AYHT v Medical Board of South Australia

AYHT v MEDICAL BOARD OF SOUTH AUSTRALIA
[2000] SASC 136

Full Court: Doyle CJ, Debelle & Bleby JJ

DOYLE CJ, DEBELLE & BLEBY JJ. This is an appeal from orders made by a judge of this court dismissing the appellant’s application for judicial review.
The appellant is a medical practitioner. By complaint dated 18 June 1998 laid by the Registrar of the Medical Board of South Australia (“the Board”), the appellant was charged with four counts of unprofessional conduct towards a patient. All counts concerned the same patient. The allegations against the appellant are serious. Among other things, it is alleged that the appellant engaged in a sexual relationship with his patient over a period of almost four years, that on frequent occasions in that period of four years he had sexual intercourse with his patient, that the appellant failed to refer his patient for psychological or psychiatric counselling or treatment, and that, on two separate occasions and before alleged acts of sexual misconduct, he injected his patient with a drug without having any proper medical reason to do so.
Section 54 of the Medical Practitioners Act, 1983 prescribes the procedure to be followed when a complaint alleging unprofessional conduct has been laid before the Board. The relevant provisions are s 54(2), (4) and (5) which are in these terms:
“(2)   Where a complaint has been laid before the Board under this section, the Board must inquire into the subject matter of the complaint unless the Board -
(a)     considers that the complaint is frivolous or vexatious; or
(b).... lays a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint laid before the Board.
(4)    Where, in the course of conducting an inquiry under this section, the Board considers that the allegations or evidence against the medical practitioner are sufficiently serious, it may terminate the proceedings under this section and itself lay a complaint against the medical practitioner before the Tribunal in relation to those allegations or that evidence.
(5)    If, after conducting an inquiry under this section, the Board is satisfied that the matters alleged in the complaint have been established, it may reprimand the medical practitioner.”

Section 57 prescribes the manner in which inquiries under s 54(2) will be conducted.

“57. (1)   The Board shall give to all of the parties to proceedings under this Division not less than fourteen days’ written notice of the time and place at which it intends to conduct the proceedings, and shall afford to the parties a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Board.
(2)    If a party to whom notice has been given pursuant to subsection (1) does not attend at the time and place fixed by the notice, the Board may proceed to hear and determine the complaint or application in the absence of that party.
(3)    In the course of proceedings the Board may -
(a).... receive in evidence a transcript of evidence taken in proceedings before a court, tribunal or other body constituted under the law of South Australia or of any other State or Territory of the Commonwealth or of another country, and draw any conclusions of fact from the evidence that it considers proper;
(b)     adopt, as in its discretion it considers proper, any findings, decision, judgment or reasons for judgment, of any such court, tribunal or body that may be relevant to the proceedings.”

The issues in this appeal concern the proper construction of s 54(2), s 54(4) and s 57(1).

On 8 July 1998 the Registrar gave notice to the appellant that the Board intended to inquire into the complaint. The inquiry came on before the Board on 21 December 1998. The appellant was represented by Ms Powell QC and Ms Edwardson. Before the hearing, the Registrar had advised the legal representatives of the appellant that he would be asking the Board to lay a complaint before the Tribunal without first hearing evidence.
At the very outset of the inquiry and before a plea had been taken from the appellant, Ms Powell QC, as a preliminary matter, asked the Board to rule on the manner in which it proposed to conduct the inquiry. She submitted that the patient should be called and be made available for cross-examination. She informed the Board that she was aware that the Registrar proposed to ask the Board, before hearing evidence to lay a complaint before the Tribunal. She submitted that that course should not be adopted and that the Board had an obligation to require the patient to be called.
The basis of Ms Powell’s application had its origins in a letter of 16 August 1996 from the patient to the Registrar in which the patient complained of rape and other abuses by the plaintiff. The allegation of rape was not, however, part of the Registrar’s complaint before the Board. Ms Powell suggested that the plaintiff was entitled to further particulars of the allegations being pursued and so the patient should be called to give evidence before the Board.
Ms Powell’s application was opposed by counsel for the Registrar who submitted that full particulars of the complaint had been given. He further submitted that these were not criminal proceedings and to require the patient to be called would subject her to the ordeal of having to give her evidence twice. He further submitted that the purpose of calling the patient had not been sufficiently identified. Ms Powell was heard in reply. After a short adjournment, the Board ruled as follows:
“This panel has considered this matter, and there’s been a long tradition of this board to treat matters considered of a serious nature, such as sexual misconduct by a medical practitioner with a patient, for that matter to be referred to the Medical Practitioners Professional Conduct Tribunal and such is this case.”

Not long thereafter, on 28 January 1999, the appellant issued an application for judicial review directed to the Board. He sought an order in the nature of certiorari to quash the decision to refer the complaint to the Tribunal. He also sought an order in the nature of mandamus directing the Board to conduct an inquiry into the subject matter of the complaint. We have emphasised the word “refer” because, as appears later, the characterisation of the Board’s decision is one of the issues in this appeal.

The application for judicial review was heard by a judge of this court who dismissed the application. The judge held that the Board had a duty to give the appellant a reasonable opportunity to be heard on the question whether the inquiry should continue or be terminated and a complaint laid before the Tribunal but had fairly discharged that duty. In addition, he did not accede to the appellant’s contention that the Board had exceeded its jurisdiction in deciding to refer the complaint to the Tribunal. From that decision the appellant appeals to this court.
Mr Gray QC, who appeared for the appellant, submits that the proceedings before the Board on 21 December 1998 miscarried in that the Board failed to comply with the provisions of s 57(1) of the Act. He says that, if the Board decides not to act under s 54(2), s 57(1) imposes a mandatory obligation on the Board to hear the appellant before deciding whether the allegations against him were sufficiently serious to lay a complaint before the Tribunal. He contends that s 57(1) obliged the Board to hear both evidence and submissions before making the decision to lay the complaint. Alternatively, having started the inquiry, the Board was obliged to hear Ms Powell on the question whether they should hear evidence. Mr Gray QC further submits that the Board erred procedurally when it decided to refer the complaint to the Tribunal. These submissions misconceive the scheme of the Act and the nature of the powers vested in the Board.

The Board’s Disciplinary Powers

The functions of the Board include maintaining the highest professional standards both of competence and conduct in the practice of medicine: s 13(1) of the Act. The Board may delegate any of its functions and powers except those which are set out in Part 4 of the Act which includes the powers and functions relating to discipline of medical practitioners: s 15. The Board may determine its procedure upon the hearing of the proceedings under the Act; it is not bound by the rules of evidence; it may inform itself as it thinks fit; and upon the hearing of proceedings shall act according to equity, good conscience and the substantial merits of the case: s 17.
Part 4 of the Act (ss 50 to 65) concerns complaints against practitioners both as to competence and fitness to act as medical practitioners (ss 50 to 53), and as to unprofessional conduct (s 54). The Board is required to conduct inquiries in relation to all of these complaints except where it considers that the complaint is frivolous or vexatious: s 50(2) and s 54(2). The requirements of s 57 regulate inquiries by the Board in respect of both complaints as to competence and fitness and as to unprofessional conduct.
Complaints of unprofessional conduct may be laid before the Board by the Registrar, the Minister, the South Australian branch of the Australian Medical Association, or by a person aggrieved by the conduct of the medical practitioner: s 54(1). When such a complaint has been laid before the Board, the Board must inquire into the subject matter of the complaint, unless the Board considers that the complaint is frivolous or vexatious or unless it decides to lay a complaint before the Tribunal pursuant to s 54(2)(b). The Board may also lay a complaint before the Tribunal in the circumstances prescribed by s 54(4). Section 54(5) invests the Board with power to reprimand a practitioner if it is satisfied that the matters alleged in the complaint have been established.
Section 58(1) of the Act invests the Board with power to lay a complaint alleging professional misconduct before the Tribunal. The Tribunal has the duty to inquire into the subject matter of the complaint and, if satisfied that the practitioner is guilty of improper conduct, may discipline the practitioner: s 58(2) and (3). As the trial judge noted, it is s 58(1) which authorises the Board to lay a complaint before the Tribunal. Neither s 54(2) nor s 54(4) give that authority but, instead, specify occasions where the power to lay a complaint vested by s 58(1) may be exercised without an inquiry or without completing an inquiry.
As this review shows, the Board’s functions in relation to the disciplinary provisions of Part 4 are confined to determining whether it should lay a complaint before the Tribunal or to reprimanding a practitioner. The Board may lay a complaint before the Tribunal either with or without an inquiry.
Although s 54 imposes on the Board a statutory duty to inquire into complaints, the Board is not required to do so when it considers a complaint to be frivolous or vexatious or when it decides itself to lay a complaint. When deciding to lay a complaint under s 54(2), the Board is not required to hear the medical practitioner. There are two reasons for that conclusion. First, the Board is doing no more than deciding to prosecute. As the judge noted, the Board is not determining any question which affects the rights or interests of the practitioner and its decision to lay a complaint does not affect the practitioner’s rights or interests. The Board’s only duty is to form an opinion whether a complaint should be laid before the Tribunal. In discharging that task, the Board is not undertaking a process that attracts the duty to accord procedural fairness: Medical Board of Queensland v Byrne (1958) 100 CLR 582 per Fullagar and Taylor JJ at 594. The decision of the Board, if adverse to the medical practitioner, does not bind the Tribunal. It is no more than a decision that the practitioner must be tried by the Tribunal. It is the Tribunal’s decision, not the Board’s decision, which affects the rights of the practitioner. See also Cornall v AB [1995] 1 VR 372 at 398 - 401. It was open to the Board in this case to have laid a complaint against the appellant without conducting an inquiry.
We turn to examine how s 54(4) fits into this scheme. Although s 54(2) requires the Board to conduct an inquiry except where it has decided that the complaint is frivolous or vexatious or it has already decided to lay a complaint before the Tribunal, s 54(4) enables the Board to proceed to lay a complaint without conducting a full inquiry. The Board is invested with the power to “terminate the proceedings under this section” where “it considers that the allegations or evidence against the medical practitioner are sufficiently serious”. The expression “the proceedings under this section” can only refer to the inquiry. Thus, the Board has express power to cut short an inquiry and lay a complaint before the Tribunal in those circumstances where it considers the allegations or evidence against the practitioner are sufficiently serious. The question is whether s 57(1) requires the Board to hear the practitioner before it decides to exercise this power.
The power to terminate the inquiry may be exercised “in the course of conducting an inquiry”. Thus, the power may only be exercised after the inquiry has begun. This does not necessarily mean that, after deciding to hold an inquiry, but before the inquiry has begun, the Board could not reconsider the allegations made in a complaint and decide pursuant to s 54(2) to lay a complaint before the Tribunal. Furthermore, the power to terminate the inquiry may be exercised at any stage in the inquiry. Thus, it may be exercised immediately after or soon after the Board has opened the inquiry. If that were not so, each inquiry would have to proceed to completion and s 54(4) would be devoid of meaning. In other words, it is open to the Board at the outset of the inquiry to consider that the allegations are sufficiently serious and decide to terminate the inquiry before proceeding any further. The fact that the Board has decided to hold an inquiry instead of laying the complaint before the Tribunal pursuant to s 54(2) without an inquiry, does not preclude the Board from terminating the inquiry soon after it has begun.
Although s 57(1) is expressed in terms which clearly apply to all of the kinds of inquiries which the Board is required by the Act to conduct, the terms in which s 54(4) is expressed make it clear that it is intended to be an exception to the requirements of s 57(1). The power in s 54(4) is expressed in unambiguous terms. Furthermore, that power is not expressed to be subject to s 57(1). There is only one pre-requisite for the operation of s 54(4), namely, that the Board considers the allegations or the evidence against the practitioner to be sufficiently serious to terminate the inquiry and lay a complaint before the Tribunal. As already noted, the decision to lay a complaint does not affect the rights or interests of the practitioner and does not call for the application of the rules of procedural fairness. In that respect, it is unlike all of the other decisions the Board would be required to make after conducting an inquiry, which, because of their effect, require the application of the rules of procedural fairness.
The conclusion that s 54(4) represents an exception to the requirements of s 57(1) is further reinforced by contrasting the operation of s 54(2) with the consequences of the position for which the appellant contends. If the appellant is correct, the Board may decide to lay a complaint pursuant to its powers under s 54(2) without hearing the practitioner but it must hear the practitioner, even if it considers the allegations on the evidence are sufficiently serious to lay a complaint once an inquiry has been commenced. That produces the curious result that the Board would not have to accord procedural fairness when making a decision under s 54(2) but would have to do so when making the same decision under s 54(4). If it were the intention that the Board should accord procedural fairness when laying a complaint in the course of an inquiry, there would have been little point in enacting s 54(4). Furthermore, when the Board’s powers under s 54(2) are read with those in s 54(4), it is apparent that the intention of Parliament is to allow the Board two opportunities to lay a complaint before the Tribunal — one is without an inquiry and the other without a complete inquiry and, on either occasion, the practitioner does not have an entitlement to be heard. In other words, as the power to terminate the inquiry may be exercised at any stage in the course of the inquiry, the Board may terminate it immediately after, or very shortly after, it has been begun if the Board has the required opinion. The Board has, as it were, an opportunity to reconsider the seriousness of the complaint.
Further, the Board’s power to terminate the proceedings is expressed in subjective terms. The power may be exercised if the Board considers the allegations to be sufficiently serious to lay a complaint before the Tribunal. Section 54(4) does not require that the Board have cause to believe or reasonable cause to believe or reasonable cause to be satisfied as to the seriousness of the allegations or evidence. That is consistent with the Board’s powers under s 54(2) which would enable it to lay a complaint without an inquiry if it considered the allegations to be sufficiently serious.
In reaching his conclusion, the judge below did not rely on the terms of s 57(1) but on the common law rules of procedural fairness. The learned judge appears to have held that the fact that the appellant received notice of an inquiry gave rise to a legitimate expectation that he would be heard on all issues. The concept of “legitimate expectations” is not helpful and has the capacity to be misleading. The concept has been criticised by Brennan CJ on several occasions: see, for example, Kioa v West (1985) 159 CLR 550 at 611 and 617 - 618; Annetts v McCann (1990) 170 CLR 596 at 604 - 607; and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 591 - 592. Deane and McHugh JJ have expressed doubts: Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 651 - 652 and Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311. Undertakings or representations may give rise to a legitimate expectation: see, for example, Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Cole v Cunningham (1983) 49 ALR 123; Century Metals and Mining NL v Yeomans (1989) 100 ALR 383; Annetts v McCann (supra). But, as those cases demonstrate, the undertaking or representation is made by or on behalf of the decision-maker whose decision will affect the rights or interest of the person seeking to be heard.
The position of the appellant differs in at least two respects. First, for the reasons already noted, although the Board is required to make a decision whether or not to lay a complaint before the Tribunal, its decision does not affect the rights or interests of the medical practitioner. Secondly, the notice of the inquiry sent to the appellant did not hold out to him that the inquiry would necessarily proceed and evidence would be called. The relevant parts of the notice were in these terms:
“TAKE NOTICE that the Medical Board of South Australia intends to inquire into a complaint which has been laid before the Board alleging unprofessional conduct on your part as set out in the annexed complaint.
AND FURTHER TAKE NOTICE that subject to Section 54 of the Medical Practitioners Act, 1983, the Board shall afford to you a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses and to make submissions to the Board. You shall be entitled to be represented by a legal practitioner at the hearing of these proceedings.
AND THAT, pursuant to Section 54(4) of the Medical Practitioners Act, where, in the course of conducting any inquiry, the Board considers that the allegations or evidence against a medical practitioner are sufficiently serious, it may terminate the proceedings and itself lay a complaint against the medical practitioner before the Medical Practitioners Professional Conduct Tribunal in relation to those allegations or that evidence.”

It is apparent that the drafting of the notice has closely followed the terms of s 54(4) and s 57(1). The notice expressly states that the inquiry may be terminated at any time. It is apparent from the fact that notice of the power to terminate the inquiry follows notice of the inquiry that the latter paragraph qualified the manner in which the inquiry would be held. There was, therefore, no undertaking or representation that the practitioner would be heard on all matters.

To summarise, there are three reasons why the appellant did not have a right to be heard. First, the decision of the Board did not affect his rights or interests so that the common law principles of procedural fairness were not called into operation. Secondly, the appellant did not have a legitimate expectation which would attract procedural fairness. Thirdly, on the true construction of s 54(4) and s 57(1), the operation of s 54(4) is not governed by s 57(1). In other words, s 54(4) is an exception to the operation of s 57(1). For these reasons, the Board was not required to hear the appellant on the question whether it should terminate the inquiry and lay a complaint before the Tribunal.
It might be added that even if we had reached a contrary conclusion, we would not, in the particular circumstances of this case, have exercised our discretion to interfere with the decision of the court below. Ms Powell QC gave evidence in the application for judicial review that she did not seek to make a submission that the allegations in the complaint were not sufficiently serious to refer the matter to the Tribunal. As the Board has the power to lay a complaint if it considers allegations to be sufficiently serious, it would have been quite futile therefore to have set aside the decision of the Board.
It is appropriate to add that, in those cases where serious allegations are made against a practitioner, the Board should carefully consider whether it is necessary to hold an inquiry. It has the power under s 54(2) to lay a complaint without holding an inquiry and, if the allegations are sufficiently serious, there seems that little is to be gained by conducting an inquiry. This case provides a good example. On any view, the complaints against the practitioner were very serious and were clearly sufficiently serious to warrant the Board laying a complaint before the Tribunal without hearing the practitioner. Indeed, that is the course the Board ultimately adopted. It is not apparent why in this case it was necessary to conduct an inquiry. The nature of the powers vested in the Board by s 54(2) would seem to suggest that the better course for the Board to adopt on receiving a complaint is to consider whether the allegations are, on their face, sufficiently serious to justify laying a complaint before the Tribunal without an inquiry rather than to decide to hold an inquiry and then terminate the inquiry because the Board considers the allegations to be sufficiently serious to lay a complaint before the Tribunal.
Mr Gray QC submitted that the Board could not make a decision under s 54(4) unless it had first heard evidence. It was contended s 57(1) creates a mandatory obligation in the Board to hear the medical practitioner and to offer the practitioner the opportunity to call evidence. The submission ignores the plain words of s 54(4). The Board may act on either the allegation or the evidence and may do so at any stage in the course of the inquiry.

Did the Board act without jurisdiction?

Mr Gray QC had submitted in the court below that the Board acted without jurisdiction by purporting to refer the complaint to the Tribunal instead of deciding itself to lay a complaint before the Tribunal. The judge did not accept this submission. In his notice of appeal the appellant contended that the Board acted ultra vires when it purported to refer the complaint to the Tribunal and that it had failed to fulfil its obligations under s 54(2) and s 54(4) of the Act. The issue was but faintly argued on appeal, it being contended the Board’s use of the word “refer” indicated its misunderstanding of its role.
The argument focuses too much on form and ignores the substance of the matter. The Board is constituted of non-lawyers. The ruling indicates that the Board has considerable experience in these matters. It is reasonable to infer that the members of the Board were well aware that the Act required that they should determine whether the allegations were sufficiently serious that they should lay a complaint before the Tribunal. Furthermore, in the argument which had preceded the ruling, the word “refer” had once been used by counsel for the Registrar but, thereafter, he had on several occasions stated that the Board had a duty to lay a complaint before the Tribunal. Ms Powell had also on at least two occasions spoken of the Board laying a complaint before the Tribunal. In particular, she referred to “the very serious step of laying a complaint before the Tribunal”. There can be little doubt, therefore, that the Board, by reason of its prior experience and reminded by the submissions of counsel, was clearly aware of the fact that its duty was to lay a complaint before the Tribunal. The judge below found:
“It is not surprising that a lay person presiding over the Tribunal did not use formal language and described the process as a reference directly to the Tribunal. In the context of the submissions I have discussed, including the use of non-technical expressions to describe the process, the reference to referring the matter directly to the Tribunal does not establish the plaintiff’s proposition that the Board decided to refer the existing complaint rather than deciding to lay a complaint before the Tribunal. From a careful consideration of the transcript of proceedings before the Board, I have no doubt that the Board decided to lay a complaint before the Tribunal.”

We agree with those reasons. The use of the word “refer” was perhaps unfortunate but there can be little doubt that the Board was expressing its intention to lay a complaint before the Tribunal. It would have been better if the Board had said that it was terminating the inquiry because it considered the allegations were sufficiently serious to cause it to lay a complaint before the Tribunal. The fact that it did not do so does not mean that it acted in excess of jurisdiction. The procedures prescribed by the Act for disciplinary matters must be carefully observed: Barwick v Law Society of New South Wales (2000) 169 ALR 236 at para 63. The Board did not by-pass these required procedures but adhered to them.

For all of these reasons, we dismiss the appeal.

[2000] SASC 136

2 June 2000