| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : LEGAL PROFESSION ACT 2008 (WA) CITATION : BREED and LEGAL PROFESSION COMPLAINTS COMMITTEE [2013] WASAT 27 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) MS A DAVIES (SENIOR SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)
HEARD : 31 JANUARY 2013 DELIVERED : 31 JANUARY 2013 PUBLISHED : 28 FEBRUARY 2013 FILE NO/S : VR 169 of 2012 BETWEEN : ANNA MARGARET BREED Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
ANDREW HARMAN
Second Respondent
Catchwords: Legal practitioners Legal Profession Act 2008 (WA) s 435(1)(a) Review of decision of Legal Profession Complaints Committee to dismiss complaint about legal practitioner Human tissue samples of deceased worker Legal practitioner acted for employer Legal practitioner requested provision of tissue samples from one pathologist to another Deceased worker's widow authorised
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medical practitioners to disclose to employer 'any information regarding the deceased's medical history' Whether reasonably open for practitioner to consider that authority included human tissue samples Whether reasonably open for practitioner to consider that authority not required because human tissue samples were property of first pathologist Legislation: Fatal Accidents Act 1959 (WA)
Human Tissue and Transplant Act 1982 (WA), s 32
Legal Profession Act 2008 (WA), s 410, s 425, s 428, s 435, s 435(1)(a)
State Administrative Tribunal Act 2004 (WA) Result: Application for review dismissed
Decision of first respondent to dismiss applicant's complaint about second respondent affirmed
Summary of Tribunal's decision: Mrs Anna Breed made a complaint to the Legal Profession Complaints Committee pursuant to s 410 of the Legal Profession Act 2008 (WA) regarding a practitioner, Dr Andrew Harman, who represented her late husband's employer, Alcoa of Australia Ltd, in compensation proceedings that she brought arising out of her husband's death. Mrs Breed alleged that the practitioner did not have authority to request her late husband's tissue samples, obtained from him when he was alive, to be provided by one pathologist to another. Mrs Breed had previously signed a form which authorised the disclosure of any 'information' regarding the medical history of her late husband to his employer, its insurer or WorkCover WA.
The Legal Profession Complaints Committee dismissed the complaint under s 425 of the Legal Profession Act 2008, as it was satisfied that there was no reasonable likelihood the practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct by the Tribunal. Mrs Breed applied under s 435(1)(a) of the Legal Profession Act 2008 for review of the decision.
The Tribunal also came to the conclusion that there was no reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct if the complaint made by Mrs Breed were referred to it under s 428 of the Legal Profession Act 2008. The Tribunal arrived at this decision because it found that it was reasonably open for
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the practitioner to have considered that the tissue samples constituted 'information' regarding the medical history of Mr Breed and that, in any case, the consent of Mrs Breed was not required, because the materials were the property of the first pathologist.
The Tribunal dismissed the application for review and affirmed the decision of the Legal Profession Complaints Committee to dismiss the complaint about the practitioner. However, the Tribunal observed that the practitioner's conduct in requesting the tissue samples, without advising Mrs Breed, could be characterised as insensitive in the circumstances, and endorsed the Legal Profession Complaints Committee's view that, in the future, the practitioner should act differently. The Tribunal said that it is important for practitioners to recognise the human element in the work they do.
The Tribunal subsequently published written reasons which are taken from the transcript of oral reasons edited in minor respects.
Category: B
Representation: Counsel:
Applicant : In person
First Respondent : N/A
Second Respondent : Mr PD Quinlan SC and Ms LM Marche
Solicitors:
Applicant : N/A
First Respondent : N/A
Second Respondent : Harman Legal
Case(s) referred to in decision(s):
Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406
Roche v Douglas [2000] WASC 146; (2000) WAR 331
SJX and Legal Profession Complaints Committee [2012] WASAT 154
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REASONS FOR DECISION OF THE TRIBUNAL:
Background 1 Mr John Breed, Mrs Anna Breed's late husband, passed away in May 2002 after suffering from cancer for a period of time. Mr Breed was employed by Alcoa of Australia Ltd, trading as Alcoa World Alumina (Alcoa). Mrs Breed contended that Mr Breed's cancer resulted from exposure to chemicals while employed at Alcoa. 2 When Mr Breed was diagnosed with cancer, tissue samples were obtained and placed on slides. They were subjected to analysis in a pathology laboratory for diagnostic reasons at that time. 3 Following Mr Breed's death, Mrs Breed commenced proceedings in terms of a workers compensation dependency matter at WorkCover WA, and also proceedings in the District Court of Western Australia under the Fatal Accidents Act 1959 (WA). On 7 October 2002, Mrs Breed signed a Form 2D claim form (Form 2D) in relation to the workers compensation dependency claim. The Form 2D contained the following declaration: I, the undersigned, do hereby warrant the truth of the forgoing statements. I hereby authorise any medical practitioner to disclose to the deceased worker's employer or his/her insurer and WorkCover WA any information regarding the deceased worker's medical history. 4 Dr Andrew Harman (practitioner) acted for Alcoa in the proceedings. On 11 August 2008, the practitioner wrote to Western Diagnostic Pathology noting that his firm acted on behalf of Alcoa in relation to the proceedings and that Mrs Breed was represented by solicitors in the proceedings. The letter contained the following text: 5 Western Diagnostic Pathology subsequently provided the requested slides of Mr Breed's tissue and pathology paraffin blocks to Dr Shilkin. (Page 5)
6 In May 2010, Mrs Breed made a complaint pursuant to s 410 of the Legal Profession Act 2008 (WA) (LP Act) about the practitioner. In her complaint form, Mrs Breed said the following: I am the executor of [Mr Breed's] will, and my husband did not leave his body to medical science. It was in my opinion unfair, disrespectful and unreasonable not to have been asked and it would be reasonable to have expected to have been asked beforehand. I have been informed that the Human Tissue Act is relevant to a deceased's pathology in this state. 7 After conducting an investigation over a period in excess of two years, the Legal Profession Complaints Committee (Committee) decided to dismiss Mrs Breed's complaint: [b]ecause it was satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct. 8 Section 425 of the LP Act enables the Committee, after an investigation of a complaint against a legal practitioner, to dismiss the complaint if it is satisfied that: [t]here is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct. 9 In its reasons for its decision, dated 18 September 2012, the Committee characterised the complaint as being that: [w]ithout the appropriate authority, and without informing her solicitors of his intention to do so, the practitioner caused a pathologist, who had prepared tissue samples, taken from her late husband, while he was alive, to provide those tissue samples to another pathologist, who had been retained by the insurer of her late husband's employer as an expert in the proceedings, to assess and conduct tests on the samples, and report on his findings. 10 The Committee, in its reasons, noted that the practitioner submitted that he had authority to cause the first pathologist to provide the tissue samples to the second pathologist, because Mrs Breed had signed the Form 2D, with the authority to which we have referred earlier, and the materials that were provided by the first pathologist to the second pathologist constituted 'information' in respect of Mr Breed's medical history. The Committee noted that the practitioner also submitted that, in any event, the tissue samples were the property of the providing pathologist and, therefore, authority from Mrs Breed was not required. (Page 6)
11 The Committee considered that both of these points namely, that the practitioner had authority and that, in any case, authority was not required because the tissue samples were the property of the first pathologist 'were arguable', and therefore formed the view that the complaint should be summarily dismissed under s 425 of the LP Act.
Applicable principles 12 The principles applicable in these proceedings were summarised in SJX and Legal Profession Complaints Committee [2012] WASAT 154 (SJX) at [20] [24] and need not be repeated here. In summary, as the Tribunal said in SJX at [24]: The issue for determination in this review is … whether there is any reasonable likelihood that the Tribunal might, on referral to it of [Mrs Breed's complaint], find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct. If the answer is 'yes', then the correct and preferable decision on the review is that the relevant complaint cannot be dismissed under s 425 of the LP Act and the Committee should be directed to either take action under section 426 of the LP Act, which enables the Committee to impose certain disciplinary consequences with the practitioner's consent, or refer the matter to the Tribunal under s 428 of the LP Act in order for the Tribunal to determine whether the practitioner is guilty of either unsatisfactory professional conduct or professional misconduct.
Consideration of application for review 13 We have come to the same conclusion as the Committee, namely, that there is no reasonable likelihood that the practitioner would be found guilty of either unsatisfactory professional conduct or professional misconduct if the complaint made by Mrs Breed were referred to the Tribunal under s 428 of the LP Act. We have come to this conclusion for the following reasons. 14 The practitioner clearly thought, when he requested the provision of the tissues and pathology paraffin blocks by the first pathologist to the second, that the medical authority provided by Mrs Breed in the Form 2D applied in the circumstances and, in particular, that the materials sought were 'information regarding the deceased worker's medical history'. This is implicit in the letter to Western Diagnostic Pathology itself, and was made explicit in correspondence between the practitioner and the Committee. In his letter dated 1 June 2010 to the Committee, the practitioner said: (Page 7)
As the complainant had provided an authority for the provision of all information relating to the deceased's medical history I did not consider the request to review the histological materials to be unusual or require further authority. 15 It is clear that Western Diagnostic Pathology also considered that the authority provided by Mrs Breed was relevant and applicable. Furthermore, it is clear that Dr Shilkin, the pathologist who requested the materials, also thought so. In a letter from Dr Shilkin to the Medical Board of Western Australia dated 9 November 2009, he said: Harman Legal also enclosed a medical authority completed by Mrs Breed pursuant to her dependency claim. I understood that this signed authority enabled me to assess the pathology material relating to her claim which was able to be made available to me. The consent was similar to other consents provided to me in the past when I have been asked to provide independent medico-legal assessment. Dr Shilkin also said the following: As I had not received all the paraffin blocks from WDP as was originally requested by Harman Legal, in line with the authority provided by Mrs Breed, it was considered reasonable that I directly advise WDP of certain missing blocks as identified from the slides they had already sent me. I submitted a further request form for the relevant material, which WDP then forwarded to me. At this stage I did not perform the HPV tests, and only did so later when Harman Legal instructed me to do so. It was always my absolute belief that my report was prepared in accordance with the appropriate consent from Mrs Breed. 16 Whether or not the practitioner's understanding that the authority provided by Mrs Breed authorised the provision of the material was legally correct, in our view, the practitioner's understanding was certainly reasonably open at the time. In our view, the practitioner exercised reasonable professional judgment in determining that the authority was relevant and applicable to the provision of the material. 17 In relation to the scope of the authority, it is significant, in our view, that both Western Diagnostic Pathology and Dr Shilkin, both of whom appear to have been experienced in such matters, regarded the authority as relevant and applicable. It is also significant, in our view, that, as a result of Mrs Breed's strong advocacy in such matters, not only on her own behalf but on behalf of many other people in a similar position, WorkCover WA recently amended Form 2D. In a letter dated 19 September 2012, a legal officer of WorkCover WA informed the Committee as follows: (Page 8)
WorkCover WA has recently completed a review of the scope of the medical consent form contained in the Form 2D. Due to uncertainty in the law and the lack of any statutory right of access to tissue samples, WorkCover WA proposes to recommend that the consent authority contained in the Form 2D be redrafted to exclude access to human tissue samples. It is anticipated this proposal, if approved, will be recommended as a part of a number of minor amendments to the Workers Compensation and Injury Management Regulations 1982 later in 2012. 18 In fact, Form 2D was amended in December 2012 and an amended form took effect from 15 December 2012. The amended form contains the following additional sentence to the form signed by Mrs Breed: However, I do not authorise the release or testing of human tissue samples or human tissue material of any kind or for any purpose. 19 It would arguably not have been necessary to amend Form 2D to exclude tissue samples from the authority if such tissue samples were not contemplated by the term 'information' within the form. It is not necessary, for the purposes of this proceeding, to find, and we do not find that tissue samples on slides and pathology paraffin blocks in fact constitute 'information regarding the deceased worker's medical history' for the purposes of Form 2D. It is sufficient to find, and we do find, that it was reasonably open to the practitioner, in all the circumstances, to have formed that view. 20 We also consider that it was reasonably open for the practitioner to have formed the view that authority was not required for the provision of the materials in this case, because of ownership of the materials being vested in the first pathologist, rather than in anyone else. 21 The practitioner referred the Committee to two decisions: Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406 (Doodeward) and Roche v Douglas [2000] WASC 146; (2000) WAR 331 (Roche). In the first decision, Griffith CJ said the following at page 414, with which Barton J agreed atpage417: I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances. (Page 9)
22 In Roche, Master Sanderson referred to the decision in Doodeward, and found that human tissue is property. 23 Having regard to these authorities, it was, in our view, reasonably open, and reflected a reasonable professional view on the part of the practitioner, to consider that authority was not required, although he considered that authority had been provided.
Mrs Breed's arguments 24 Mrs Breed presented, essentially, four arguments to the Tribunal. She presented the arguments and represented herself admirably, notwithstanding that the circumstances of this case are extremely and understandably distressing to her. She made her submissions clearly and in terms which the Tribunal understood. 25 The first submission was essentially that she felt betrayed by the process and by the conduct of the practitioner, and that the practitioner, by his conduct, advanced the case on behalf of his client by unfair and dishonest means. As Mrs Breed summarised her argument, 'I got no information and zero respect'. 26 Mrs Breed considered that what the practitioner did was unlawful, or at least unfair, because it took away from her a right which, as the next of kin of her late husband, she considered that she had, namely, a right as to whether or not to consent to the provision and use of the tissue material. Mrs Breed drew strongly in aid the advice that she received from Dr Andy Robertson, the director of Disaster Management, Regulation and Planning in the Public Health Division of the Western Australian Department of Health. 27 In his correspondence, Dr Robertson referred Mrs Breed to the NonCoronial Post-Mortem Examinations Code of Practice (Code), which was introduced in 2002 and amended in 2007. Dr Robertson expressed the opinion, based on his understanding of the events in issue, that Mrs Breed's consent was mandated by the Code and that, in any case, 'no ethics committee would support an absence of informed consent under any circumstances'. 28 However, for two reasons, the Code referred to by Dr Robertson is not applicable. The first is that the Code was made under the Human Tissue and Transplant Act 1982 (WA). Section 32 of that Act states, in part, as follows: (Page 10)
(1) Nothing in this Act applies to or in relation to - 29 The tissue in question was removed from Mr Breed while he was alive, and apparently with his consent. The Human Tissue and Transplant Act 1982 (WA)therefore does not apply in relation to the tissue or its use, even though Mr Breed passed away prior to the use of the tissue. 30 The second reason why the Code does not apply is that Dr Robertson himself pointed out in his correspondence to Mrs Breed that the term 'tissue' was amended for the purposes of the Code in 2007 because it was too broad previously and, from that time onwards, referred to: [a] whole or a substantial part of a visibly recognised functional unit of the body such as the brain, heart and liver, but does not include the small tissue samples that are required to be taken for testing by microscopic examination as part of every non-coronial postmortem examination. 31 It appears from Dr Robertson's correspondence that he was under a misunderstanding as to the nature of the tissue material that was taken, because, clearly, the tissue in this case was excluded from the Code, even if taken in a postmortem context, by the provision to which he referred. 32 This is not to say, however, that the circumstances and the conduct of the practitioner were not distressing to Mrs Breed. It is clear to the Tribunal, as it was clear to the Committee, that the circumstances were most distressing and that, while the conduct of the practitioner would not lead to a finding of unsatisfactory professional conduct or professional misconduct, it could be characterised as insensitive in the circumstances. The Committee, while dismissing the complaint on the basis that there was no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct, nevertheless said the following at the conclusion of its reasons: (Page 11)
Notwithstanding that, however, the Committee considered that it would have been prudent and preferable for the practitioner to notify the complainant's solicitors of his intention to request the first pathologist to provide the second pathologist with the tissue samples for assessment and testing in order to: - provide the complainant with notice that her late husband's tissue was to be utilised in that way; and - provide the complainant with the opportunity to object to that course of action if she wished. The Committee expressed concern about the practitioner's failure to notify the complainant's solicitors of his intentions and wished to make it clear to the practitioner that, should the same circumstances arise again, he must notify the deceased's next of kin of his intentions. 33 We respectfully agree with the Committee's statement. 34 The second argument presented by Mrs Breed related to what constitutes 'information' for the purposes of Form 2D. Mrs Breed expressed the view that information would include such reports as MRIs, existing written reports of medical practitioners and existing laboratory records, but does not extend to tissue of a deceased person. However, for reasons that we have given earlier, we consider that the view taken by the practitioner was certainly reasonably open to him. It is, and was, certainly reasonably open to take the view that information relating to a deceased worker's medical history included his tissue on slides and pathology paraffin blocks. These materials certainly contained, and arguably constituted, information - a view, as we have said, shared not only by the practitioner, but also by Western Diagnostic Pathology and Dr Shilkin, both of whom were apparently experienced in such matters. 35 The third argument presented by Mrs Breed related to the alleged destruction by Dr Shilkin of part of the tissue in conducting his work. The practitioner denied that he had authorised the destruction of any of the tissue and, indeed, indicated to the Committee that he instructed Dr Shilkin to only carry out a procedure that would not lead to the destruction of any tissue. There is, in fact, no evidence that the practitioner authorised or instructed the destruction of any tissue. 36 Furthermore, the concern that the practitioner authorised or instructed the destruction of tissue was not considered by the Committee to be part of the complaint that it determined. As the Tribunal observed in SJX at [17]: (Page 12)
The Tribunal does not have jurisdiction to consider a complaint that was not made to the Committee, because the Tribunal may only review 'a decision of the Complaints Committee to dismiss a complaint'. 37 The Committee did not characterise the complaint that it determined as including a complaint about destruction of tissue or determine any such complaint. The Tribunal therefore does not have jurisdiction in relation to any such concern. 38 The fourth argument presented by Mrs Breed related to delay on the part of the practitioner in providing Dr Shilkin's report to Mrs Breed's solicitors. However, the Committee did not characterise Mrs Breed's complaint to it about the practitioner as including such a concern. 39 It also appears from Mrs Breed's complaint form and her subsequent correspondence to the Committee that she did not herself raise that concern. The Committee, in the course of its consideration of Mrs Breed's complaint, did raise with the practitioner whether there had been delay in the provision of the report to Mrs Breed's solicitors. However, that was a matter raised by the Committee itself, as it may do so under the LP Act. It was not the subject of the complaint made by Mrs Breed and it was not dismissed by the Committee under s 425 of the LP Act; rather, the Committee, after considering the practitioner's explanation, expressed the view that it was satisfied that there was no obligation on the practitioner to provide Mrs Breed's solicitors with a copy of the report any sooner than it did, and decided to take no further action in relation to that matter. The Tribunal therefore does not have jurisdiction in relation to that matter.
Conclusion 40 The circumstances of this case have been extremely and understandably distressing to Mrs Breed. They concern tissue of her late husband, who passed away now some time ago, and involved conduct of the practitioner in the course of proceedings commenced by Mrs Breed in relation to her husband's death. The practitioner's conduct can reasonably be characterised as insensitive in the circumstances. 41 It is important for practitioners to recognise that, while their primary obligations are to the court or tribunal and to their client, subject to those overriding obligations, the human element in the work they do is of significance, particularly in a case such as this. (Page 13)
42 Nevertheless, we are satisfied, as was the Committee, that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct if Mrs Breed's complaint were referred to it.
Orders 43 We therefore make the following orders: |