Dyall v The Medical Board of Western Australia

[2001] WASCA 200

DYALL -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2001] WASCA 200

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 200
Case No:	SJA:1012/2001	Heard:	13-15 JUNE 2001
Coram:	SCOTT J	Delivered:	4/07/01
No of pages:	26	Judgment Part:	1 of 1
Result:	Appeal against conviction dismissed Appeal against disposition adjourned for further hearing
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Parties:	FIONA DYALL THE MEDICAL BOARD OF WESTERN AUSTRALIA
Catchwords:	Appeal Medical Board Setting aside plea of guilty entered with legal advice Gross carelessness and incompetency Greater than usual doses of anaesthetic drug Conditions on practice following suspension
Legislation:	Medical Act 1894 s 13(1)(c)
Case References:	Bradshaw v The Medical Board of Western Australia, (1990) 3 WAR 322 Cranley v The Medical Board of Western Australia, unreported Ipp J; Library No 8610; 27 November 1990 Jemielita v The Medical Board of Western Australia, unreported; Library No 920584; 13 November 1992 Lamb v Clews (1989) 10 MVR 465 Liberty v R (1991) 55 A Crim R 120 Maxwell v The Queen (1995) 184 CLR 501 Meissner v the Queen (1995) 184 CLR 132 Pillai v Messiter [No 2] 1989 16 NSWLR 197 Re Hodgekiss [1962] SR(NSW) 340 Archer v Howell (No 2) (1993) 10 WAR 33 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Giordano v Medical Baord of SA (1984) 36 SASR 83 Hull v Nguyen, unreported; FCt SCt of WA; Library No 940216; 27 April 1994 Lim v Batemena (1999) WASCA 305 Lutter v Davis (1992) 7 WAR 72 Margetson v R (1980) WAR 135 Morse v R [1977] WAR 151 Moursellas v Pharmaceutical Council (1992) 10 WAR 240 R v Board of Visitors of Hull Prison [1979] 1 WLR 1401 R v Lee (1984) 79 Cr App R 108 R v Murphy (1965) VR 187 Slater v Marshall [1965] WAR 222 Thomason v Martin [1964] WAR 138 Tihanyi v The Queen (1999) 21 WAR 377

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : DYALL -v- THE MEDICAL BOARD OF WESTERN AUSTRALIA [2001] WASCA 200 CORAM : SCOTT J HEARD : 13-15 JUNE 2001 DELIVERED : 4 JULY 2001 FILE NO/S : SJA 1012 of 2001 BETWEEN : FIONA DYALL

Appellant

AND

THE MEDICAL BOARD OF WESTERN AUSTRALIA
Respondent

Catchwords:

Appeal - Medical Board - Setting aside plea of guilty entered with legal advice - Gross carelessness and incompetency - Greater than usual doses of anaesthetic drug - Conditions on practice following suspension

Legislation:

Medical Act 1894 s 13(1)(c)

Result:

Appeal against conviction dismissed

Appeal against disposition adjourned for further hearing


(Page 2)

Representation:

Counsel:

Appellant : Mr R H B Pringle QC
Respondent : Mr C L Zelestis QC

Solicitors:

Appellant : Murfett & Co
Respondent : Metaxas & Vernon

Case(s) referred to in judgment(s):

Bradshaw v The Medical Board of Western Australia, (1990) 3 WAR 322
Cranley v The Medical Board of Western Australia, unreported Ipp J; Library No 8610; 27 November 1990
Jemielita v The Medical Board of Western Australia, unreported; Library No 920584; 13 November 1992
Lamb v Clews (1989) 10 MVR 465
Liberty v R (1991) 55 A Crim R 120
Maxwell v The Queen (1995) 184 CLR 501
Meissner v the Queen (1995) 184 CLR 132
Pillai v Messiter [No 2] 1989 16 NSWLR 197
Re Hodgekiss [1962] SR(NSW) 340

Case(s) also cited:

Archer v Howell (No 2) (1993) 10 WAR 33
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Giordano v Medical Baord of SA (1984) 36 SASR 83
Hull v Nguyen, unreported; FCt SCt of WA; Library No 940216; 27 April 1994
Lim v Batemena (1999) WASCA 305
Lutter v Davis (1992) 7 WAR 72
Margetson v R (1980) WAR 135
Morse v R [1977] WAR 151
Moursellas v Pharmaceutical Council (1992) 10 WAR 240
R v Board of Visitors of Hull Prison [1979] 1 WLR 1401


(Page 3)

R v Lee (1984) 79 Cr App R 108
R v Murphy (1965) VR 187
Slater v Marshall [1965] WAR 222
Thomason v Martin [1964] WAR 138
Tihanyi v The Queen (1999) 21 WAR 377

(Page 4)

1 SCOTT J: The appellant is a specialised anaesthetist who up until the decision the subject of this appeal worked in both public and private hospitals in Perth. The respondent is established under the provisions of the Medical Act 1894 ("Medical Act") which first came into operation on 1 January 1895. The respondent is hereinafter referred to as "the Board".

2 The Board consists of a total of 12 persons (11 prior to 17 November 2000 and 12 thereafter) comprising a Chief Executive officer (being a medical practitioner) seven persons who are medical practitioners, a legal practitioner, (increased to two after 17 November 2000) the chief executive officer of the department assisting the Minister charged with the administration of the Consumer Affairs Act 1971 or an officer nominated by him and a person appointed by the Minister who is not a medical practitioner. At any meeting of the Board the quorum shall be constituted by five members of whom not less than three are to be medical practitioners. The president of the Board is required to be a Board member elected by the members of the Board and each member of the Board has one vote. Each member of the Board is appointed for a period not exceeding three years.

3 The Board is required to hold inquiries under the Medical Act and specifically is empowered to conduct inquiries into alleged infamous or improper conduct; drug or other dependencies; gross carelessness or incompetency; breach of conditions imposed by the Board; physical or mental illness of practitioners.

4 The Board is empowered to impose penalties including removing from the register the name of a medical practitioner; suspending the registration of a medical practitioner for a period not exceeding twelve months; imposing a fine; imposing a reprimand.

5 The appellant was served with a notice of inquiry dated 21 August 2000 advising her that the Board was proposing to conduct an inquiry into the following matters:

6 (Note initials have been substituted for the names of patients).

"1.1 being a medical practitioner registered under the Act may be guilty of gross carelessness or incompetency as follows:

1.1.1 treatment of patient RH at Fremantle Hospital on 14 April 1999 insofar as you administered or caused to be administered doses of Vecuronium

(Page 5)

of 10mg and 4mg which doses were excessive given the duration of the procedure;

1.1.2 in the treatment of patient AS (sic AC) at Fremantle Hospital on 22 October 1999 insofar as you administered or caused to be administered doses of Vecuronium of 8mg and 6mg each hour prior to the conclusion of the procedure, the latter doses being excessive;

1.1.3 in the treatment of patient ES at Fremantle Hospital on 2 November 1999 insofar as you administered or caused to be administered excessive doses of Vecuronium;

1.1.4 in the treatment of patient KP at Fremantle Hospital in January 2000 insofar as you administered or caused to be administered Morphine which dose caused the patient's desaturation;

1.1.5 in the treatment of patient LP at Joondalup Health Campus on 19 June 2000 insofar as:


(a) your initial assessment of the patient paid insufficient regard to her lean body mass being less than her weight of 90kg in determining dosage of Vecuronium to the patient;

(b) you chose to use a long acting muscle relaxant Vecuronium for a routine Dilatation & Curettage hysteroscopy notwithstanding no history of reflux or any other indication;

(c) you chose to administer or cause to be administered an excessive dose of Vecuronium;

(d) you failed to ascertain the length of the procedure to be performed and gave an anaesthetic of long duration for a short procedure;

(Page 6)

(e) you failed to wait an adequate time from the initial dose of Vecuronium prior to attempting reversal and then did not ascertain the state of the neuromuscular junctions prior to attempting reversal;

(f) when reversal was clinically inadequate you gave a second dose of reversal with no neuromuscular monitoring;

(g) in recovery you inappropriately administered naloxone and flumazenil;

(h) whilst attempting to manage the patient's airway in recovery your manual ventilation was uncoordinated and inadequate for the patients safety;

1.1.6 in the Hospital records for patient LP you incorrectly recorded that the anaesthetic was uneventful and the patient’s reversal was uneventful;

1.2 being a medical practitioner registered under the Act you may be guilty of infamous or improper conduct in a professional respect by reason of the matters in 1.1.6 above."

7 It is common ground that the inquiry was first before the Board in October 2000 when the appellant pleaded guilty to the matter referred to in par 1.1.4 and in part pleaded guilty to the matters referred to in par 1.1.5.

8 When the matter came on again before the Board on 20 December 2000 each of the allegations was read out and counsel for the appellant entered a guilty plea to each matter except that in relation to the matter referred to as 1.2 above the appellant pleaded guilty to improper conduct but not to "infamous" conduct.

9 It is important to note that the appellant pleaded guilty through counsel and that throughout the course of the Board's proceedings she was represented by counsel Mr David Wallace ("Wallace") a solicitor experienced in handling such matters. The evidence heard on this appeal, to which I will later refer, indicates that Wallace was instructed through

(Page 7)

the Medical Defence Association. He had appeared frequently before the Board and was both experienced and competent in dealing with matters of the kind that were the subject of this inquiry.

10 Even although pleas of guilty were entered, counsel assisting the Board took the unusual step of calling evidence in relation to the matters that were the subject of the guilty pleas. Evidence was called from Stuart Thomas Inglis, ("Dr Inglis") the Director and Head of Anaesthetics at Joondalup Health Campus, Gavin Conrad Coppinger, ("Dr Coppinger") the Director of the Anaesthetic Department at Fremantle Hospital, Timothy John Glover Pavey, ("Dr Pavey") a full time specialist anaesthetist at King Edward Memorial Hospital, the head of the relevant department at that hospital. In addition counsel for the appellant also called evidence from the appellant and from Thomas Andrew Torda ("Professor Torda") the academic head of the Department of Anaesthesia and Intensive Care of the Prince Henry, Prince of Wales and Prince of Wales Children's Hospitals in New South Wales. Professor Torda had been a professor at the Conjoint School of Clinical Medicine since 1992 and is an eminent and senior anaesthetist.

11 The evidence given by those witnesses will be referred to later in these reasons.

12 After counsel assisting the Board had called evidence from Drs Inglis, Coppinger and Pavey counsel for the appellant was asked if he wished to call evidence. Wallace responded:

"Yes, I do. Members of the Board will be aware from Dr Dyall's witness statement, which has been presented to the Board last Friday, that whilst she concedes that the doses administered were excessive, the consequences of those excessive dosages is a matter of some debate. We had intended, if this matter proceeded to a hearing, to call Professor Torda. He is here, in any event, and I propose to call Professor Torda to really address the issues that arise in this notice of inquiry, and to present to the Board someone who we say is a very senior, and very eminent, independent, objective anaesthetist, who's looked at all of the relevant facts, in relation to these cases, and to provide his opinion to the Board on the causes or consequences of each case, and also, for Professor Torda to give his own views on an appropriate penalty for Dr Dyall, arising out of these incidents, so I'd like to call Professor Torda."

(Page 8)

13 Wallace also called the appellant as a witness at the hearing and tendered her documentary statements in relation to each of the patients referred to in the notice of inquiry. The appellant was cross-examined and she was asked by counsel assisting the inquiry:

"Would you agree with Professor Torda's opinion that, in each of the cases the subject of this inquiry, the doses of vecuronium that you administered to those patients was excessive?---Yes. I’ve acknowledged that, always, from the beginning."

14 The appellant gave evidence prior to Professor Torda whose report had been provided to counsel assisting the inquiry.

15 As I have indicated Professor Torda was also called to give evidence and was asked by counsel for the appellant:

"…What is your opinion of the seriousness of the transgressions by Dr Dyall?---I think there is evidence, in the doses of relaxants used in four out of five cases, of major error in the use of this drug. In the one remaining case – and that is KP – I'm not sure at all that there was any serious error. I understand, not from clinical records, but what I've been told subsequently, that the patient experienced a great deal of pain in attempts to transfer from the operating table to the bed, and that is why he was given more morphine.

But in terms of overall anaesthetic management of these cases, what is your opinion, in relation to the seriousness of the excessive administration of vecuronium?---Specifically, the excessive administration of vecuronium certainly was responsible for problems in the case of LP. It may have played a significant role in the case of RH. I don’t think we can be 100 per cent sure of that, but it may have played a significant role. In the case of ES, in my opinion, it played no role whatever, and I base that on the fact that we have a patient here who shows absolutely no respiratory problem in the recovery…"

16 A little later on Professor Torda was asked by counsel for the appellant:

"Given your assessment of each of these individual cases, and given the plea this morning by Dr Dyall to the allegations in the notice of inquiry, what is your view as to an appropriate penalty for Dr Dyall, as a consequence of her actions?---I do have

(Page 9)

significant concerns about her standard of practise. I also have significant concern by the fact that problems were raised with her standard of practise in 1998 by Dr Pavey, in—at the end of 99, or early 2000, by Dr Coppinger, yet one case occurred after the discussion with Dr Coppinger, so in view of these things I would think that the possibility of why these problems recurred need to be investigated, and perhaps assessment and counselling may be appropriate on a psychological level.

On an anaesthetic level, I think that the proper thing to do would be to offer her some re-education, under supervision. I know that this is really not possible at the consultant level. This would have to be done at a lower level, that perhaps corresponding to a senior Registrar, where she works for a set period of time with a consultant, and then, based on her performance and on her reports, then the Board comes to a decision as to what it is best to do in the long term."

17 Following the taking of evidence the Board retired and after a brief retirement the Chairperson announced:

"The Board directs that Dr Dyall be suspended from practise for a period of 6 weeks. On the completion of this period of suspension, Dr Dyall's practise will be subject to the condition that she may not practise anaesthesia. Dr Dyall may apply for the conditions to be reviewed, from time to time. Dr Dyall is directed to pay the costs of the inquiry. Detailed reasons will be given later."

18 Following the conclusion of the inquiry on 20 December 2000 the Board delivered written reasons on 9 February 2001. Those reasons will be referred to later in these reasons.

19 The grounds of appeal are:

"1. There was a miscarriage of justice in the Inquiry by reason of the following matters –

(a) on 18 December 2000, the appellant had not been practising anaesthesia for two months pursuant to a written undertaking given by her at the request of the respondent (when the Inquiry was adjourned on or about 16 October 2000) not to practise anaesthesia, attendance at the Inquiry by

(Page 10)

supporting witnesses other than Professor Torda had not been arranged, and the appellant’s counsel Mr Wallace had advised her to plead guilty;

(b) in 18 December 2000 although believing she was not guilty on the advice of her counsel, the appellant instructed him that she would plead guilty to the charges against her on the express terms that she conceded that doses of vecuronium she had administered were excessive but that she disputed that the consequences of those doses were adverse except for temporary adverse consequences to LP;

(c) the appellant agreed to plead guilty in the belief that her counsel would challenge in cross-examination evidence of the respondent's witnesses concerning adverse consequences to patients RH, AC, ES, KP and LP and any matters in aggravation adduced on behalf of the respondents.

(d) as the transcript reveals, the appellant's counsel did not cross-examine the respondent’s witnesses adequately or at all as to adverse consequences to patients RH, AC, ES, KP and LP or her management of their cases or as to her alleged failure to heed warnings, to acknowledge management problems and to seek improvement;

(e) when the Inquiry was adjourned briefly at her request on 20 December 2000, to speak to her counsel the appellant would have requested that her pleas of guilty should be changed to not guilty had she known that that was possible;

(f) the evidence before the respondent adduced at the Inquiry in exhibit '9' (the appellant's statements and supporting documentation) and in the report and evidence of Professor Torda, reveals that (but for parts of the fifth charge concerning LP) pleas of not guilty would have been justified and appropriate; and the respondent erred in law or in

(Page 11)

law and fact, in accepting pleas of guilty and/or in failing to vacate them and/or in finding that the administration of doses in excess of usual doses amounted to gross carelessness or incompetence and in this regard the case concerning each patient is dealt with in turn in paragraphs 6 to 11 below.

In the premises, the appellant should be permitted to pursue her appeal against conviction on the first, second, third, fourth and sixth charges and parts of the fifth charge.

Particulars

The error of law is that mere administration of more than usual doses, does not amount to gross carelessness or incompetence within the meaning of section 13(1) of the Medical Act.

2. There was a miscarriage of justice in the Inquiry in relation to penalty by reason of the following matters:

(a) as is revealed by the transcript the appellant's counsel did not cross-examine the respondent's witnesses as to consequences to patients or other matters adverse to the appellant adequately or at all;

(b) the respondent allowed to be adduced and elicited prejudicial hearsay against the appellant about matters which were not the subject of charges most conspicuously in the report of Dr Inglis exhibit '1' in volume 1 at pages 14-15 and at pages 17-18 in relation to Mrs A and at page 12 of the transcript in the evidence of Dr Coppinger;

(c) as is revealed on page 20 of the transcript the respondent allowed to be adduced new evidence by Dr Pavy of an anecdotal and persuasive nature and without producing any records of the incident which is not the subject of a charge to the prejudice of the appellant; further detail will be provided after the records have been subpoenaed (access thereto having been denied by letter from

(Page 12)

Dr Masters to the appellant dated 28 February 2001);

(d) as appears from pages 31-37 of the transcript Professor Torda's evidence was unjustifiably curtailed as a result of objections by counsel and observations of members of the respondent;

(e) as appears from paragraphs 14-16 and 20 of its reasons and pages 21-22 of the transcript the respondent took into account matters with which the appellant was not charged and in particular airways management and handling of crises (except in the case of LP) and failure to heed warnings, acknowledge her management problems and seek improvement;

(f) as appears from their reports and evidence the respondent permitted each of Dr Inglis, Dr Coppinger and Dr Pavy to express opinions of a judgmental character concerning the appellant's conduct.

(g) the respondent erred in allowing Dr Coppinger, Dr Pavy and Dr Inglis in their reports and evidence to give evidence of their opinions as to what had occurred in the cases of RH, AC, ES, KP and LP based on hearsay evidence of the facts and not personal experience, and in acting on those opinions in paragraphs 12, 14 and 20 of its reasons notwithstanding that their views were disputed in exhibit '9';

3. The matters complained of in subparagraphs (b) to (e) of ground 2 above constituted breaches of natural justice.

4. (a) The respondent erred in making findings in paragraph 20 of its reasons in relation to matters of aggravation (or points adverse to the appellant) without finding them proved to the Briginshaw standard of proof. In this regard, the differences between the views of Professor Torda and the respondent's witnesses were material and were not resolved and the respondent failed to give due

(Page 13)

weight to evidence favourable to the appellant in exhibit '3' p.3 (p.7 of volume 1), on page 11 of the transcript, and the appellant’s own evidence in exhibit '9', on pages 2 and 9-11 and especially 5 concerning LP and on page 8 concerning AC.

(b) Alternatively, the burden of proof in relation to those matters was not discharged.

5. The respondent erred in making findings based on –

(a) tentative views of Dr Coppinger expressed in his letter dated 3 March 2000 to Dr Kelly (and described therein as suspicions and which were based on unproven assumptions) and elaborated in his report dated 28 August 2000 and in treating them as firm views.

(b) generalisations in the conclusions in Dr Pavy's letter dated 1 November 2000 (exhibit '7') to Karen Vernon and in his evidence not borne out by a proper evaluation of the evidence on the cases charged and his assumptions were not proved;

(c) hearsay evidence on important points on page 21 of the transcript in Dr Pavy's evidence.


6. As to patient 'RH' (Mr H) the respondent erred –

(a) in rejecting the appellant’s factual evidence and explanations in exhibit '9';

(b) in relying on the opinions (tentative and otherwise) of Dr Coppinger and Dr Pavy based on hearsay (notes) and in disregarding Dr Bernhadt's letter dated 9 October 2000 in exhibit '9' (the appellant’s statement) and the junior doctors' notes in volume 1 pages 30 and 31 as eye-witnesses;

(c) in failing to determine whether Professor Torda's opinions were consistent with what was stated by the appellant, by Dr Bernhadt and in pages 30 and

(Page 14)

31 of volume 1 and should be accepted, or should not be rejected;

(d) in failing to approach the assessment of penalty on the basis that it was imperative that RH should not swallow during the operation on his pharynx, that RH became obstructive and this his respiratory arrest was not related to vecuronium.

7. The respondent erred in relation to Mrs C, the patient 'AC' –

(a) in failing to find on Professor Torda's report that with vecuronium recuratisation is impossible;

(b) in failing to accept that the patient's respiratory problem at 16.25 was or may have been caused by an upper airway obstruction (a laryngeal oedema) after removal at 16.23 of the Guedel's airway;

(c) in relying on tentative opinions of Dr Coppinger and on Dr Pavy's reconstruction as excluding any cause other than residual neuromuscular blockage for the incident at 16.25, despite paucity of information, the views of Professor Torda and the evidence of the appellant.


8. As to the patient 'ES' the respondent erred in failing –

(a) to find that this patient's breathing was normal and that he did not have a respiratory problem;

(b) to find that this patient was re-intubated for the purpose of the CAT scan;

(c) to accept the appellant’s explanations and the implications of the records attached to her statement in exhibit '9' relating to ES;

(d) to accept Professor Torda's opinions that morphine contributed to ES's delayed recovery and that respiratory insufficiency and residual neuromuscular block were ruled out.


9. As to patient 'KP' the respondent erred –

(Page 15)

(a) in failing to accept the appellant's explanation that it was not the practice at the hospital for oxygen cylinders to be used for transporting patients short distances to recovery wards, and that KP's level of oxygen saturation dropped during transportation;

(b) in failing to accept (on the evidence of the appellant and Professor Torda) that KP had moderate respiratory depression on arrival at the recovery ward, which depression was promptly rectified;

(c) in failing to acknowledge that neither Dr Coppinger nor Dr Pavy considered non-use of an oxygen cylinder during transportation of KP to the recovery ward;

(d) in failing to accept Professor Torda's evidence that there was no overdose of morphine.

10. In relation to patient 'LP' the respondent erred in failing to find that after speaking to LP the appellant believed that LP was going to have a laparoscope procedure and that on the expert evidence had that been the case the use of vecuronium and of a greater amount of relaxant than was needed for the actual procedure would have been appropriate, and that the true character of the appellant's faults lay in not double-checking whether a laproscopy was to be performed and in early attempted reversal.

11. Further as to LP –


(a) the respondent erred in failing to take into account Dr McLoughlin's report to the Regional Chief Executive Officer dated 25 July 2000, at the back of exhibit '9' and the appellant’s notes about 11.10 on page 72 of volume 2 or to accept the appellant's very detailed evidence concerning LP in exhibit '9',

(b) the respondent erred in failing to dismiss the sixth charge in that on its face the appellant did not purport to record on page 72 of volume 2 an uneventful reversal; on the contrary she noted that

(Page 16)

drugs had been administered 'without improving poor respiratory pattern (rocking boat). Re-intubated. –ICU'; and it was not alleged that the administration of general anaesthetic was itself eventful; and in any event the appellant’s explanation in exhibit '9' should have been accepted;

(c) the respondent erred in failing to notice that the records showed that it took Dr Inglis about 25 minutes to re-intubate LP, or Dr McLoughlin's report dated 25 July 2000 near the back of exhibit '9' insofar as it dealt with the versions of Dr Dyall and Dr Inglis.

12. In relation to his report to the respondent dated 3 March 2000, Dr Coppinger had had an informal discussion on 25 January 2000 with the appellant and wrote to her on the same day; she had responded in writing on 31 January 2000 (volume 1 pp. 51-53); he had a further discussion with the appellant on 29 February 2000 when he again failed to reveal the identity of the patients concerned and made allegations he has abandoned. The appellant was unaware of those identities until 7 March 2000 and obtained access to the case notes of the cases other than KP on 14 March 2000. These points will be ventilated at the hearing.

13. The respondent erred in holding that the appellant had failed to heed warnings or acknowledge her management problems or seek improvement, in that the findings are contradicted by some of the evidence of Dr Coppinger, and the evidence on which the finding was made was flawed in that it was based on hearsay, speculation (including as to supposed warnings) matters not charged and unsupportable generalisations, and was contrary to the appellant's evidence in exhibit '9'; see the reference to evidence favourable to the appellant in paragraph 4(a) above.


In particular evidence that the appellant's management of patients' reversal was inadequate was based on insufficient grounds, hearsay and speculation was

(Page 17)

inconsistent with documents before the respondent (see exhibit '9' volume 1 pages 30 and 31 and volume 2 pages 43 and 66) and was not the subject of a charge except in the case of LP.

14. The respondent erred in accepting the summary of its counsel as complete and accurate (e.g. no reference was made to Dr Coppinger's suspicions; some material records are not mentioned e.g. it was not revealed that the appellant had provided a statement to Dr McLoughlin about LP or that he had provided a report dated 15 July 2000 to Mr Ron Thompson to the respondent about the versions of the appellant and Dr Inglis).

15. Alternatively to contentions above that the respondent acted in error, it is contended that the respondent acted in ignorance of material facts in exhibit '9' which was not read before it announced its decision before noon on 20 December 2000.

16. Contrary to evidence of the respondent's witnesses, facilities for re-training are available and the appellant will, if necessary, undertake re-training, in which case the conditions imposed by the respondent should be reformulated, as they are unworkable; they give rise to a 'Catch 22' situation."

20 As can be seen from the grounds of appeal, the appellant challenges not only the acceptance of her guilty pleas but also the disposition of the matter as determined by the Board.

21 In relation to the acceptance of her guilty pleas the first matter to note is that those pleas were entered in her presence by her counsel and so, as I have said, she had the advantage of experienced and competent legal advice. In addition, as I have already indicated in October 2000 the appellant had already entered guilty pleas in relation to the fourth matter and part of the fifth. Her pleas were confirmed before the Board on 20 December 2000.

22 Before considering the grounds of appeal relating to vacating the appellant's pleas of guilty before the Board it is necessary to consider the legal principles governing such a step.

(Page 18)

23 In Meissner v the Queen (1995) 184 CLR 132 Brennan, Toohey and McHugh JJ said at 141:

"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person's own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. The principle is stated by Lawton LJ in R v Inns (1974) 60 Cr App 231 at 233:

'The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused's guilt. When the accused is making a plea of guilty under pressure and threats, he does not make a free plea and the trial starts without there being a proper plea at all. All that follows thereafter is, in our judgment a nullity.'"

24 Similarly in Maxwell v The Queen (1995) 184 CLR 501 Dawson and McHugh JJ said at 511:

"The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to obtain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial Judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty. That is illustrated by R v Martin (1904) 21 WN(NSW) 233 where the trial Judge, the Chief Justice, suggested that the accused should enter a plea of not guilty. The accused declined

(Page 19)

to do so and insisted upon pleading guilty. Upon a case stated by the Chief Justice, the judgment of the court was delivered by Owen J, who said at 235:

'It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance.'"

25 Senior counsel for the appellant in advancing his argument in relation to the setting aside of the guilty pleas relied upon the judgment of Franklyn J in Lamb v Clews (1989) 10 MVR 465. That case involved a plea of guilty to a charge of dangerous driving causing bodily harm under the provisions of the Road Traffic Act 1974 (WA). The appellant had pleaded guilty on the day after the charge was preferred and was convicted. The circumstances surrounding that matter were somewhat unique in that the incident occurred at Pannawonica where no legal advice was available. The prosecuting sergeant indicated to the appellant that he would act as both prosecution and defence counsel when the matter became before the Justices and indicated that he would put the appellant's story before the Justices for consideration. The sergeant also told the appellant that if he pleaded not guilty he would drag "everyone's name through the mud" and most likely get a harsher sentence. The plea was accepted by the court and the appellant was not given the opportunity to say why he should not be convicted. In those particular circumstances Franklyn J said at 470:

"But for a plea of guilty to be rejected there must in fact be before the Court either a plea that is in its terms equivocal, or one which, despite its apparent unequivocal nature, is made in circumstances which reveal either a denial or lack of acceptance of a fact essential to guilt, or other evidence, or a representation by the accused of facts, which if true would give rise to a defence to the charge."

26 The facts of this case as revealed in these reasons were very different to those under consideration in Lamb v Clews. Here the appellant, a tertiary educated intelligent and fully qualified medical practitioner had

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been represented throughout by competent counsel. She had been advised by him on a number of occasions, both in relation to evidence available to her, and as to the elements of the offences to which she pleaded guilty. She accepted that advice, acted upon it, and instructed counsel to enter pleas of guilty on her behalf. The most that can be said about the contentions advanced by the appellant is that upon perusal of her statements which were provided to the respondent, the conclusion was open that whilst the appellant administered larger than normal doses of the drug vecuronium in each of the cases concerned (with the exception of the case involving morphine), her belief was that the administration of such doses whilst larger than normal did not amount to "excessive" doses within the meaning of that term. She therefore contends that she was not guilty of gross carelessness or incompetency: Section 13(1)(c) of the Medical Act.

27 It is to be noted that both the appellant and Wallace gave evidence at the hearing of this appeal. The taking of evidence on appeal was in my view appropriate because s 13(8)(b) of the Medical Act provides that the appeal is by way of rehearing. The hearing was therefore not only based upon the transcript of the testimony and exhibits before the Board but supplemented by the oral testimony of the witnesses who testified at the appeal. Such a course has been adopted previously in this Court. See Cranley v The Medical Board of Western Australia, unreported Ipp J; Library No 8610; 27 November 1990; Bradshaw v The Medical Board of Western Australia, (1990) 3 WAR 322 at 328

28 There was conflict in the evidence between Wallace and the appellant. In my view the evidence of Wallace is to be preferred to the extent that it conflicts with the appellant's evidence. Wallace gave careful and thoughtful evidence, and in my view, was clearly at pains to avoid saying anything which reflected detrimentally upon the appellant. In particular Wallace made it plain that he discussed with the appellant the definition of carelessness and incompetency as it had been applied by the respondent. He also discussed with her the evidence that he had collected on her behalf. He discussed with the appellant the evidence that Professor Torda was able to provide, prior to the decision being made by the appellant to plead guilty. In particular Wallace made plain to the appellant that Professor Torda's evidence would not support a plea of not guilty.

29 Following that advice Wallace made a file note which he said reflected his instructions from the appellant. With the assistance of those

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notes Wallace was able to say that his instructions from the appellant were "mitigate to your heart's content".

30 Wallace made clear in his evidence that the appellant's concern was that the administration of vecuronium by her was not responsible for the adverse consequences suffered by each of the patients. In that respect Professor Torda did support the appellant in relation to one of the patients. It is to be noted however that the charges themselves do not allege that the larger than normal doses of vecuronium caused adverse consequences to each of the patients concerned. In that respect the Board's reasons at par 17 say:

"Professor Torda was less critical of Dr Dyall than the other three senior anaesthetists and disputed some of the conclusions they drew about individual patients but, in the end, we are satisfied that those differences of view are not material when it comes to determining the disposition of the case."

31 Having accepted the evidence of Wallace in preference to that of the appellant it is clear that Wallace focussed upon satisfying the Board that the appellant was not responsible for the adverse outcomes in relation to each of the patients. In addition Wallace accepted in evidence, that his primary concern, was to ensure that the appellant was not removed from the register of medical practitioners. In that respect, of course, he was successful.

32 It is also significant that Wallace had formed the view and advised the appellant that her position may be in greater jeopardy in the event of an unsuccessful not guilty plea. Having heard the evidence of both the appellant and Wallace I am of the view that Wallace's advice to the appellant was soundly based and clearly in the best interests of the appellant. Wallace was concerned to have the Board accept that the appellant had made errors which she had acknowledged and had overcome. He was concerned to formulate his plea in mitigation in such a way that the appellant could be restored to her position as an anaesthetist as soon as possible.

33 Finally on the question of change of plea in Liberty v R (1991) 55 A Crim R 120 Kirby P said at 122:

"For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high

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public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Savig (1986) 22 A Crim R 73 at 81."

34 Wallace's evidence indicates that he had advised the appellant of the meaning which the respondent gave to the expression "gross carelessness or incompetency" in Section 13(1)(c) of the Medical Act. His advice consistent with his letter to Professor Torda came from a judgment of the Medical Board of Western Australia v Hardcastle where the Board said:

"The Board if of the view that gross carelessness or incompetency in section 13(c) of the Act means gross carelessness or inability by the practitioner to attend to the requirements of a patient either at all or with reasonable skill and care. In the context of section 13 it is necessary that the carelessness or incompetency should assume a gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached the scale that such other practitioners regarded as intolerable and deserving of punishment and disciplinary action as falling so short of an acceptable standard of clinical care that disciplinary action is warranted for the protection of the public."

35 That definition was approved by Owen J in Jemielita v The Medical Board of Western Australia, unreported; Library No 920584; 13 November 1992 at 18-19.

36 In my view the grounds of appeal which attacked the acceptance by the respondent of the appellant's pleas of guilty have not been made out.

37 I turn then to the grounds of appeal that deal with the disposition of the matter by the respondent.

38 The first thing that should be noted is that the Medical Act which creates the respondent sets up a disciplinary regime directed towards ensuring that appropriate standards are maintained by medical practitioners. In Pillai v Messiter [No 2] 1989 16 NSWLR 197 Kirby P said at 201:

"In giving meaning to the phrase 'misconduct in a professional respect' in the context within which it appears, it must be kept in

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mind that the consequence of an affirmative finding is drastic for the practitioner. And the purpose of providing such a drastic consequence is not punishment of the practitioner as such but protection of the public. The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed."

39 It is to be noted that the appellant admits to administering vecuronium at a level greater than the usual dosage for the respective patients to whom this drug was administered as outlined in the notice of inquiry. In relation to the drug vecuronium Professor Torda's evidence was that:

"Vecuronium" is a neuro-muscular blocking agent which is used in anaesthesia to provide relaxation of muscles for operations where site relaxation assists surgery. It operates by occupying a receptor site on the muscle which is normally the site of action of the neuro-transmitter released by a nerve impulse so that we are able to contract muscle at will … Approximately 70 to 75 per cent of these receptor sites need to be occupied on the muscle before vecuronium exhibits a clinical effect, and when, in excess of 90 per cent - - somewhere between 90 and 95 per cent of the receptor sites are occupied by vecuronium, then the muscle is totally paralysed."

40 Viewed in that light it is clear that vecuronium is a potent drug which needs to be administered carefully because its effect is to take away the patient's capacity to breathe normally without assistance. The evidence before the Board indicated that unless the patient had recovered sufficiently extubation should not be performed. No doubt the Board was well aware of the consequences of the improper administration of vecuronium and the need for proper anaesthetic care for patients to whom that drug had been administered. In that respect the findings of the Board in par 20 were:

"Furthermore, the Board is of the view that it should not allow a doctor to practice in a field, where she has demonstrated serious inadequacies which are clearly dangerous to patients, simply in

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the hope that further training may remedy the inadequacies. It is for the doctor concerned to show that she has the requisite skills and experience to practice medicine safely rather than for her to incur unacceptable risks to the public with further problems resulting."

41 The Board therefore concluded that the appellant should be suspended from practice for a period of six weeks and that upon termination of that period a condition was to be placed upon her registration that she not be entitled to practice any form of anaesthesia.

42 It is to be noted upon completion of the six week period of suspension the appellant had the right to re-apply to the respondent for restoration of her right to practice anaesthetics. No such application has as yet been made.

43 In the course of the inquiry a number of suggestions were made in relation to the appropriate re-training of the appellant. Professor Torda in his evidence said:

"On an anaesthetic level, I think that the proper thing to do would be to offer her some re-education, under supervision. I know that this is really not possible at the consultant level. This would have to be done at a lower level, that perhaps corresponding to a senior registrar, where she works for a set period of time with a consultant, and then, based on her performance and on her reports, then the Board comes to a decision as to what is best to do in the long term."

44 In expounding upon that view and in response to a question by counsel for the applicant Professor Torda said:

"I think that perhaps re-education for a significant period – and I would think that that would be for a minimum of three months, possibly more – may well change some of her attitudes and practices to a degree where she would be capable of safely practising as a specialist."

45 The Board was made aware of an offer by Professor Torda to assist the appellant in that retraining. The appellant however did not indicate an acceptance of the proposal.

46 An additional proposal has also been put forward for the appellant to be re-trained in Western Australia. A report from Dr Neville Gibbs, Head

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of the Department of Anaesthesia at Sir Charles Gairdner Hospital has indicated that such retraining is theoretically possible but that certain consents would be required. Those consents would include written approvals from the Health Department of Western Australia, the Medical Board of Western Australia, the Medical Defence Association of Western Australia and the approval of the Chief Executive Officer and Director of Medical Services at the Sir Charles Gairdner Hospital.

47 Counsel for the appellant at the hearing of this appeal has made it plain that the appellant wishes to pursue her legal remedies by way of appeal before the prospect of retraining is seriously contemplated by her. In that respect it is noted that the appellant’s evidence at the hearing of this appeal gave a clear indication that the appellant does not accept that her anaesthesia practices fell below acceptable standards. As senior counsel for the respondent points out until the appellant accepts that she has demonstrated significant failings then retraining would have little rehabilitative effect. It may be that once this appeal is disposed of the appellant may take a different view, accept her shortcomings and embrace the prospect of retraining with a view to restoring not only her reputation but also her status in her chosen profession.

48 In determining whether the appellant had a fair hearing before the respondent I have taken into account the submissions of counsel for the appellant in relation to the hearsay and other prejudicial material placed before the Board. In that respect I have identified and eliminated that material from consideration. However I am unable to conclude that on the admissible material it can be said that any miscarriage of justice has occurred.

49 I also note that at the conclusion of his submissions senior counsel for the appellant indicated that if the appeal was unsuccessful in relation to setting aside the convictions, he would like to be heard further on the question of the conditions imposed upon the appellant's practice by the Board. Once these reasons are published, if the appellant still wishes to pursue that course, this matter can be relisted for that issue to be ventilated.

50 I would finally add I have not dealt with the submissions by counsel for the appellant dealing with each individual case with which she was charged. The reason is that an analysis of the individual cases requires medical expertise. As I have indicated earlier in these reasons the respondent is made up by specialists with expertise in the area in which judgment is required. In Re Hodgekiss [1962] SR(NSW) 340 Owen J

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considered an appeal from a committee established under the Legal Practitioners Act 1898 of New South Wales. His Honour said at 343:

"Such a tribunal is eminently fitted to decide whether the conduct of a solicitor in any given set of circumstances amounts to professional misconduct and to determine what is the proper penalty to be imposed in any particular case. While an appeal from its decision to the Court is in the nature of a rehearing, the Court should give great weight to and be slow to differ from the Committee’s opinion that particular acts or omissions by a solicitor do or do not amount to professional misconduct …"

51 Similarly in this case in my view, the Board, comprised as it is by highly qualified professional medical practitioners, is "eminently fitted" to judge the conduct of the appellant and to make decisions in relation to conditions imposed upon her future practice. In that respect whilst I will hear from the parties on the issue of the disposition of the matter as determined by the Board, I should make it clear, that my tentative view is that the disposition of the matter was and is a matter for the Board.