last document is the consent form for the coronary angioplasty, signed by the patient on 27 October 2010. Again it has a section briefly describing the procedure. There is a further section with the heading 'Risks', which states:
40 Again the form concludes with a statement that the patient has read and understood the form and has had an opportunity to discuss the procedure with Dr Woollard.
41 The panel gave written reasons. They record that Dr Woollard denied the allegations and contended that he maintained clear and accurate medical records to enable the continuing good care of the patient, and that his records are compliant with s 8.4 of the Code (par 25C). The panel noted that the practitioner relied upon the consent form signed by the patient on 27 October 2011, the Mount Hospital form signed on 2 November 2011, and a booklet which Dr Woollard said had been provided to the patient by post.
42 At par 31, the reasons state (references to documents have not been included):
The Panel had regard to the full set of documents in the Bundle, including, but not limited to:
43 The panel recorded that the patient gave evidence to the panel and said that he could recall no discussion of alternative treatment options, or the risks or possible complications associated with the procedure; he did not recall receiving the booklet on the procedure (par 23).
44 The findings of the panel were shortly stated. First, it recorded that it was not persuaded and did not find that the practitioner failed to obtain consent, noting, in particular:
It appears that a discussion between the patient and the practitioner took place following the coronary angiogram, either in person and/or via telephone, even though this was not an ideal time given the medication administered to the Patient during the coronary angiogram (par 41B).
In reaching this finding, the Panel noted the following:
46 The panel made a finding of unsatisfactory professional performance, and decided to caution Dr Woollard.
47 By an application for judicial review, filed 24 February 2015, Dr Woollard applied for writs of certiorari and mandamus on three grounds. It is not necessary to consider those grounds, as, although there had been no formal application to amend the application before the hearing, both parties had filed submissions on the basis of two grounds that were set out in the written submissions filed on behalf of Dr Woollard. At the hearing I permitted the application to be amended to substitute those two grounds. They are:
48 The obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error. In general, the adequacy or sufficiency of reasons is assessed by reference to their function and purpose.
49 The question of what is required for reasons to be adequate has been extensively examined in the context of medical panels convened under the Workers' Compensation and Injury Management Act 1981 (WA) and comparable legislation in other jurisdictions. The principles are summarised in Re Knezevic; Ex parte Carter [2005] WASCA 139 [22] [32] (McLure JA). Most importantly, her Honour said at par 32:
Finally, and perhaps most importantly, the content of the duty is not the same for every panel decision and no mechanical formula can be given for determining what constitutes sufficient reasons. As stated by Wheeler J in [Palazzolo v Brown [2002] WASCA 49] at [18]:
'It is ... particularly important that any alleged failure to provide reasons or adequate reasons should be assessed against the circumstances of the particular case. It is not appropriate to extract from previous decisions of this Court lists of things which it was thought should have been done by medical assessment panels in those other cases, and to generalise from those decisions some list of matters which the reasons of every medical assessment panel must contain in order to be considered to be adequate.'
50 In Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, the High Court considered the duty of a medical panel to give reasons under s 68(2) of the Accident Compensation Act 1985 (Vic). In a joint judgment, the court said:
The starting point for considering the standard required of a written statement of reasons under s 68(2) of the Act is recognition that there is in Australia no free-standing common law duty to give reasons for making a statutory decision. The duty of a Medical Panel to give reasons for its opinion on a question referred to it is no more and no less than the statutory duty imposed by s 68(2) itself. The content of that statutory duty defines the statutory standard that a written statement of reasons must meet to fulfil it.
The standard required of a written statement of reasons in order to fulfil the duty imposed on a Medical Panel by s 68(2) of the Act falls therefore to be determined as an exercise in statutory construction. In the absence of express statutory prescription, that standard can be determined only by a process of implication [43] - [44].
51 In the present case, the obligation to give reasons is found in s 192, which requires:
(1) As soon as practicable after making a decision under section 191, a panel must give notice of its decision to the National Board that established it.
(2) The National Board must, within 30 days after the panel makes its decision, give written notice of the decision to
(a) the registered health practitioner or student the subject of the hearing; and
(b) if the hearing related to a notification, the notifier.
(3) The notice given to the registered health practitioner or student must state
(a) the decision made by the panel; and
(b) the reasons for the decision; and
(c) that the registered health practitioner or student may appeal against the decision; and
(d) how an application for appeal may be made and the period within which the application must be made.
52 There is no express statutory prescription of what the reasons must contain, for example by requiring a statement of reasons to set out the findings on material questions of fact, referring to the evidence or other material on which those findings were based: see, for example, Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13; Acts Interpretation Act 1901 (Cth) s 25D. The standard for the reasons must, accordingly, be determined by implication from the National Law.
53 By s 182, a panel must consist of at least three members. At least half, but no more than two-thirds, of the members of the panel must be registered health practitioners in the health profession for which the National Board is established. At least one member must be a person who represents the community. The panel does not include any legal members.
54 By s 184, the panel is to conduct a hearing. It must give notice of its hearing to the practitioner, stating:
(a) the day, time and place at which the hearing is to be held; and
(b) the nature of the hearing and the matters to be considered at the hearing; and
(c) that the practitioner is required to attend the hearing; and
(d) that the practitioner may be accompanied at the hearing by an Australian legal practitioner or other person; and
(e) that if the practitioner fails to attend the hearing the hearing may continue, and the panel may make a decision, in the practitioner's absence; and
(f) the types of decision the panel may make at the end of the hearing.
55 A panel may decide its own procedures. It is not bound by rules of evidence but must observe the principles of natural justice: s 185. A panel may have regard to any information it considers relevant to hearing the matter.
56 While a practitioner may be accompanied by a legal practitioner or other person, a legal practitioner may appear on behalf of the practitioner only with leave of the panel. Leave may only be granted if the panel considers it appropriate in the particular circumstances of the hearing: s 186.
57 A person who notified the matter to the National Board may, with the leave of the panel, make a submission: s 187. The proceedings, however, are not adversary. Hearings are not open to the public: s 189.
58 A panel must stop hearing a matter in prescribed circumstances, including where it reasonably believes that the evidence demonstrates that the practitioner may have behaved in a way that constitutes professional misconduct: s 190.
59 Section 191 sets out the decisions that a panel may make. A performance and professional standards panel has power to decide that a practitioner has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct. It may not make a finding of professional misconduct. If the panel decides that a practitioner has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct, it may decide to impose conditions on the practitioner's registration, or caution or reprimand the practitioner, or both impose conditions and caution or reprimand.
60 In Solomon v Australian Health Practitioners Regulation Authority [2015] WASC 203 (Solomon), Mitchell J considered the requirement to give reasons under the National Law, specifically in the context of a finding of unsatisfactory professional performance. Counsel for Dr Woollard relied upon the reasoning in Solomon in support of the first ground. In particular, he referred to the analysis at [131] [136] of the need to make the necessary findings of fact, and the three elements of unsatisfactory professional performance:
Although the comment was made in relation to the former provisions of the Medical Act 1894 (WA) which were in materially different terms, the observations of the Court of Appeal, in Dekker v Medical Board of Australia, are, in my view, apposite here:
'Ordinarily, at least, it would be expected in a case of this kind that the Tribunal would first consider, and make careful findings of fact about, the medical practitioner's conduct and all the relevant circumstances in which it occurred. The relevant circumstances would, at least ordinarily, include any standard, or specific professional duty, generally accepted within the medical profession at the time, which had potential application to the other primary facts as found.'
Once findings have been made about the manner and circumstances in which the practitioner has behaved, the panel must consider whether behaving in that way, in the relevant circumstances, constituted unsatisfactory professional performance.
The definition of the term 'unsatisfactory professional performance' has three elements.
The first element is that the behaviour enables a certain inference to be drawn about the knowledge, skill or judgment possessed, or care exercised by, the practitioner. Having found the practitioner to have behaved in a particular way, the panel must determine whether it can be satisfied that the behaviour reflects a certain level of knowledge, skill or judgment (or lack thereof) possessed by the practitioner, or whether a conclusion can be reached about the level of care (or lack thereof) exercised by the practitioner. A finding must be made about that matter.
The second element is that the knowledge etc is possessed, or the care is exercised, 'in the practice of the health profession in which the practitioner is registered', in the sense described above.
The third element is that the level of knowledge etc or care reflected in the relevant behaviour is 'below the standard reasonably expected of a health practitioner of an equivalent level of training and experience'. Reaching a conclusion about this element involves answering three questions:
61 With respect, I agree with and would adopt Mitchell J's analysis, and also his comments that followed immediately, regarding the context of the particular case which may make it unnecessary for a panel to deal with the steps separately and sequentially. Those further comments, in my opinion, apply to the present case.
62 First, the facts relating to the records kept by Dr Woollard were not in dispute. The panel said at par 31 that it had regard to the full set of documents, including the practitioner's clinical notes, 'which did not appear to record any discussions with the patient regarding the risks and possible complications of a coronary angioplasty'. The undisputed fact is that the clinical notes did not record any discussion with the patient on any occasion on which Dr Woollard said he discussed risks and complications. Dr Woollard relied upon the consent forms as being part of the clinical record, and on the submission that the NHMRC General Guidelines for Medical Practitioners on Providing Information to Patients suggests doctors should normally discuss material risks but says nothing about recording the risks discussed. In that regard, the panel stated that it considered that Dr Woollard should have included reference in his notes to having provided the consent form and a booklet on the procedure, and to having discussed potential risks and complications. The factual basis of the finding is clear.
63 Second, no question arises in this case about level of skill or experience. It was undisputed that Dr Woollard is a senior medical practitioner, practising as a cardiologist. The standard applied was one applicable to all practitioners.
64 Third, there was no controversy about the applicable standard. The briefing submission, which was provided to Dr Woollard before the hearing, clearly identified the issue as whether Dr Woollard maintained appropriate clinical records of his discussion(s) with the patient; identified the Code as the standard, under the National Law, of what constitutes appropriate professional conduct or practice; and identified the relevant sections of the Code. The reasons record Dr Woollard's submission that his records comply with s 8.4 of the Code and, in particular, that the consent form was part of the medical records. Section 8.4.1 of the Code states, relevantly, that good medical practice involves keeping accurate records that 'report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management'.
65 Whether a practitioner has complied with the Code is conduct which shows knowledge, skill or judgment possessed, or care exercised by the practitioner, or the want of those matters. The finding of unsatisfactory professional performance necessarily implies that the panel found a failure to comply. This is explicit in the statement of the panel at par 43 that the practitioner should have included reference in his notes to having provided a consent form and the booklet, and having discussed the potential risks and complications.
66 The reasons of the panel have not been shown to be inadequate.
67 The second ground advanced is that the finding that Dr Woollard failed to maintain appropriate records of his discussions with the patient was not open to the respondent on the basis of the materials before the panel.
68 An application for judicial review is not an appeal. The court is concerned only with legality, and the merits of a decision, to the extent they can be distinguished from legality, are for the panel alone: Attorney General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [66].
69 The submission on behalf of Dr Woollard was, in effect, that once the panel had found the patient gave informed consent, the finding that Dr Woollard had failed to maintain proper clinical notes could not follow. The submission, however, confuses two matters. Whether Dr Woollard properly recorded his discussions with the patient is an independent issue. The Code is evidence of what constitutes appropriate professional conduct or practice for the health profession: National Law s 41. On the undisputed evidence that Dr Woollard's notes did not record any relevant discussions with the patient, the only evidence of a clinical record of those discussions was the consent form. I have set out the terms of that form above.
70 Having regard to the limited content of the form, and when it was created, the finding of the panel was clearly open to it.
71 For these reasons, the application to review will be dismissed.
(2013) 252 CLR 480
(1990) 170 CLR 1
(2013) 249 CLR 332