Jager v Medical Complaints Tribunal
[2004] TASSC 58
•11 June 2004
[2004] TASSC 58
CITATION: Jager v Medical Complaints Tribunal [2004] TASSC 58
PARTIES: JAGER, Alan Deighton
v
MEDICAL COMPLAINTS TRIBUNAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 71/2003
DELIVERED ON: 11 June 2004
DELIVERED AT: Hobart
HEARING DATES: 12 February 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Professions and Trades – Medical and related professions – Medical practitioners – Discipline, and removal from and restoration to register – Procedure, evidence and appeal – Tasmania – Medical Complaints Tribunal – Use of members' expertise – Inference that conduct amounted to professional misconduct – Whether expert evidence required.
Kalil v Bray [1977] 1 NSWLR 256; Pillai v Messiter [No 2] (1989) 16 NSWLR 197; Medical Board of Queensland v Cooke [1992] 2 Qd R 608, considered.
Aust Dig Professions and Trades [189]
REPRESENTATION:
Counsel:
Appellant: K B Procter SC
Respondent: P L Jackson
Solicitors:
Appellant: Murdoch Clarke
Respondent: Jackson & Tremayne
Judgment Number: [2004] TASSC 58
Number of Paragraphs: 39
Serial No 58/2004
File No LCA 71/2003
ALAN DEIGHTON JAGER v MEDICAL COMPLAINTS TRIBUNAL
REASONS FOR JUDGMENT BLOW J
11 June 2004
This is an appeal pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s61, from a decision of the Medical Complaints Tribunal. The Tribunal conducted an inquiry into a complaint against the appellant concerning the administration of a drug called Clozapine at the prison hospital at Risdon, found certain allegations of professional misconduct proven and others not proven, and made an order reprimanding the appellant. The appellant has appealed against the decision of the Tribunal to reprimand him. His grounds of appeal raise contentions that the Tribunal was not properly constituted, and that it erred in finding him guilty of professional misconduct.
The reprimand related solely to an incident on 4 May 1999 when Clozapine was administered to a patient in the prison hospital. The patient had been found not guilty of a crime by reason of insanity and detained without conviction. The appellant and the prison hospital staff did not have the right to give him an injection or medication without his consent. For such a course to have been taken, it would have been necessary to obtain a guardianship order under the Guardianship and Administration Act 1995. The patient committed suicide some 5½ months after the incident in question, but there is no suggestion at all that the appellant's conduct contributed to his suicide to even the slightest degree. However evidence concerning the incident was given at the inquest relating to the death of the patient, and the Tribunal received copies of the inquest transcript.
The facts as found by the Tribunal can be summarised as follows. The patient was suffering from schizophrenia. His illness was a severe one. He had been receiving Clozapine, but had refused to continue with it because he was concerned about its effects on him. The appellant attempted to persuade him to take the Clozapine, but was not successful. Clozapine is administered orally, and never by injection. The patient feared injections, and had a deluded belief that an attempt to poison him by means of an injection had been made at the Launceston General Hospital. In the presence of the patient, the appellant told a nurse to get the biggest needle and syringe that she could find. She went away and located a 20ml syringe with an 18 or 19-gauge needle, returned to the room, and gave the items to the appellant. These items were too big for use in injecting medication. The appellant undid the packaging, attached the needle to the syringe, took the plastic cap from the needle, held up the syringe and needle towards the patient about 1.5 metres from him, and said words to the effect of, "See this needle. If you don't take the Clozapine you will get a needle of this size every fortnight." The patient started to cry. He must have been significantly traumatised. He agreed to resume taking Clozapine. The status of the patient was such that he could not have been given an injection against his will. His acquiescence to the further administration of the drug was secured by the threat and intimidation involving the syringe. He was not advised as to the availability of other medications, the right to refuse any medication, or the right to seek an independent second opinion.
On the basis of such findings, the Tribunal concluded that the following allegations of professional misconduct were proven:
"(d) The practitioner caused or permitted the administration of Clozapine to the patient without ensuring that the patient had given informed consent to the treatment.
(e)The practitioner caused or permitted the administration of Clozapine to the patient after the patient had withdrawn his consent to that treatment on or about 4 May 1999.
(f)On or about 4 May 1999 the practitioner threatened or intimidated the patient with a syringe and needle to secure the patient's acquiescence to further administration of Clozapine to the patient."
An appeal under s61 is not an appeal in the strict sense, nor is it an appeal by way of hearing de novo. It is an appeal by way of rehearing, whereby the appeal court redetermines the issues raised upon the hearing of the appeal, relying upon the material that was before the Tribunal appealed from, subject to the exercise of any power to receive additional evidence: Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139; Kudelka v Medical Complaints Tribunal [2004] TASSC 31.
Constitution of the Tribunal
The composition of the Tribunal is governed by the Act, s50, which commences as follows:
"50 ¾ (1) The Medical Complaints Tribunal is established.
(2) The Council is to appoint ¾
(a) one legal practitioner of not less than 10 years' standing; and
(b) one person who is not a medical practitioner or legal practitioner ¾
to be the permanent members of the Tribunal.
(3) The permanent member appointed under subsection (2)(a) is chairperson of the Tribunal.
(4) The Tribunal, in respect of each inquiry it conducts, is to consist of 5 members, being ¾
(a) the 2 permanent members; and
(b) 3 registered medical practitioners appointed by the Council for the purposes of that inquiry.
(5) A registered medical practitioner appointed to the Tribunal for the purposes of an inquiry is known as a special member.
(6) A special member is to be a medical practitioner who is considered by the Council to have skill, knowledge or experience that is relevant to the inquiry in respect of which he or she is appointed.
….".
The word "Council" is defined in s3(1) to mean the Medical Council of Tasmania.
Ground 1 of the notice of appeal asserts that the special members appointed to the Tribunal for the purposes of this inquiry "did not have and could not reasonably have been perceived by the Medical Council of Tasmania as having skill, knowledge or experience relevant to the inquiry."
On the hearing of the appeal Mr Procter SC, for the appellant, tendered by consent documents relating to the qualifications and experience of the three medical practitioners who sat as special members of the Tribunal during the inquiry, as well as a series of documents relating to the process by which the Council selected them. These documents revealed that the Council had sought to recruit as special members some individuals with quite impressive qualifications in relation to the practice of psychiatry in a prison environment, but that financial considerations and the logistics of a long tribunal hearing in Hobart resulted in their not being recruited. After a detailed examination of the curriculum vitae of each of the three special members eventually recruited, Mr Procter SC made a submission to the effect that none of them had substantial or recent experience relevant to the practice of psychiatry in a prison, and that the Tribunal was therefore not constituted in accordance with s50(6). He did not refer to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, but I took him to be relying on the proposition for which that case is authority: that when an authority exercising statutory power makes a decision that is so unreasonable that no reasonable authority could ever have come to it, that decision is ultra vires. That is to say, I took him to be submitting that the decision of the Council to appoint the three special members who participated in the Tribunal's inquiry was so unreasonable that it was ultra vires.
However the Act, Sch4, cl 7, provides as follows:
"7 ¾ An act or proceeding of the Tribunal or of a person acting under the direction of the Tribunal is valid even if ¾
(a)the appointment of a member of the Tribunal was defective; or
(b)a person appointed as a member of the Tribunal was disqualified from acting as, or incapable of being, such a member."
In my view the effect of this clause is that, even if the appointment of the three special members of the Tribunal was defective because of Wednesbury unreasonableness, and even if each of the three special members was incapable of being a member of the Tribunal because of not having skill, knowledge or experience that was relevant to the inquiry, all the acts and proceedings of the Tribunal remain valid, despite its improper constitution. In my view such an interpretation accords with the object and purpose of clause, which is to validate acts of the Tribunal that might otherwise be ultra vires. It follows that ground 1 must fail.
Even if I am wrong about the proper interpretation of cl 7, I do not think the evidence before me establishes that the appointment of any of the three special members involved a decision that no reasonable decision-making authority in the position of the Council could have come to. It must be remembered that the inquiry related not just to the three allegations of professional misconduct that were found proven, but also to other such allegations that were not found proven. The unproven allegations were that the appellant had caused or permitted Clozapine to be administered to the patient without first ensuring that any or any proper and sufficient training was provided to staff of the prison hospital in relation to the drug and its side effects; that he caused or permitted the administration of Clozapine to the patient in excessive quantities; and that he caused or permitted the administration of Clozapine to the patient without ensuring that protocols for the safe and proper use of the drug were followed. Plainly those allegations related not just to the practice of psychiatry in prisons, but also to issues concerning the training of hospital staff as to the administration of drugs, and the administration of drugs by medical practitioners. It is also important to remember that skills, knowledge and experience relating to medical ethics and the conduct of quasi-judicial disciplinary proceedings were relevant to the inquiry conducted by the Tribunal. The evidence before me establishes that the Council decided in 1999 that it was desirable to form a pool of medical practitioners from whom special members could be appointed to the Tribunal. It appears that two of the three special members appointed in this case were drawn from that pool. One of them practised in psychiatry from 1965 until early 1970, but thereafter pursued a career in pathology. During the 1970s he worked as a forensic pathologist, and appeared in court many times as an expert witness. The other special member drawn from the pool had little or no experience in psychiatry, but was a very senior member of the medical profession with decades of experience on the councils of professional associations, particularly the state and federal councils of the Australian Medical Association and the Council of the Royal Australasian College of Surgeons. The third special member had lectured in psychiatry from 1975 to 1986, had been a member of the Mental Review Board from 1978 to 1986, had been a member of tribunals under the Repatriation Act 1920 (Cth) from 1974 to 1985, and had been the chief executive officer of a hospital. Each of them of course had other qualifications and experience. In the light of the aspects of the experience of each of the three special members that I have referred to, I do not think it can be said that in appointing them to the Tribunal, collectively or individually, the Council made a decision that no reasonable authority in its position could have made. The background of each of them indicates that each had a degree of skill, knowledge or experience that was relevant to the Tribunal's inquiry concerning the appellant. If more appropriate or more talented special members might have been recruited and appointed, that is not to the point. It certainly has not been established to my satisfaction that any or all of the three special members was so lacking in relevant skill, knowledge or experience that no reasonable authority could have appointed them.
Professional misconduct
Under the Act, s45(1)(e), a person may complain that a registered medical practitioner "is guilty of professional misconduct". The term "professional misconduct" is not defined in the Act, but a non-exhaustive list of matters that may constitute professional misconduct appears in s45(2), which reads as follows:
"(2) Without limiting the matters that may constitute professional misconduct, a medical practitioner is guilty of such misconduct if the medical practitioner ¾
(a)contravenes a provision of this Act; or
(b)contravenes a foreign medical law; or
(c)contravenes a condition subject to which the medical practitioner is registered; or
(d)fails to pay, within the time specified for payment, a fine imposed on the medical practitioner under section 52(1)(c); or
(e)fails to comply with a requirement made of that medical practitioner under section 52(1)(e); or
(f)fails to honour an undertaking given to the Tribunal; or
(g)is incompetent in the practice of medicine; or
(h)behaves in a fraudulent or dishonest manner in the practice of medicine."
The meaning of the term "misconduct in a professional respect" as used in the Medical Practitioners Act 1928 (NSW), s27(1)(c), was considered by the New South Wales Court of Appeal in Qidwai v Brown [1984] 1 NSWLR 100. At 101, Hutley JA said that in his opinion the test to be applied by the court was "whether there have been departures from accepted procedures and whether these departures have become the subject of professional reprobation". At 105, Priestly JA said that, prior to an amendment in 1972, the test was "whether the practitioner was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence", and that in his view the test remained the same following the amendment. Relying on the judgment of Priestly JA in that case, the Tribunal took the view that "professional misconduct" was "conduct which would reasonably be regarded as disgraceful or dishonourable by, or would reasonably incur the strong reprobation of, medical practitioners of good repute and competence".
Mr Procter SC submitted that the tests postulated by Hutley JA and Priestly JA in Qidwai v Brown (supra) were different. Hutley JA referred to actual reprobation whereas Priestly JA referred to hypothetical reprobation. However I think their Honours were simply describing the same test in different ways. That view is consistent with the approach taken by the other member of the court in that case, Samuels JA, who at 102 agreed with the reasoning of both Hutley JA and Priestly JA without suggesting that their approaches differed in any respect. In my view the definition of professional misconduct adopted by the Tribunal in this case was a correct one, and there is no need for disapprobation to have been previously expressed in order for a finding of professional misconduct to be made.
Ground 3(a) of the notice of appeal asserts that the Tribunal erred in directing itself that professional misconduct was "conduct which would reasonably be regarded as disgraceful or dishonourable by … medical practitioners of good repute and competence". Mr Procter SC said little or nothing about that contention, but did not abandon ground 3(a). The reference to "conduct which would reasonably be regarded as disgraceful or dishonourable" appears to have been based upon the decision of Crawford J in Law Society of Tasmania v Turner (2001) 11 Tas R 1, to which the Tribunal referred. In my view there is no significant difference, and perhaps no difference at all, between conduct which would reasonably be regarded as disgraceful or dishonourable and conduct which would reasonably incur strong reprobation. Ground 3(a) must therefore fail.
Use of Tribunal members' expertise
After stating its view of the meaning of "professional misconduct" and referring to Qidwai v Brown (supra), the Tribunal said the following:
"Because of the use of the words … 'would reasonably be regarded …' and the composition of this Tribunal, we take the view that we are entitled to determine this matter for ourselves without the need for any relevant evidence from practitioners of good repute and competence.
Evidence in the nature of 'reprobation' or strong disapproval from other medical practitioners is we think, unnecessary in order to achieve the objectives of the legislation. For instance, in Re Somes & Legal Practitioners Ordinance (1979) 32 ACTR 53, the Full Court of the ACT heard evidence from practitioners of good repute and competence in support of the practitioner concerned, but were … 'not persuaded that their approach [was] the correct one'; see p 70. On the other hand, the Tribunal can be informed of the acceptability or otherwise of certain practices or conduct, and the existence of 'majority' and 'minority' viewpoints of acceptable conduct; Qidwai v Brown (supra)."
By ground 3(b) of his notice of appeal, the appellant contends that the Tribunal erred in taking the view expressed in the first of the sentences quoted above.
The Act, Sch3, cl 3, provides as follows:
"A committee or the Tribunal ¾
(a)…;
(b)is not bound by the rules of evidence; and
(c)may inform itself on any matter in any way it considers appropriate; and
(d)must observe the rules of natural justice."
Mr Procter SC submitted that the composition of the Tribunal was not such as to justify a finding that the Tribunal could determine the matter of professional misconduct for themselves without the need for expert evidence. In my view it would be inappropriate for me to take into account the extent of the skill, knowledge or experience of the individual Tribunal members, or any lack of skill, knowledge or experience on the part of any of them, when considering what findings the Tribunal could properly make after having received the evidence that was given. When a finding is challenged on an appeal by way of rehearing, the appeal court does not undertake an evaluation of the talents and weaknesses of the members of a jury, nor does it undertake an assessment of the talents and weaknesses of a judge sitting without a jury. On an appeal from a decision of a statutory tribunal, any question as to what findings were open to the tribunal must be determined by reference to the evidence before the tribunal and, in the case of a tribunal with members appointed because of their expertise, the legislative provisions as to the composition of the tribunal, but not by reference to the qualities and deficiencies of individual tribunal members.
Mr Procter SC relied on the judgment of Samuels JA, with whom Clarke JA agreed, in Pillai v Messiter [No 2] (1989) 16 NSWLR 197 as authority for the proposition that the Tribunal was not entitled to infer that the appellant's conduct would reasonably be regarded as disgraceful or dishonourable by, or would reasonably incur the strong reprobation of, medical practitioners of good repute and competence in the absence of evidence from such practitioners that they held such views. The appellant in that case was a psychiatrist who had inadvertently specified an excessive dose of a drug when starting a new page in a mental patient's hospital records. He and several other medical practitioners had not noticed thereafter that the dose being administered to the patient was excessive. The patient died as a result. There was ample evidence before the Medical Tribunal as to the appellant's conduct, but little or no evidence as to how that conduct was viewed within the medical profession. At 210, Samuels JA said the following:
"But unacceptable practice does not make a case of misconduct. In my opinion there was no evidence before the Tribunal capable of supporting a finding of misconduct in a professional respect.
The Tribunal made findings about the appellant's conduct, which, of course, it had ample power to do. But it was not entitled to substitute its own view of the response which the appellant's professional colleagues would have made to his conduct."
The other member of the Court of Appeal in that case, Kirby P (as he then was), did not refer to the question whether the tribunal was entitled to make a finding of misconduct in a professional respect without expert evidence as to how particular conduct would be regarded within the medical profession or a section of it. The comments of Samuels JA on this point were obiter, since his Honour went on to make observations to the effect that the tribunal had not even considered whether the conduct in question in that case had amounted to misconduct in a professional respect. Further, there is nothing in the report of that case to indicate that the Court of Appeal heard any argument as to whether it was open to the Medical Tribunal to use its members' expert knowledge in relation to an issue that was not the subject of expert evidence.
A different view was taken in the context of a similar legislative regime by Thomas J in Medical Board of Queensland v Cooke [1992] 2 Qd R 608 at 616, where his Honour said the following:
"In appreciating the standard of professional conduct that is to be expected in a particular matter it is appropriate for the Tribunal to take advantage of such advice as the two medical assessors can provide (s33(4)), and this may include matters of professional standards and expectations. Ultimately the acceptable level of professional conduct and whether it has been transgressed are questions of fact. It is also permissible, although not always essential, to call evidence from members of the profession of good repute and competency to give evidence of their perception of the prevailing standard (cf Chapman v Walton (1833) 10 Bing 57; 131 ER 826; Sulco Ltd v E S Redit & Co Ltd [1959] NZLR 45; Cross on Evidence (1991) Aust Ed, para 1165)."
The authorities cited relate to the proposition that evidence of a general practice is admissible when there is an issue as to whether someone's conduct has complied with a particular standard.
That was a case in the Full Court of the Supreme Court of Queensland. McPherson ACJ agreed generally with Thomas J. Byrne J wrote a separate judgment and did not deal with this point.
The need for expert evidence in proceedings before a professional disciplinary tribunal somewhat similarly constituted was considered by the New South Wales Court of Appeal in Kalil v Bray [1977] 1 NSWLR 256. That case concerned a charge of misconduct in a professional respect against a veterinary surgeon. At 261 Street CJ, with whom Moffitt P and Glass JA agreed, said the following:
"It would be unreal to expect the members of the tribunal, being professionally qualified veterinary surgeons and occupying seats on the tribunal by virtue of that very qualification, to fail to use their expert knowledge in resolving any matter of veterinary science arising in proceedings before the tribunal. The tribunal is in truth an expert panel, and as such it needs no expert evidence on matters within its particular field of expertise, that is to say, the field of veterinary science. Its function is to determine in the light of factual evidence, with or without supplementation by expert evidence, the proper veterinary conclusion to be drawn from such objective facts as may be established by the evidence, bearing in mind at all times that its function is essentially, as its name imports, disciplinary. It provides a veterinary surgeon facing a charge with a forum constituted in the majority by his professional peers and supplemented, in the interests of natural justice, with judicial chairmanship. As such, there seems to me to be no greater warrant for requiring the tendering to it of evidence of matters of veterinary science than there is before an ordinary lay tribunal for requiring the tendering of evidence on matters of common human experience. I should add, however, that I do not go so far as to suggest that expert evidence on matters of veterinary science is inadmissible before the tribunal in the same way that proof of common human experience is inadmissible in proceedings before the ordinary courts of the land: Clark v Ryan (1960) 103 CLR 486."
Mr Procter SC conceded that there would be cases in which there would be no need to call expert evidence as to certain types of conduct constituting professional misconduct. He limited his concession to obvious cases. To that extent, his submission was consistent with the remark by Thomas J in Medical Board of Queensland v Cooke (supra) that it is "permissible, although not always essential, to call evidence from members of the profession … of their perception of the prevailing standard".
In my view the Act, Sch3, cl 3(b) and (c), whereby the Tribunal is not bound by the rules of evidence and may inform itself on any matter in any way it considers appropriate, entitles it to inform itself by reference to matters of expert knowledge known to its members and not mentioned in evidence. That power is of course subject to the requirement imposed by cl 3(d) that it observe the rules of natural justice, but no question of natural justice or procedural fairness arises on this appeal. Provided it observes the rules of natural justice, I think it is appropriate for the Tribunal to make full use of the expertise of its medically qualified members in evaluating the evidence before it and in drawing inferences from that evidence. I see no reason why a different approach should be taken in relation to the drawing of an inference that particular conduct would incur the strong reprobation of medical practitioners of good repute and competence. I therefore think it was open to the Tribunal, in the absence of direct expert evidence as to that ultimate question, to draw inferences from the evidence it received, or to make use of the expert knowledge of its members, or both. The Tribunal's reasons contain no indication that it used any piece of information derived from the expert knowledge of any of its members, rather than from the evidence, in reaching its conclusion as to professional misconduct. Its conclusion was reached by way of inference, permissibly in my view. It follows that ground 3 must fail.
The evidence of Dr Pargiter
Ground 4 in the appellant's notice of appeal reads as follows:
"The Tribunal erred when determining that the Appellant was guilty of professional misconduct, by ignoring or failing to give sufficient weight to the evidence of Dr Russell Pargiter, a medical practitioner of good repute and competence and a medical practitioner experienced in the fields of forensic psychiatry and psychiatric ethics, to the effect that the conduct found by the Tribunal to have occurred did not depart from the applicable ethical principles."
The significance of Dr Pargiter's evidence must be evaluated in its context. He was one of a number of psychiatrists whose expert opinion evidence was before the Tribunal. Counsel assisting the Tribunal called two psychiatrists as expert witnesses ¾Professor Jones and Dr Schneider. Professor Jones did not give evidence as to the appellant's conduct during the syringe incident. Dr Schneider gave evidence to the effect that in an emergency situation, when a patient poses a threat of violence to staff, but is capable of reasoning, it might be appropriate to show the patient a syringe in the hope of persuading the patient to take oral medication, rather than undergo an injection without consent. However she was not asked to offer an opinion that was of any greater relevance to the facts of the case. Counsel for the appellant provided the Tribunal with expert reports from three psychiatrists ¾Professor Burrows, Professor Keks, and Dr Pargiter ¾and called the two professors, but not Dr Pargiter, as witnesses. The two professors were cross-examined by counsel assisting the Tribunal.
The Tribunal was also provided with the code of ethics of the Royal Australian and New Zealand College of Psychiatrists, which includes the following:
"Principle Five
Psychiatrists shall seek informed consent from their patients before undertaking any procedure or treatment.
5.1Psychiatrists shall inform the patient of the purpose, nature, benefits, side effects and risks of a proposed procedure or a treatment; this information shall be conveyed in a way that can be understood by the patient.
5.2The patient shall also be informed of alternative indicated procedures and treatments, and their respective purpose, nature, benefits, side effects and risks. In providing information about alternatives, it shall be done in such a way as to give the patient a full opportunity to choose between them.
5.3Psychiatrists shall ensure that patients consent to treatment freely and without coercion."
The Tribunal's analysis of the expert evidence, and its reasoning leading to its conclusions as to professional misconduct in relation to the syringe incident, appear in the following paragraphs of its decision:
"96As a starting point, we note that RANZCP Code of Ethics proscribes coercion and requires psychiatrists to ensure consent is given freely; (doc 2 ‑ Ex 1, par 5.3). Both Profs Burrows and Keks gave evidence about the appropriate place for coercion in relation to the treatment of patients with severe psychiatric illnesses. In his report (Ex 10), Prof Burrows offered the view that 'there was nothing essentially wrong with Dr Jager's use of the way described by him as an aid to persuade [the patient] to continue with the Clozapine treatment'. Prof Burrows went on to say that it might be considered by some to be somewhat dramatic, 'but at times psychiatrists are out on a bind and may use persuasive techniques in the best interests of their patients'.
97In cross-examination, after being taken through the relevant circumstances as admitted by Dr Jager and as suggested by Ms Norris [the nurse] he agreed that it was an excessive way of seeking to persuade a patient to give consent to treatment, and on two subsequent occasions described the method of persuasion as 'certainly excessive'; (MT 218). He also agreed that it would have been appropriate to tell [the patient] that there were other drugs he could have had but at least some of those would have to be injected, and it also would have been appropriate to put to [the patient] that he had the option of refusing to have any medication at all.
98Prof Keks in his report (Ex 11), after discussing the competing considerations, said that situations analogous to this case were regrettably not uncommon in the treatment of psychosis and, 'Acutely disturbed patients are frequently confronted by intimidating members of professional staff who offer the choice of oral medication in one hand while holding a syringe to be administered if the oral medication is refused in the other. Clinicians must always carefully explain that they are doing their best to care for the patient, but there still may be no way to avoid the perception of threat by patients and others.'
99To the extent that it might be said to support Dr Jager's position, which is doubtful in any event, we take the view that we are unable to place any real reliance on Prof Keks' evidence. He was evasive and prevaricated when closely questioned about the circumstances of the incident and the appropriateness of the conduct. Additionally, he explained that the reference in his report to acutely disturbed patients confronted by intimidating members of professional staff, usually related to the situation where the staff members had the legal power to administer the injection without consent. He went onto concede that if the legal status of the patient had to change before involuntary treatment could be administered, a patient would have to be told that their legal status would have to change before any injection could be given against their will.
100We received a report from Dr Pargiter dated 2 December 2002 ‑ (Ex 15). He said that from reading the transcripts of the inquest evidence of Dr Jager and Ms Norris it did not appear to him that Dr Jager departed from the applicable ethical principles set down in the RANZP [sic] Code of Ethics ‑ (doc 24 ‑ Ex 1). He went on to say:
'Coercion, is of course, dependent on the individual situation, personality, state of health and vulnerability: in this case[the patient's] bizarre delusions about his spine but there appears to be no suggestion that any proposed injection were (sic) to be given in that area.'
Whilst the observation as to coercion might well be correct, the comments are of a very general nature and are, with respect, of no great value to us in determining this particular case. Further, the point about the injection site is, we think, of no great moment in the overall context of what occurred. In any event, as earlier pointed out, we are able to determine the ultimate issue for ourselves.
Conclusions
101We find that the facts as alleged in particulars (d), (e) and (f) are made out. In reality, it seems to us, that particulars (d) and (e) follow on from particular (f). Once it is accepted that [the patient's] 'acquiescence to further administration' of the drug was secured by the threat and intimidation of the syringe, then the informed consent referred to in particular (d) cannot be present. Additionally, there is of course the failure to advise of the ability of alternative medications administered otherwise than by injection (albeit perhaps less effective), the failure to inform [the patient] that he could simply refuse any medication and the failure to advise him that he could seek an independent second opinion, accepting that the latter might have presented logistical difficulties; (MT 358). Particular (e) then follows.
102Having found those three particulars made out as matters of fact, the remaining consideration is whether Dr Jager's actions constitute professional misconduct. After careful consideration, we find that they do. We take the view that the way in which Dr Jager went about dealing with [the patient] in the face of his refusal to take clozapine was thoroughly inappropriate and demonstrated a complete disregard for the patient's rights and well-being. The nature and extent of the coercion used had no place in attempting to obtain [the patient's] consent to the treatment. The far better and more appropriate course would have been to obtain a guardianship order. We should say that even if we had found the facts surrounding the use of the syringe to be as Dr Jager asserted, our conclusion would have been the same. The movement of the largest syringe which could be found towards [the patient] and the placement of it in front of him, accompanied by the comment that it was highly likely he would end up back on injections every second week, is not sufficiently different in nature in our view to warrant a different finding."
Clearly the Tribunal took Dr Pargiter's report into account. I need to decide whether the Tribunal gave it insufficient weight. Mr Procter SC submitted that the Tribunal ignored Dr Pargiter's curriculum vitae and much of his reasoning. Dr Partiger is an eminent Hobart psychiatrist with an interest in ethical matters, whose publications date back to 1957. I have no reason to think that the Tribunal might have overlooked his qualifications and expertise. In a report just over two pages in length, he made some introductory remarks, briefly evaluated the appellant's conduct by reference to the code of ethics that I have referred to, and concluded that there was nothing to indicate that the appellant failed ethically in his relationship to the patient. He made comments in relation to four of the principles that are set out in the code of ethics. Principle One reads, "Psychiatrists shall have respect for the essential humanity and dignity of each of their patients." Commenting on this principle, Dr Pargiter wrote about coercion and consent being more difficult to assess in correctional settings, about coercion being dependent on the individual situation, and about Clozapine being refused because of monitoring venepunctures being necessary. With due respect to him, I do not think his comments as to those matters can have been of much value to the Tribunal since they did not directly relate to the principle he was apparently addressing. What he did say was that the appellant had exhibited patience, and that the appellant endeavoured to apply Principle One, but I think such comments can fairly be said to have emphasised the positive aspects of the appellant's conduct while ignoring the negative aspects of it. Dr Pargiter next referred to Principle Two which reads, "Psychiatrists shall not exploit the power differential in their relationships with patients, either sexually or in any other way." He referred particularly to Annotation 2.7 which reads, "Psychiatrists shall seek to influence patients only in ways which are consistent with the aims of treatment." He commented that Principle Two and its annotations were accentuated in the correctional setting. In my view that was a valid observation, but one that was of no assistance to the Tribunal. It was no doubt true that the appellant was seeking to influence the patient for the purpose of achieving the aims of treatment, but it does not necessarily follow that he was doing so in a way that was consistent with the aims of treatment. Dr Pargiter next referred to Principle Three, which reads, "Psychiatrists shall provide the best possible psychiatric care for their patients." As to this, he commented that the Principle and the code's annotations thereto appeared to have been observed "bearing in mind the difficulties imposed by the patient's disturbed mental state". He thereby really only said that the he thought the appellant had done his best in the circumstances. As to Principle Five, he made reference to the possibility that seeking informed consent can conflict with the duty to provide the best possible care and the duty to respect the patient's autonomy. He went on to remark that the practice of psychiatry was frequently dependent upon the style adopted in the clinical circumstance; that that was a matter of judgment, experience, adaptability, knowledge and temperament; and to say, "Only then can the opportunity be recognised and acted on".
Dr Pargiter's comments were not tested by cross-examination. Generally speaking, they involved comparing the appellant's conduct with the requirements of the code of ethics, and making fairly simple value judgments as to whether he had complied with that code. The Tribunal's conclusion that his comments were "of no great value to us", and that they were able to determine the ultimate issue for themselves, were reasonably open in the circumstances, in my view. I therefore reject ground 4.
The finding of professional misconduct
Ground 2 of the notice of appeal asserts that the Tribunal "erred in finding that the Appellant was guilty of professional misconduct". It is a catch-all ground under which I will deal with the remaining submissions made by Mr Procter SC.
It appears from several passages in the evidence that the appellant gave before the Tribunal that the patient had no insight into the fact that he suffered from schizophrenia, nor as to the fact that taking Clozapine would be of benefit to him. It appears that the Tribunal misunderstood the appellant's comments as to the patient lacking insight into these matters, and took him to mean that the patient totally lacked insight, or lacked insight generally. It seems that patients suffering from schizophrenia can lose insight totally, but that the patient in question had not done so. When considering the effect of the appellant's conduct on the patient, the Tribunal said the following:
"… it seems to us that there are two alternatives relevant to the consideration of Dr Jager's conduct. Either [the patient] did not have the capacity to understand the symbolic gesture and his thinking would have been 'concrete' (such thinking fully reinforced by what we find Dr Jager said at the time); or, there was a foreseeable and substantial risk that he was in that situation. In any event, as we say, there is the added aspect of the statement that [the patient] would have to have injections of the size of the syringe presented, so that any capacity to understand symbolism became largely irrelevant. In all of this, we are satisfied that [the patient]would have been significantly traumatised by the events."
Whilst I accept that the Tribunal made a mistake as to the degree to which the patient lacked insight, I do not think that mistake had any bearing on the Tribunal's conclusion. There was evidence that the patient detested injections, and believed that he had been injected with poison at the Launceston General Hospital. I think the only appropriate finding was that it was reasonably foreseeable on the part of the appellant that his conduct would be very upsetting for the patient.
Mr Procter SC made a submission to the effect that the expert evidence received by the Tribunal was such that it should not have concluded that the appellant's conduct amounted to professional misconduct. In part this submission depended upon the proposition that it was not open to the Tribunal to infer that particular conduct would reasonably incur the strong reprobation of medical practitioners of good repute and competence in the absence of expert opinion evidence to that effect. Of course I have already rejected that proposition.
It appears that the reports of Professor Burrows and Professor Keks were each written in response to a series of written questions. In relation to the syringe incident, it appears that each was asked whether, in his view, there was anything wrong with the appellant's use of the syringe in the way described by him and the nurse as an aid to persuading the patient to continue with Clozapine. The question asked overlooked the inconsistencies between the appellant's version of events and that of the nurse as to what the appellant actually did with the needle and what he said at or about the time it was produced, but I do not think anything turns on that. The views expressed by the two professors were summarised by the Tribunal, adequately in my view, in pars96 – 98 of its decision, which I have quoted above. Under cross-examination Professor Burrows described the appellant's use of the syringe as excessive and dramatic, but said that he was not in a position to say whether it was appropriate or inappropriate.
Mr Procter SC criticised the Tribunal for not dealing at greater length with the evidence of Professor Keks, but I think it was open to the Tribunal to deal with his evidence as briefly as it did once it formed the view that, given his performance as a witness, they were unable to place any real reliance on his evidence. The Tribunal had the advantage of observing the demeanour of Professor Keks when he gave his evidence. In my view the transcript of his cross-examination confirms the Tribunal's expressed views that he was evasive, and that he prevaricated. I have no reason to think that the Tribunal should have given his evidence greater weight than it did.
The Tribunal had before it the RANZCP code of ethics. It was entitled to form its own view as to whether the conduct of the appellant involved so great a departure from the requirements of that code that his conduct would reasonably have incurred the strong reprobation of medical practitioners of good repute and competence. Although it was appropriate for him to make substantial efforts to try to persuade the patient to resume taking Clozapine, there were a number of pieces of evidence warranting a conclusion that he went far too far in what he did, to such an extent as to be guilty of professional misconduct. He knew the patient had a fear of injections. He knew the patient held a deluded belief that an attempt had been made to poison him by an injection at the Launceston General Hospital. He knew that he had no legal right to give the patient an injection or any medication without his consent. He must have known that Clozapine could not be administered by injection, and that the syringe with which he gestured was far too big to use to inject alternative medication. He ought reasonably to have foreseen that his conduct was likely to terrify the patient. The Tribunal was entitled to treat the code of ethics as a yardstick by which the attitude of medical practitioners of good repute and competence could be measured. In my view it was reasonably open to it to conclude that, by doing what he did, the appellant threatened and intimidated the patient, and thereby was guilty of professional misconduct. In my view it was similarly open to the Tribunal to conclude that the subsequent administration of Clozapine to the patient occurred without the patient's consent, that consent having been withdrawn, with the result that the administration of the drug also amounted to professional misconduct. I am certainly not persuaded that I should take a contrary view in relation to any of the findings of professional misconduct. Ground 2 must also fail.
Conclusion
For the above reasons, the appeal is dismissed.
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