Heywood-Smith v Physiotherapy Board of SA - [2008] SADC 18

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
HEYWOOD-SMITH v PHYSIOTHERAPY BOARD OF SA
[2008] SADC 18
Judgment of Her Honour Judge Trenorden
4 March 2008
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - PHYSIOTHERAPISTS
Appeal against decision and orders of Physiotherapy Board of SA - Meaning of unprofessional conduct - Whether there was proper cause for disciplinary action against appellant - Role of the Court on appeal - Role of expert witness as to unprofessional conduct - Application of test for unprofessional conduct - Relevance of other standards or codes in determining meaning of unprofessional conduct - Importance of context of conduct alleged to be unprofessional.
HELD - Board's approach and decision in error.
Physiotherapy Practice Act 2005; District Court Act 1991; Medical Practitioners Act 2004, referred to.
In re R, A Practitioner of the Supreme Court (1927) SASR 58 & 60; Briginshaw v Briginshaw (1938) 60 CLR 336; Keogh v The Medical Board of South Australia & Anor [2007] SASC 342; Reyes v Dental Board of South Australia [2002] SASC 239; Reyes v Dental Board of South Australia (2002) SASR 551; Re: Ward [1953] SASR 308; Versteegh v The Nurses Board of South Australia [1992] SASC 3740; In re, Aidinis (1975) 12 SASR 158; Moore v Registrar of The Medical Board (No. 2) [2001] SADC 141, considered.

HEYWOOD-SMITH v PHYSIOTHERAPY BOARD OF SA
[2008] SADC 18

On 13 November 2006 a complaint was laid against the appellant, expressed to be pursuant to s 40 of the Physiotherapy Practice Act 2005. The complaint alleged that the appellant was guilty of unprofessional conduct upon two grounds, based upon events alleged to have occurred in 2004 and 2005. The appellant in these proceedings was the respondent in the complaint.
The Physiotherapy Board of South Australia heard the parties in the course of an Inquiry in early 2007 and delivered its decision with reasons, on 17 May 2007. A record of the orders for penalty and costs made by the Board, said to be pursuant to ss 45(4)(a) and 22(1) of the Physiotherapy Practice Act, is dated 28 May 2007.
By Notice of Appeal filed on 14 June 2007 in this Court, the appellant appealed against the decision and orders of the Board insofar as they were unfavourable to him.
The Legislation
The Physiotherapy Practice Act 2005 came into full operation on 1 September 2006, although ss 1-3, 7 and 76 had come into operation in January 2006. Section 5 of the Act establishes The Physiotherapy Board of South Australia. The functions include “To oversee the practice of physiotherapy in the public interest”: s 14(1)(a).
The Board must inquire into the subject matter of any complaint laid before the Board under s 45, by inter alia the Registrar of the Board (appointed under s 12), unless the Board considers that the complaint is frivolous or vexatious: s 45(2). The powers of the Board after conducting an inquiry, where it is satisfied that there is proper cause for disciplinary action against the person the subject of the complaint, are set out in s 45(4).
The Act provides in s 40(1), that there is proper cause for disciplinary action against a registered person, namely a registered physiotherapist, if that person is guilty of unprofessional conduct. Section 3 gives the term “unprofessional conduct” the following inclusive meaning:
(a)     improper or unethical conduct in relation to professional practice; and
(b)     incompetence or negligence in relation to the provision of physiotherapy; and
(c)     a contravention of or failure to comply with --
(i)     a provision of this act; or
(ii)a code of conduct or professional standard prepared or endorsed by the Board under this Act; and
(d)     conduct that constitutes an offence punishable by imprisonment for one year or more under some other Act or law.
The constitution of the Board, for the purpose of hearing and determining an inquiry, is addressed in s 49 of the Act. It must be constituted by 3 members of the Board, including the member who is a legal practitioner and a one member who is a physiotherapist. Thus the Board may be considered an expert tribunal.
Sections 39-50 (inclusive) of the Act constitute Part 4 of the Act.
Section 51 of the Act provides for a right of appeal to this Court against a decision made by the Board in proceedings under Part 4 of the Act. Under subsection 3, any appeal must be instituted within one month of the date of the decision appealed against.
The Appeal
The Appeal is in relation to the Board’s decision with respect to the first charge, namely that:
Between 20 October 2004 and 9 November 2004, the respondent was guilty of unprofessional conduct.
By his notice of appeal, the appellant sought the following orders:
1.     That the decision of the Physiotherapy Board of South Australia made on 17 May 2007, that there was proper cause for disciplinary action against the appellant (then respondent) for unprofessional conduct with respect to the first ground of complaint, be set aside.
2.     That the decision of the Physiotherapy Board of South Australia made on 17 May 2007, that disciplinary action be taken in the form of a reprimand in writing from the Board, be set aside.
3.     That the decision of the Physiotherapy Board of South Australia made on 17 May 2007, that the appellant (then respondent) pay $12,000.00 in costs, be set aside.
4.     That the complaint laid by the Physiotherapy Board of South Australia dated 13 November 2006 against the appellant, be dismissed.
5.     That the respondent pay the appellant’s costs of and incidental to the hearing before the Physiotherapy Board of South Australia on 15 February 2007.
6.     That the respondent pay the appellant’s costs of and incidental to this appeal.
7.     Such other orders that this Honourable Court may deem fit.
The grounds of appeal are set out at pages 2-3 of the Notice of Appeal.
The Role and Powers of this Court on Appeal
Division 2 of Part 6 of the District Court Act 1991 addresses the jurisdiction of the Administrative and Disciplinary Division of this Court. Subdivision 2 of that Division applies in relation to the appellate jurisdiction conferred on this Court, by, inter alia the Physiotherapy Practice Act 2005, subject to the provisions of the Act by which jurisdictions are conferred.
Section 42E of the District Court Act speaks to the conduct of an appeal and establishes that the Court must examine the decision of the original decision maker and must give due weight to the decision being appealed against and the reasons therefor and “not depart from the decision except for cogent reason”: s 42E (3). On appeal, the Court may, according to s 42F of the District Court Act:
a)    affirm the decision appealed against;
b)    rescind the decision and substitute a decision that the Court considers appropriate;
c)    remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
The issue of costs on the appeal is addressed in s 42G of the District Court Act:
(1) The Court may, on an appeal, make any ancillary or consequential order that the Court considers appropriate.
(2) However, no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice.
The Charge of Unprofessional Conduct
The basis of that charge of unprofessional conduct, which the Board was satisfied had been made out, is set out below:
1.    Between 20 October 2004 and November 2004, the respondent was guilty of unprofessional conduct.
PARTICULARS
1.1     At all material times the respondent was registered as a physiotherapist pursuant to the Physiotherapists Act 1991 (“the Act”).
1.2     At all material times, the respondent was employed as a physiotherapist by Wellness and Lifestyles, Australia.
1.3     At all material times, the respondent was a proprietor of the business referred to in paragraph 1.2 above and effectively controlled the affairs of the business.
1.4     On 20 October 2004 at the Churchill Court Nursing Home, Mr Andrew Ballard, salesman for Design and Innovations, SA, Incorporating A1 Scooters & Wheelchairs, demonstrated a product known as a “Club Chair” to the respondent and to other employees of the said Nursing Home.
1.5     (deleted at hearing)
1.6     (deleted at hearing)
1.7     By email transmission dated 9 November 2004 addressed to Mr Rod Meuris, Manager of Design and Innovations SA, the respondent advised Mr Meuris “If our therapists are to recommend your products and take the time to research the best option for their client we feel it is in your best interest to offer a small financial incentive for their time and effort as you would a sales rep!”…
1.8     In the foregoing the respondent’s conduct was unprofessional.
There was a second charge of unprofessional conduct, which the Board did not consider had been made out. That charge was as follows:
2.    Between approximately May 2004 and May 2005, the respondent was guilty of unprofessional conduct.
PARTICULARS
2.1    The particulars in paragraph 1.1 to 1.3 (inclusive) above are repeated.
2.2    In about January 2005, J.O.A.M. Pty Ltd (ABN 31112608518) became the new proprietor of the business trading as Wellness and Lifestyles Australia. The respondent at all material times was one of the Directors and a shareholder of this company and effectively controlled the affairs of the said company and business.
2.3    On his own admission, made in a letter dated 10 May 2005 addressed to the Registrar of the Physiotherapists Board of South Australia, the respondent advised that the business, Wellness and Lifestyles Australia had had in place an ‘on seller’ agreement with Home Health Equipment for approximately 12 months.
2.4    The respondent admitted in this letter that he and a number of the physiotherapists employed by the business Wellness and Lifestyles Australia have received financial gain, in the form of a referral fee/commission, for recommending the products of Home Health Equipment to patients and clients.
2.5    The respondent has not disclosed receipt of such a referral fee/commission to his clients and/or to the residency it is recommending the products to.
2.6    In the foregoing the respondent’s conduct was unprofessional, in that his conduct fell short of to a substantial degree the standard of professional conduct observed of or approved of by members of the profession of physiotherapy of good repute or competency.
It is of note that the particulars in relation to the first ground of complaint alleged that the respondent’s conduct was unprofessional, while the particulars in relation to the second ground of complaint alleged that the respondent’s conduct was unprofessional in that his conduct fell short of to a substantial degree the standard of professional conduct observed or approved by members of the profession of physiotherapy of good repute or competency.
An inquiry was conducted in relation to both charges. Evidence was presented to the Board conducting the inquiry, both in support and in defence of the charges.
I note that the complaint laid by the Registrar of the Board is expressed to be “pursuant to s 40” of the Act. However, the source of the authority for the laying of a complaint is s 45 of the Act, but nothing turns on this error, given that no point was taken before the Board.
The Board’s Formulation of Its Task
The Board expressed its task to have been as follows:
(a) “the question under Inquiry is whether, on the evidence, the respondent was unprofessional within the meaning of s 40 of the Physiotherapy Practice Act 2005” (paragraph [6]);
(b) “that the question of whether a physiotherapist and therefore the respondent had committed unprofessional conduct is a question of whether ‘members of the profession of good repute and competency’ (Re: Ward) regard the physiotherapist’s acts to be within the bounds of the profession” (at paragraph [10]); and
(c) whether the respondent’s conduct could:
be reasonably held to violate or fall short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency.
In re R, A Practitioner of the Supreme Court (1927) SASR 58 and 60 (paragraphs [8] and [56.7])
(Hereafter referred to as “the relevant passage”)
The Board accepted that the relevant standard of proof on a charge of unprofessional conduct was the civil standard, namely whether it was satisfied on the balance of probabilities that the appellant was guilty of unprofessional conduct.
The Board also noted that although the alleged unprofessional conduct occurred before the Physiotherapy Practice Act came into operation, the provisions of s 45 extended to the act or acts alleged to constitute the unprofessional conduct, based upon s 3(2) of the Physiotherapy Practice Act. That subsection provides as follows:
3(2) A reference in this Act to unprofessional conduct extends to –
(a)unprofessional conduct committed before the commencement of this Act; and
(b)unprofessional conduct committed within or outside South Australia or the Commonwealth.
No issue was taken with this approach, although the appellant submitted that the standard of proof was the civil standard subject to the qualifications in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
It was not alleged, nor did the Board consider specifically, whether the conduct charged fell within any of subparagraphs a), b), c) or d) of the definition of “unprofessional conduct” in s 3 of the Physiotherapy Practice Act. In this regard, it is to be noted that it was submitted at the outset, on behalf of the Registrar of the Physiotherapy Board, that the conduct the subject of the grounds of complaint, was alleged to be unprofessional in that it fell short of and violated the standard that would be expected of members of the profession of good repute and competency: see transcript at page 7.
The Decision of the Board
The Board delivered its findings and reasons on 17 May 2007. The Board’s reasons addressed both grounds of complaint (excepting paragraph [56] that related solely to the first ground of complaint and [57], [58] and [59] which related solely to the second ground of complaint).
On the first charge, the Board found:
[56 .5]“… that the writing and transmitting of the e-mail from the respondent to Mr Meuris on 9 November 2004 was ‘unprofessional conduct’ in that he sought a reward for recommending particular products.”
Thus, the Board’s finding in paragraph [56.5] was implicitly based on a conclusion from the evidence that the appellant had sought a reward for recommending particular products.
It subsequently determined:
[56 .11]“… that there is proper cause for disciplinary action against the respondent for unprofessional conduct with respect to the first ground of complaint.”
“… that the disciplinary action takes the form of a reprimand and that such reprimand should be in writing from the Board.”
On the second charge, the Board found:
[58]“… that in this second ground of complaint the respondent’s conduct was not of a professional standard but that it does not fall short of such a standard to a sufficient degree for it to be deemed ‘unprofessional conduct’.”
and
[59]“… that there be no disciplinary action taken against the respondent in relation to this, the second ground of the complaint.”
In relation to the second ground of complaint, the Board accepted the opinion of the witness Ms Brunt “that receiving a referral/commission for recommending various products is not common ethical practice” (paragraph [57.7]), and commented that “there is a potential conflict of interest when a physiotherapist receives payment for recommending certain items of equipment over others” (paragraphs [57.12]) and further, that there should be, but was not in this case, full disclosure of any agreement to this effect to the client or resident involved at the time of recommendation and prior to the sale (paragraph [57.12]). In the course of its reasons, the Board intimated that it had “placed considerable weight on the fact that the agreement between Home Health Equipment to pay a commission to Wellness & Lifestyles Australia was a mutual one, in contrast to the first grounds of complaint” (paragraph [57.13]).
The Board heard submissions with respect to costs and on 28 May 2007 ordered that:
7.“The Board considered that since the respondent’s unprofessional conduct led to the instigation of this inquiry, costs of $12,000 be awarded against him. These costs were estimated to be approximately one half of the Board’s total costs that will be incurred when the matter is brought to completion. The Board considers this allocation to be just and reasonable in accordance with section 22(1) of the Physiotherapy Practice Act, 2005.”
The Conduct
The first charge focused on the words:
If our therapists are to recommend your products and take the time to research the best option for their client we feel it is in your best interest to offer a small financial incentive for their time and effort as you would a sales rep!
However, the above sentence was contained in an e-mail, the full text of which is as follows:
Dear Andrew
Sorry everything has taken so long but as I told you things have been quite hectic at my end!
After today’s conversation I feel there has been a miss communication regarding how we operate, which I’d like to clear up!
W&L’ s primary business is to service Aged Care Facilities with the best allied health care. From this we recommend equipment to benefit the resident’s health and safety. This has lead us to develop close relations with professional equipment providers whom also strive to provide clients with the same professional service. After meeting you at Churchill Court and seeing your product I was interested in potentially developing a relationship with you and A1 Scooters.
We feel it is very important for whom ever we work with to have the same high standards. We will consider all products and complimentary services to allied health on an individual basis if it benefits our clientele. These products and services must be quality and price competitive for us to recommend them. Under no circumstances would we ever stop a client from purchasing another business product if it is more suited to their needs. Our main objective at all times is to provide the best quality allied health service.
If our therapists are to recommend your products and take the time to research the best option for their client we feel it is in your best interest to offer a small financial incentive for their time and effort as you would a sales rep!
If you are interested in developing a relationship and educating us on your products we would be interested in meeting with you and your company to discuss the benefits of your products and whether we feel they are suitable for us to recommend. If you would like to discuss this further please do not hesitate to call myself or Nikki on the numbers below.
Nick Heywood-Smith
Wellness & Lifestyles Australia
The Reasons of the Board
In its reasons, the Board implied in paragraph [56.10] that the conduct complained of did not fall within the meaning of “unprofessional conduct” in s 3 of the Act, which provision it considered was not exhaustive and thus it was open to the Board to consider specific conduct not contained within the meaning in s 3 as constituting unprofessional conduct. It follows that the Board did not consider that the conduct alleged fell within any of the meanings given to “unprofessional conduct” in s 3, thus excluding any suggestion that the conduct was unprofessional because it was either improper or unethical.

With respect to the formulation of its task, the reference by the Board to s 40, it was submitted, was a reference to s 40(1)(b) of the Act. That subsection provided the source of power for disciplinary action against a registered person where the person is guilty of unprofessional conduct. The subsection does not contain a test for “unprofessional conduct”. The next step was to determine whether the appellant was guilty of unprofessional conduct.
As observed above, the Board found that “the writing and transmitting of the e-mail from the respondent to Mr Meuris on 9 November 2004 was ‘unprofessional conduct’.”(paragraph [56.6])
There were two approaches evident as seen in the summary in paragraph 20 above. One was whether the conduct was inconsistent with professional conduct, and the other was whether the conduct was inconsistent with professional conduct to a substantial degree. In searching for the meaning for “unprofessional conduct” the Board also had regard to s 57 of the Act and clause 10 of the APA Code of Conduct, “as being indicative of what may be deemed 'unprofessional conduct'”.
Unprofessional Conduct
That “unprofessional conduct” does include conduct that is described in the relevant passage in In re R; A Practitioner (above) was confirmed by the Honourable the Chief Justice in Keogh v The Medical Board of South Australia & Anor [2007] SASC 342 at paragraph 63 where the question under consideration on an application for judicial review was whether the Medical Board had applied an incorrect test to determine whether there had been “unprofessional conduct” by the medical practitioner concerned as alleged. The meaning of “unprofessional conduct” in the Physiotherapy Practice Act is identical to that in the Medical Practitioners Act 2004, which was under consideration in Keogh (above).
Although the complaint in Keogh (above) rested mainly on subparagraph (b) of the definition of “unprofessional conduct”, some of the comments made by the Honourable the Chief Justice in his reasons have relevance, generally, to a charge of unprofessional conduct under legislation in which the term has the same inclusive meaning as in the Physiotherapy Practice Act.
In Keogh (above), Doyle CJ drew attention to the need to be circumspect in the application of the relevant passage from In re R, A Practitioner, having regard to the context in which the statement had been made. His Honour recalled that in In re R, A Practitioner the Full Court had considered the meaning of the term “unprofessional conduct” in relation to a legal practitioner in the context of the absence of any statutory definition of the term in the legislation relating to the legal profession, and had in the course of its consideration stated its view that the concept of “unprofessional conduct” was wider than the concept, taken from English legislation relating to legal practitioners, of “professional misconduct”.
Doyle CJ acknowledged in Keogh that the statutory definition of unprofessional conduct (as it is in the Physiotherapy Practice Act) is an inclusive definition and had “no doubt that unprofessional conduct will include conduct that falls within the test articulated in In re R, A Practitioner”. The Chief Justice explained that in this way personal conduct unrelated to professional practice would be caught, and provided an example, namely: Reyes v Dental Board of South Australia [2002] SASC 239; (2002) 83 SASR 551 at [25] - [33], where the personal conduct of a dentist, unrelated to his practice of dentistry, was held to be unprofessional conduct.
It follows from the comments in Keogh (above) that it is necessary to take care that the test derived from the relevant passage in In re R, A Practitioner (above) is used where appropriate, as a guide to assist in determining whether conduct was unprofessional, and not to substitute that test for the statutory test, so that either a broader, or a narrower, test is applied. In the matter now before the Court it was not argued that the Board had sought to apply either a broader, or a narrower test than the statutory test, but merely that it was open to the Board to apply the common law test.
A Question of Degree
The Board also described the test by reference to Re: Ward [1953] SASR 308. The Board said, correctly, that the test (from In re R, A Practitioner) had been applied in that matter which involved a physiotherapist, and more recently in Versteegh v The Nurses Board of South Australia [1992] SASC 3740. However, the Board did not reflect correctly what the Full Court had said in Re: Ward (above). In that matter, while Abbott J in describing “professional conduct” said, ‘the true criterion of professional conduct is that agreed upon by “members of the profession of good repute and competency”’ (at page 318), the majority judgment (Napier CJ with whose reasons Ligertwood J. agreed), in considering whether there was justification for the Board’s finding that the respondent had been guilty of unprofessional conduct, said, “It is no doubt a question of degree” (page 314).
In consequence of its finding that the conduct the subject of the charges amounted to unprofessional conduct under the Physiotherapy Practice Act, the Board should then have considered whether the appellant’s acts violated or fell short of the standard of professional conduct that is observed by physiotherapists of good repute and competency, to a substantial degree: In re R, A Practitioner (above). Thus, in so far as it applied or was guided by the test derived from the relevant passage, the Board was in error in formulating the question as it did in paragraphs [3] and [10] of its reasons because it omitted from the question, the element of degree or seriousness contained in the words “to a substantial degree” in the relevant passage.
Indeed, nowhere in its reasons in relation to the first ground of complaint did it consider the degree to which the conduct that formed the basis of the charge violated or fell short of the standard of professional conduct observed or approved by members of the physiotherapy profession of good repute and competency. In contrast, for the second ground of complaint, the Board clearly applied the whole test to the facts. That is evident in its determination that “the respondent’s conduct was not of a professional standard but [that] it does not fall short of such a standard to a sufficient degree for it to be deemed ‘unprofessional conduct’”(paragraph [58]).
If the Board was correct in deciding that the conduct in approaching the vendor of a health product was unprofessional, it then should have looked at the degree to which it was unprofessional, consistently with the test in In re R, A Practitioner (above). The Board’s reasons do not reflect that it did so. The purpose of legislation regulating practice by members of a profession, as the Supreme Court explained in Reyes (above) at paragraph 32, is “to protect the public and to ensure that persons not fit to practice are prevented from so doing”. In the context of the Act and the purpose of the legislation, this at least should have involved a consideration of whether the public trust and confidence in the physiotherapy profession was or might have been negatively affected in consequence of the conduct.
The Factual Basis
The basis of the allegation of unprofessional conduct against the appellant was that on or about 9 November 2004, he sent an e-mail to sales representative Mr Andrew Ballard, the contents of which, it was alleged, “fall short of the standard that would be observed or approved by members of the profession of good repute or competency”.
In the event, the Board found that the writing and transmitting of the e-mail “was ‘unprofessional conduct’ in that he (the appellant) sought a reward for recommending particular products” (at paragraph [56.5]).
In so concluding, the Board had taken into consideration its summary of Ms Brunt’s evidence, set out at paragraph [53] of its reasons. The Board appears to have been influenced by Ms Brunt’s understanding of what was proposed in the e-mail. It was the task of the Board to determine objectively the meaning of the email.
On a proper construction of the e-mail, the appellant was not seeking a reward for recommending particular products.
The evidence from the appellant revealed that what was intended by the contents and transmission of the e-mail was not precisely that conveyed by the words. However, the Board was entitled to look itself at the plain, objective meaning of the words, in their context. The words quoted in the charge, standing alone, may have entitled the Board to conclude that the appellant was seeking a small financial reward for the therapists with whom he had an association, for recommending a particular product or products, although that is not precisely what the Board concluded. The full e-mail as transmitted, gives rise to a different picture. It reveals that the therapists would recommend a particular product only if it benefited the client, was quality and price competitive, and suited to the client’s needs. In addition the e-mail stated that the therapist would have to be satisfied in each case that it was appropriate to recommend the product in respect of which he or she would receive a small benefit, if ordered.
The words of the charge should have been read in the context of the whole of the e-mail, including, “our main objective at all times is to provide the best quality allied health service”. The evidence does not support the Board’s finding that the appellant sought a reward for recommending particular products.
The Evidence of Ms Brunt
Counsel for the appellant was critical of the Board’s reliance upon the evidence of Ms Brunt. A physiotherapist who has worked in the aged care sector for most of her career since graduating in 1983, Ms Brunt was asked by the Crown Solicitor, in a letter dated 7 April 2006 to provide for the Board, her “expert opinion in relation to the conduct of Mr Heywood-Smith”, and whether in her opinion, “such conduct, if proven, could amount to unprofessional conduct”. Accompanying that letter was a copy of various documents, including the transcribed interview of the appellant, the statement of Andrew Ballard, the email and various letters from the appellant and Mr Meuris. Ms Brunt provided a written opinion. Subsequently, Ms Brunt’s opinion was placed before the Board and she gave evidence at the Inquiry conducted by the Board. In her evidence, Ms Brunt stated clearly that she was giving her own opinion, only.
There is a question as to the weight, if any, to be given to Ms Brunt’s evidence. The Board that conducted the Inquiry was a specialist tribunal, constituted by 3 persons, including a legal practitioner and a physiotherapist, as was required by s 49 of the Physiotherapy Practice Act.
The courts have strongly expressed the view that the question of whether particular conduct is unprofessional conduct is a matter for the specialist professional tribunal established by legislation.
In Re: Ward, Abbott J took the view that a professional board does not take evidence on the matter of whether the alleged conduct constituted unprofessional conduct. At page 318 His Honour said:
As I have stated, the true criterion of professional conduct is that agreed upon by ‘members of the profession of good repute and competency’, and as professional members of the Board are presumably of good repute and competency, the Board’s opinion of what is, what is not, unprofessional conduct is decisive. Therefore, if the profession is truly a profession, evidence from any person or Association directed to expounding his or its view as to what constitutes unprofessional conduct is not only unnecessary, but is, in strictness, entirely irrelevant.
In the same matter, Napier CJ agreed that the Board was best fitted to determine whether or not particular conduct constituted unprofessional conduct.
That case concerned a physiotherapist charged with unprofessional conduct. Under the then applicable legislation (Physiotherapists Act 1945-1949), the Board consisted of a legal practitioner, a medical practitioner and 3 registered physiotherapists.
The approach of Abbott J. in Re: Ward was followed by Bright J. in In re, Aidinis (1975) 12 SASR 158, at p 165:
I have raised the question of how the Board becomes aware of what is acceptable or unacceptable behaviour. A Board like the Statutory Committee of the Law Society or the General Medical Council is composed of members of the profession in question: it applies its own knowledge of right behaviour. As Abbott J said in Ward’s case (supra) it does not take evidence on the matter.
Thus, a specialist professional tribunal established by legislation, should apply its own knowledge and opinion. The question then arises as to whether on appeal, this Court is bound by the Tribunal’s finding, as recognised by the Honourable Justice Mulligan. In Versteegh v The Nurses Board of South Australia (above), an appeal from a decision of the Nurses Board in relation to the conduct of a nurse, His Honour referred to the passages from Re: Ward and In re, Aidinis (above), but declined to accept that the Court was bound by a Board’s decision, in the following passage (paragraphs 47-48):
47. However, these cases do not establish that the Court is bound by the conclusion of the Board that the proven conduct does amount to unprofessional conduct. Bray CJ in In re A, A Practitioner (1975) 12 SASR 166, with the concurrence of the other members of the Court, said, at p 170: -
“When the Court has to consider the application of a standard like this which does not involve the consideration of any principle of law, criminal or civil, or of equity, but depends on the standard of professional conduct, it must, of course, place great weight on the views of the experienced members of the Statutory Committee. In England apparently the Court will accept the ruling of the Disciplinary Committee of the Law Society as to contemporary professional standard and not attempt to substitute its own views on the subject (In re, A Solicitor (1974) 3 All ER 853, per Lord Widgery CJ at p 859). It is not necessary to decide whether we would feel ourselves bound to go as far as that and there is some reason to think that we would not; see In re, R (1927) SASR 58 at p 60 and the cases there cited. For the purpose of the present case I am prepared to examine the matter for myself, though leaving open the question of whether the opinion of the Statute Committee on the proper standard of professional conduct may not after all be conclusive.”
48. Of course, that case was concerned with professional standards of legal practitioners with which the Courts have some familiarity. The Court has no familiarity with many aspects of the work of the nursing profession and, generally speaking, should accept the views of the Board as it is comprised of persons who are undoubtedly of good repute and competency and who, in the main, have appropriate experience and expertise to judge such a matter in relation to nursing, unless the judgment of the Board is not supported by the evidence or is for some other reason untenable. These observations are made in the context of the type of conduct which the Board found proved against the appellant. It is a different matter if the conduct constitutes serious criminal conduct all grave personal impropriety. In such cases the Court is well able to form a view as to whether the circumstances justify a finding of unprofessional conduct.
In accordance with Versteegh (above), the views of a specialist professional tribunal are paramount, unless they are untenable for an identified reason.
The Board revealed, at paragraph [52] that it had taken into consideration the evidence of Ms Brunt including “as a member of the physiotherapy profession of good repute and competency”, and particularly the evidence summarised at paragraph [53]. It was not appropriate for the Board to receive evidence on what, with respect, was its task. The Board is established as a specialist professional board, charged with determining whether conduct was unprofessional. It is not appropriate that it abrogate its task to any other member of the physiotherapy profession or seek the views of members of the profession. It is for the Board to apply its own knowledge.
In fairness to the witness Ms Brunt, she should not have been asked for her “expert opinion” in relation to the conduct of the appellant, and whether such conduct could amount to unprofessional conduct.
In having regard to Ms Brunt’s opinion as to the meaning of the e-mail, the Board was in error. However, it would have been permissible for a witness to explain the factual context to assist the Board to reach a conclusion. I mean by this that it may have been appropriate for the Board to receive evidence of the role generally of a physiotherapist concerning the recommendation and ordering of health products for clients of the physiotherapist, and for residents or patients of a facility to which the physiotherapist is contracted, as appropriate. Whether such evidence is appropriate will depend on the facts of the case.
In having regard to Ms Brunt’s opinion evidence as to whether the conduct as alleged would constitute professional conduct, if proved, the Board was in error.
The Standard in Section 57 of the Act
The Act came into operation after the conduct the subject of the charge. Section 57 creates offences, thus proscribing certain conduct by, in the case of subsection 1, persons in relation to registered persons, and in the case of subsection 2, registered persons in relation to other persons. The contravention of, or a failure to comply with the provision of the Act, inter alia, constitutes “unprofessional conduct”, in accordance with the meaning given to that term in the Act. It might be that a charge of an offence contrary to s 57 would have to be proven in an appropriate court before a charge of unprofessional conduct could be founded on the basis of a breach of s 57.
The Board appears in effect to have confirmed that the behaviour proscribed in s 57 was indicative of unprofessional conduct. With respect, they were correct in so concluding, as the definition of “professional conduct” in s 3 included in paragraph (c), “a contravention of or failure to comply with a provision of this Act”. However the Board had already indicated that the appropriate test was that derived from the relevant passage, rather than any of the meanings of “professional conduct” in s 3 of the Act.
The section was not referred to in the complaint, and in any event, the conduct complained of does not, on any view of the matter, fall within s 57 of the Act. On the evidence before the Board, a benefit was not offered or given, and nothing was accepted by or on behalf of Mr Meuris or his company.
As I have said earlier in these reasons, it was for the Board to decide whether the conduct was unprofessional in terms of the test in In re R, A Practitioner (above), not for it to cast around for a standard against which to assess the conduct. In so far as the Board took into account the provisions of s 57 as being indicative of what could amount to “unprofessional conduct”, it was in error. That was an irrelevant consideration.
Clause 10 of the APA Code of Conduct
Clause 10 of the Australian Physiotherapy Association (APA) Code of Conduct provides that “APA members shall act in a manner which reflects well on the physiotherapy profession”. The Board said that it: “considers clause 10 of the APA Code of Conduct as being indicative of what may be deemed ‘unprofessional conduct’.”(paragraph [56.4]). In paragraph [56] the Board appears to have drawn upon the Interpretation of the Code of Conduct established to provide “practical interpretations to assist APA members to understand and uphold the Code”.
The APA Code is expressed to be established by the APA “as the basis for ethical and professional conduct which meets community expectations and justifies community trust in the judgment and integrity of APA members”. It did not bind the appellant at the relevant time, as he was not a member of the Australian Physiotherapy Association. I accept that the clause could conceivably be useful to inform a tribunal that was not constituted to include a physiotherapist, as to improper or unethical conduct and perhaps, unprofessional conduct, in the absence of legislative definition or other test. However, the Board was charged with deciding whether the conduct was unprofessional. It decided to apply the test derived from the relevant passage in In Re, A Practitioner (above).

It was incumbent on Board to decide whether the conduct was unprofessional and in terms of the test derived from the relevant passage; not to cast around for another standard by which to assess the conduct. Insofar as the Board had regard to clause 10 of the APA code as being indicative of what could amount to “unprofessional conduct”, it was in error.
Summary
I have concluded that the Board, despite in part of its reasons properly identifying the test for “unprofessional conduct” derived from the relevant passage in In Re, A Practitioner (above), failed to properly implement the test. In addition, the Board had regard to irrelevant considerations.
The Court is required, by s 42E of the District Court Act, not to depart from the decision being appealed against, except for cogent reasons. I am satisfied that there are cogent reasons, as expressed herein, to depart from the decision of the Board. I would uphold the appeal. The Court, pursuant to s 42F of the District Court Act, may now either remit the matter to the Board or rescind the decision and substitute a decision that the Court considers appropriate.
The appellant has asked that the decision of the Board be set aside and in lieu thereof the complaint be dismissed. In light of my determination that the Board was in error with respect to the factual basis of the charge of unprofessional conduct, namely that what the appellant had done was to seek a reward for recommending particular products, I have concluded that the appropriate course is as the appellant has sought, rather than to remit the matter to the Board. In this context I also note although it has had no bearing upon my decision, that approximately 3 years elapsed between the period of the alleged unprofessional conduct and the hearing of the appeal in this Court. It is appropriate that matters are now brought to a conclusion.
Costs
Given my determination that the Board’s decision should not be maintained, it must follow that the order of the Board in relation to costs, should also be overturned, given the basis of the making of that order by the Board on 28 May 2007. I refer to the Board’s reasons for awarding costs against the appellant, as follows:
The Board considered that since the respondent’s unprofessional conduct led to the instigation of this inquiry, costs of $12,000 be awarded against him.
I need not be concerned with the basis of the decision as to the amount of the costs.
The appellant also sought an order that the respondent pay the appellant’s costs of this appeal, in the event that the appeal was successful. Section 42G of the District Court Act specifies that no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice. The judgment of this Court in Moore v Registrar of the Medical Board (No 2) [2001] SADC 141, emphasised that an order of costs is not to follow the event and suggested that it is only to be made where there exists “some unusual or out of the ordinary feature” which makes it in the interests of justice to order costs. In that matter there were compelling and unusual features that the Court considered made such an order necessary in the interests of justice.
It is my concluded view that there is no such feature in this matter. There will be no order for costs of the appeal proceedings.
Conclusion
The Board’s decision was tainted by errors of law. In addition, the Board’s finding as to the conduct that was the basis for its decision that the appellant had engaged in unprofessional conduct, was not in accordance with the evidence.
The appeal will be upheld and the orders of the Board made on 28 May 2007, with respect to the first ground of complaint, set aside.