Dekker v Medical Board of Australia
[2014] WASCA 216
•21 NOVEMBER 2014
DEKKER -v- MEDICAL BOARD OF AUSTRALIA [2014] WASCA 216
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 216 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:140/2013 | 20 AUGUST 2014 | |
| Coram: | MARTIN CJ NEWNES JA MURPHY JA | 21/11/14 | |
| Judgment Part: | 1 of 1 | ||
| Result: | Leave to appeal granted Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | LEILA DEKKER MEDICAL BOARD OF AUSTRALIA |
Catchwords: | State Administrative Tribunal Vocational regulation Medical practitioner Whether guilty of improper conduct in a professional respect Relevant principles Whether Tribunal may rely upon expertise of its own members State Administrative Tribunal Vocational regulation Medical practitioner Whether formulation of specific prescriptive duty applicable to medical practitioners to render assistance in emergency situation Whether generally accepted by medical profession at time of alleged misconduct Failure to make such a finding Error of law No evidence Error of law State Administrative Tribunal Vocational regulation Medical practitioner Alleged general duty or norm to care for sick Applied to the specific circumstances of the case Dependent upon findings of fact made by the Tribunal No evidence Error of law State Administrative Tribunal Vocational regulation Medical practitioner Tribunal found medical practitioner guilty of improper conduct in a professional respect Appeal allowed Whether to remit to Tribunal for a fresh hearing Tribunal's findings made in the absence of evidence No remitter |
Legislation: | Civil Liability Act 2002 (WA), s 5AD(2), s 5AE Medical Act 1893 (WA), s 13(1)(a), s 22A Medical Act 1939 (Qld), s 33 Medical Practitioners Act 1938 (NSW), s 27(1) Medical Practitioners Registration Act 1996 (Tas), s 50(5), sch 5 cl 2(1), cl 3(1), cl 3(3) Psychologists Registration Act 2000 (Tas), s 6, s 46, s 50, sch 2, sch 3 State Administrative Tribunal Act (2004), s 5, s 9(c), s 11(2)-(4), s 16(2), s 32, s 58, s 59, s 77, s 105(9)(b), s 105(13)(b) |
Case References: | Airflite Pty Ltd v Goyal [2003] WASCA 45 Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Buttsworth v Walton [1991] NSWCA 40 Capital & Counties plc; Digital Equipment Co Ltd v Hampshire County Council [1997] QB 1004 Commissioner for Consumer Protection v Carey [2014] WASCA 7 Cranley v Medical Board of Western Australia (Unreported, WASC, Library No 8668, 21 December 1990) Doepgen v Mugarinya Community Association Inc [2014] WASCA 67 Jager v Medical Complaints Tribunal [2004] TASSC 58 Kalil v Bray [1977] 1 NSWLR 256 Kudelka v Medical Complaints Tribunal [2004] TASSC 31 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Lowns v Woods (1996) Aust Torts Reports 81-376 Medical Board of Australia and Dekker [2013] WASAT 182 Medical Board of Queensland v Cooke [1992] 2 Qd R 608 Mijatovic v Legal Professional Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 Moxon v Minister of Pensions [1945] 1 KB 491 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Psychologists Board of Queensland v Robinson [2004] QCA 405 Qidwai v Brown [1984] 1 NSWLR 100 R v Industrial Appeals Court; Ex parte Maher [1978] VR 126 R v Milk Board; Ex parte Tomkins [1944] VLR 187 Re A Psychologist [2009] TASSC 70 Richter v Walton [1993] NSWCA 233 Roylance v General Medical Council [2000] 1 AC 311 Starr v The Minister of Pensions [1946] 1 KB 345 Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269 Woods v Lowns (1995) 36 NSWLR 344 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEKKER -v- MEDICAL BOARD OF AUSTRALIA [2014] WASCA 216 CORAM : MARTIN CJ
- NEWNES JA
MURPHY JA
- Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Defendant
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE D R PARRY (DEPUTY PRESIDENT)
- DR H HANKEY (SENIOR SESSIONAL MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR B JONES (SESSIONAL MEMBER)
Citation : MEDICAL BOARD OF AUSTRALIA and DEKKER [2013] WASAT 182
File No : VR 127 of 2006
Catchwords:
State Administrative Tribunal - Vocational regulation - Medical practitioner - Whether guilty of improper conduct in a professional respect - Relevant principles - Whether Tribunal may rely upon expertise of its own members
State Administrative Tribunal - Vocational regulation - Medical practitioner - Whether formulation of specific prescriptive duty applicable to medical practitioners to render assistance in emergency situation - Whether generally accepted by medical profession at time of alleged misconduct - Failure to make such a finding - Error of law - No evidence - Error of law
State Administrative Tribunal - Vocational regulation - Medical practitioner - Alleged general duty or norm to care for sick - Applied to the specific circumstances of the case - Dependent upon findings of fact made by the Tribunal - No evidence - Error of law
State Administrative Tribunal - Vocational regulation - Medical practitioner - Tribunal found medical practitioner guilty of improper conduct in a professional respect - Appeal allowed - Whether to remit to Tribunal for a fresh hearing - Tribunal's findings made in the absence of evidence - No remitter
Legislation:
Civil Liability Act 2002 (WA), s 5AD(2), s 5AE
Medical Act 1893 (WA), s 13(1)(a), s 22A
Medical Act 1939 (Qld), s 33
Medical Practitioners Act 1938 (NSW), s 27(1)
Medical Practitioners Registration Act 1996 (Tas), s 50(5), sch 5 cl 2(1), cl 3(1), cl 3(3)
Psychologists Registration Act 2000 (Tas), s 6, s 46, s 50, sch 2, sch 3
State Administrative Tribunal Act (2004), s 5, s 9(c), s 11(2)-(4), s 16(2), s 32, s 58, s 59, s 77, s 105(9)(b), s 105(13)(b)
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr J R B Ley
Defendant : Mr C G Colvin SC
Solicitors:
Appellant : Panetta McGrath Lawyers
Defendant : Integra Legal
Case(s) referred to in judgment(s):
Airflite Pty Ltd v Goyal [2003] WASCA 45
Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Buttsworth v Walton [1991] NSWCA 40
Capital & Counties plc; Digital Equipment Co Ltd v Hampshire County Council [1997] QB 1004
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Cranley v Medical Board of Western Australia (Unreported, WASC, Library No 8668, 21 December 1990)
Doepgen v Mugarinya Community Association Inc [2014] WASCA 67
Jager v Medical Complaints Tribunal [2004] TASSC 58
Kalil v Bray [1977] 1 NSWLR 256
Kudelka v Medical Complaints Tribunal [2004] TASSC 31
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Lowns v Woods (1996) Aust Torts Reports 81-376
Medical Board of Australia and Dekker [2013] WASAT 182
Medical Board of Queensland v Cooke [1992] 2 Qd R 608
Mijatovic v Legal Professional Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Moxon v Minister of Pensions [1945] 1 KB 491
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
Psychologists Board of Queensland v Robinson [2004] QCA 405
Qidwai v Brown [1984] 1 NSWLR 100
R v Industrial Appeals Court; Ex parte Maher [1978] VR 126
R v Milk Board; Ex parte Tomkins [1944] VLR 187
Re A Psychologist [2009] TASSC 70
Richter v Walton [1993] NSWCA 233
Roylance v General Medical Council [2000] 1 AC 311
Starr v The Minister of Pensions [1946] 1 KB 345
Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269
Woods v Lowns (1995) 36 NSWLR 344
- REASONS OF THE COURT:
Introduction
1 This is an appeal, subject to the grant of leave, by the appellant, a medical practitioner, from a decision of the State Administrative Tribunal (the Tribunal). The Tribunal found that the appellant was guilty of 'improper conduct in a professional respect' for the purposes of s 13(1)(a) of the Medical Act 1894 (WA) (the Medical Act).
2 Section 13 of the Medical Act provides, relevantly:
13. Inquiries into, and striking off and suspension of, medical practitioner
(1) Where it appears to the Board that a medical practitioner, not being a body corporate, may be -
(a) guilty of infamous or improper conduct in a professional respect;
…
the Board may allege to the State Administrative Tribunal that disciplinary action should be taken against the medical practitioner for that reason.
4 No disciplinary decision or order has yet been made by the Tribunal in consequence of the finding of improper conduct. The parties proceeded on the basis that the appeal can only be brought on a 'question of law' by virtue of s 105(2) of the SAT Act. Presumably, that was because the parties considered that the Tribunal's decision, of itself, does not have the 'effect' of depriving the appellant of a capacity to lawfully pursue her vocation (s 105(13)(b) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)). As to an appeal on a 'question of law' in this regard see, generally, Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [27] - [28]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361; Commissioner for Consumer Protection v Carey [2014] WASCA 7 [67] - [72].
The background facts
5 All references to paragraph numbers in the reasons below are references to paragraph numbers in the Tribunal's reasons for judgment: Medical Board of Australia and Dekker [2013] WASAT 182.
6 The Tribunal recorded that the parties had agreed the following facts:
1. The practitioner is a registered medical practitioner.
2. On Saturday 27 April 2002, at some time between 6.15 pm and 6.30 pm, a Toyota Hilux utility vehicle driven by the practitioner and a Land Rover vehicle were involved in a 'near miss' event at a road junction on Cherratta Road, Roebourne, resulting in the Land Rover mounting the embankment at the edge of the road surface and rolling into a ditch abutting Cherratta Road (accident).
3. It was dark at the time of the accident and the headlights of both vehicles were illuminated.
4. The practitioner's stationary vehicle was turning right at the road junction in Cherratta Road to return from the tip to the Roebourne township.
5. The circumstances of the 'near miss' event were as follows:
(a) the practitioner's vehicle, which was travelling in a northerly direction, slowed down on approaching the road junction and came to a halt at the junction;
(b) the second vehicle, which was heading in a westerly direction, approached the road junction from the east at an excessive speed, estimated as 50 60 kilometres per hour;
(c) for reasons unknown, the second vehicle veered towards the practitioner's stationary vehicle;
(d) the practitioner took evasive action and drove across the junction onto the embankment on the northern side of the road surface, narrowly avoiding a collision;
(e) the practitioner's manoeuvre resulted in the second vehicle passing just behind the practitioner's vehicle as it crossed the road junction;
(f) subsequent evidence revealed that the second vehicle left the road surface, mounted the embankment on the western side of the junction and rolled into the ditch abutting the road; and
(g) the practitioner heard noise of impact but could no longer see the second vehicle.
6. The practitioner did not stop immediately and check the location to see if any people required medical assistance from the practitioner.
7. The practitioner instead left the scene of the accident and drove a short distance to the police station in Roebourne where she reported the 'near miss' event and alerted the police to the possibility that another vehicle had driven off Cherratta Road [7].
7 The Tribunal also found that:
(a) the appellant was aware that the other vehicle may have rolled over when she left to contact the police following the 'near miss' incident [18]; and
(b) her instinctive understanding as a medical practitioner at the time she left the scene was that 'there would be a bad injury' [17].
8 The Tribunal also found that at the time of the incident [40] - [41]:
(a) it was dark;
(b) the appellant did not have a torch with her;
(c) the appellant had no medical equipment or first aid equipment with her; and
(d) the appellant did not have a mobile phone with her.
9 The Tribunal nevertheless found that there was 'no reason' why she could not have used the lights of her car to illuminate the scene [40].
10 The Tribunal found that the appellant was physically unharmed as a result of the incident [43].
11 The Tribunal also said that the 'fact that', following the incident, the appellant was 'in a state of shock', 'petrified' and 'freaked out' was 'hardly surprising' in the context of the 'near miss' situation [43]. The precise meaning and effect of [43] of the Tribunal's reasons was the subject of debate and is discussed later in these reasons.
The respondent's case before the Tribunal
12 In its substituted grounds of application, the respondent alleged in the Tribunal that the appellant may be guilty of infamous or improper conduct in a professional respect in relation to certain particularised facts. The particulars were the fact that the appellant was involved in the 'near miss' incident and that she had failed to stop, as a result of which:
(a) the appellant failed to ascertain:
(i) whether the occupant or occupants of the other vehicle required assistance;
(ii) the extent of the damage to the other vehicle and whether it could easily be driven; and
(iii) whether the occupant or occupants of the other vehicle were injured; and
(b) the appellant left the scene of the accident:
(i) without attending the occupant or occupants of the other vehicle;
(ii) without attending the occupant or occupants to assess any immediate requirement for assistance;
(iii) without immediately examining the occupant or occupants to assess any injuries and/or any immediate requirement for medical assistance; and
(iv) without rendering necessary immediate medical assistance to the occupant or occupants of the other vehicle.
14 Prior to the hearing in the Tribunal, the respondent filed written submissions. The respondent's written submissions in the Tribunal referred to Roylance v General Medical Council [2000] 1 AC 311 in support of its allegations against the appellant.
15 Roylance was a case in which, relevantly the CEO responsible for a particular hospital had been notified of concerns about the mortality rate in the paediatric cardiac surgery carried out at the hospital, and of concerns as to the types of operation being carried out, yet did nothing to intervene. The CEO was himself a medical practitioner. He was found guilty of serious professional misconduct. The CEO appealed on the basis that any criticism of his conduct could only apply to him in his capacity as administrator, and not as a doctor. The Privy Council said:
[The doctor] was both a registered medical practitioner and chief executive of a hospital. In each capacity he had a duty to care for the safety and well-being of the patients. As chief executive that duty arose out of his holding that appointment. As a registered medical practitioner he had the general obligation to care for the sick. That duty did not disappear when he took on the appointment but continued to co-exist with it. There was a sufficiently close link with the profession of medicine in the case of the doctor as chief executive of a hospital in respect of patients at the hospital (333). (emphasis added)
16 The Privy Council continued:
Counsel for the doctor sought to argue that any criticism of the doctor derived solely from his holding office as a chief executive officer. But while the failures may as a matter of fact be the same, the gravity of the criticism may be increased by him being at the same time a medical practitioner.
Their Lordships would add in relation to the generality of the problem that the philosophy which seeks to divorce the administration from the medical care so as to leave the administrator free from any responsibility for deficiencies in the care of the sick cannot be sound. The care, treatment and safety of the patient must be the [principal] concern of everyone engaged in the hospital service. The medical staff will have the specialist expertise in their various skills. But the idea of a gulf between the medical practitioners and the administration connected by some bridge over which the doctor had passed 'from us to them', as appeared in the course of the argument to be a possible aspect of the doctor's case, must be totally unacceptable if the interest of the patient is to remain paramount. The enterprise must be one of co-operative endeavour.
Once it is clear that a duty existed the question remains in the present case what the extent of the duty was in the circumstances. In ordinary circumstances there is no doubt that a medical practitioner who holds the office of chief executive officer of a hospital is perfectly entitled to leave the day to day clinical decisions to the professional staff of the hospital His duty as a medical practitioner is adequately performed by such a course. But there may occur circumstances in which more may be required of him. In such circumstances his medical skill and knowledge are undoubtedly relevant. Even if he does not have the specialised expertise of the particular area of medicine in which the problem arises, his general knowledge as a doctor will be of service, as for example by enabling him more readily to ask the relevant kinds of question, such as in the present case when was the child last examined and what was the degree of urgency for the operation.
The present has been held to be a case where the professional medical duty required action. The committee noted the particular circumstances of the history of growing anxiety, of the facts which they found of his knowledge of the concern, especially in the letter of 21 July 1994, of his power to inquire and to intervene. They affirm that as a registered medical practitioner the doctor had a duty to act to protect patients from harm (333 - 334). (emphasis added)
17 In the respondent's written submissions to the Tribunal, the respondent alleged, after referring to Roylance:
32. The same conclusion may be reached, it is submitted, in circumstances in which a medical practitioner is made aware of the real possibility that another person may be in need of urgent medical treatment in circumstances in which the medical practitioner would be reasonably expected to employ their medical skills by rendering assistance.
33. It is submitted that, in circumstances in which medical attention is required in a relatively remote setting, such as the present case, it would reasonably be expected that a medical practitioner at the scene would render assistance, by way of first aid, to those in need.
34. Not to do so, when there is no countervailing duty or obligation on the practitioner, it is submitted, is sufficiently 'linked with the profession of medicine', to be granted as 'infamous or improper conduct in a professional respect' within the meaning of s 13(1) of the 1894 Act.
18 Under the heading 'Application of the law to the facts' the respondent alleged, relevantly in its written submissions:
37. It is submitted that it is open to the Tribunal to find that the Practitioner knew that:
1. the [other vehicle] had left the road surface and rolled down the embankment into the ditch; and
2. a probable consequence, because of the speed at which the [other vehicle] was travelling, was injury, potentially serious, to the driver or passengers (if any) in the [other vehicle].
38. The Tribunal has no evidence of any competing or countervailing duty nor obligation which might excuse the Practitioner from stopping and ascertaining the state of the [other vehicle] and its occupants.
39. It is submitted that it is open to the Tribunal to conclude that, in the circumstances of this 'near miss' event, while it did not arise directly in the practice of medicine that the Practitioner's failure to stop at the scene of the Accident and render assistance, by way of first aid, to those in need would be regarded by colleagues of good repute and competency as disgraceful or dishonourable.
19 Again, there was no allegation that there existed some specific professional duty which was generally accepted by practitioners of good repute and competency in the medical profession in 2002 which had any potential application to the circumstances of the case.
20 The appellant gave evidence before the Tribunal. She tendered a witness statement and was cross-examined on it. The witness statement included evidence to the effect that immediately following the accident she was in a state of shock, she was terrified as she thought she had almost been killed, she was unable to think in a coherent manner and that she had feared for her life and personal safety. She said '[t]o the best of my memory I was physically shaking and screaming'. This manifestation of her condition was challenged. The respondent's senior counsel cross-examined the appellant to the effect that she was not physically shaking and screaming, and that her mental condition was such that she was aware of the likelihood of injury to the driver or occupants of the other vehicle and was capable of having a conversation with her passenger and driving to the police station. However, the general proposition that she was in a state of shock was not directly challenged.
21 Moreover, the respondent tendered, as part of its case, the appellant's evidence given in 2005 in relation to a criminal trial arising out of the accident. The respondent submitted that the appellant's evidence before the Tribunal, given some 11 years after the events in question, was unreliable (GB 25) and that, instead, her evidence from 2005 was 'more likely to reflect the state of affairs as she perceived it, at that time and after the accident' (GB 26). Her evidence in 2005 included evidence to the effect that she was 'petrified' and in a 'state of shock' and was not really in a position to 'take action' (GB 67 - 68, 91 - 92, 95, 98, 99).
22 In closing at the oral hearing, senior counsel for the respondent submitted, in effect, that the appellant had sufficient presence of mind to have a conversation with the passenger of her vehicle after the 'near miss' and to drive to the police station, that she was aware of the remote location and the likely consequences of the accident, and that those circumstances coupled with 'a general obligation to care for the sick' meant that it was 'proper to take positive action' (GB 26, 28 - 29). The submission appears to have been derived from the observations in Roylance where 'the sick' included patients not only in the direct care of the doctor, but patients at a hospital effectively managed by the doctor.
The Tribunal's reasons
23 The Tribunal said that the test for 'improper conduct' was conduct falling short of 'infamous conduct', but nevertheless conduct 'which would reasonably be regarded as improper by professional colleagues of good repute and competency' [20]. In that regard, the Tribunal referred to the reasons of Ipp J in Cranley v Medical Board of Western Australia (Unreported, WASC, Library No 8668, 21 December 1990).
24 The Tribunal also said that 'improper conduct in a professional respect' must be conduct 'in pursuit of the practitioner's profession'. However, a medical practitioner's conduct may be 'in pursuit of the practitioner's profession' even where it does not occur in the carrying out of medical practice, providing that there is a sufficiently close link of nexus between the conduct and the profession of medicine [22].
25 The Tribunal found that the appellant was not guilty of 'infamous conduct' [38], but was nevertheless guilty of 'improper conduct'. The Tribunal's conclusion was expressed in these terms:
The practitioner's conduct in failing to stop and render assistance immediately after the 'near miss' incident involving her vehicle and a second vehicle on 27 April 2002, but instead leaving the scene of the accident and reporting the incident and the possibility that the second vehicle had driven off the road to the police, would reasonably be regarded as improper by professional colleagues of good repute and competency. Although the practitioner's conduct did not occur in medical practice, there is a sufficiently close link or nexus between her conduct and the profession of medicine for the conduct to be 'in a professional respect'. The practitioner is therefore guilty of 'improper conduct in a professional respect' within the meaning of s 13(1)(a) of the Medical Act [46].
26 In relation to that conclusion the Tribunal said, relevantly:
It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.
…
Furthermore, the fact that she did not own or have a mobile telephone with her at the time and the fact that the police station to which she drove to report the incident was only a short distance away did not discharge her professional duty to make an assessment and render assistance at the scene. Notwithstanding these circumstances, the practitioner's conduct would reasonably be regarded as improper by professional colleagues of good repute and competency. In order to save life, first aid may need to be rendered immediately. Any delay in providing first aid after a traumatic injury, even a delay of a short period, could result in death. Furthermore, even if it were necessary to leave the scene of the accident to call for assistance from emergency services, it was necessary for the practitioner to determine the number of persons who were injured, to assess their injuries and needs to the greatest extent possible in the circumstances, and to see if they were trapped, in order for appropriate emergency services to be dispatched [39], [41].
27 With reference to the question of the appellant being 'in a state of shock', 'petrified' and 'freaked out', the Tribunal said:
The fact that the practitioner was 'in a state of shock', 'petrified' and 'freaked out' after the 'near miss' incident is hardly surprising in a case where a person is involved in an accident or in a nearmiss situation. However, the practitioner was not simply 'a shocked and distraught woman' … but rather a member of the medical profession who had gone through a no doubt frightening nearmiss experience, but was thankfully physically unharmed, and was aware that another vehicle had or may have crashed in her vicinity. Because she is a member of the medical profession, and therefore a person with medical knowledge and skills to save life and to heal the sick and injured in the community, her professional duty required that she overcome or at least put aside the shock and provide assistance to the occupant or occupants of the second vehicle. Although the practitioner's 'shock' may be relevant in relation to penalty, it does not have the consequence that her conduct would reasonably be regarded as anything other than improper (or, had she not immediately reported the matter to police or other emergency services, disgraceful or dishonourable) by professional colleagues of good repute and competency [43].
28 The Tribunal made no reference to, and the parties in this appeal did not contend, that there were any specific written professional conduct rules applicable in April 2002 prescribing the appropriate conduct of a medical practitioner in the circumstances of the appellant in this case.
29 Further, the Tribunal made no reference to, and the parties in this appeal did not contend, that there was any relevant statutory provision governing the conduct in question. For example, the Medical Act does not contain a provision of the kind which appeared in s 27(1) of the Medical Practitioners Act 1938 (NSW). Section 27(1) of that New South Wales statute provided:
'[P]rofessional misconduct' in relation to a registered medical practitioner includes the following:
…
(h) refusing or failing, without reasonable cause, to attend, within a reasonable time after being requested to do so, on a person for the purpose of rendering professional services in the capacity of a registered medical practitioner in any case where the practitioner has reasonable cause to believe that the person is in need of urgent attention by a registered medical practitioner.
30 That provision was concerned with the attendance of a medical practitioner where there was reasonable cause to believe that urgent attention was required, but only 'after being requested to do so'. The provision also required attention to be given as to whether the medical practitioner had refused or failed to attend 'without reasonable cause' and 'within a reasonable time'. Section 27(1) of that statute formed an important basis upon which Badgery-Parker J in Woods v Lowns (1995) 36 NSWLR 344 held that in the particular circumstances of that case, a medical practitioner owed a duty of care to a person who was not his patient. Badgery-Parker J's decision was upheld by majority in the Court of Appeal: Lowns v Woods (1996) Aust Torts Reports 81-376.
31 Finally, the Tribunal did not refer to, and it was not suggested in this appeal that, the law of negligence might be of relevance in considering whether there existed any generally accepted professional duty in 2002 to render assistance in these circumstances. It may be observed, parenthetically, that there appears to be English authority to the effect that under the common law, a medical practitioner is not under an obligation to render medical assistance where the doctor happens to witness a road accident, but if he or she does render assistance, the doctor would not be liable unless the doctor made the condition of the victim worse: Capital & Counties plc; Digital Equipment Co Ltd v Hampshire County Council [1997] QB 1004, 1035. This may be compared with the position under s 5AD(2) and s 5AE of the Civil Liability Act 2002 (WA), which provide a greater degree of protection, albeit not unqualified protection, to 'medically qualified good samaritans'.
Grounds of appeal
1. The Tribunal erred in law in finding that the appellant, as a medical practitioner, owed a professional duty, or was under a professional obligation, immediately following the near collision in which she was involved, in Roebourne on 27 April 2002, to check and assess the medical condition of the occupant or occupants of the other vehicle involved in the near collision, and to render that occupant or those occupants medical assistance, if possible.
2. The Tribunal erred in law in finding that there was no reason why the appellant could not have used the headlights of her vehicle to illuminate the place where the other vehicle had come to rest following the near collision, when there was no evidence that that was possible.
3. The Tribunal erred in law in finding that the appellant's conduct, in failing to check and assess the medical condition of the occupant or occupants of the other vehicle, and failing to render that occupant or those occupants medical assistance, if possible, was conduct in pursuit of the appellant's profession as a medical practitioner, or was conduct in a professional respect.
4. The Tribunal erred in law in finding that, by failing to check and assess the medical condition of the occupant or occupants of the other vehicle, and failing to render that occupant or those occupants medical assistance, if possible, the appellant engaged in improper conduct.
4A. Alternatively, if the Tribunal determined the question of the existence of a professional duty or the impropriety of the conduct of the appellant, by relying on the expertise of its medical members, it erred in law by failing to inform the appellant that that was its intention and giving her the opportunity to adduce evidence in respect of that matter.
4B. Further alternatively, if the Tribunal determined the question of the existence of a professional duty or the impropriety of the conduct of the appellant, by relying on the expertise of its medical members, it erred in law by failing to state that in its reasons, as required by s 77(2) of the SAT Act.
5. The Tribunal erred in law in finding that, in considering whether the appellant had engaged in improper conduct in a professional respect by failing to check and assess the medical condition of the occupant or occupants of the other vehicle, and by failing to render them medical assistance, if possible, the fact that the appellant was at that time in a state of severe shock, as a result of the near collision, was irrelevant to the issue of whether the appellant had engaged in improper conduct, and was relevant only to the penalty to be imposed for such conduct.
The parties' submissions
32 Ground 4 covered territory similar to the ground covered by ground 1. Also, it was in effect accepted by the appellant that ground 3 added nothing further to ground 1 and it was not separately pursued (ts 18).
33 The appellant's submissions largely involved reiteration and, to some extent, elaboration, of the grounds of appeal. It is unnecessary to set out the appellant's submissions in any detail. In relation to ground 1, the appellant contended, in effect, that there was an error of law in that there was no evidence to support the relevant finding.
34 In relation to ground 1, the respondent submitted, in effect:
(a) that, on a proper construction of the Tribunal's reasons, the Tribunal, in making its finding of improper conduct, did not rely upon a finding of any specific professional duty to render assistance following the incident in the sense contended for by the appellant; rather, the Tribunal's finding rested upon its conclusion as to how the conduct of the appellant would be regarded by colleagues of good repute and competency;
(b) if contrary to the first contention, the Tribunal did make a finding of the existence of a specific professional duty to render assistance, then it was correct in doing so; and
(c) if contrary to the first and second contentions, the Tribunal's finding of misconduct rested upon the breach of a specific professional duty to render assistance and it erred in law in doing so, then the court should uphold the decision because, on the facts, the conduct of the appellant was found properly to be conduct that would be regarded as improper by colleagues of good repute and competency.
35 In relation to ground 2, the respondent submitted that the finding in question was a reasonable inference open on the evidence because, immediately after the accident, the appellant was able to drive her vehicle to the police station; the second vehicle had rolled into the ditch abutting the road; and it is a 'matter of common knowledge that car headlights cast considerable light at a significant distance'.
36 In relation to ground 4, the respondent contended that there was no need to call evidence because the Tribunal was required to apply that standard as a specialist Tribunal in which two of the four members were medical practitioners. Thus, it was not an evidentiary matter, but a matter for judgment by the Tribunal based on the facts as it found them.
37 In relation to ground 5, the respondent submitted, in effect, that the Tribunal recorded the appellant's submissions and evidence concerning her state of shock, and that the Tribunal had found that the appellant was not unable to render assistance because of the state of shock. The respondent also submitted that it was significant that there was no expert evidence in relation to the appellant's state of mind at the time of the accident, there was no statement provided from the passenger, and there was no statement from the police officers who were on duty when the appellant attended the station after the accident. The respondent finally submitted that ground 5 involves an attack on a factual finding and does not raise a question of law. It says that the purpose of establishing a specialist tribunal is to provide a high measure of immunity from the review of determinations by the Tribunal: Airflite Pty Ltd v Goyal [2003] WASCA 45 [18] - [20].
38 The respondent's submissions in relation to grounds 4A and 4B are set out later in these reasons.
Legal principles - improper conduct
39 The parties approached this appeal on the basis that the legal principles referred to by the Tribunal, set out in [23] - [24] above, were correct. For present purposes, that position may be accepted. In Cranley, on which the Tribunal relied, Ipp J also said:
A medical practitioner facing a charge under s 13(1)(a) has to be judged in accordance with the ethical standards of his profession (6).
40 Insofar as the test requires proof that the conduct 'would reasonably be regarded as improper by professional colleagues of good repute and competency', it refers to practitioners of good repute and competency 'generally': Qidwai v Brown [1984] 1 NSWLR 100, 107 (Priestley JA, Samuels JA agreeing). Thus, for example, in the case of treatment involving alleged improper conduct, where evidence establishes that there is a respectable, though minority, view that the treatment is acceptable, that evidence cannot support a finding of reprobation by competent and reputable practitioners generally: Qidwai (102, 107); Cranley (8).
The constitution of the Tribunal and its powers
41 It was agreed that s 11(2) - (4) of the SAT Act did not apply to the constitution of the Tribunal by virtue of s 5 of the SAT Act, and that s 22A of the Medical Act applied. See also s 16(2) of the SAT Act.
42 Section 22A of the Medical Act provided, relevantly:
22A. Constitution of State Administrative Tribunal under this Act
(1) For the purpose of exercising jurisdiction conferred by or under this Act, the State Administrative Tribunal is to be constituted by 4 members being -
(a) one person who is a legally qualified member as defined in section 3(1) of the State Administrative Tribunal Act 2004;
(b) 2 persons who are medical practitioners with extensive or special experience as medical practitioners; and
(c) one person who is not a medical practitioner but is familiar with the interests of medical practitioners or has knowledge and experience enabling understanding of those interests.
(2) Despite subsection (1), if the President is satisfied that it is appropriate to do so in particular circumstances, the President can specify that the Tribunal is to be constituted by 4 members as referred to in subsection (1) and a 5th member who is to be a person of a kind referred to in subsection (1)(a) or (c).
(3) The member referred to in subsection (1)(a) is to be the presiding member.
43 It appeared to be common ground that the Tribunal in this case consisted of Judge Parry (Deputy President of the Tribunal), two medical practitioners, and a fourth member (presumably appointed in accordance with s 22A(1)(c)).
44 The Tribunal's jurisdiction was original jurisdiction within the meaning of the SAT Act.
45 Section 9 of the SAT Act provides that the main objectives of the Tribunal in dealing with matters within its jurisdiction include:
(c) to make appropriate use of the knowledge and experience of Tribunal members.
46 Section 32 of the SAT Act provides, relevantly:
32. Practice and procedure, generally
(1) The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
(2) The Evidence Act 1906 does not apply to the Tribunal’s proceedings and the Tribunal -
(a) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
…
(4) The Tribunal may inform itself on any matter as it sees fit.
47 Section 58 of the SAT Act provides:
58. Decision of Tribunal if 2 or more sitting members
If the Tribunal is constituted by 2 or more sitting members, a question they are required to decide is resolved, unless section 59 applies, according to the opinion of the majority of them but, if their opinions on the question are equally divided, the question is to be resolved according to the opinion of the presiding member.
48 Section 59 of the SAT Act provides, relevantly:
59. Questions of law, deciding
(1) In this section -
question of law means a question of law arising in a proceeding for decision by the Tribunal and includes a question of mixed law and fact.
(2) Subject to subsection (10), a question of law is decided by the Tribunal according to the opinion of the presiding member if that member is a legally qualified member. (original emphasis)
49 Section 77 of the SAT Act provides:
77. Reasons for final decision
(1) The Tribunal is to give its reasons for a final decision.
(2) Reasons that the Tribunal gives for a final decision have to include the Tribunal’s findings on material questions of fact, referring to the evidence or other material on which those findings are based.
50 On the question of the circumstances in which it would 'appropriate' to use the 'knowledge and experience' of the medical members of the Tribunal (see s 9(c) of the SAT Act), the parties in this appeal tended to seek to apply statements made in various cases as if there were a homogenous body of case law in this area which applied uniformly to 'specialist tribunals'. However, care must be taken in considering the authorities, as different considerations and principles may apply according to the precise constitution of the relevant tribunal, the statutory context, the statutory object which it is required to fulfil, the nature of the proceedings in question, and the specific matter requiring determination. The following cases referred to in argument illustrate the point.
51 In Kalil v Bray [1977] 1 NSWLR 256, concerning the conduct of a veterinary surgeon, the relevant statute provided for a tribunal comprising between three and five veterinary surgeons, and a District Court judge. Decision-making was by majority (except for procedural matters which were the sole province of the judge). Street CJ said that the tribunal was in every sense 'both in its constitution and its executive power, an expert professional tribunal' (258). The relevant issue there was whether the tribunal, by drawing on its own expertise, could infer from primary facts, including the evidence of symptoms, other medical facts concerning the condition and treatment of a dog. The court held that it could.
52 In Qidwai, a doctor was alleged to have engaged in misconduct in a professional respect by, in effect, carrying out certain types of surgery other than at hospital premises, and as day surgery. The doctor and the complainant both led evidence on the question of misconduct. The doctor was found guilty. The doctor appealed and the New South Wales Court of Appeal allowed the appeal. Hutley JA found that there was 'no evidence to sustain' the tribunal's finding. His Honour said, in effect, that whilst one witness gave evidence which strongly condemned the conduct, he had not purported to give evidence of general professional opinion as opposed to his own views (102). The other evidence was to the effect that there was a respectable, though minority, body of opinion that regarded the operations and the circumstances in which they were carried out, as acceptable. Samuels JA agreed with Hutley JA and Priestley JA. Priestley JA said that it had not been established on the evidence that the doctor had breached any generally accepted standard in the medical profession and that even if he had, the 'second ingredient' had not been made out - it had not been established that competent and reputable practitioners generally would strongly reprobate the doctor's conduct (106 - 107).
53 In Pillai v Messiter (No 2) (1989) 16 NSWLR 197, the doctor had inadvertently specified an excessive dose of a drug for a patient. He and other doctors, in the subsequent treatment of the patient, failed to detect the error or notice symptoms of toxicity. The patient died. The tribunal found, in effect, that, putting the original inadvertence to one side, the doctor's subsequent failure to detect symptoms of toxicity constituted misconduct in a professional respect (208 - 210). The doctor appealed on the basis that there was no evidence upon which the tribunal could have reached that conclusory finding (208). The appeal was allowed. The only evidence of reprobation before the tribunal was a professor of medicine who said, amongst other things, that he would 'think' that the subsequent conduct 'would be regarded as unacceptable practice'. Samuels JA (Clarke JA agreeing) said that 'unacceptable practice does not make a case of misconduct … [here] there was no evidence before the Tribunal capable of supporting a finding of misconduct in a professional respect' (210). His Honour also said, in effect, that the tribunal appeared to treat the matter as an action for professional negligence, rather than a charge of misconduct (210).
54 In another case, this time relating to penalty, the question was whether the relevant medical tribunal could draw its own conclusions as to the risk of the doctor reoffending, even in the absence of specific expert evidence in that regard. Samuels JA (Priestley & Meagher JJA agreeing) held, in effect, that the tribunal could draw its own conclusions as to that matter: Buttsworth v Walton [1991] NSWCA 40. See also to similar effect Richter v Walton [1993] NSWCA 233, although there Kirby P and O'Keefe AJA said, in effect, that if the tribunal differed from the fair meaning of the unanimous evidence before it, it would be expected as a matter of procedural fairness to indicate its rejection of the evidence and the reasons for it (3).
55 In Bowen-James v Delegate of the Director-General of the Department of Health (1992) 27 NSWLR 457, the doctor was found guilty of professional misconduct. The charges against him included having sexual relations with a patient and providing psychotherapy to the patient in coffee shops and restaurants, and charging a fee therefor. There were four members of the tribunal comprising a district court judge, two medical members and a layperson. In relation to the allegation concerning the 'coffee shop/restaurant' psychotherapy sessions, the judge and the lay member found the allegations to be proved. The two medical members did not. They effectively concluded that they could not accept to the requisite degree of satisfaction, the patient's evidence, particularly given her mental condition (461). The doctor appealed on a number of grounds, including that a finding agreed to by two members, and dissented from by two other members, could not satisfy the requisite standard of proof (480). As to this, Sheller JA (Clarke & Handley JJA agreeing) said:
Where a tribunal set up to consider complaints against the members of a profession consists of a judicial officer, persons drawn from the ranks of the profession concerned and a lay member, it follows that the legislature intended that each should bring a particular resource to resolve G the questions in issue. A particular resource of the judicial officer is the weighing of evidence on contested issues. The particular resource of the lay member, representing the more general community, is that ability, said to reside in juries, of determining sensibly issues of fact: see per Kirby P in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 88. In this case the deputy chairperson and lay member weighed the conflicting evidence and were satisfied that the complaints were established to the necessary standard of proof. I do not think that the fact that two other members of the tribunal, in this case, the medical practitioners, were not so satisfied indicates a failure by the statutory majority to apply the necessary standard of proof (481 - 482).
56 In the Medical Board of Queensland v Cooke [1992] 2 Qd R 608, under the relevant legislation the medical tribunal was constituted by a Supreme Court judge and two medical assessors. The two medical assessors were to 'advise' the judge as to their opinion concerning the proper determination of any question of fact. For that purpose they had the power to put any question or questions to any witness attending before the tribunal and could discuss during the hearing of the proceedings before the tribunal any such questions of fact with any counsel appearing for any of the parties. The legislation further provided that all questions of fact and law should be determined by the judge, but in determining any questions of fact the judge could give such effect as he or she considered just to the opinion (if any) of the assessors or either of them. (See s 33 of the Medical Act 1939 (QLD)).
57 In that case, the medical practitioner was alleged to have engaged in misconduct in a professional respect. The alleged misconduct arose out of his causing or permitting the advertising of services of a medical corporation with which he was associated. The advertising went beyond the limited advertising permitted under the Medical Board's Advertising By-Laws. A considerable body of expert evidence was led by each party on the question of whether the doctor's conduct fell short of the requisite standard to a substantial degree. The tribunal dismissed the complaint of misconduct. The Medical Board appealed to the Queensland Court of Appeal. Thomas J (McPherson ACJ agreeing) said that in order to justify an adverse finding against a medical practitioner it was not sufficient merely to prove that he had breached one or more by-laws concerning advertising. It was necessary to prove that his conduct amounted to 'misconduct in a professional respect' (616). Thomas J observed that under the relevant legislation it was appropriate for the tribunal to take advantage of the 'advice' of the two medical assessors (s 33(4) of the Medical Act), in appreciating the standard of professional conduct that would be expected in a particular matter. His Honour said that this could include matters of professional standards and expectations. His Honour said that ultimately the acceptable level of professional conduct and whether it had been transgressed were questions of fact. In the context with which his Honour was dealing, his Honour said that it was 'permissible, although not always essential to call evidence from members of the profession of good repute and competency to give evidence of their perception of the prevailing standard' (616). His Honour concluded, in effect, that it was open to the tribunal to find that it was satisfied on the whole of the evidence that the Medical Board had not proved its case. The appeal was dismissed.
58 In Kudelka v Medical Complaints Tribunal [2004] TASSC 31, under the relevant legislation, the Medical Complaints Tribunal was to be constituted by two permanent members (a legal practitioner and a member who was not a legal or medical practitioner) and three special members appointed for the purposes of the relevant inquiry. The special members were to be registered medical practitioners. Any questions arising for determination were to be determined by a majority of the members present and voting, and all members' votes were of equal value. In the event of equality of votes, the question would stand adjourned until the tribunal next convened. (See Medical Practitioners Registration Act 1996 (TAS) s 50(5) and sch 5 cl 2(1), cl 3(1) and cl 3(3)).
59 In that case, the medical practitioner had, amongst other things, prescribed certain drugs to patients with a drug dependency without lawful authority. He also had a sexual relationship with a woman who was his patient at the time. The tribunal found the practitioner guilty of professional misconduct. The medical practitioner appealed to the Tasmanian Supreme Court. The appeal was dismissed. The issues included whether the tribunal erred in categorising the conduct of the appellant as professional misconduct. Underwood J noted that the tribunal heard some evidence of reprobation from two medical practitioners, but said that such evidence was not necessary before the tribunal could make a finding of professional misconduct [19]. His Honour referred to three cases in support of that proposition. However, the following observations may be made in that regard.
60 One case cited by his Honour was Cooke. As noted above it was held there that under the relevant Queensland statute, it was permissible, though not always essential, to call evidence from members of the profession of good repute and competency to give evidence of their perception of any prevailing standard. The second case did not involve a medical practitioner, nor did it involve a statutory tribunal. It concerned the Supreme Court of Tasmania drawing its own conclusions as to whether certain solicitors had engaged in professional misconduct in relation to the handling of mortgage monies. The third was Qidwai, referred to earlier, where the court found that the tribunal erred in finding misconduct in the absence of evidence.
61 In Jager v Medical Complaints Tribunal [2004] TASSC 58, Blow J reached the same view as to the operation of the Tasmanian statute as Underwood J did in Kudelka. The facts of that case were unusual to say the least. They concerned a doctor using a large needle to threaten or intimidate a mental patient, with a phobia of needles, into undertaking certain treatment. Blow J said that it was 'open' to the tribunal to draw its own inferences as to whether the conduct would be reprobated by medical practitioners of good repute and competence. His Honour added that the tribunal's reasons contained 'no indication that it used any piece of information derived from the expert knowledge of any of its members, rather than from the evidence, in reaching its conclusion as to professional misconduct' [25].
62 A similar approach was taken by Blow J in Re A Psychologist [2009] TASSC 70, where the relevant statute made provision for a Psychologist Registration Board to appoint a Committee to investigate complaints. The Committee was to comprise of at least three members, two of whom were to be psychologists. The Committee was to investigate the facts and report to the Board. Questions for determination by the Board were to be decided by a majority. The Board itself was to comprise three registered psychologists and two 'lay' members. (See Psychologists Registration Act 2000 (TAS) s 6, s 46, s 50, sch 2 and sch 3.) The misconduct involved a psychologist commencing a sexual relationship with a former patient.
63 Accordingly, it would be difficult, and unwise, to attempt to state in any comprehensive and prescriptive way all the circumstances in which it would be 'appropriate' to use the 'knowledge and experience' of the medical members of the Tribunal. The following should be read in light of these observations.
64 It would ordinarily be appropriate for the Tribunal to use the knowledge and experience of its medical members to understand and adjudicate upon questions of medical evidence: Starr v The Minister of Pensions [1946] 1 KB 345, 353.
65 The Tribunal is nevertheless not bound by the opinion of its medical members and the majority (which, in a case such as this, may comprise the Deputy President and the 'lay' member - s 58 of the SAT Act) may conclude, for example, that certain matters are established on the evidence before it even if the medical members of the Tribunal are not so satisfied: see, eg, Bowen-James, 480 - 482.
66 The Tribunal's use of the knowledge and experience of its members must always occur with due observance of the requirements of natural justice (s 32(1) of the SAT Act). The touchstone of procedural fairness is the avoidance of practical injustice. The specific content of the requirements of procedural fairness depends upon the particular circumstances of the case: Mijatovic v Legal Professional Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [55] - [56]; Doepgen v Mugarinya Community Association Inc [2014] WASCA 67 [11].
67 Subject to the preceding observations and what follows, it may be expected, ordinarily, that matters of general knowledge and experience within the medical profession may be used by the Tribunal without specific notice of those matters being given to the parties. See, eg, Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269, 272. Accordingly (and generally speaking), it may be expected that the Tribunal may, without specific prior disclosure, reject arguments or assertions of medical fact which, according to the general knowledge and experience of the specialist members of the Tribunal, are unfounded: see R v Milk Board; Ex parte Tomkins [1944] VLR 187, 197; R v Industrial Appeals Court; Ex parte Maher [1978] VR 126, 143. Specific disclosure would generally be required in relation to particular medical facts or matters known to and considered relevant by the medical members of the Tribunal, which are outside of the general knowledge and experience of the medical profession, so that the parties may have a proper opportunity to deal with them: R v Milk Board (197).
68 Also, in disciplinary proceedings it would not be appropriate for a medical fact in respect of which there was no evidence led, and which was material to the proof of improper conduct against a doctor, to be positively supplied by the Tribunal from its own knowledge and experience without the doctor being put on proper notice: cf R v Industrial Appeals Court (143); Moxon v Minister of Pensions [1945] 1 KB 490, 501. Notice may be express or, in some cases, it may fairly be concluded that notice was necessarily implicit having regard to the particular nature of the allegations of the Medical Board and the way in which the proceedings were conducted.
69 The observations of Moffitt P (Glass JA agreeing) in Kalil are also pertinent in this context:
I should emphasise that the subtle demands of justice required of any tribunal should not be overlooked. There are considerable dangers in an expert tribunal using expert knowledge in respect of which there is a genuine difference of view within the body of the profession concerned. The issue should then be dealt with by evidence. In any event it is best that the subject matter of expert opinion considered irrelevant by the expert tribunal be clearly brought to the attention of the parties at the appropriate time (265).
Preliminary observations
70 As noted earlier, the case below was fought on the basis that the practitioner had engaged in conduct 'which would reasonably be regarded as improper by professional colleagues of good repute and competency'. Without purporting to provide a comprehensive explanation of the relevant principles to be applied by the Tribunal in this context, or by which it should be guided, the following general observations may be made for present purposes.
71 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: Qidwai (106 - 107).
72 The question of whether there existed a generally accepted professional standard or duty, and its content, would be questions of fact.
73 The conventional ways in which such facts would be proved (in the absence of admission) would, generally speaking, involve, or include, the Medical Board calling expert evidence from a person of good repute and competence within the medical profession to attest to the existence of the generally accepted standard or duty and its content, or to tender any relevant professional conduct rules (see, eg, Psychologists Board of Queensland v Robinson [2004] QCA 405 [24]), or to point to any applicable statutory regime governing the conduct in question. In some cases a professional duty or obligation may be such that the Medical Board would invite the Tribunal, having regard to the expertise of its members, to take notice of the fact of the obligation and its contents without the need for evidence: cf Cooke (616). A duty not to have sexual relations with a patient might be an obligation of that kind.
74 Secondly, ordinarily the Tribunal would then make a conclusory finding, based on its primary findings of fact (including the existence of any generally accepted standard or duty), as to whether the medical practitioner's conduct in the particular circumstances as found would reasonably be regarded as improper by professional colleagues of good repute and competency generally. This conclusory finding is also a question of fact. The conclusory finding and any anterior finding as to the existence and content of any generally accepted standard or professional duty are commonly interrelated: Qidwai (107). For example, the more fundamental and important the generally accepted standard or duty, the more likely that the breach of it will allow the conclusion to be drawn that the practitioner's conduct would reasonably be regarded as improper by professional colleagues of good repute competency generally. Thus, in the case of a doctor conducting a sexual relationship with a patient, not only might the tribunal be able to infer the existence of a specific proscriptive duty in that regard, but the tribunal might also (depending on the circumstances) infer that the conduct would be regarded as improper by professional colleagues of good repute and competency generally, without the need for specific expert evidence on that point.
75 Also, although the Tribunal is not bound by the rules of evidence, the Tribunal should keep in mind the observations of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 363, where his Honour said:
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences…This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
Disposition
76 Most of the arguments in the appeal centred on, or depended upon, the proper construction of the Tribunal's reasons.
Ground 1
77 On its face, [39] of the Tribunal's reasons appears to indicate that the Tribunal considered that there was a specific professional duty on a medical practitioner to attend and provide medical assistance to a person who is not a patient in particular circumstances. The circumstances are that the medical practitioner:
(a) is aware that a motor vehicle accident has occurred in their vicinity, or may have occurred in their vicinity;
(b) is aware that anyone involved in the accident has suffered, or may have suffered, any injury; and
(c) is 'physically able' to render assistance.
78 On this construction, the duty as formulated is a specific and prescriptive obligation applicable where those criteria are satisfied. It is not in the nature of a general duty or norm to 'care for the sick' where, in its application, the 'extent of the duty' (Roylance (333)) depends upon all the circumstances of the case.
79 The duty, as formulated, arises without regard to the mental state of the doctor, the circumstances in which the doctor is, or may be, aware that a motor vehicle accident has occurred in his or her vicinity, and the circumstances of the accident. The duty as formulated would apply, for example, to a medical practitioner who lacked mental capacity or, for example, was affected by alcohol (eg, a doctor who has been drinking and takes a cab on the way home at the end of a long social evening). The duty would apply even if there were other emergency services on their way or already in attendance. It would apply irrespective of whether the doctor has other medical commitments (eg, if the doctor were on his or her way to perform an urgent operation). It would also apply irrespective of other, non-medical, commitments that the doctor may have (eg, a doctor on the way to a court to give evidence in answer to a subpoena). The duty as formulated would also require performance irrespective of the location of the accident. Thus, it would apply equally in a remote location in the bush where there is no town and no ready access to police or other emergency services, as in a city where the occupants of the vehicle or passers-by may be readily in a position to contact police or ambulance services. It would also require the doctor to attend where, in the circumstances in which the doctor is made aware of the accident or possible accident, it would appear that any injury would be minor.
80 For there to be any relevant professional duty to that effect where improper conduct is alleged, it would need to be an ethical obligation generally accepted within the medical profession in 2002. A finding of a specific duty not generally accepted within the medical profession in 2002 would not be relevant, in that it would be tantamount to a 'personal opinion' held by the members of the Tribunal as to the standard of behaviour required (Qidwai (102)). That is not to say that even without a generally accepted duty, there could be no conclusory finding of improper conduct in all the circumstances. It is merely to say that if a Tribunal were to rely, in its reasoning to the ultimate conclusory fact, on a 'professional duty' of a kind which was not generally accepted within the profession at the relevant time, it will have taken into account an irrelevant consideration, or misconceived the statutory task, and thus erred in law.
81 The Tribunal, in this case, did not expressly find as a fact that the duty as formulated by it (on this construction of its reasons), was one which was generally accepted by members of the medical profession of good repute and competency generally in 2002 and it is difficult to imply a finding to that effect, particularly when such a specific duty in those terms was not advanced by the respondent.
82 It appears, on the proper construction of the reasons, that the Tribunal has formulated and relied upon a specific professional duty without regard to whether it was generally accepted by members of the medical profession of good repute and competency in 2002. This, in itself, is an error of law.
83 An alternative construction of its reasons is that it did find that the duty as formulated was generally accepted by members of the medical profession of good repute and competency in 2002.
84 On either construction, the Tribunal also erred in law by making the findings in the absence of any evidence to that effect. For the reasons given in relation to ground 4A, it could not permissibly have made the findings on the basis of the knowledge and experience of the medical members of the Tribunal. Ground 1 has been established.
85 If, in the further alternative, the Tribunal, on a proper construction of its reasons, made no finding whatsoever of a specific professional duty (generally accepted by members of the profession or otherwise), its ultimate conclusory finding was still made in the absence of evidence, for the reasons given below and in relation to ground 2.
86 In the absence of a specific duty, and insofar as the conclusory finding required a consideration of all the particular facts and circumstances of the case, the question for the Tribunal was whether, in 2002, the appellant's conduct would reasonably be regarded as improper by professional colleagues of good repute and competency generally.
87 Under s 22A of the Medical Act 1894, membership of the tribunal will comprise either two medical members and two non-medical members (one of whom will be a legal practitioner), or two medical members and three non-medical members (at least one of whom will be a legal practitioner). The legal practitioner is to be the presiding member: s 22A(3) of the Medical Act 1894. Generally speaking, questions other than questions of law are decided by the majority with the presiding member to have a casting vote where the tribunal is otherwise evenly divided: s 58 and s 59 of the SAT Act. In this case, there were four members of the Tribunal, two of whom were medical members.
88 The unusual circumstances of this case included the lack of any existing doctor/patient relationship; the absence (on the present hypothesis) of any specifically applicable professional duty: the lack of light; the appellant's own involvement as a participant in the 'near miss' accident, so that she was not a disinterested observer or passer-by; her distressed state; the absence of any medical or first aid equipment; and the propinquity of the police station (a minute or so away).
89 The non-medical members would have no experience themselves upon which to make a finding of fact, in the particular circumstances of this case, that the appellant's conduct would be regarded as improper by professional colleagues of good repute and competency generally. Nor did the two non-medical members have any expert evidence to assist them in their evaluation of the respondent's complaint that the appellant's conduct should be so categorised. Whilst the Tribunal as a whole, including the non-medical members, could make 'appropriate use' of the knowledge and experience of the medical members (s 9(c) of the SAT Act) the non-medical members were not bound to give effect to the opinion of the two medical members on questions of fact. Indeed, if there were a difference between the two medical practitioners and the presiding member and the 'lay' member, the matter would be resolved in accordance with the decision of the presiding member (s 58 of the SAT Act). The requirements of natural justice, and the proper discharge of the Tribunal's functions, would require each of the members, including each of the non-medical members, to reach his or her own views as to the facts, having regard to the Briginshaw standard.
90 In this case, a finding of fact by the non-medical members that the appellant's conduct would be regarded as improper by professional colleagues of good repute and competency generally was made in the absence of any expert evidence to that effect. As (on the current assumption) there was no specific duty or standard applicable, the breach of which might found an inference according to the requisite standard that medical practitioners of good repute and competency generally would regard the appellant's conduct as improper, the conclusory finding lacked any evidence to sustain it. Nor could the two non-medical members make the finding of fact by simply accepting the opinion of the two medical members. On the present hypothesis, there was no identifiable knowledge or experience which the medical members were themselves drawing on to form their own conclusory opinion beyond what they understood to flow from a general duty or norm to care for the sick. If the medical members merely had a personal conviction that the appellant's conduct was improper, that was insufficient. As noted earlier, the relevant test required a finding as to whether the appellant's conduct would reasonably be regarded as improper by professional colleagues of good repute and competency generally in 2002. Insofar as the medical members themselves had formed the view that colleagues of good repute and competency generally would reasonably regard the appellant's conduct as improper in these particular circumstances in 2002, in the absence of any identifiable grounds for that view, it was not one capable of exploration, debate or challenge. It could not be said to be 'appropriate' within the meaning of s 9(c) of the SAT Act for the non-medical members to simply rely upon the conclusory opinion formed by the medical members in the absence of evidence, particularly bearing in mind the Briginshaw standard which applied to their deliberations.
91 It is convenient to now turn to grounds 4A and 4B.
Grounds 4A and 4B
92 The respondent's submission was to the effect that it was plain from the respondent's application and its submissions to the Tribunal that the Tribunal would be invited to use its own knowledge and experience in finding improper conduct.
93 However, insofar as the Tribunal found in [39] that there existed a specific professional duty (whether or not one generally accepted by persons of good repute and competency in the medical profession in 2002), in the terms referred to earlier, such a duty was not put to the appellant. A duty in those terms was not part of the respondent's case. It was not referred to in its grounds of application, nor in the respondent's written or oral submissions to the Tribunal, and the appellant was not cross-examined upon the existence of such a specific duty in 2002. Accordingly, it was not open to the Tribunal to rely on the knowledge and experience of its own members in finding a specific professional duty. To the extent that it did, there has been a denial of natural justice as alleged in ground 4A. It is unnecessary to deal separately with ground 4B.
Ground 2
94 If the Tribunal made no finding whatsoever of the existence of a specific professional duty of that kind in 2002, but merely relied upon some more general duty or norm to care for the sick, as applied to the specific circumstances of this particular case, its conclusory finding also materially depends upon its finding to the effect that there was 'no reason' that the appellant could not have used the headlights of her vehicle to illuminate the other vehicle for the purposes of rendering medical assistance. This leads to a consideration of ground 2.
95 No doubt it was open for the Tribunal to infer that the headlights of the appellant's vehicle were working, since she drove to the police station. However, the particular finding that there was 'no reason' why she could not have used her headlights to illuminate the scene would ordinarily depend upon a consideration of not only the topography of the accident scene and the position of the other vehicle, but also other questions, such as whether the appellant's vehicle could be manoeuvred into a position for illumination purposes without creating a hazard to other road users. It appears that the question of whether it was practicable for the appellant to have illuminated the scene of the accident using her car's headlights was never advanced by the respondent as part of its case in chief. Nor did it form part of the cross-examination of the appellant. Also, in closing submissions, the appellant's counsel indicated that he understood the respondent's case to be to the effect that the appellant should have got out of her car and '[run] into the unknown darkness into - to whatever' (GB 27) (emphasis added).
96 The agreed facts included that it was dark; that the other vehicle had mounted an embankment and rolled into a ditch abutting the road; and that the appellant heard the incident but could no longer see the second vehicle. Also, it would appear from the Tribunal's reasons that it did not infer that the interior lights of the other vehicle were working following the accident and, moreover, there was no evidence as to that matter. There was no finding as to whether the other vehicle had remained upright or had flipped over.
97 In the absence of any evidence of the topography of the location and the position of the other vehicle, there was no basis on either the agreed or otherwise found facts to infer that there was 'no reason' that the appellant could not have used the headlights of her car to illuminate sufficiently the other vehicle for the purpose of rendering medical assistance. The Tribunal thereby erred in law.
Ground 5
98 Ground 5 alleges, in effect, that there was a finding of fact by the Tribunal to the effect that the appellant was in a state of shock immediately following the motor vehicle incident, and that the Tribunal erred in law in finding that this matter was irrelevant to the question of whether she had engaged in improper conduct, and was only relevant to the question of any penalty to be imposed with respect to such conduct.
99 If there was a finding of fact that the appellant was in a state of shock, and that condition was relevant to whether she was physically capable of rendering assistance, then on whatever view is taken of the Tribunal's reasons at [39], the Tribunal erred in law in regarding that matter as relevant only to penalty.
100 The respondent alleged that there was no finding of fact to the effect that the appellant was in a state of shock immediately following the near miss accident, but if there was, it did not bear upon the question of whether the appellant was physically capable of rendering assistance.
101 Again, these matters raised for consideration the proper construction of the Tribunals' reasons. The proper construction of its reasons is not without difficulty.
102 The respondent contended, in effect, that in [43] of the Tribunal's reasons, the Tribunal was merely recording the evidence given by the appellant and was not making any findings of fact. That submission cannot be accepted.
103 The Tribunal commenced [43] of its reasons with the words '[t]he fact that'. That language is consistent with a finding of fact. It is not consistent with merely recording an aspect of disputed evidence which is then rejected by the Tribunal. The Tribunal's reference to it being 'hardly surprising' in the circumstances of the near miss accident that the appellant was in 'a state of shock', 'petrified' and 'freaked out', also indicates that the Tribunal was making a finding of fact about those matters. The Tribunal also found as a fact that the 'near miss experience' was 'no doubt frightening' [43]. Further, the finding that she had a professional duty to overcome or at least put aside 'the shock' indicates that it was accepted as a fact that the appellant was in a state of shock.
104 Properly construed, the Tribunal found as a fact that the appellant was in a 'state of shock', was 'petrified' and was 'freaked out'. That conclusion is confirmed by the Tribunal's recitation, without rejection, of the appellant's evidence of her being in a state of shock following the accident [10] - [13].
105 A finding of shock is not negated by the finding at [33] that the appellant was not actuated by fear for her personal safety in consequence of any notorious violent behaviour in the area after dark.
106 The next question is what the Tribunal meant by those findings of fact. The answer to that question is not clear.
107 The definitions of 'shock' in the Macquarie Online Dictionary include:
• Pathology an abnormal state in which the body's oxygen usage is diminished, usually due to an abnormal distribution of tissue blood flow, such as that following haemorrhage, or dehydration, inadequate heart function, or uncontrolled infection.
• A physiological reaction to extreme emotional disturbance or sudden fright, caused by the release of adrenalin into the blood stream, the symptoms sometimes being similar to those of the medical condition of shock (referred to above) but usually short-lived.
108 The word 'shock' is also defined as '[a] sudden and disturbing effect on the mind or feelings, [especially] as causing depression or distress' (Shorter Oxford Dictionary, 6th ed, 2007). The word 'state' means relevantly the 'condition of a person' (Macquarie Online Dictionary).
109 The word 'petrified' is defined to mean, relevantly, 'to stupefy or paralyse with … horror, fear, or other strong emotion' (Macquarie Online Dictionary), and '[d]eprive [the mind, a faculty etc] of feeling, vitality or capacity for change' (Shorter Oxford Dictionary).
110 The term 'freaked out' is defined in the Macquarie Online Dictionary as 'adjectiveColloquial in a highly emotional state; hysterical'.
111 It appears, when the Tribunal's reasons are read as a whole, that the Tribunal did not use the word 'shock' in the technical sense of the pathology referred to in the first definition in the Macquarie Online Dictionary referred to in [107] above.
112 There would appear, however, to be at least two other possible constructions open on the Tribunal's reasons. One is that the Tribunal found that the appellant's condition involved a serious state of distress consistent with her suffering a physiological reaction to the extreme emotional disturbance caused by the near miss collision (see the second definition in the Macquarie Online Dictionary referred to in [107] above).
113 The second, alternative, construction is that she was upset and emotional, but not so distressed so as to suffer a physiological reaction to the near miss experience.
114 If the former construction were correct, the condition was relevant, on the Tribunal's findings in [39], to the issue of improper conduct and not just to penalty. If, properly construed, the Tribunal made a finding to the effect that the appellant suffered a physiological reaction as a result of extreme emotional disturbance caused by the near miss incident, any conclusory finding of improper conduct would, in light of the Tribunal's findings at [39], depend upon a finding of fact that the appellant was physically able to render medical assistance despite her being in a state of shock. Without that finding of fact its conclusory opinion was not open and it would thereby have erred in law.
115 On the second construction, the appellant's judgment and ability to render assistance may have been compromised by her poor emotional state, but she would not have been 'physically' unable to assist.
116 The respondent advances the second construction and points out that the Tribunal, in effect, found that the appellant was lucid enough to drive the short distance to the police station [13] and that she understood intuitively that there had been a bad injury [17]. The respondent contends that furthermore, the Tribunal found as a fact that the appellant was able to render assistance.
117 As noted earlier, the question of the proper construction of the Tribunal's reasons is not without its difficulty. On one view, it may be implicit in the Tribunal's finding that the appellant had a 'duty' to overcome or put aside the shock, that it was of a degree which was not particularly serious. Also, the findings to the effect that she was sufficiently composed to drive to the police station and intuitively to understand that a serious injury had occurred could also tend to support that construction.
118 It is also correct to observe as the respondent submits that the Tribunal found as a fact that she was 'physically able to assist' [40]. On the other hand, when read with the finding in [43] that she was 'thankfully physically unharmed', this would appear to be a finding that the appellant did not suffer physical harm or injury as a result of the near miss collision. It does not necessarily negative the former of the two alternative constructions.
119 Also, if the Tribunal meant that the appellant had the capacity to render assistance despite her being in a state of shock, it might have been expected that it would have said so in terms, rather than saying that it was her 'duty' to overcome her state of shock. Also, the Tribunal does not appear to have used its findings to the effect that the appellant was sufficiently lucid to drive to the police station and to understand that a serious injury occurred, to draw the further inference that the appellant's state of shock would also not have precluded the appellant from undertaking the relatively more complex tasks referred to by the Tribunal in [39] and [41] of its reasons.
120 Further, the language of 'state of shock', 'petrified' and 'freaked out', in the context of the 'frightening' near miss experience, tends to be more consistent with the former construction than the latter. Also, if the Tribunal had intended to convey the latter meaning, it would ordinarily be expected that it would have clearly rejected the appellant's evidence that she was petrified, freaked out and in a state of shock, and found instead that she was shaken up or upset, but no more than that.
121 Although, on balance, the former construction might be regarded as the preferable one, in light of the conclusions reached in relation to the earlier grounds, it is unnecessary to reach a concluded view on ground 5.
Conclusion
122 Leave to appeal should be granted and the appeal allowed. There is then the question of final orders. The following observations may be made.
123 Section 105(9) of the SAT Act provides:
The court dealing with the appeal may -
(a) affirm, vary, or set aside the decision of the Tribunal; or
(b) make any decision that the Tribunal could have made in the proceeding; or
(c) send the matter back to the Tribunal for reconsideration, either with or without the hearing of further evidence, in accordance with any directions or recommendations that the court considers appropriate,
and, in any case, may take any order the court considers appropriate.
124 In substance, the appellant has succeeded on the basis that:
(a) there was no evidence of a specific professional duty as formulated (ground 1);
(b) the rules of natural justice precluded the Tribunal from drawing on its own knowledge and experience to find a specific professional duty (ground 4A); and
(c) insofar as the Tribunal merely relied upon a general duty or norm to care for the sick, as applied to the specific circumstances of this particular case, its finding could not be upheld in the absence of evidence (grounds 1 and 2).
125 Also, although it was unnecessary to reach a concluded view on ground 5, insofar as the Tribunal may have found that the appellant's 'shock' involved a physiological reaction as a result of extreme emotional disturbance caused by the near-miss accident, any conclusory finding of improper conduct would have depended upon a finding of fact that the appellant was physically able to render medical assistance. The onus was on the Medical Board to prove that fact. Presumably evidence as to the practitioner's state could have been led from the passenger in her vehicle or from the police to whom she reported the incident.
126 The result is that the evidence adduced before the Tribunal was incapable of sustaining the Medical Board's case. Accordingly, it appears that the proper course would be to set aside the Tribunal's decision and instead make the decision which the Tribunal should have made, which was to dismiss the Medical Board's application for want of evidence. It would not be appropriate to remit the matter to the Tribunal to enable the Medical Board to have another opportunity to 'improve' its case.
127 Furthermore, the following matters would, in any event, indicate that remittal would not be appropriate.
128 The professional misconduct proceedings against the practitioner were heard many years after the occurrence of the underlying events; the proper determination of those proceedings, as these reasons indicate, has miscarried on questions of law; the appellant has, since 2002, been required to deal with criminal proceedings and a successful appeal in relation to criminal proceedings arising from those events; and any fresh hearing would be unlikely to be heard and concluded until sometime in 2015, which will be a point in time some 13 years after the occurrence of the underlying events.
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