Dr Andrew Foote v Michael Somes, Warren Johnson, Dr Catherine Sansum Acting as Professional Standards Panel and Medical Board of the Act and Act Human Rights Commission
[2012] ACTSC 63
•16 May 2012
HUMAN RIGHTS ACT
DR ANDREW FOOTE v MICHAEL SOMES, WARREN JOHNSON, DR CATHERINE SANSUM ACTING AS PROFESSIONAL STANDARDS PANEL AND MEDICAL BOARD OF THE ACT AND ACT HUMAN RIGHTS COMMISSION
[2012] ACTSC 63 (16 May 2012)
APPLICATION – stay of proceedings – length of delay – inexcusable and unexplained reason for delay – prejudicial impact on the medical practice of the plaintiff – found that the delay attributable to plaintiff’s actions – no unreasonable delay found
Community and Health Services Complaints Act 1993 (ACT) (repealed), ss 23, 57
Health Practitioner Regulation National Law (ACT)
Health Professionals Act 2004 (ACT), ss 11, 115, 150B, 150C
Human Right Act 2004 (ACT), s 21
Medical Practitioners Act1930 (ACT) (repealed)
Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72
Herron v McGregor (1986) 6 NSWLR 246
Jago v District Court of New South Wales (1989) 168 CLR 23
R v Mills [2011] ACTSC 109
R v Morin (1992) 71 CCC (3d) 1
Walton v Gardiner (1993) 177 CLR 378
XG v Medical Board of Australia [2011] VSC 638
No. SC 884 of 2010
No. SC 885 of 2010
Judge: Burns J
Supreme Court of the ACT
Date: 16 May 2012
IN THE SUPREME COURT OF THE )
) No. SC 884 of 2010
SC 885 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: DR ANDREW FOOTE
Plaintiff
AND:MICHAEL SOMES, WARREN JOHNSON,
DR CATHERINE SANSUM ACTING AS PROFESSIONAL STANDARDS PANEL
First Defendant
MEDICAL BOARD OF THE ACT
Second Defendant
ACT HUMAN RIGHTS COMMISSION
Third Defendant
ORDER
Judge: Burns J
Date: 16 May 2012
Place: Canberra
THE COURT ORDERS THAT:
The applications for stay of proceedings are refused.
Dr Andrew Foote is an obstetrician, gynaecologist and urogynaecologist practicing in the Australian Capital Territory. He is the subject of two complaints. The first was made by Ms Susan Virginia Dixon on 1 February 2005 in writing to the Community and Health Services Complaints Commissioner (“the Commissioner”). The second complaint was made by Ms Patricia Dickson in writing on 30 May 2006. With respect to the first complaint, the Medical Board of the ACT (“the Medical Board”) notified Dr Foote on 1 April 2008 of its decision to establish a Professional Standards Panel (“PSP”) to inquire into the complaint. On 8 November 2006, the Medical Board resolved to recommend that the PSP enquiring into the first complaint also inquire into the second complaint, effectively setting up a new PSP composed of the same members inquiring into the first complaint. The members of the PSP are those persons described as the first defendant in these proceedings.
However, there were delays in the initial investigation of the second complaint, and ultimately the first complaint proceeded to a PSP on its own. On 18 June 2008 the PSP determined it did not have jurisdiction to hear the first complaint, a decision to which I will refer in greater detail later in these reasons. This determination was central to the way in which these complaints progressed, and to the undoubted delay attending their resolution. After the original PSP hearing of 18 June 2008 was aborted, the process of setting up new PSP’s, identically constituted, commenced. It was anticipated that the new PSP’s would inquire into both the first and second complaints.
Dr Foote now seeks orders that each of the inquiries being undertaken by the PSP’s be stayed. In proceedings SC 884 of 2010 he seeks an order staying the inquiry into the complaint of Ms Susan Virginia Dixon. In proceedings SC 885 of 2010 he seeks a similar order with respect to the inquiry into the complaint of Ms Patricia Dickson.
In each case Dr Foote complains of the length of the delay in bringing the complaint before a PSP, which he describes as “inexcusable and unexplained”. He also complains of the prejudicial impact of the delay upon him. In each case he also complains that the complaint is trivial in nature, bearing in mind the material available to the PSP. With respect to proceedings SC 884 of 2010 (complaint of Ms Susan Virginia Dixon) Dr Foote also submits that any public interest in disclosure to Ms Dixon will be satisfied in common law proceedings she has commenced in this Court. With respect to proceedings SC 885 of 2010 (complaint of Ms Patricia Dickson) Dr Foote also complains that the decision of the second and third defendants to establish the PSP on 1 October 2008 constituted “an abuse of process”, and was not permitted by the terms of the legislation under which the Panel was purportedly established, although as I understand it counsel for Dr Foote did not press this last complaint.
The Legislative Scheme for Health Complaints
The legislative scheme applicable from time to time for dealing with health complaints is set out in the affidavits of Shane Stuart Logan affirmed 23 May 2011. Mr Logan at that time was the Director of Notifications at the Australian Health Practitioner Regulation Agency (“AHPRA”). Mr Logan affirmed an affidavit in each proceeding on behalf of the Attorney-General of the Australian Capital Territory, intervening in each of the applications. That portion of each of his affidavits concerning the legislative scheme is identical. It was not the subject of challenge.
AHPRA is the organisation responsible for the implementation of the National Registration and Accreditation Scheme across Australia (“the National Scheme”). Its operations are governed by the Health Practitioner Regulation National Law (ACT) (“the National Law”) which began operating on 1 July 2010 with the effect that ten health professions are now regulated by nationally consistent legislation. AHPRA’s role is to support the ten national health practitioner boards that are responsible for regulating the ten health professions. They set standards and policies that all registered health practitioners must meet. The National Medical Board of Australia exercises professional discipline functions in relation to medical practitioners, but has delegated powers to State and Territory boards, such as the Medical Board, to make decisions such as decisions about complaints. Under the transitional provisions of the National Law, complaints made before 1 July 2010, such as the two complaints made against Dr Foote, continue to be dealt with under the previously applicable ACT legislation, the Health Professionals Act2004 (ACT) (“the HP Act”).
Mr Logan asserts that the main object of the HP Act and the National Law is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent manner are registered. The scheme aims to protect the public from the risk of harm and to help health professionals achieve and maintain the required standard of practice. I have no difficulty in accepting these propositions, and, as I understand it, they were not challenged by Dr Foote.
Under the HP Act prior to the operation of the National Law, the Medical Board and the Commissioner jointly considered complaints and decided what action to take. Action that could be taken included applying for an emergency order in the ACT Civil and Administrative Tribunal (“ACAT”), referring the health professional to a PSP or taking no further action. Complaints were assessed to determine whether immediate action was necessary to protect public health or safety. If immediate action was not required, the complaint was assessed thoroughly to enable the Medical Board to make an informed decision. Each investigation was tailored to the complaint received, and complex matters took more time to investigate.
The functions and powers of a PSP are set out in s 11 of the HP Act:
11 Professional standards panel
(1) A professional standards panel decides, after inquiry, whether a registered health professional is contravening, or has contravened, the required standard of practice or does not satisfy the suitability to practise requirements (see part 12).
(2) The professional standards panel may require the registered health professional to take certain action, accept a voluntary undertaking from the health professional or apply to the ACAT for occupational discipline orders.
It is important to recognise that a PSP is, at least in part, an investigatory body. It is required to conduct an inquiry before deciding whether a health professional is contravening or has contravened the required standard of practice. Where, as here, a specialist body has been given the responsibility of conducting an inquiry with a view to protection of the public this Court should be slow to intervene so as to bring that process of inquiry to an end. Further, it will be a rare case (if it occurs at all) where it will be appropriate for this Court, in the course of proceedings calculated to interfere with the course of an inquiry, to form or act upon its own view of the ultimate issue in the inquiry. For one thing, in determining any disputed question of fact between experts, the PSP may obtain further evidence or make further enquiries: see s 115 of the HP Act. Of course, in determining an application for stay of the proceedings of a PSP, this Court may be required to determine whether a complaint is trivial, but where on the face of it the matters complained of are not trivial, it is inappropriate for this Court to embark on a process of ruling upon the relative merits of conflicting opinions or accounts of events.
The Scope of the Proposed Inquiries
By letter dated 23 March 2010 the Medical Board advised Dr Foote of the “allegations” that were to be the subject of the inquiry by the PSP:
The subject matter of the Inquiry consists of the following allegations:
1. In relation to Ms Susan Virginia Dixon, during the period between 8 November 2004 and 12 November 2004, you:
(a)demonstrated a lack of knowledge and judgment by using a Pfannenstiel Incision on a patient with abnormal pathology;
(b)you failed to demonstrate due care in that you took only 33 minutes to perform the total operation, when by your own admission difficulties were allegedly encountered with a cervical fibroid;
(c)failed to demonstrate the appropriate standard of practice in that you did not identify or dissect the ureters prior to the removal of the uterus and therefore failed to prevent injuries to the ureters and fistula formation;
(d)in the alternative to (c), even if you did identify and dissect the ureters prior to the removal of the uterus you breached the appropriate standard of practise by failing to appropriately document those steps in the procedure you carried out on Ms Dixon on 8 November 2004;
(e)you failed to demonstrate the appropriate standard of practice in that you performed a cystoscopy at time of surgery but failed to identify damage to the right ureter;
(f)you failed to keep clear, accurate and contemporaneous patient records which reported the relevant clinical findings, in that you failed to record your observations that you thought the bladder damaged during surgery was the cause of Mrs Dixon’s abdominal extension and the excess fluid from the abnormal drain;
(g)you failed to demonstrate the appropriate standard of practice in that you did not recognise that urine draining from an intra-abdominal drain indicated the possibility of ureteric injury or bladder damage; and
(h)you failed to instigate appropriate diagnostic procedures in a timely fashion.
2. In relation to Ms Patricia Dickson, during the period September 2005 and January 2008:
(a)Given the significant history and the CT findings of gas in the bladder, persistent Urinary Tract Infections and vaginal flatus you failed to continue to investigate these symptoms when the cystocopy failed to demonstrate an abnormality;
(b)You failed to further investigate and/or consider the implications of the CT findings of apparent adherence between the adjacent sigmoid colon and bladder; and
(c)You failed to document your consideration or failed to consider and investigate the possibility of a colovesival fistula and refer appropriately.
The scope of the Inquiry is for the Panel to determine:
1. Whether any of the allegations are substantiated;
2. If the answer to 1 is yes, whether in so doing:
(a)You have breached the required standard of practice by demonstrating a lack of competence, knowledge, skill, judgment or care pursuant to section 137 of the Health Professionals Regulation 2004 (ACT); or
(b)You have breached the required standard of practice pursuant to section 139 of the Health Professionals Regulation 2004 (ACT) by failing to provide good clinical care, in contravention of the Code of Conduct set out in the Standards Statement notified 16 May 2006 (Notifiable Instrument NI2006-175); or
(c)You have breached section 135 of the Health Professionals Regulation 2004 (ACT) in that you have demonstrated a pattern of practice in that you persistently ignore symptoms which may indicate complications or a conditions (sic) which you have already investigated.
(d)You do not satisfy the suitability to practice requirements as set out in section 114(1)(c) and section 115(e) of the Health Professionals Regulation 2004 (ACT); or
(e)You have put public safety at risk in contravention of section 136 of the Health Professionals Regulation 2004 (ACT).
3. If the answer to 2(a), 2(b), 2(c), 2(d) or 2(e) is yes, whether the Panel ought to take action under section 122 (2) of the Health Professionals Act 2004 (ACT)
An earlier letter dated 1 April 2008 had provided Dr Foote with essentially similar “allegations” concerning his treatment of Susan Virginia Dixon prior to the aborted PSP hearing of 18 June 2008, except that par 1 (d) was omitted.
Progress Of The Complaints Concerning Susan Dixon (SC 884 of 2010)
By letter dated 17 December 2004 Ms Dixon wrote to the Chairman of the Medical Board of the ACT making a complaint about treatment provided by Dr Foote. That treatment occurred between September and November 2004. By letter dated 20 December 2004, the Medical Board wrote to Ms Dixon advising her that her complaint had been referred to the Commissioner in accordance with s 57 of the Community and Health Services Complaints Act 1993 (ACT) (repealed). By letter of the same date the Medical Board wrote to the Commissioner referring Ms Dixon’s complaint for assessment and possible investigation. By letter dated 5 January 2005 Ms Dixon wrote to the Medical Board requesting that it itself investigate the complaint. By letter dated 11 January 2005 the Medical Board wrote to Ms Dixon advising her that it was required to refer the complaint to the Commissioner and could not consider any disciplinary action until the Commissioner had completed an assessment and/or investigation of the complaint. By letter dated 18 February 2005 the Commissioner referred the complaint to the Medical Board in accordance with s 23 (1) of the Community and Health Services Complaints Act 1993 (ACT) (repealed).
By letter dated 24 March 2005 the Medical Board wrote to Dr Foote providing a copy of the complaint and requesting a response prior to 6 April 2005. By further letter dated 24 March 2005 the Medical Board wrote to the ACT Government Solicitor requesting that it arrange for statements to be taken from Ms Dixon, and a medical practitioner who treated her after the matters complained of, Dr Mulcahy, so that their statements would be available for the next meeting of the Professional Standards Committee set down for 6 April 2005. By an email dated 29 March 2005 the ACT Government Solicitor advised the Medical Board that the statements would not be ready by 6 April 2005, noting that an expert opinion would also be required.
By letter dated 29 March 2005 Dr Foote advised the Medical Board that he would be unable to respond until he had taken legal advice. In a subsequent letter dated 31 March 2005 the Medical Board advised Dr Foote that he could provide his response in due course.
By 12 May 2005 an investigator acting at the behest of the ACT Government Solicitor had taken a statement from Ms Dixon and obtained copies of medical reports. However, Dr Mulcahy objected to providing a statement to the investigator. As I understand it, it was not until 6 April 2006 that Dr Mulcahy provided the Medical Board with a signed statement.
Under cover of a letter dated 17 June 2005 the ACT Government Solicitor provided the Medical Board with copies of Ms Dixon’s statement, previous medical history notes prepared by Ms Dixon, notes of Ms Dixon’s stay at Calvary Hospital prepared by her, National Capital Private Hospital medical records relating to Ms Dixon and Calvary Hospital medical reports relating to her.
On 8 July 2005 the Medical Board met and determined to establish a PSP and seek confirmation of this decision from the Commissioner. On 13 July 2005 the Medical Board and the Commissioner held a joint meeting and resolved to establish a PSP to consider the complaint.
On 5 August 2005 the Medical Board met and noted that expert opinions were being obtained in relation to the complaint. On 12 August 2005 the Medical Board sent a “Request For Expert Witness” form to the Royal Australian and New Zealand College of Obstetricians and Gynaecologists indicating that the Medical Board was seeking expert opinion from a general gynaecologist within the ACT, a general gynaecologist outside the ACT and also a urogynaecologist outside the ACT and requesting that the College nominate suitable practitioners. By email dated 12 August 2005 the Royal Australian and New Zealand College of Gynaecologists provided the Medical Board with a list of practitioners willing to provide professional opinions.
By letter dated 15 August 2005 the Medical Board wrote to Dr Foote enclosing a copy of Ms Dixon’s letter of complaint and inviting a response by 12 September 2005. By letter dated 16 August 2005, received on 16 September 2005, Dr Foote provided a clinical summary of his treatment of Ms Dixon and enclosed a diagram he had drawn for her during his consultation with her.
By letter dated 30 August 2005 the Medical Board wrote to Dr A Korda asking if he would be prepared to assist with the investigation into Ms Dixon’s complaint. By a further letter of the same date the Medical Board wrote to Dr M Cooper asking if he would be prepared to assist with the investigation into Ms Dixon’s complaint.
By letter dated 8 September 2005 the Medical Board sought Dr Korda’s opinion from a urogynaecalogical point of view on the clinical aspects of the case and the post‑operative treatment provided by Dr Foote. By letter dated 8 September 2005 Dr Cooper advised the Medical Board that he would be prepared to assist. By letter dated 12 September 2005 the Medical Board sought Dr Cooper’s opinion from a gynaecological point of view on the clinical aspects of the case and the post-operative treatment provided by Dr Foote.
By letter dated 12 October 2005, received on 21 October 2005, Dr Cooper provided the Medical Board with an opinion on Dr Foote’s treatment of the complainant.
In November 2005 the Medical Board obtained an authorisation from Ms Dixon allowing it to obtain information, medical records or statements which may assist it in its investigation of her complaint. By letter dated 11 November 2005 the Medical Board wrote to Dr Mulcahy providing a copy of this authorisation and advising that the Medical Board had authorised the ACT Government Solicitor and James Benn and Associates to obtain information on its behalf. Later in November the Medical Board also send a copy of the authorisation to Dr Ian Trethewey, who had assisted Dr Foote in the original procedure on Ms Dixon. Subsequently, Dr Trethewey advised the Medical Board that he had no recollection of assisting Dr Foote during the operation and could not provide any further information.
By letter dated 12 December 2005, received on 13 January 2006, Dr Korda provided a report to the Medical Board.
Between January and April 2006 the Medical Board pursued Dr Mulcahy, who was apparently reluctant to provide a written statement. Ultimately on 6 April 2006 Dr Mulcahy provided a signed statement to the Medical Board.
By letter dated 1 May 2006 the Medical Board asked Dr Foote to provide a copy of all medical reports and x-rays relating to his treatment of Ms Dixon by 12 May 2006. By letter dated 10 May 2006 the Medical Board told Dr Foote that a copy of his notes had been received on 5 May 2005, but that they were incomplete, and requested a complete copy.
On 12 May 2006 the Medical Board met and noted that a second complaint relating to Dr Foote had been received and that consideration should be given to linking the two matters. This is the complaint referred to in proceedings SC 885 of 2010.
On 29 May 2006 the Medical Board received a copy of Dr Foote’s clinical notes. On 9 June 2006 the Medical Board met and determined that the complaints relating to Dr Foote should be dealt with together.
By letter dated 21 June 2006 the Medical Board wrote to Dr Korda requesting an addendum to his report taking into account Dr Foote’s clinical notes. By letter dated 29 August 2006, received on 21 September 2006, Dr Korda provided a further report to the Medical Board.
Between 29 August 2006, when the supplementary report of Dr Korda was received, and 31 July 2007 the Medical Board did not take any action to progress Ms Dixon’s complaint. In his affidavit Shane Logan says that the reason the Medical Board did not take any action during this period was because it had decided at its meeting on 9 June 2006 that Ms Dixon’s complaint would be considered with the other complaint that had been received regarding Dr Foote. During this time the Medical Board and the Commissioner were gathering information about the other complaint.
By letter dated 31 July 2007 the Medical Board wrote to the Commissioner noting that it was currently establishing a PSP to enquire into two complaints about Dr Foote, and requesting a copy of all reports, patient notes, statements and any other information obtained by the Commissioner in relation to the complaints by Ms Dixon and the other complainant.
By letter dated 2 August 2007 Dr Deborah Cole, Chief Executive Officer of Calvary Health Care ACT, provided the Medical Board with a copy of an interim report by Dr Brenner of a review of Dr Foote’s practice.
By letter dated 9 August 2007 the Medical Board wrote to the ACT Government Solicitor regarding the appointment of a solicitor to assist the Medical Board with the PSP that was considering the treatment provided by Dr Foote to Ms Dixon and the second complainant. By letter dated 15 August 2007 the ACT Government Solicitor replied identifying a solicitor from that office who would assist the Medical Board.
On 28 September 2007 the Medical Board met and appointed Mr Michael Somes, Mr Warren Johnson and Dr Singh to act as the PSP. On 19 October 2007 the Medical Board again met and decided to appoint Dr Sansum instead of Dr Singh due to Dr Singh’s unavailability. On that date Stephen Bradshaw, President of the Medical Board, signed undated notices appointing Mr Somes, Mr Johnson and Dr Sansum as members of the PSP to conduct an inquiry in respect of Dr Foote. He also signed an undated notice appointing Mr Robert Crowe SC to assist the PSP.
By letter dated 16 November 2007 Ms Dixon provided the Board with a copy of a medical report from Dr Mulcahy dated 24 September 2007 addressed to Bradley Allen Lawyers.
On 18 January 2008 the Board again met and noted that a Notice of Inquiry had been cleared by the ACT Government Solicitor and was ready for release. At its meeting on 15 February 2008 the Medical Board noted that the Notice of Inquiry was being considered by Mr Somes as the chair of the PSP prior to service on Dr Foote.
By letter dated 12 March 2008 Dr Cole sent Stephen Bradshaw a copy of Dr Brenner’s final report titled “Clinical Review of Dr Andrew Foote July 2007”.
By letter dated 1 April 2008 Mr Somes gave notice to Dr Foote of the establishment of the PSP to inquire into his professional conduct. That Notice of Inquiry was limited to an inquiry into the complaint made by Ms Dixon, as investigations by the Medical Board into the complaint by the second complainant were continuing. Mr Somes advised that a directions hearing would be held on 5 May 2008. By letter dated 3 April 2008 the Medical Board advised the solicitors for Dr Foote that a PSP had been established and identified its members. During April 2008 arrangements were made for the PSP to meet prior to the directions hearing.
On 9 May 2008 the Medical Board met and noted that a directions hearing before Mr Somes had been conducted on 5 May, and had been adjourned to permit solicitors representing Dr Foote to seek further instructions from their client. On 6 June 2008 the Medical Board met and noted that a directions hearing was conducted on 16 May by the PSP.
Throughout June 2008 preparations continued for the hearing of the complaints by the PSP. On 18 June 2008 the PSP conducted a hearing and determined that it had no jurisdiction to inquire into the complaint. I will refer in greater detail to the circumstances surrounding this determination later in my reasons.
On 4 July 2008 the Medical Board met and noted that there had been a PSP inquiry on 18 June, and that after prolonged legal argument surrounding the jurisdiction of the PSP, it had determined that it did not have jurisdiction to hear the matter. The Medical Board also noted that the ACT Government Solicitor was currently preparing advice as to how the matter could now proceed.
By letter dated 9 July 2008 the ACT Government Solicitor wrote to the Medical Board providing advice that the Board could either seek to challenge the ruling by the PSP that it had no jurisdiction, or it could accept the decision of the PSP and effectively recommence the process.
In July 2008 Dr Foote’s solicitors wrote to the ACT Government Solicitor requesting that the Medical Board pay Dr Foote’s costs of the aborted inquiry. The ACT Government Solicitor forwarded this letter to the Medical Board.
It is clear that the Medical Board determined to recommence the process of investigating the complaint against Dr Foote, rather than challenging the ruling made by the PSP. By letter dated 26 July 2008 Ms Dixon resubmitted her complaint about Dr Foote. By letter dated 28 July 2008 the Medical Board provided Dr Foote with a copy of Ms Dixon’s resubmitted complaint and requested any response by 25 August 2008. By letter dated 28 July 2008 the Medical Board provided the Commissioner with a copy of Ms Dixon’s resubmitted complaint and advised that it would continue investigating the complaint. On 1 August 2009 the Medical Board met and considered Ms Dixon’s resubmitted complaint and noted that it would be subject to joint consideration with the Commissioner as soon as practicable.
By letter dated 19 August 2008 Dr Foote’s solicitor advised the Medical Board that Dr Foote did not wish to provide any additional response to the complaint.
On 3 September 2008 a joint meeting involving the Commissioner and the Professional Standards Committee occurred. The meeting decided to refer Dr Foote to a PSP and that the Commissioner would take no further action. On 1 October 2008 a further joint meeting involving the Commissioner’s representative and the Medical Board occurred. The meeting decided to join the PSP inquiry into Ms Dixon’s complaint with the inquiry into the complaint the subject of proceedings SC 885 of 2010.
In early October 2008 there was further correspondence between the solicitors for Dr Foote and the Medical Board concerning Dr Foote’s claim for costs of the failed PSP hearing of 18 June 2008. By letter dated 13 October 2008 Dr Foote’s solicitors advised the Medical Board that Dr Foote sought an ex gratia payment of $8,000.00 for his costs. On 24 October 2008 the Medical Board met and noted that the joint consideration meeting on 1 October had resolved to refer the two complaints to a PSP. The Medical Board also decided not to make an ex gratia payment to Dr Foote.
From the beginning of 2009 implementation of the National Scheme became a major priority for the Medical Board. This affected the Medical Board’s ability to progress the investigation of complaints for a number of months.
On 13 March 2009 the Medical Board met and considered a request by Dr Foote’s solicitors for a stay of the inquiry into the complaint the subject of proceedings SC 885 of 2010. Subsequently, by letter dated 29 April 2009 Dr Foote’s solicitor wrote to the Medical Board seeking a permanent stay of the inquiry into Ms Dixon’s complaint. On 8 May 2009 the Medical Board met and considered the requests for a permanent stay from the solicitors for Dr Foote. The Medical Board resolved to reject the applications. Dr Foote’s solicitors were advised of this decision by letter dated 11 May 2009.
In May 2009 an issue arose concerning the ability of the ACT Government Solicitor to continue to assist the PSP. By letter dated 25 June 2009 the Medical Board advised the ACT Chief Solicitor that the Board had decided to ask Andrew Freer from KJB Law to assist them and requested that the material relating to the complaints be handed to Mr Freer by 30 June 2009. By email dated 26 June 2009 the ACT Government Solicitor advised the Medical Board that it had handed over the material to Mr Freer.
Subsequently, correspondence took place between the Medical Board and the ACT Government Solicitor as to who would pay Mr Freer’s fees. This issue was apparently not resolved until October 2009 when a costs agreement was signed providing that ACT Health would meet the cost of Mr Freer’s services.
On 18 December 2009 the Medical Board met and noted that the Executive Officer of the Board had met with Mr Freer on 9 December 2009 and confirmed his instructions. On 12 March 2010 the Medical Board met and requested that the investigation of Ms Dixon’s complaint be actively pursued with some urgency.
By letter dated 23 March 2010 Mr Somes, as chairman of the PSP, notified Dr Foote of the PSP inquiry into Ms Dixon’s complaint and the complaint the subject of SC 885 of 2010 and advised that a directions hearing would be held on 27 April 2010. On 27 April 2010 the directions hearing was conducted. By letter dated 4 May 2010 the solicitors for Dr Foote wrote to the Medical Board requesting particulars. By a further letter of the same date the solicitors for Dr Foote wrote to the Medical Board requesting that the allegations be withdrawn and that the PSP inquiry not continue or, alternatively, that the scope of the inquiry be limited. Dr Foote’s solicitors repeated their request for an ex gratia payment for his costs, and advised that senior counsel for Dr Foote would not be available for a directions hearing until 7 July 2010. Subsequently it became clear that Mr Freer was on long service leave in July 2010 and would not be available until 16 August 2010.
By letter dated 6 October 2010 Mr Logan advised the solicitors for Dr Foote that the PSP would continue but that certain grounds would not be pressed. He also advised that the Medical Board would not agree to make an ex gratia payment and that a final directions hearing would be arranged after consultation with Dr Foote’s solicitors as to an appropriate date.
On 14 January 2011 a directions hearing was held by the PSP at which it was noted that the current proceedings had been commenced on 22 December 2010. It appears that the PSP proceedings have subsequently been held in abeyance awaiting the outcome of the present applications.
Progress Of The Complaints Concerning Patricia Dickson (SC 885 of 2010)
By letter dated 30 May 2006 Ms Dickson wrote to the Medical Board complaining about treatment provided to her by Dr Foote. This treatment was provided between September and November 2005. The Medical Board considered the complaint in the light of other complaints that had been received regarding Dr Foote’s practice, including that of Ms Susan Virginia Dixon. By letter dated 30 May 2006 the Medical Board wrote to the acting Commissioner referring the complaint for investigation under the Community and Health Services Complaints Act1993 (ACT) (repealed).
On 1 September 2006 the Medical Board met and decided to consult with the Commissioner with the intention of agreeing to refer Ms Dickson’s complaint back to the Commissioner for investigation in accordance with s 86 (3) (c) of the HP Act.
It is clear that at about this time the Medical Board was considering a number of complaints that had been received regarding Dr Foote. Unsurprisingly, the Medical Board was apparently unwilling to proceed with any of these complaints until it had undertaken at least a preliminary investigation in relation to all matters. This was an undoubtedly sensible approach. A preliminary investigation of all complaints may have revealed systemic issues warranting investigation. It was not until September 2007 that the Commissioner provided the Medical Board with a copy of her final report into Ms Dickson’s complaint. On 28 September 2007 the Medical Board met and decided to progress other matters to hearing without waiting for the joint consideration of the complaint relating to Ms Dickson to occur. From that point on the Medical Board took over investigation of Ms Dickson’s complaint. It initially assessed the material gathered by the Health Services Commissioner and determined what additional material needed to be gathered.
By letter dated 5 October 2007 the Medical Board wrote to Ms Dickson requesting her to sign and return an authorisation to enable the Medical Board to investigate her complaint. On 15 October 2007 Ms Dickson signed an authorisation.
By letter dated 5 November 2007 the Commissioner provided the Medical Board with a copy of Ms Dickson’s clinical records and x-rays. By letters dated 14 November 2007 the Medical Board wrote to various medical practitioners who had treated Ms Dickson seeking copies of medical records and x-rays. This included Dr Foote.
By letter dated 29 November 2007 Dr Foote’s solicitors provided the medical records that had been requested.
By letter dated 8 January 2008 the Medical Board wrote to Dr A Korda requesting an opinion on the clinical aspects of Ms Dickson’s treatment from a urogynaecologist’s point of view.
By letter dated 26 June 2008 the Medical Board asked the Commissioner for a copy of any reports from 2003 onwards relating to Dr Foote’s clinical treatment or post operative care of Ms Dickson. The Medical Board noted that Ms Dickson’s complaint would again be jointly considered with the Commissioner when the expert opinion had been received. The Medical Board also noted that it and the Commissioner had recently considered three matters in relation to Dr Foote and that the Medical Board had recently referred another two matters for the Commissioner’s consideration.
By letter dated 7 July 2008 the Medical Board wrote to Dr Korda requesting an expert opinion be provided by 29 August 2008.
By letter dated 8 September 2008, received 29 September 2008, Dr Korda provided a report on Dr Foote’s treatment of Ms Dickson. By letter dated 29 September 2008 the Medical Board wrote to the Commissioner enclosing Dr Korda’s report and advising that the Professional Standards Committee would consider the material at its next meeting and advise when the matter should be listed for joint consideration.
On 1 October 2008 the Medical Board and the Commissioner met and made a joint decision to join the PSP inquiry into Ms Dickson’s complaint with the inquiry into the complaint the subject of proceedings SC 884 of 2010.
By letter dated 8 October 2008 the Medical Board wrote to Ms Dickson advising her of the joint decision to refer the matter to a PSP and that the PSP would set a time and place to hold the inquiry. By letter dated the same date the Medical Board wrote to Dr Foote advising him of the decision to refer the matter to a PSP.
On 24 October 2008 the Medical Board met and decided to refer the matter to a PSP and to join the PSP inquiry into Ms Dickson’s complaint with that the subject of proceedings SC 884 of 2010.
Thereafter the progress of this complaint was essentially the same as that set out above with respect to matter number SC 884 of 2010.
Relevant Principles
This Court undoubtedly has the jurisdiction to make an order staying the proceedings in the PSP: Walton v Gardiner (1993) 177 CLR 378. The principles applicable to such an application are not in contention. In the recent decision of XG v Medical Board of Australia [2011] VSC 638, an unreported decision of Kyrou J published 9 December 2011, the Supreme Court of Victoria considered whether it could, or should, stay proceedings before a panel established by the Medical Practitioners Board of Victoria into allegations against a medical practitioner. After determining that the Court has an inherent power to order a stay of proceedings in a statutory tribunal on the grounds that the proceeding constitutes an abuse of the tribunal’s process, Kyrou J sets out the principles governing such an application:
[10] In determining whether the Panel Hearing should be permanently stayed, the Court must engage in a weighing process. The weighing process involves a subjective balancing of a range of considerations supporting or militating against a conclusion that a continuation of the Panel Hearing would be so unfairly and unjustifiably oppressive of the plaintiff as to constitute an abuse of the Panel’s process. The considerations include:
(a) the need to maintain public confidence in the system for the investigation of complaints against medical practitioners;
(b) the public interest in the proper and impartial investigation of complaints against medical practitioners and in the exposure of malpractice by those licensed by the State to carry out invasive and intimate examinations for medical reasons;
(c) the protective character of the disciplinary proceeding;
(d) the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners;
(e) the seriousness of the complaint against the medical practitioner;
(f) the requirements of fairness to the medical practitioner;
(g) the length of any delay in the making of a complaint against the medical practitioner or in its investigation and the reasons for the delay;
(h) the prejudice to the medical practitioner from a continuation of the disciplinary proceeding, having regard to matters such as the age and lack of detailed particulars of the allegations to be investigated and the medical practitioner’s lack of records that may have assisted his or her defence of the allegations; and
(i) the capacity of the disciplinary tribunal to give directions or to mould its procedures so as to ameliorate any prejudice to the medical practitioner.
(footnotes omitted)
His Honour goes on to say:
[12] It has been said that there is a ‘very heavy burden’ imposed on a medical practitioner seeking an order from this Court to stay a proposed investigation into allegations concerning the practitioner’s professional conduct [XD [No 2] (2002) 6 VR 381]. It has also been said that the Court’s power to permanently stay proceedings in a medical tribunal should only be exercised in ‘very exceptional circumstances’ [Dr SS [2002] NSWCA 391]. What is meant by these statements is that, as there are strong public interest considerations against granting a stay, very potent grounds must be demonstrated in a particular case in order to tip the balance in favour of granting a stay.
Nevertheless, this Court will impose a stay of proceedings before a tribunal where “the prejudice or unfairness is so oppressive as to amount to an abuse of process”: Herron v McGregor (1986) 6 NSWLR 246 per McHugh JA at 267.
Application of Relevant Principles
It must be accepted that the matters into which the PSP’s propose inquiring are not, on their face, trivial. On the contrary, they involve questions the answers to which may be relevant to a determination whether Dr Foote has demonstrated appropriate competence in his field of practice. This may, in turn, raise questions about his competence to continue to practice generally, or to conduct particular types of procedures.
With respect to the complaint made by Susan Virginia Dixon (SCC 884 of 2010), whilst a report from Dr J W Cooper, a gynaecologist and endoscopic surgeon, is not critical of Dr Foote’s treatment, reports by Dr Andrew Korda, a specialist in gynaecology and gynaecological urology, are critical of aspects of the surgery and post-surgical treatment provided by Dr Foote. In addition, Dr Foote’s surgical and post-surgical treatment of Ms Dixon is criticised by Dr Mulcahy, a urologist who treated Ms Dixon subsequent to the surgery performed by Dr Foote.
With respect to the complaint by Patricia Dickson (SCC 885 of 2010), reports obtained from Professor A J Rane, a consultant urogynaecologist, do not appear to be critical of Dr Foote’s treatment of Ms Dickson, but a subsequent report from Dr Korda does raise issues concerning the decisions made by Dr Foote in investigating the complaints made to him by Ms Dickson.
It is impossible for this Court, in these proceedings, to resolve the differences in expert opinion such that I can determine that the matters to be investigated by the PSPs are trivial. On the face of it they are not. This should not be seen as a criticism of the manner in which these applications have been conducted. It would have been inappropriate for the expert witnesses to have been called to give evidence on the applications with a view to asking the Court to determine any dispute between them. That is a matter properly to be undertaken as part of the proposed inquiry, which the legislature has entrusted to the PSP.
The length of any delay in the making of a complaint, or in its investigation, are matters relevant to the determination whether to grant a stay, although delay itself will not justify the grant of a stay where a fair hearing may still be conducted: Jago v District Court of New South Wales (1989) 168 CLR 23.
Ms Susan Virginia Dixon made her complaint on 17 December 2004. The legislative scheme in place at that time required the Medical Board to forward the complaint to the Human Rights Commission. Written notice also had to be given to Dr Foote, inviting representations from him. The matters raised by Ms Dixon would inevitably require a comprehensive investigation prior to any decision whether to establish a PSP, including obtaining and considering medical notes, hospital records and expert opinions. These investigations may in any individual case result in a determination to establish a PSP, but they also act as a protection for the health professional by minimising the risk that a trivial or malicious complaint will be referred to a PSP. In my opinion no criticism can be made of the progress of the investigation into Ms Dixon’s complaint up to the point of the aborted PSP hearing on 18 June 2008.
Ms Patricia Dickson’s complaint was made to the Medical Board on 30 May 2006. Investigations of the same nature as those referred to in relation to the complaint by Ms Susan Virginia Dixon above were required. Those investigations culminated in the proposal by the Medical Board, as set out in its letter of 23 March 2010 (see par 11 above) to establish a PSP to enquire into Ms Dickson’s complaint and that made by Ms Susan Virginia Dixon. That PSP inquiry did not proceed because these proceedings were commenced by Dr Foote on 22 December 2010. In my opinion there is no unexplained or inexcusable delay in the investigation of this complaint up to the time Dr Foote commenced these proceedings.
I now turn to the aborted PSP hearing of 18 June 2008. This inquiry was limited to investigation of the complaint made by Ms Susan Virginia Dixon, although unhelpfully the transcript of the proceedings before the PSP on that date refers to her as “Mrs Dickson”. At the outset of the hearing on 18 June 2008 Mr Crowe SC, who appeared as counsel assisting the inquiry, advised the PSP that senior counsel for Dr Foote, Mr Purnell SC, had advised him “to put it at its least, jurisdiction is not admitted”. The PSP heard submissions from Mr Crowe supporting the jurisdiction of the PSP, and from Mr Purnell arguing that the PSP had no jurisdiction. The PSP determined it did not have jurisdiction.
I have been provided with the transcript of the proceedings before the PSP on 18 June 2008 (exhibit SL 99 to the affidavit of Shane Logan made 23 May 2011), from which I am able to discern the reasons why the PSP determined it did not have jurisdiction. The complaint made by Ms Susan Virginia Dixon was made before the HP Act commenced operation with respect to medical practitioners on 7 July 2005. As such her complaint was initially dealt with under the then applicable legislation, the Medical Practitioners Act1930 (ACT) (repealed). That Act was repealed by the HP Act. Unfortunately, documents evidencing the decision of the Medical Board and the Commissioner to establish the PSP refer to it being established pursuant to s 150C of the HP Act. Section 150C was a transitional provision that clearly had no application to the circumstances of Ms Dixon’s matter and was not relevant to the establishment of a PSP.
Mr Crowe submitted to the PSP that the reference to s 150C of the HP Act was either a clerical or typographical error, and that reference to s 150B was intended, but that all the procedural requirements of the HP Act had been satisfied such that there was undoubted jurisdiction under the HP Act to establish the PSP. Section 150B was, in fact, a provision relevant to the establishment or maintenance of a PSP. Mr Purnell submitted that if the Medical Board, in consultation with the Commissioner, was mistaken about the source of the power to establish the PSP then they did not have jurisdiction to establish the PSP, with a consequence that the PSP did not have power to conduct the inquiries.
It is regrettable that the PSP did not accept the submissions of Mr Crowe, which were undoubtedly correct. It seems likely that the reference to s 150C rather than s 150B was a clerical or typographical error, but it is not necessary to make such a finding. Even if the Medical Board, acting in consultation with the Commissioner, was wrong in its belief as to the source of the power to establish a PSP, there can be no doubt that it had the jurisdiction to establish a PSP under other provisions of the HP Act and that the preconditions to the exercise of that power had been satisfied. The fact that the Medical Board or the Commissioner may have been mistaken about the source of the power is irrelevant. The questions the PSP should have asked itself were: (1) did the Medical Board have the power to establish the PSP? And (2) had any preconditions of the exercise of that power been satisfied? The PSP would have been obliged to answer “yes” to both questions, and the inquiry should have continued.
The PSP must accept some responsibility for its failure to conduct the inquiry into Ms Dixon’s complaint, but Dr Foote must also accept responsibility for the readiness of his counsel to embrace and pursue the proposition that the PSP had not been properly established.
The decision of the Medical Board to recommence the process of establishing a PSP rather than seeking to appeal the PSP’s ruling is understandable, particularly in the light of the then delays in this Court. The material before me establishes that the Medical Board moved quickly to recommence the process of establishing a PSP, but that the process was effectively halted by the commencement of these proceedings. It follows that the delay from the commencement of these proceedings on 22 December 2010 until the publication of this decision and reasons are primarily the responsibility of Dr Foote, and not the Medical Board.
In each case, the complaint about Dr Foote was made to the appropriate body without significant delay. There is no suggestion that the delay in making these complaints, or any subsequent delay, has deprived Dr Foote of access to relevant documents or witnesses. I am satisfied that a fair hearing of these complaints before the PSP is still available.
With respect to the complaint concerning Ms Susan Virginia Dixon, Dr Foote swore an affidavit on 21 December 2010 in which, inter alia, he refers to the alleged prejudicial effect of the continuing inquiry. The matters he raises may be summarised as:
(a) the delay since the events under inquiry;
(b) disruption to his medical practice since 1 April 2008 resulting in interference with his obligations to his patients and personal distress;
(c) the incurring of significant legal costs in “defending” the proceedings before the PSP, as well as the inquiry of 18 June 2008;
(d) the terms of the inquiry proposed by the current PSP are wider than those that were before the PSP on 18 June 2008.
I have already considered the cause of delay in the investigation into Ms Dixon’s complaint. In large measure the delays that have occurred since 18 June 2008 are attributable to the actions of Dr Foote. Similarly, the increased costs undoubtedly associated with the collapse of the hearing on 18 June 2008 and the subsequent renewal of Ms Dixon’s complaint are largely attributable to the actions of Dr Foote. Had he not pursued the question of the PSP’s jurisdiction to hear the inquiry on 18 June 2008, and commenced and pursued the current proceedings, this complaint would surely have been resolved years ago.
No particulars or details of the disruption to Dr Foote’s medical practice have been supplied. Similarly, no particulars or details of the way in which the PSP inquiry has interfered in his obligations to his patients have been provided. In those circumstances it is difficult to give these considerations much weight.
A comparison between the Notice of Inquiry dated 1 April 2008 and that dated 23 March 2010 does not reveal any significant difference in the terms of the respective inquiries.
Dr Foote swore a further affidavit on 21 December 2010 with respect to the complaint made by Ms Patricia Dickson, and setting out the alleged prejudicial effect of the continued inquiry on him. I have already considered the question of the delay in hearing this complaint heard by a PSP. Prior to the commencement of these proceedings I am satisfied that there was no unreasonable delay in investigating this complaint, and referring it to a PSP. Delay subsequent to the commencement of these proceedings is the responsibility of Dr Foote. In his affidavit Dr Foote raises the same matters of prejudice as he raises in his affidavit concerning Ms Dixon’s complaint, but again provides no particulars.
The Human Rights Act2004 (ACT)
Dr Foote submits that the delay in establishing PSP’s to inquire into these complaints is such as to breach his right to a fair trial as guaranteed by s 21 (1) of the Human Rights Act 2004 (ACT) (the HR Act). This provides:
21 Fair trial
(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
I will assume for present purposes that the rights guaranteed by s 21 (1) include a right to a hearing without unreasonable delay, and that the section applies to proceedings before a PSP. I will further assume that the starting point for measurement of delay for the purposes of s 21 (1) is the date the complaints were made.
Counsel for Dr Foote referred me to the decision of Higgins CJ in R v Mills [2011] ACTSC 109 (“Mills”). In Mills the accused was committed for trial on 6 September 2007. His initial trial, set down for 28 July 2008, was aborted. A further trial date of 7 March 2011 was then set. Ms Mills made an application for permanent stay of the proceedings on 28 January 2010. Higgins CJ made orders permanently staying the charges on 1 July 2011, after hearing the application on the proposed trial date of 7 March 2011. In the course of his reasons His Honour observed at [31]:
For a matter to take more than four years ... to come to trial after the decision to prosecute is, to my mind, prima facie unreasonable.
Later His Honour said at [39]:
The delay of two and a half years from the first trial, in a relatively simple case is, to my mind, egregiously unreasonable, for whatever reason it might happen.
It is important to note the difference between the nature of the proceedings in Mills, and those concerning Dr Foote. The proceedings in Mills, being criminal proceedings, were accusatory in nature. It would be accepted that most, if not all, the relevant investigations had been conducted by police before the decision was made to prosecute. The proceedings concerning Dr Foote are investigatory, albeit that the PSP can exercise disciplinary powers after conducting its investigation. Overwhelmingly, those disciplinary powers are directed towards protection of the public rather than punishment of the health professional. The issues raised by Ms Dixon and Ms Dickson are relatively complex, and significant delay on the part of the Medical Board in conducting enquiries sufficient to determine whether to refer the complaints to a PSP was inevitable. It is simply a function of the nature of the complaints, and the necessity to investigate them thoroughly. As Sopinka J said in R v Morin (1992) 71 CCC (3d) 1:
As I noted in R v Smith (1989) 52 CCC (3d) 97 ‘it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable? While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analysing how long is too long may be listed as follows:
1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
(a)inherent time requirements of the case
(b)actions of the accused
(c)actions of the Crown
(d)limits on institutional resources, and
(e)other reasons for delay, and
4. prejudice to the accused.
This passage was quoted with approval by Higgins CJ in Mills.
Bearing in mind the investigatory nature of the proceedings concerning Ms Dixon’s complaint, the nature of the complaint and the need for the Medical Board to properly investigate the complaint before determining to establish a PSP, the period of delay between Ms Dixon making her initial complaint and the aborted PSP hearing on 18 June 2008 was not unreasonable. As I noted earlier, the plaintiff must accept responsibility for the delay from 18 June 2008 to date, by virtue of him advancing, or at the very least embracing, the erroneous submission that the PSP did not have jurisdiction to inquire into his conduct, and his subsequent commencement and maintenance of the current proceedings.
As such, it appears to me that there is no unreasonable delay in the conduct of the proceedings concerning the complaint by Ms Susan Virginia Dixon.
Similarly, bearing in mind the investigatory nature of the proceedings concerning Ms Dickson, the nature of the complaint and the need for the Medical Board to properly investigate the complaint before determining to establish a PSP, the period of delay between Mrs Dickson complaining and Dr Foote commencing these proceedings was not unreasonable. Dr Foote must accept responsibility for the delay occasioned by these proceedings.
Even if I am wrong in my conclusion that there is no unreasonable delay in the proceedings concerning Dr Foote so as to amount to a breach of his rights under s 21 (1) of the HR Act, there are other reasons why a stay should not be granted. In cases where there has been a breach of the right of an accused to trial without unreasonable delay, a stay is not automatically granted. The test of what remedy is appropriate for such a breach is one of proportionality: see Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72. In applying that test the Court must consider whether any proposed hearing would be unfair, and any relevant prejudice suffered by Dr Foote. With respect to the complaints by Ms Susan Virginia Dixon and Ms Patricia Dickson I am satisfied that fair hearings are available. There is no suggestion that relevant witnesses or documents are no longer available. The evidence put forward by Dr Foote as to prejudice is vague and unhelpful.
In addition there is a very significant public interest in complaints concerning the competence of medical practitioners being appropriately investigated. Whilst any interest Ms Dixon may have in disclosure of the facts surrounding her treatment may be satisfied in the course of the civil proceedings she has commenced in this Court against Dr Foote, the public interest is not a matter relevant to those proceedings and is unlikely to be addressed in them.
Conclusion
The applications for stay should be refused.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 16 May 2012
Counsel for the applicant: Mr F J Purnell SC
Solicitor for the applicant: Ken Cush & Associates
Counsel for the intervener: Mr A Berger
Solicitor for the intervener: Australian Government Solicitor
Date of hearing: 2 December 2011
Date of judgment: 16 May 2012
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