In Re Dr Smith

[2007] NSWMT 10

New South Wales

Medical Tribunal

CITATION:	In Re Dr Smith [2007] NSWMT 10 revised - 19/12/2007
TRIBUNAL:	Medical Tribunal
PARTIES:	Dr Robert Smith Medical Board of New South Wales
FILE NUMBER(S):	40008 of 2007
CORAM:	Rein, SC DCJ - Child, Dr D - Harvey-Sutton, Dr P - Glass, Assoc Prof A
CATCHWORDS:	Practitioner appealing from orders of Review Panel - Appeal dismissed - and orders of Panel confirmed - Practitioner involved in medico-legal assessments found to have engaged in rude and insensitive comments with a number of patients - poor communication skills - Standard of proof
LEGISLATION CITED:	Medical Practice Act 1992 (NSW)
CASES CITED:	Allesch v Maunz (2000) 203 CLR 172; Coal v Allied (2000) 203 CLR 194; Spurway Constructions v Saville Healthcare 135 CLR 616; McKee v Allianz Australia Insurance Ltd [2007] NSWSC 1067 ; Briginshaw v Briginshaw (1938) 60 CLR 336; Refjik v McElroy (1965) 112 CLR 517; Bannister v Walton (1993) 30 NSWLR 699; Riviera v HCCC [2006] NSWCA 216; Markus v Provincial Insurance Company Ltd NSWSC 11 May 1983; Marsden v Amalgamated Television NSWSC 7 May 1999 ; Broadwater Taxation v Henriks NSWSC 9 September 1993
DATES OF HEARING:	8, 9, 10, 11 October 2007
DATE OF JUDGMENT:	11 December 2007
LEGAL REPRESENTATIVES:	Mr S.G. Barnes (Dr Smith) Ms K.H. Richardson ( Medical Board)
ORDERS:	1.The Appeal is dismissed.; 2.Orders made in accordance with judgment below.; 3.Dr Smith to pay the costs of the Medical Board as agreed or assessed.

JUDGMENT:

The Tribunal orders:

1 The Appeal is dismissed.

2 We make the following orders:

1 That if Dr. Smith seeks to work in an area of medicine other than medico-legal practice, it must only be in a position approved by the NSW Medical Board. 2 That Dr. Smith is required to notify the NSW Medical Board of any change in the place of his employment.

3 That within 40 days of the date of this decision, Dr. Smith nominates a medical practitioner (in the area of either medico-legal or orthopaedic practice) for approval by the NSW Medical Board to act as his supervisor with accordance with Level 3 of the NSW Medical Board’s Guidelines for Supervision, and in accordance with the following:

a) Dr. Smith and the approved supervisor are to meet twice a month and each meeting is to be for at least four (4) hours;

b) The approved supervisor is to be provided with a copy of the NSW Medical Board’s Guidelines for Supervision, a copy of the Performance Review Panel decision of 23 March 2007 and a copy of this decision;

c) Of the two (2) required meetings each month:

i) one meeting is to be observation by Dr. Smith of consultations or assessments of claimants, undertaken by the approved supervisor and

ii) one meeting is to be observation by the approved supervisor of consultations or assessments of claimants, undertaken by Dr. Smith.

d) Each meeting is to include:

i) discussion of cases, including discussion of history taking, examination, diagnostic techniques and current treatments and

ii) review of medical reports.

e) At each meeting, the approved supervisor is required to complete a record of matters observed and discussed, in a format approved by the NSW Medical Board.

f) Dr. Smith is to authorise the approved supervisor to forward to the NSW Medical Board, initially on a monthly basis, copies of the two (2) meeting records and a summary report in a format approved by the NSW Medical Board.

g) That supervision is to be for a minimum of twelve (12) months and for any further period as determined by the Board or Performance Committee.

h) The approved supervisor is required to inform the NSW Medical Board immediately if there is any concern in relation to Dr. Smith’s compliance with the supervision requirements, other conditions of registration, professional performance or if the supervision relationship ceases.

i) Dr. Smith is responsible for any costs associated with meeting this condition.

4 That Dr. Smith is required to undertake and satisfactorily complete all components of the Clinical Communication Program (CCP) presented by the Cognitive Institute. The CCP is conducted over three months and comprises three phases:

Phase 1: Preparation and Goal Setting – to occur in the six weeks prior to Phase 2;

Phase 2: Attend and participate in all sessions of the next available 3-day residential workshop.

Phase 3: Implementation and Monitoring

(a) Dr. Smith is required to supply the NSW Medical Board the following:
(i) Within eight (8) weeks of these orders, a copy of letter from Cognitive Institute confirming registration

(ii) Within one (1) week of receipt, a copy of Cognitive Institute Phase 1 and Workshop Progress Statements

(iii) Within one (1) week of receipt, a copy of Cognitive Institute Certificate detailing successful completion or otherwise of all program components.

(b) Dr. Smith is responsible for any costs incurred in participating in the CCP.

5 Dr. Smith’s professional performance be assessed at a time determined by the Board or Performance Committee. Dr. Smith is to co-operate fully with the NSW Medical Board in organising the assessment, including the timely provision of any requested information. The form of the assessment is to be at the discretion of the Board or Performance Committee.

6 That Dr. Smith consent to any exchange of information between the NSW Medical Board and Medicare Australia, where such an exchange is necessary to facilitate monitoring of compliance with these conditions of registration. 7 The NSW Medical Board may notify Dr. Smith’s employer/s of any issues arising in relation to compliance with these conditions. 8 These conditions may be reviewed or eased by the NSW Medical Board or its Performance Committee.

9 That Dr Smith, within 2 weeks of this decision, is to read the Code of Conduct and the NSW Medical Board Guidelines and sign a statutory declaration that he has read those documents and understands their content.

3 Dr. Smith to pay the costs of the Board on a basis to be determined.

JUDGMENT:

4 This is an appeal brought pursuant to Section 98A of the Medical Practice Act 1992 (the “MPA”) by Dr. Robert Darlow Smith (“Dr. Smith”).

5 On March 23 2007 a Performance Review Panel constituted under s.86K of the MPA (Division 4) and comprising Dr Rosemary Kusuma, Dr Kerin Fielding and Dr James Scott Harbison made orders relating to Dr. Smith. The orders made were:

1 That if Dr. Smith seeks to work in an area of medicine other than medico-legal practice, it must only be in a position approved by the NSW Medical Board.

2 That if Dr. Smith is required to notify the NSW Medical Board of any change in the place of his employment. 3 That within 40 days of the date of this decision, Dr. Smith nominates a medical practitioner (in the area of either medico-legal or orthopaedic practice) for approval by the NSW Medical Board to act as his supervisor with accordance with Level 3 of the NSW Medical Board’s Guidelines for Supervision, and in accordance with the following:

(j) Dr. Smith and the approved supervisor are to meet twice a month and each meeting is to be for at least four (4) hours;

(k) The approved supervisor is to be provided with a copy of the NSW Medical Board’s Guidelines for Supervision and a copy of this decision;

(l) Of the two (2) required meetings each month:

(iii) one meeting is to be observation by Dr. Smith of consultations or assessments of claimants, undertaken by the approved supervisor and

(iv) one meeting is to be observation by the approved supervisor of consultations or assessments of claimants, undertaken by Dr. Smith.
(m) Each meeting is to include:

(iii) discussion of cases, including discussion of history taking, examination, diagnostic techniques and current treatments and

(iv) review of medical reports.

(n) At each meeting, the approved supervisor is required to complete a record of matters observed and discussed, in a format approved by the NSW Medical Board.

(o) Dr. Smith is to authorise the approved supervisor to forward to the NSW Medical Board, initially on a monthly basis, copies of the two (2) meeting records and a summary report in a format approved by the NSW Medical Board.

(p) That supervision is to be for a minimum of twelve (12) months and for any further period as determined by the Board or Performance Committee.

(q) The approved supervisor is required to inform the NSW Medical Board immediately if there is any concern in relation to Dr. Smith’s compliance with the supervision requirements, other conditions of registration, professional performance or if the supervision relationship ceases.

(r) Dr. Smith is responsible for any costs associated with meeting this condition.

4 That Dr. Smith is required to undertake and satisfactorily complete all components of the Clinical Communication Program (CCP) presented by the Cognitive Institute. The CCP is conducted over three months and comprises three phases:

Phase 1:Preparation and Goal Setting – to occur in the six weeks prior to Phase 2;

Phase 2: Attend and participate in all sessions of the 3-day residential workshop to be held 1-3 June 2007 in Brisbane, Queensland.

Phase 3: Implementation and Monitoring

(a) Dr. Smith is required to supply the NSW Medical Board the following:
(i) Within two (2) weeks of these orders, a copy of letter from Cognitive Institute confirming registration
(ii) Within one (1) week of receipt, a copy of Cognitive Institute Phase 1 and Workshop Progress Statements
(iii) Within one (1) week of receipt, a copy of Cognitive Institute Certificate detailing successful completion or otherwise of all program components.

(b) Dr. Smith is responsible for any costs incurred in participating in the CCP.

5 Dr. Smith’s professional performance be assessed at a time determined by the Board or Performance Committee. Dr. Smith is to co-operate fully with the NSW Medical Board in organising the assessment, including the timely provision of any requested information. The form of the assessment is to be at the discretion of the Board or Performance Committee.

6 That Dr. Smith consent to any exchange of information between the NSW Medical Board and Medicare Australia, where such an exchange is necessary to facilitate monitoring of compliance with these conditions of registration.

7 The NSW Medical Board may notify Dr. Smith’s employer/s of any issues arising in relation to compliance with these conditions.

8 These conditions may be reviewed or eased by the NSW Medical Board or its Performance Committee.

6 The Board provided the Tribunal with a copy of the details of the Clinical Communication Program (“CCP") to which reference was made in the orders.

7 The Panel’s decision was arrived at following consideration of a number of matters relating to allegations made by persons who had attended on Dr. Smith for the purpose of Dr. Smith assessing those persons in connection with personal injury claims brought by them against various defendants. Dr Smith was in each case retained by solicitors acting for the defendant, or by an insurer of the defendant and in some instances by a defendant acting as a self-insurer. We shall refer to these persons who attended for assessment as patients – although they were not patients in the usual sense.

8 The Panel did not hear any oral testimony. Dr Smith was present during the deliberations of the Panel and was interviewed by the Panel.

9 The Board set up the panel pursuant to s.86K of the MPA. This followed a lengthy period in which the Board had attempted to have Dr Smith assessed by an assessor – Part 5B of the MPA makes provision for that process. Dr Smith and the Board engaged in lengthy correspondence over a four-year period and no assessment was ever agreed upon. The Panel’s report describes this process: p.11-12, Tab 1, Exhibit A.

10 Dr Smith appeals from the Panel’s decision and detailed points of attack on the decision were advanced. For reasons upon which we shall elaborate, those points of attack ceased to have significance and nothing was said about the detail of them in final submissions.

11 S.98A of the MPA enables a registered practitioner who is the subject of a review by a Performance Review Panel to appeal to the Tribunal against any decision of the Panel or any other direction made by the Panel under Part 5A.

12 Section 98A(4) provides that the appeal

“is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the performance review, may be given”.

13 Section 86K provides:

“A Performance Review Panel is to conduct a review (referred to in this Part as a performance review) of the professional performance of a registered medical practitioner if required to do so by the Board.”

Section 86A defines “professional performance”:

“For the purposes of this Part, a reference to the professional performance of a registered medical practitioner is a reference to the knowledge, skill or care possessed and applied by the practitioner in the practice of medicine.”

Section 86B defines “unsatisfactory” in relation to professional performance:
“For the purposes of this Part, the professional performance of a registered medical practitioner is unsatisfactory if it is below the standard reasonably expected of a practitioner of an equivalent level of training or experience.”

Section 86N sets out actions the Panel can take. 86O also provides a Panel can also direct a practitioner’s professional performance be re-assessed at a future date.

By section 86N(1), a Panel is given the power to make recommendations to the Board.

By section 86N(2), a Panel is given the power to make various directions or orders if the Panel finds that the professional performance of the practitioner, or a particular aspect of the professional performance (see 86A) of the practitioner, is unsatisfactory (see 86B).

14 This, we were informed, is the first appeal that has been brought by a practitioner from a decision of a Performance Review Panel. We received detailed and helpful submissions from Ms. Richardson of counsel who appeared for the Board, on the nature of the appeal and she concedes that since the Board had decided to call oral testimony from those persons who had made complaints and whose attendance at the Tribunal could be arranged the appeal, albeit by way of rehearing, was sufficiently close to a hearing de novo for the correctness of the Panel’s decision based on the material it had before it, to be irrelevant. Mr Barnes of counsel, who appeared for Dr Smith did not contest the correctness of that approach. Ms Richardson’s analysis was based on a reading of section 98A and related provisions of the MPA in the light of the principles set out in Allesch v Maunz (2000) 203 CLR 172, 180, Coal v Allied (2000) 203 CLR 194, 202-205 222-226, Spurway Constructions v Saville Healthcare 135 CLR 616, 621-622. A further case which could be added is the recent decision of the Court of Appeal in McKee v Allianz Australia Insurance Ltd [2007] NSWSC 1067 (which raises similar questions in another sphere).

15 It was agreed on behalf of Dr Smith that the Tribunal must form its own view and exercise its own discretion as to the exercise of powers given to the panel under s.86N.

16 We shall adopt the approach taken by the parties. Where we refer to ‘complaints’ we use that word in a general sense not with the specific meaning of a complaint within s.39 of the MPA.

17 At the conclusion of the hearing we heard oral submissions from Mr Barnes and short oral submissions from Ms Richardson who sought and was given the opportunity to provide written submissions, which were received as were further written submissions from Mr Barnes to all of which we have had regard.

18 What follows in paragraphs [19] – [77] are the views of the majority of the Tribunal. The views of the fourth member of the Tribunal are set out at [78] – [81] below.

19 Mr Barnes submitted that in dealing with the complaints of parties the Tribunal must determine whether the actual basis of those claims are made out and in approaching that task the standard is the Briginshaw test (from Briginshaw v Briginshaw (1938) 60 CLR 336).

20 The Briginshaw test, which was further authoritatively considered by the High Court in Refjik v McElroy (1965) 112 CLR 517, 521, holds that whilst in civil matters the Court need be satisfied only on the balance of probabilities, the seriousness of the finding needs to be borne in mind.

21 There is no doubt that in dealing with disciplinary matters the Tribunal must in making findings of fact, apply the Briginshaw test: see Bannister v Walton (1993) 30 NSWLR 699, 711

22 Ms Richardson submits that the Briginshaw test does not apply in the present case. First she points to the fact that the proceedings before the Panel are not disciplinary complaints of professional misconduct. Secondly, she points to the specific provisions in Schedule 3A of the Act relating to performance reviews. Clause 9 provides:

“Conduct of performance review
(1) A performance review is to be conducted in the manner determined by the Performance Review Panel.

(2) The performance review is to be conducted:
(a) with as little formality and technicality, and as much expedition, as the requirements of this Act and the proper consideration of the matter permit, and
(b) in the absence of the public.

(3) In conducting a performance review a Performance Review Panel is not bound by the rules of evidence but may inform itself on any matter in any way it thinks appropriate.”

23 In the Tribunal’s opinion the Panel is required to form a view on whether or not the practioner’s performance or any aspect of it is unsatisfactory – in reaching that view the Panel must thus have regard to the level of seriousness of what it is asserted the practitioner has done or failed to do. If the Panel were of the view that the conduct raises a prima facie case of professional misconduct or unsatisfactory professional conduct within the meaning of s.36 or s.37 of the MPA, then they could not continue with the review (see s86M), but conduct close to that level of seriousness might require more cogent proof than a minor infringement. It follows that we think that the level of seriousness of the consequence of a finding is relevant in determining the degree of satisfaction required. The orders which were made by the Panel and which the Board maintained should be upheld, whilst not involving deregistration nevertheless would involve a significant burden on Dr Smith and impact upon his standing in the profession.

24 We accept that in this case it is not sufficient for the Board to establish that subjectively, Patient X or Patient Y thought that Dr Smith was rude or insensitive – what must be established is that objectively Dr Smith was rude or insensitive or alternatively that he had a problem communicating with the patients.

25 Dr Smith is now 85 years of age. He appears to be in excellent physical condition for a man of such years. He appears to have some difficulty hearing: see for example T193.40, T197.36, T217.36; but he has no hearing aid and his evidence is that he has been told on examination that he has very good hearing for a man of his years.

26 Dr Smith graduated from Sydney University as a Bachelor of Medicine and Surgery in 1952. He studied surgery in Edinburgh, Scotland and he specialised initially in orthopaedics and later urology. He retired from public hospital work in 1986 but continued with private medical work until 1996. Commencing in 1986 on a part-time basis he carried out medico-legal assessments almost exclusively for defendants or their insurers. From 1996 he continued such medico-legal work but ceased any other form of practice. In recent times the number of referrals has become quite small but Dr Smith would like to continue with such work for as long as he is physically able to do so: T305.19-T305.32

27 Dr Smith served in the British Air Force in World War Two and having been shot down in Occupied Europe he was captured by the Germans and imprisoned for some 14 months. He also saw service in the Middle East prior to that. Dr Smith in a letter to the Board made reference to his military service and that reference is a matter to which we shall return.

28 In dealing with the various complaints Dr Smith asserts that those complaining are all persons whose claims he has found to be wholly or largely unjustified and therefore, there can be little surprise that they would be keen to attack his professionalism. Dr Smith also makes the point that he has (he claims) seen over twenty thousand people for the purpose of medico-legal assessments since 1986 and the number of complaints made given the background to which we have referred is an extremely small and insignificant number.

29 The Tribunal, with the agreement of both counsel, made an order precluding the publication of any identification of the names of patients who had complained. The identity of those patients was made known to Dr Smith and the Tribunal and indeed six of them gave evidence at the hearing before the Tribunal and were cross examined. We shall refer to the six patients who attended before the Tribunal as Patient A, Patient B, Patient C, Patient D, Patient E and Patient F. There were a further three patients who had complained but did not attend for cross examination. We shall refer to those persons as Patient G, Patient H and Patient I. Patient G, it was agreed, was about to undergo major surgery and could not attend. The Board was unable to locate Patient H and Patient I. Mr Barnes objected to the material relating to patients G, H and I but the Tribunal decided to receive their evidence and to take into account the inability of Dr Smith to test their evidence.

30 We will endeavour to describe in short compass the complaints by the patients. Patient A complained that Dr Smith had, in the process of examining him for the purpose of assessing whether or not a particular urological problem was the consequence of an accident, embarked upon a rectal examination and a massaging of the prostate and had not informed Patient A that this is what he was proposing to do or the reasons for it (see Exhibit B). According to Patient A when he asked Dr Smith to stop massaging his prostate, Dr Smith did not do so. Originally it had been contended by the Board that Dr Smith should not have embarked upon the massage even with advance warning because as a medico-legal expert his role was solely diagnosis not therapy. The Board, apparently concerned that such a complaint had not been investigated by the Panel on that basis (the Panel seemed to have been considering only whether the massage was a reasonable ‘treatment’), and secondly because the complaint might well bring the matter into the realm of unsatisfactory professional conduct or even professional misconduct and hence outside the purview of the Panel, withdrew any such attack on Dr Smith’s conduct. Patient A also says he said to Dr Smith following the examination “you took 10 years off my life I felt pale and being sick” and that Dr Smith replied “you look relaxed” (see Exhibit B).

31 Patient A made a complaint to the Health Care Complaints Commission (“the HCCC”) in June 2000. The examination had occurred on 16 October 1998. Patient A complained that as a result of what occurred that he had been traumatised and said that he rang people to complain soon after the examination: see Exhibit E and was not challenged on that. He denied that Dr Smith had asked him to squat, to move his neck or that Dr Smith had touched his back or asked him to lie on his back and lift his legs in the air: T47. He agreed that Dr Smith had examined his abdomen: T47.46. His account of the balance of the examination was challenged in cross examination, although as no complaint was based on the balance of the examination its only relevance went to the credit of Patient A.

32 Patient B saw Dr Smith on 8 May 2003. She complained the following day to the HCCC. She complained that Dr Smith had been rude to her when she tried to speak to him he constantly interrupted her and said “Excuse me, I’m trying to write” in an unpleasant manner. Further when dealing with her description of her problems in having sexual relations with her husband she claims that she and Dr Smith had the following conversation:

“I said: ‘My neck goes into spasm when I am in the sublime [sexual position]…’
I said: ‘My injury affects my sex life’.
He said: ‘He can get it up can’t he?’
I said: ‘Yes’.
He said: ‘Then he can still put his penis into your vagina, so you are still capable of having sex’”

and that she left in tears, feeling humiliated and embarrassed. She also said that Dr Smith touched her where she experienced pain very lightly (Exhibit J, p.8) and there was a factual disagreement about how extensive Dr Smith’s examination was. Patient B, who was by training a nurse, felt that Dr Smith was not listening to what she had to say and said that Dr Smith would not give her an opportunity to answer questions he asked of her (paragraph 9, Exhibit J).

33 Patient C, who happens to be a medical technologist, saw Dr Smith on 20 July 2006. He complained on 24 July 2006. He is of Lebanese background but as at the date of examination by Dr Smith had been in Australia for more than 20 years (having arrived here as a child). According to Patient C Dr Smith asked him a number of questions about his travels to Lebanon and at one point in the course of the examination Dr Smith said “Squat”, and Patient C squatted as far as he could, and said “That’s as far as I can go. I can’t squat down any further”. Dr Smith then pushed down on Patient C’s shoulders and said “Yes you can. Just squat like you squat in Lebanon”. Patient C then said “I don’t know what you’re talking about. I arrived to this country when I was 12 years old and have only been back there once for a 4 week holiday”. Patient C says he felt racially insulted and offended. He also says that Dr Smith tried to force his leg to go further up when Dr Smith had asked him to raise his leg.

34 Patient D saw Dr Smith on 24 October 2000 and complained the following day. Patient D complained that Dr Smith had refused to allow him to provide details of his medical problems by means of a typewritten document that he had brought with him (and which, Patient D said in his evidence, had been prepared in consultation with Patient D’s lawyer), that he had described his symptoms to Dr Smith and omitted to deal with one relating to sexual problems until Dr Smith specifically asked him about that aspect. Patient D told Dr Smith at that point that he had a sexual problem as a result of his injury but Dr Smith, according to Patient D, told him that since the patient had not mentioned the matter when first asked he would not accept that the patient had such a problem.

35 Patient E, who was by occupation a nursing assistant, saw Dr Smith on 16 September 2005, and again on 2 August 2006. She complained about Dr Smith’s conduct on 21 August 2006. In that complaint, Patient E dealt only with the second consultation. In her evidence before the Tribunal Patient E described Dr Smith’s conduct at the first consultation saying he would ask her a question and not let her finish, and that he was abrupt: T92. Patient E said that at both consultations Dr Smith had been “very dismissive” in his tone and manner and that he made her feel that he thought she was lying and fabricating her injuries. There was also a specific complaint that in dealing with her description of herself as suffering from incontinence occasionally Dr Smith had asked her if she had a pad on. According to Patient E the following then occurred:

“Dr Smith then said: ‘cough. Can I feel you underwear?’ I felt very uncomfortable and awkward at his request as I did not see the relevance or need for him to feel my underwear. However as he was a doctor and I was there for an examination I felt I had to comply with his request and so I agreed.
With his hands between my legs and on my underpants Dr Smith said: ‘Cough again.’ He then felt my underwear and said ‘Well its dry’.
I said to him: ‘As I have told you already, I have occasional incontinence, not incontinence all the time’.
Dr Smith then said: ‘If you haven’t got a pad on, what are you going to do on the way home?’
I said: ‘I will put on a new pad when I leave here’.

36 We should emphasise that there is no impropriety of a sexual kind asserted. Dr Smith had a female staff member present during the examination. The complaint is that Dr Smith was rude and insensitive to her in his questioning and manner.

37 Patient F says that when she told Dr Smith she did not want to sign a document he said “so your uppity-town solicitor has advised you not to sign the documents. That just proves that both you and your solicitor have something to hide”, in an abrupt and angry tone. In the course of asking her questions and her answering he said words to this effect: “You must be able to explain it better than that” (Exhibit K, paragraph 7) in a raised voice. She says that he shook his head and raised his hands on several occasions and she felt that Dr Smith was not interested in how her problems had occurred and did not believe her. Patient F also says she was in pain and leant on the corner of Dr Smith’s table and that Dr Smith then said in a very abrupt tone:

“There’s no need to lean all over my table. If you wouldn’t mind there’s a chair there if you are in that much pain” (p.7, Exhibit H).

38 Patient G saw Dr Smith in September 2001, and complained on 12 October 2001. Her complaint is that Dr Smith was rude, arrogant, demeaning and intimidating – he would cut her off by way of glances and pen motions and said to her “I will ask the questions and tell you when and if to answer”.

39 Patient H saw Dr Smith on 23 September 1999 and complained 12 July 2001. Her complaint is that Dr Smith made her leg bleed and that he was thoughtless (see Exhibit A, Tab 3(i) p. 41).

40 Patient I saw Dr Smith on 13 July 2005 and complained on 8 April 2006. Her complaint is that Dr Smith had a brusque, impatient and angry manner and undertook only a short consultation (Exhibit A, Tab 3(i), p.100), although it appears this occurred in a context where the patient, delayed due to weather conditions, had with the agreement of Dr Smith’s secretary, made a later time for examination which did not suit Dr Smith.

41 In assessing the evidence of the six patients who gave evidence before the Tribunal we should say that each of them appeared to be credible and honest witnesses doing their best to give an honest account of their interaction with Dr Smith. We accept that it is appropriate to view their evidence with some caution since in each case Dr Smith provided a report to those retaining him which was negative to their claims, but on the other hand:

(1) none of these patients have made claims concerning any other doctor retained by a defendant

(2) it would appear that the complaints were made by most of the complainants before Dr Smith’s report was provided to those instructing him, a matter we return to below

(3) no part of their evidence concerning the specific complaints was objectively shown to be false and indeed on some matters Dr Smith agreed that he had said what was ascribed to him but sought to explain it. In some cases Dr Smith denied that he ever uses the precise words used, e.g. “uppity Solicitor” or “get it up”.

(4) There was a similarity in a number of the complaints. This is a relevant matter: Riviera v HCCC [2006] NSWCA 216.

(5) The complaints if true, are consistent with a negativity towards claimants and with an approach or mindset which Dr Smith admits to taking or holding – for example:

(a) Dr Smith's belief is that 95% of the claimants exaggerate their claims and their claims have no merit (see T 204.34); and that these claims are guaranteed to “send the country broke”: T220.33 and T219.17-35

(b) Dr Smith believes that "the main problem is the claimant who often with the assistance of his or her legal advisor will say anything to gain a golden handshake": Ex A tab 3 page 86.4;

(c) Dr Smith says that "claimants are always a potential minefield": see Ex A tab 3 page 71.7;

(d) In relation to patients Dr Smith described as being a "minefield", he said one needed to tread very gently to avoid there being "an explosion": see T 198.14;

(e) Dr Smith believes he is "acting on behalf of the community" to "stop taxpayers' money going to unjustified cases": see Ex A tab 1 page 16.8, see generally Ex A tab 1 page 16.9;

(f) Dr Smith says that "it is well known that after an appropriate settlement alleged symptoms rapidly improve allowing the worker to restart working": Ex A tab 3 page 84.6;

(g) Dr Smith believes that "in medico-legal matters it is not the truth that counts but the money": Ex A tab 3(i) p 2.3;

(h) In Dr Smith's view it is "well known" and "quite obvious" that after complainants received an "appropriate settlement" their alleged symptoms would rapidly improve: see T 215.40-215.55;

(i) Dr Smith is of the view that the entire medico-legal system is in a "parlous state": see T 220.07, and it is "a parlous state that costs the country untold billions": see T 220.17.

42 These general views were linked to his more specific views about the complainants

(1) Dr Smith is of the view that the complainants in this case have complained because "they had to have something to complain about and so that's the only thing they can seize on": see T 212.54;

(2) Dr Smith, when responding to the various complaints, sought to attack the reliability of the complainants (including their reliability on the basis that the person had made a complaint at all): see for example Ex A tab 3i at page 72;

(3) Dr Smith surmised that "these people" (by which he meant claimants) frequently are in contact with their lawyers and this would be the reason why they might complain about him even though they did not know whether Dr Smith was going to write a negative report about them: see T 286.50-287.10;

(4) Dr Smith's expressed the view that someone like Patient B is very likely to suffer "events" (namely fabricated injuries) in the near future after receiving an "appropriate settlement" for her current claim: see T 201.35-201.52;

(5) Dr Smith is of the view that it is highly likely that patients discuss matters with their legal advisers after the consultations and that is the reason why they complain: see T 243.45;

(6) Dr Smith stated in relation to Patient C and the comment about squatting in Lebanon that be showed not the slightest sign of unhappiness about it during the consultation and he thought it only gave rise to a complaint after he spoke with his legal advisor: see T 243.32; even though at T243.30 he said that with hindsight it was not an appropriate thing for him to say.

(7) Dr Smith variously described the complainants as "a minor accomplished actress", a "bad actress", someone "who would say anything", “full of misinformation”: see T 253.40 – 254.51.

(8) In the medico-legal report of Patient C, Dr Smith made a handwritten remark "yet another Doctor!": see T 277.31;

(9) Dr Smith said in relation to Patient C that he "was in the habit of seeing quite a lot of doctors": see T 278.12 even though Patient C was a person who had had a head injury at work;

(10) Dr Smith wrote the word "injuries" in inverted commas on the medico-legal report of Patient C and he admitted the use of quotes in that context was meant to convey his view that the injuries were not genuine: see T 281.41;

(11) In the medico-legal report in relation to Patient G, Dr Smith wrote "injury" in inverted commas (and he agreed he used those inverted commas in order to draw attention to the fact that he did not think she had a genuine injury): see T 291.10-25;

(12) In relation to the medico-legal report for Patient G, Dr Smith wrote "once more she had the suffering expression": see T 292.08;

(13) In the medico-legal report of Patient G, Dr Smith put "suffering" in inverted commas and he agreed he did so to express his view that it was "so-called suffering" and to demonstrate that he didn't think she experienced any genuine discomfort: see T 292.55-293.07;

(14) Dr Smith wrote in the medico-legal report of Patient E that "to believe otherwise would require a complete suspension of disbelief'. Dr Smith commented in cross examination that this phrase involved "rather nice language" and that he thought it was a "nice turn of phrase": see T 271.57-272.09. Indeed, Dr Smith thought that this phrase was a more delicate way of expressing his true opinion (rather than saying for example the person was completely untruthful or a liar): see T 272.15-25;

(15) Dr Smith expressed the view that Patient B was lying to him and that he expected that she would get some money for her claim and then recover: see T 201.57-202.03.

(16) Dr Smith expressed the view that (when asked to reflect on the pattern emerging in the complaints made), patients are very likely not telling the truth and that they are people who "don't care about going on oath": see T 253.17;

43 Cross examination of Dr Smith elucidated responses that might well be indicative of a more vigorous approach to patients’ assertions than that which would be expected from a medico-legal consultant: see T283.12, T288.47, T282.45, T283.14, T278-279, T282, T281, T287-289.

44 Dr Smith indicated that he was unwilling to engage with certain other medico-legal experts involved in litigation. For example in relation to Patient E, Dr Smith stated in a medico-legal report that, although he had not read a particular report by Dr Conrad, such report was "extremely unlikely" to change his opinion (see T 268-271). In relation to Dr Conrad, Dr Smith said he had "never" agreed with him: see T 269.10. Dr Smith was of the view that this example -where he was in effect stating in a formal report to be used for Court that he would refuse to engage with Dr Conrad as an expert - was consistent with his role as a medico-legal expert witness: see T 270.09, because his role was "to tell the truth": see T 271.04-271.12, and see generally T 270.40 ff.

45 Dr Smith expressed the view that when he is writing his medico-legal reports that he is "reporting for insurance companies. I am not primarily when I do it thinking of the court. I am reporting for insurance companies to give them accurate report as I see it so that I can come to an accurate diagnosis” : see T 298.15-298.28

46 In relation to Patient D it was put to him that he was aware at the examination that Dr Smith would not support his claim for compensation. This founded the argument that that is why Patient D complained about Dr Smith’s conduct (which was put to Patient D and which he admitted was one of the reasons he complained to the HCCC). That admission rather than providing a basis for disbelieving Patient D was entirely consistent with our view of Patient D as being a witness of truth whose evidence we would accept. We are of the view too, that the fact that Dr Smith gave Patient D to understand that he would not support his claim is corroborative of Patient D’s evidence. Patient D’s evidence of what Dr Smith said to him is indicative of precisely that. Merely asking why he had not mentioned the sexual dysfunction earlier is unlikely of itself to give Patient D an impression that Dr Smith would not support the claim.

47 Further in relation to Patient B, the argument which Mr Barnes advanced was that Dr Smith’s statement to her that “excuse me I’m writing” was not inappropriate if a patient was garrulous. Dr Smith did attempt to paint Patient B as garrulous but we saw no evidence of it. Patient B’s complaints were not limited to Dr Smith saying that. Although Dr Smith denied using the words “get it up” it appears that he did not deny having asked Patient B whether her husband was capable of achieving an erection. We think that Dr Smith was initially endeavouring to ask the Tribunal to find that the substance of the conversation did not occur because he would not have used the words “get it up”. Whilst we think that it would be surprising that a doctor would use that expression with a patient, especially in a medico-legal examination, we are not persuaded that he did not use those precise words, but in any event we are satisfied that he did say words to that effect.

48 Patient F’s credibility was attacked because she had asserted that there had not been much of a physical examination. It is possible that she was correct in her evidence that the examination was short and not nearly as detailed as Dr Smith’s report and his evidence would suggest. Since the length of the examination is not a basis of complaint by the Board, and since time is always a difficult thing to assess we do not need to form a view as to whether she is erroneous in her evidence about the extent of physical examination, however even assuming that her evidence is erroneous in regard to the length of examination and we would regard that as a reason to scrutinise her evidence carefully we would nevertheless accept her as a truthful and reliable witness on the question of what Dr Smith said to her and his manner, particularly given all of the other matters to which we have, and will make, reference.

49 There were some aspects of Dr Smith’s evidence which have lead us unfortunately to doubt his reliability:

(1) In responding to Patient B’s claim that he had in effect curtly told her not to interrupt him when he was writing, in his evidence in chief he demonstrated his tone. It was consistent with how Patient B had described it. Later under cross examination however, he repeated what he had said but this time using a gentle tone quite different to that which he had used earlier. Mr Barnes conceded that this was so: T318.28.

(2) When faced with why he had used inverted commas around words in his report he had at first denied that he used those commas to indicate his scepticism about the matter described: T215, T217.3-30. Later he conceded that he did use it sometimes for that purpose. In those instances where he denied that he had used it to mean ‘so-called’ we think it is obvious that he used inverted commas to express sarcasm or incredulity: see T215, T216, T218.21 and see T277, T292.

(3) When writing to the Board by letter of 27 February 2004 he said:

“Apropos of nothing… It is an amusing thought that when an air force prisoner of was in Germany from July 1943 to March 1945 when I escaped from the Germans, most members of the Medical Board probably were not born. Sic transit gloria mundi! Isn’t life a joke? In those days we stuck our necks out as requested by our politicians to make life safe for our children and grandchildren who have since grown up and now proceed to try to push us about”

and in cross examination he said by “who…try to push us about” he was referring to politicians (see T221) but we think it is clear that he meant the Board and we reject his description of those words as a “friendly chat with the Board”: T220.47-57.

(4) His explanation of why he had quizzed Patient C about his trips to Lebanon and why he had made the reference to “squat like you do in Lebanon” at T182.30-44 was quite unconvincing and see T243

(5) He asserted in his statement that Patient B left his surgery ‘very happy’: see Tab 3iii, Exhibit A. This was not Patient B’s evidence and it was not put to her that she did. It is inconsistent with having complained the next day.

(6) In his medico-legal report of Patient B he described her as “slightly tearful” after his examination of her. In his evidence he said “she cried a bit at the end:: T202.9 – he said he had enquired why she was in tears and he says he asked Patient B if he had caused her pain to which she replied in the negative – he then said at T202.21-24: “she wasn’t really in tears. She had a few tears but she didn’t need a handkerchief. It was just her eyes were noted to be a bit teary” which seemed an attempt to minimise what he had earlier admitted to be the case. Patient B says that she left the room in tears: Exhibit J.

(7) When it seemed that Dr Smith had to admit that he had said something inappropriate to Patient C, Dr Smith then asserted that Patient C had shown no sign of having taken the comment ill, yet Patient C on his evidence, had asked Dr Smith why he had said what he did which points to an immediate dissatisfaction. Similarly, Dr Smith said that his impression of Patient E was that she was “unflappable”.

(8) We saw some examples of impatient interruption by Dr Smith at T219.4-29, T239, T270.35. That a person does something on one occasion does not prove that he did it on other occasions, but it is indicative of a manner and of some relevance. The impression that we have gained of Dr Smith both in Court and having regard to his correspondence is that he is a very determined and forthright person who had little hesitation in making his views known, without any regard for the impact that the content or style may have on others.

50 The Board’s case against Dr Smith had the following components:

(a) Lack of proper understanding of the role of a medico-legal practitioner

(b) Inflexibility in his manner

(c) Inability to understand other people’s perspectives and insensitivity towards patients’ feelings

(d) Lack of concern about the volume and consistency of complaints

(e) Lack of self-assessment or audit

(f) Lack of peer review of Dr Smith’s work

(g) Poor judgment

(h) Communication skills

(i) Current level of diagnostic skills

(j) Intention for future practice

51 We set out the key elements of the guidelines of the Medical Board in relation to medico-legal assessments:

“At all times, practitioners should treat the examinee with dignity and respect. In order to avoid appearing insensitive, rude or abrupt in their manner or rough in their examination, practitioners are advised to give particular attention to identifying the examinee’s concerns, and to adequately explain the reasons for the examination. Adequate time should be allowed for the consultation to enable a complete assessment to be carried out.

In order to avoid misunderstanding between practitioners and examinees, the Board has endorsed the following guidelines:

The Consultation

1. At all times, the practitioner should communicate with the examinee in language that they can understand.

4. The practitioner should not make any unnecessary personal remarks, especially when the consultation requires an intimate examination.

5. The practitioner should be aware of differing cultural sensitivities, especially when conducting an intimate examination.

10. It is not appropriate for the practitioner to undertake any form of treatment in relation to the examinee.”

Schedule 7 to the Uniform Civil Procedure Rules – the Expert Witness Code of Conduct formerly Schedule K to the Supreme Court Rules provides relevantly:

General duty to the court

(1) An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness’s area of expertise.

(2) An expert witness’s paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness).
(3) An expert witness is not an advocate for a party.

52 We are comfortably satisfied that each of the six witnesses who gave evidence against Dr Smith is truthful and reliable in the evidence that they gave relevant to their complaints. Without more we think that their evidence establishes that Dr Smith’s method of dealing with patients falls short of the standard of a competent medico-legal expert – he has been rude, combative and displayed an inappropriate insensitivity to these persons. The additional evidence of Patients G and I reinforces that conclusion although we take into account the absence of cross examination of those witnesses. We think that Patient H’s evidence is in a different category, although Patient H’s assertion that Dr Smith was thoughtless is not inconsistent. We do not accept Mr Barnes’ submission that what Dr Smith said to Patient C was of little significance – the failure to recognise its offensiveness over a long period and his attempts to justify it only compound the matter.

53 We think that the evidence of the complainants establishes that Dr Smith has poor communication skills. That evidence and some of Dr Smith’s own evidence establishes that he is unable to understand other people’s perspectives and that he is insensitive towards patients’ feelings, and that he has poor judgment. His correspondence with the Board and his failure to cooperate with the Board confirm this.

54 Dr Smith did not express any concern about the number and nature of the complaints ascribing them, as we have said, to the fact that the patients are in his view malingerers who have a gripe against him. Of course, if each of the complaints were false he would be justified in such a view but once the evidence of these patients is accepted, the doctor’s failure to acknowledge that at the very least his manner is abrupt and even combative has a further dimension going to his judgment and manner and together with other matters points to the need, at the very least, for supervision of Dr Smith.

55 The Board seeks to make out the lack of proper understanding of the role of a medico-legal practitioner by referring to a number of matters:

(1) Dr Smith’s willingness to investigate factual matters himself

(2) Dr Smith’s readiness to recommend surveillance

(3) Dr Smith’s strong views about the veracity and genuineness of the patients’ claims of injury and impairment

(4) Dr Smith’s expressions of opinion about the overall cost of claims.

56 Ms. Richardson, in her submissions, made reference to Dr Smith’s comments upon the claimants’ medical complaints in a fashion that clearly indicated a lack of belief in their genuineness and the veracity of the patients. Because this is itself not uncommon and since expression of such a viewpoint was not the subject of any criticism by the expert called on behalf of the Board, we do not think that these expressions of opinion by Dr Smith are in themselves necessarily inconsistent with the obligations of a medico-legal expert. If they arise out of a fixed pre-conception that persons attending upon him are dishonest and malingers then of course that would exhibit a bias that would not be consistent with Dr Smith’s obligations as an expert.

57 Although the expression of views of Dr Smith about excessive claims has relevance to whether or not Dr Smith had a negative view of complainants generally and hence is one factor to be taken into account in determining whether he did or did not say what is ascribed to him, we do not think it is appropriate to rely on those matters in a general attack on Dr Smith’s approach to his medico-legal work. Once again if his general philosophy has caused him to see his role as a crusader against fake medical claims that would be inconsistent with his role as an impartial expert.

58 The question of whether an expert can or ought to recommend surveillance and if he does (whether asked about that topic or not) how correspondence to and from the doctor is to be dealt with is not without its own difficulty (see Markus v Provincial Insurance Company Ltd NSWSC 11 May 1983, per Clarke J; Marsden v Amalgamated Television NSWSC 7 May 1999 per Levine J; Broadwater Taxation v Henriks NSWSC 9 September 1993, per Santow J relevant to the latter aspect), and hence we leave that aspect out of account.

59 Dr Smith denied that he does not approach his work and reporting impartially and Mr Barnes also makes that point that no evidence has been lead to show that Dr Smith’s reports were coloured by the views which he undoubtedly holds – no expert for example, has asserted that the examinations conducted by Dr Smith or that his conclusions reached on the basis of the examinations and interviews are wrong.

60 This hearing is not concerned with whether Dr Smith’s reports were incorrectly reasoned or wrong, but is concerned rather with whether Dr Smith’s performance is below the standard reasonably expected of a practitioner with an equivalent level of training or experience and principally in the context of his interaction with patients. If Dr Smith’s interaction with patients is not appropriate and part of the reason for that is an attitude that itself is inherently detrimental to the reporting necessary for compliance with the requirements of a medico-legal examination it is not, in our view, necessary to establish that the report itself is flawed.

61 One example of how Dr Smith’s approach can lead him into error is the conclusion that because Patient C had rough knees, he was very likely working at another job. He never asked Patient C why he had rough knees and had never heard from him an explanation that might have deflected him from that conclusion.

62 Similarly Dr Smith seemed to view the veracity of Patient B’s claims to difficulties in having sex as determined by whether her husband could have an erection, a view which could not logically be supported.

63 Similarly, although his quizzing of Patient B seemed to confirm that she had been wearing an incontinence pad on her way down from Brisbane he seemed to have concluded that she was not. On Patient B’s evidence she did not tell him that she had left the pad at the airport but she told him she had left it in the toilet in his building and had removed it just before she came into his room and offered to retrieve it and he said that was not necessary: see Exhibit G, para 7.

64 Similarly, Dr Smith seemed to have concluded that Patient D could not be genuine in suffering any sexual dysfunction because he had not mentioned it in answer to a specific question, and he had waited until specifically asked about it to tell Dr Smith. It is entirely possible that Patient D never did suffer from any sexual dysfunction as a result of an accident but Patient D did have a document detailing his problems and the fact that Patient D did not volunteer this information in answer to a question was not on its own good reason to come to the view that Patient D was not genuine and Patient D was left with the impression that Dr Smith would not take his claim seriously.

65 The attitude of Dr Smith to patients both specific, as revealed in his conduct towards the patients who gave evidence and Patient G and I, and more generally when coupled with his very robust view about the need to flush out malingerers, in our view raises a concern as to a lack of appreciation by him (notwithstanding his protestations to the contrary) of the need for complete impartiality in the work that he is carrying out. He initially said that he had not read the Board’s Medico-Legal guidelines: T301.29 but then said “I’ve read them but I need just pass them over – I don’t study them deeply”: T301.34. It is possible to view his assertion that his role is “to tell the truth” as being consistent with the Board’s guidelines but to the extent that his ‘truth’ is based on a philosophy that fake claims are crippling the economy and must be combated zealously, there is room for concern that this may have lead Dr Smith to misunderstand his role in conducting medico-legal examinations.

66 Dr Smith exhibited a considerable degree of rigidity in his thinking. He was unable to accept that the patients who had complained had honestly felt aggrieved and ascribed their complaints to them being “put up” to bringing the allegations: T241-243. He would not concede that he may have been at fault or that the complaints would lead him to reflect on his manner. He seemed unable to put himself in the patients’ shoes: T276.05. Dr Smith was ready to ascribe reasons for the patients’ conduct that had not been advanced in cross examination: T259. Dr Smith said that he had never formed the view that anything he had written in an expert report had been erroneous in any respect even after reading reports of other experts: T273. Incidentally, it should be noted that at T273.5 the transcript, we think, erroneously fails to note the resumption of cross examination by Ms Richardson. He could not accept that Dr Conrad, an expert retained in litigation to provide an expert report might ever say anything with which he would be likely to agree.

67 There are many people who one could expect to be well qualified who in Dr Smith’s opinion are not:

(a) the recently retired President of the College of Surgeons: T306.55

(b) the people who run the courses at the College of Surgeons: T306.50; he thinks the courses are run by persons who are “not often times particularly qualified and most certainly they’re no better qualified than I”: T307.1-4

(c) he is reluctant to go to a course that has clinical skills as a focus because he was not impressed with the people “who are demonstrating them because a lot of them are about the age of my grandson and that doesn’t mean to say they’re not quite good but I don’t think they’re going to greatly teach me anything and so and also there’s a tendency to run all these multiple courses because it’s a good source of income for the Colleges and if they have these multiple courses going on it’s amazing how much money they can pull in but one learns very little”: T307.24-33

(d) he expressed the view that there are doctors who are reporting with “curious qualifications” at pp.83-86 of Exhibit A and was critical of colleges which “have sprung up in recent years and to a certain extent in some ways these people have taken over the situation rather”. He was unable to explain which particular qualifications he regarded as “curious”: T206.30-57

(e) he was critical of many of the reports of experts including people whose qualifications were acceptable to him: T208.45-50

(f) he was critical of general surgeons and urologists who conduct a “vast number of operations to groins and testes including removal of even completely normal testes” Exhibit A, Tab (iii), p.83.9

(g) he appeared to be critical of the Board’s thoroughness: Exhibit A, Tab 3(i) p.84

(h) he was critical of the persons he described as ‘educator’ chosen by the Royal Australian College of Surgeons: Exhibit A, Tab 3(i) p.84

(i) he initially said of the two doctors appointed to interview him that he had much more experience than them because “I’ve been around a lot longer”: T255.28 but he retreated from that: T255.40 following questions from the Tribunal

(j) he was critical of the training of specialists: T207, T208

68 Dr Smith on the other hand is ever confident of his own abilities:

(a) He says he has never been proven wrong: p.72 Tab 3(i), Exhibit A, and see T204.05

(b) He does not seem to think that there is anything much that anyone could teach him that he does not know: [T307.24-33]

(c) When confronted with the issue of treatment of Patient A, Dr Smith not only fails to recognise that his conduct might be inappropriate but declares that he will continue to perform prostatic massage although he describes it as ‘diagnosis’

69 Dr Smith’s complaint that the Board was trying to push him around together with his reference to “star chamber stuff” in the same letter because the Performance Committee appointed by the Board had formed the view “that your professional performance may have slipped below an acceptable level and resolved that a Performance Assessment be undertaken to determine whether you need to enter into the Performance Assessment Program” (see p.1, Tab 3(i), Exhibit A), reflect in our view, an inability to see that the complaints made needed to be considered.

70 Dr Smith in responding to the Boards enquiries about patients’ complaints attacked the bona fides of the complainants which he was entitled to do in his defence, but he did not address the substance of all of the complaints in his written responses to the Board’s queries. He seemed to take the view that since he had determined that the complainants were not genuine in their claims of impairment they could not be accepted as witnesses of truth as to his behaviour – a position which he took at this hearing. Whilst it is of course theoretically possible that Patient X lied about his medical condition and also lied about Dr Smith’s behaviour, there is no necessary relationship between the two, particularly if the patient in question complained before seeing Dr Smith’s report.

71 If the patient did not see Dr Smith’s report and if Dr Smith had not behaved towards the patient in a manner which made clear Dr Smith’s scepticism as to that patient’s claims there could be no rationale for the false claim. Dr Smith, perhaps conscious of this conundrum, insisted that the complainants had seen his report or had been put up to complain by the patient’s lawyer. The evidence of most of the complainants who gave evidence that they had complained to someone before seeing Dr Smith’s report was not challenged by cross examination but Dr Smith expressed his rejection of their evidence: T258-T260.

72 In this context we should note that Patient A’s version of the prostate examination cannot be described as false complaint in order to ‘get at’ Dr Smith or because his lawyer put him up to it although Dr Smith said he was full of admiration for Patient A’s acting capabilities: T253.55. The Tribunal could discern no evidence of exaggeration or acting by Patient A in relation to the prostatic massage and we are inclined to think that Dr Smith’s assertion that Patient A was grateful or expressed gratitude to him for the massage, is evidence of Dr Smith being oblivious to the distress his actions caused and misunderstanding that Patient A was in fact complaining to him about what Dr Smith had done.

73 Dr Smith ceased practice in hospitals in 1986 and in private practice in 1996. Much of what he is assessing may have changed little if at all but Medicine is a dynamic field and one in which it would be difficult to accept that there was no room for new skills and knowledge. Dr Smith does attend conferences but as we have noted he seems to take the view that those lecturing at medical conferences are not able to or likely to teach him anything.

74 No doubt there are many professionals who have considerable confidence in their talents, but Dr Smith’s level of confidence in his abilities and his lack of respect for the abilities of others is cause for disquiet, particularly having regard to the fact that he is no longer in mainstream practice, has not been now for more than ten years and his work was for many years in urology and not orthopaedics (and as he says, medico-legal urological examinations are rare).

75 We think there is a basis for concern that Dr Smith’s diagnostic skills may no longer be sufficient to adequately assess patients referred to him. This is yet another reason for a requirement of monitoring or supervision, if he wishes to continue in practice as he says he does.

Conclusion

76 The view we have come to is that the orders made by the Panel were appropriate and should be made by this Tribunal with minor amendment. Therefore:

(1) The Appeal is dismissed.

(2) We make the following orders:

(i) That if Dr. Smith seeks to work in an area of medicine other than medico-legal practice, it must only be in a position approved by the NSW Medical Board.

(ii) That if Dr. Smith is required to notify the NSW Medical Board of any change in the place of his employment.

(iii) That within 40 days of the date of this decision, Dr. Smith nominates a medical practitioner (in the area of either medico-legal or orthopaedic practice) for approval by the NSW Medical Board to act as his supervisor with accordance with Level 3 of the NSW Medical Board’s Guidelines for Supervision, and in accordance with the following:

(a) Dr. Smith and the approved supervisor are to meet twice a month and each meeting is to be for at least four (4) hours;

(b) The approved supervisor is to be provided with a copy of the NSW Medical Board’s Guidelines for Supervision and a copy of this decision;

(c) Of the two (2) required meetings each month:

(i) one meeting is to be observation by Dr. Smith of consultations or assessments of claimants, undertaken by the approved supervisor and

(ii) one meeting is to be observation by the approved supervisor of consultations or assessments of claimants, undertaken by Dr. Smith.

(d) Each meeting is to include:
(i) discussion of cases, including discussion of history taking, examination, diagnostic techniques and current treatments and

(ii) review of medical reports.
(e) At each meeting, the approved supervisor is required to complete a record of matters observed and discussed, in a format approved by the NSW Medical Board.

(f) Dr. Smith is to authorise the approved supervisor to forward to the NSW Medical Board, initially on a monthly basis, copies of the two (2) meeting records and a summary report in a format approved by the NSW Medical Board.

(g) That supervision is to be for a minimum of twelve (12) months and for any further period as determined by the Board or Performance Committee.

(h) The approved supervisor is required to inform the NSW Medical Board immediately if there is any concern in relation to Dr. Smith’s compliance with the supervision requirements, other conditions of registration, professional performance or if the supervision relationship ceases.

(i) Dr. Smith is responsible for any costs associated with meeting this condition.

(4) That Dr. Smith is required to undertake and satisfactorily complete all components of the Clinical Communication Program (CCP) presented by the Cognitive Institute. The CCP is conducted over three months and comprises three phases:

Phase 1:Preparation and Goal Setting – to occur in the six weeks prior to Phase 2;

Phase 2: Attend and participate in all sessions of the next available 3-day residential workshop.

Phase 3: Implementation and Monitoring

(a) Dr. Smith is required to supply the NSW Medical Board the following:
(i) Within eight (8) weeks of these orders, a copy of letter from Cognitive Institute confirming registration
(ii) Within one (1) week of receipt, a copy of Cognitive Institute Phase 1 and Workshop Progress Statements
(iii) Within one (1) week of receipt, a copy of Cognitive Institute Certificate detailing successful completion or otherwise of all program components.

(b) Dr. Smith is responsible for any costs incurred in participating in the CCP.

(5) Dr. Smith’s professional performance be assessed at a time determined by the Board or Performance Committee. Dr. Smith is to co-operate fully with the NSW Medical Board in organising the assessment, including the timely provision of any requested information. The form of the assessment is to be at the discretion of the Board or Performance Committee.

(6) That Dr. Smith consent to any exchange of information between the NSW Medical Board and Medicare Australia, where such an exchange is necessary to facilitate monitoring of compliance with these conditions of registration.

(7) The NSW Medical Board may notify Dr. Smith’s employer/s of any issues arising in relation to compliance with these conditions.

(8) These conditions may be reviewed or eased by the NSW Medical Board or its Performance Committee.

(9) That Dr Smith, within 2 weeks of this decision, is to read the Code of Conduct and the NSW Medical Board Guidelines and sign a statutory declaration that he has read those documents and understands their content.

77 The massage of the prostate which was apparently performed by Dr Smith in breach of item 10 of the Board’s guidelines was not of itself a matter which was argued before us as unsatisfactory conduct.

78 Dr Harvey-Sutton is not satisfied that Dr Smith’s conduct and professional performance were unsatisfactory. However she agrees with the orders that are seen as appropriate by the other members of the Tribunal but would express her conclusions differently to those expressed above by the majority.

79 As to Dr Smiths’ conduct and professional performance, Dr Harvey-Sutton believes that all of the patients who gave evidence and made complaints are expressing genuinely held views as to Dr Smith’s conduct. However, Dr Harvey-Sutton also believes that Dr Smith did not intend to give the impression that the patients’ perceived and moreover, from his presentation to the Court, she is of the view that he would conduct medical consultations in a professional manner. Accordingly, Dr Harvey-Sutton is of the view that Dr Smith’s conduct and professional performance is satisfactory.

80 As to the orders of the Medical Board of New South Wales, Dr Harvey-Sutton believes that continuing professional development and peer review is important. Dr Harvey-Sutton noted that the Performance Committee appointed by the Board had formed the view “that your professional performance may have slipped below an acceptable level and resolved that a Performance Assessment be undertaken to determine whether you need to enter into the Performance Assessment Program” (see p.1, Tab 3(i), Exhibit A). Dr Harvey-Sutton was of the view that this was an essential step in the process and noted that at this stage there were no orders or determination that Dr Smith’s knowledge, skills and expertise were at fault or prejudiced. Nevertheless, Dr Smith did not accept a peer review assessment and thus the Board was placed in a position where it had to implement formal orders for peer review and continuing medical education – medical being used in the ambit sense.

81 In other words, Dr Harvey-Sutton is of the view that the issue is not that of Dr Smith’s high level of expertise, reputation and good-standing, but that continuing education and peer review are good practice. Unfortunately, the Panel needed formal orders to implement that good practice, albeit such orders could have been progressive namely (3) (a) to (i) with modification of (g) to minimum of 3 months, and (4) and (8) as per the Board’s numbering of orders and (9) as per the Tribunal orders and then if there were any problems with those orders being met, the remainder of the orders (1), (2), (9) and (6) would be implemented, then if these orders also were not met, finally (7) would be implemented.

Costs

82 In our view as Dr Smith has failed in his appeal, the appropriate order is that Dr Smith pay the costs of the Board. We will hear the parties on the precise form of the costs order to be made against Dr Smith.

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