Kennedy v Medical Practitioners Board of Victoria
[2008] VSC 507
•26 November 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6885 of 2008
| DR GERTRUDE KENNEDY | Plaintiff |
| v | |
| MEDICAL PRACTITIONERS BOARD OF VICTORIA | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2008 | |
DATE OF JUDGMENT: | 26 November 2008 | |
CASE MAY BE CITED AS: | Kennedy v Medical Practitioners Board of Victoria | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 507 | First Revision 26/11/08 |
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MEDICAL PRACTITIONERS – Jurisdiction of Medical Practitioners Board to inquire into alleged unprofessional conduct of practitioner before commencement of Medical Practice Act 1994 (Vic) – Whether Board bound to apply provisions of Medical Practice Act 1970 (Vic) – Whether provisions of 1994 Act apply retrospectively.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Wheelahan SC and Mr A T Strahan | John W Ball & Sons |
| For the Defendant | Ms F McLeod SC and Ms D Siemensma | Minter Ellison |
HIS HONOUR:
The plaintiff is a medical practitioner. On 19 January 2006 the defendant, the Medical Practitioners Board of Victoria (“the Board”), referred a complaint, which it had received concerning the conduct of the plaintiff, to a formal hearing panel. On 15 June 2007, the Board wrote to the plaintiff’s solicitors confirming that the Board had determined to conduct a formal hearing into the professional conduct of the plaintiff, and enclosing a notice of formal hearing in connection with allegations against the plaintiff, arising out of alleged acts and omissions by the plaintiff in the course of medical consultations and treatment in 1990 and 1991. The notice purported to be given pursuant to Part 3 and s 102A of the Medical Practice Act 1994, which commenced operation on 1 July 2004 (“the 1994 Act”).
Following receipt of the notice, the plaintiff’s solicitors wrote a letter to the defendant’s solicitors contending that, since the conduct alleged against the plaintiff took place before 1 July 2004, the Board does not have jurisdiction to conduct the investigation under the 1994 Act. That letter triggered an exchange of correspondence between the solicitors for the parties in which competing views were propounded. Ultimately, by letter dated 9 May 2008, the defendant’s solicitors advised the plaintiff’s solicitors that the Board had affirmed its decision to refer the matter to formal hearing.
In response, the plaintiff has issued these proceedings by originating motion under Order 56 of the Rules of the Supreme Court. By those proceedings, the plaintiff originally sought an order in the nature of certiorari quashing the decision of the defendant, advised by letter dated 9 May 2008, affirming the proposed conduct of a formal hearing pursuant to Part 3 and s 102A of the 1994 Act, and an order in the nature of prohibition, preventing the conduct of that hearing. However, in the course of argument, it was agreed by both parties that, if the plaintiff’s principal submissions are upheld, it will be sufficient for me to make a declaration to that effect. Accordingly, the plaintiff did not press her claim for relief in the nature of certiorari or prohibition.
The issue raised by this proceeding basically concerns the operation of s 102A of the 1994 Act, and in particular its effect on the provisions of the preceding Act, the Medical Practitioners Act 1970 (as amended) (“the 1970 Act”).
In brief, the principal propositions advanced by the plaintiff in this proceeding may be summarised as follows:
(1)The notice of formal hearing served by the defendant on 15 June 2007 notified the plaintiff that the formal hearing would concern the question whether the plaintiff had engaged in “unprofessional conduct” as defined by s 3(1) of the 1994 Act.
(2)Pursuant to s 102A of the 1994 Act, the Board may only investigate whether the plaintiff engaged in the conduct described in ss 16 and 17 of the 1970 Act, namely, whether the plaintiff failed to carry out her professional duties adequately.
(3)Accordingly, the Board does not have jurisdiction to constitute a formal inquiry pursuant to the notice served on the plaintiff.
In response, the basic propositions relied on by the defendant may be summarised as follows:
(1)The notice of formal hearing served on the plaintiff is a notice of a hearing into whether findings may be made of conduct described in s 16 of the 1970 Act.
(2)In any event there is an equivalence of meaning between the concept of “unprofessional conduct” defined in s 3(1)(a) and (b) of the 1994 Act, and a “failure to carry out professional duties adequately” under s 16 of the 1970 Act.
(3)The statement, in the notice of formal hearing, of an available outcome or possible determination of the inquiry, does not found the jurisdiction of the Board to proceed to a hearing, and an incorrect statement of the available outcomes does not deprive the notice of its validity.
(4)In any event, the decision by the Board, to conduct a formal hearing pursuant to the notice, is not a decision which is amenable to relief in the nature of certiorari and prohibition.
Medical Practitioners Act 1970
The Medical Practitioners Act 1970 was the legislation in force at the time of the conduct alleged against the plaintiff in the notice served on her by the Board. Section 4(1) of that Act established the “Medical Board of Victoria” (“the Medical Board”). Part 3 of the Act provided for inquiries to be held by the Medical Board. Section 16(1) is particularly relevant to this case, and provided:
“The Board may require any legally qualified medical practitioner to appear before it to enable any inquiry to be held with respect to any matter concerning the activities of such medical practitioner and may censure or reprimand any such medical practitioner for his failure to carry out his professional duties adequately or to accept his professional responsibilities.”
Section 16(2) of the 1970 Act provided that where, in the course of such an inquiry, the Medical Board considers that action should have been taken under s 17, the Board shall advise the medical practitioner that the inquiry under s 16 is abandoned, and the Board may proceed to take action under s 17. Section 17 made provision for the Board to hold such an “inquiry” concerning “the activities” of a legally qualified medical practitioner where it is not appropriate to do so under s 16. Sub-section (2) required the Medical Board to send to the medical practitioner notice of the intention of the Board to inquire into his or her activities, and the place and time of the inquiry. Section 17(4)(a) to (d) provided a range of findings which might be made by the Medical Board as a result of such an inquiry. Section 17(4)(d) provided that one of those findings was that the medical practitioner “has been guilty in Victoria or elsewhere of professional misconduct”.
Section 17(4)(e) to (i) provided for a range of remedies available to the Medical Board upon making any of the prescribed findings. Those remedies included a reprimand, imposition of a condition, limitation or restriction on the practitioner’s practice, suspension of registration of the practitioner, removal of the name of the person from the registrar, or (in the case of professional misconduct) imposition of a fine.
Medical Practice Act 1994
The 1994 Act commenced operation on 1 July 1994. By s 100, it repealed the 1970 Act. Section 101 provided for a new Board, the Medical Practitioners Board of Victoria (“the Board”) to replace the Medical Board.
Part 3 of the 1994 Act established a new regime of investigation into the conduct of medical practitioners. It is not necessary for me to set out the provisions of that part in detail. Apart from questions relating to the fitness of a practitioner to conduct practice, the investigative processes established by the Act centred on a concept of “unprofessional conduct”. That term was specifically defined in s 3(1) to bear eleven specific meanings. The first four of those meanings were –
“(a)professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or
(b)professional conduct which is of a lesser standard than that which might reasonably be expected of a medical practitioner by her or his peers; or
(c) professional misconduct; or
(d) infamous conduct in a professional respect … .”
Part 3 of the 1994 Act provided for investigations to be undertaken by the Board. Section 22(1)(b) provided that a person might notify the Board about any matter relating to a registered medical practitioner, if that person believed that it indicated that the practitioner may have “engaged in unprofessional conduct”. Section 25(1) required the Board to investigate such a notification. Section 25(7) provided that the Board of its own motion may determine to conduct (inter alia) a formal or an informal hearing into the “professional conduct” of a registered medical practitioner. Section 39 provided for the Board to appoint a panel to hold and conduct an informal hearing. Sections 40 to 43 made provision for the conduct, and determinations, of such a hearing. Section 44 provided that the panel might, before the end of an informal hearing, determine that a formal hearing should be held. Section 46 provided that if the Board had determined that a formal hearing be held, the Board must appoint a panel to hold the hearing, fix a time and place for the hearing, and serve a notice on the practitioner under s 48. Section 48 required (inter alia) that such a notice “state the nature of the hearing and the allegations made against the practitioner”. Section 45A of the Act provided that after undertaking a formal hearing the panel may find: (a) that the practitioner has engaged “in professional conduct of a serious nature”; or (b) that the practitioner has “engaged in unprofessional conduct which is not of a serious nature”; or (c) that the practitioner has not engaged in unprofessional conduct.
Section 45A(3) provided that if the panel found that the practitioner had engaged in unprofessional conduct which is not of a serious nature, the panel may make any “determination” which a panel at an informal hearing is able to make upon such a finding. Section 45A(2) provided for a wider range of sanction available to the panel, upon a finding that a practitioner had engaged in unprofessional conduct of a serious nature. Those sanctions included: requiring the practitioner to undergo counselling; cautioning or reprimanding the practitioner; requiring the practitioner to undertake specified further education; imposing any condition or limitation or restriction on the registration of the practitioner; imposition of a fine; suspension or cancellation of registration of the practitioner; and disqualification of the practitioner from applying for registration.
As originally enacted, the main transitional provision relating to the investigations of the Board was s 102 of the 1994 Act, which stated:
“(1)If an investigation or inquiry into the activities or physical or mental health of a legally qualified medical practitioner under the old Act has commenced but has not been completed before the commencement of Part 3 of this Act –
(a)that investigation or inquiry may be completed on or after that date; and
(b)any appeal or further proceedings which might have been taken in relation to that investigation or inquiry under the old Act might be taken on and after that date –
as if this Act had not been enacted.
(2)The new Board must give effect to a decision made on an inquiry, investigation or appeal to which subsection (1) applies as if it were a decision under this Act.”
Subsequently, s 102A was inserted into the Act by the Medical Practice and Nurses Acts (Amendment) Act 1995. The new s 102A was to take effect as from 1 July 1994, the date of commencement of the 1994 Act. Section 102A provided:
“(1)In the case of the activities of any medical practitioner which occurred before the commencement of Part 3, this Act applies insofar as there was power to conduct an inquiry under section 16 or 17 of the old Act into those activities.
(2)Any determination or outcome of a hearing into those activities must be one which would have been available as a finding or decision in an inquiry by the old Board under the old Act.
(3)Subsection (1) does not apply to activities which are the subject of proceedings to which section 102 applies.”
Health Professions Registration Act 2005
For the purpose of completeness, the 1994 Act was repealed by s 163(1)(d) of the Health Professions Registration Act 2005. That repeal was effective on 1 July 2007. However, s 168(1) has the effect that if an investigation or inquiry into the activities of a practitioner had already commenced under the repealed Act, then that investigation or inquiry may be completed as if the former Act had not been repealed. In this case, the notice of hearing was served on the plaintiff before the repeal of the 1994 Act, and therefore the provisions of that Act remain in force in relation to it.
The notice of formal hearing
As I have already indicated, the principal proposition relied on by the plaintiff is that the notice of formal hearing, served by the plaintiff on 15 June 2007, purported to refer to a hearing in which the plaintiff’s conduct is to be assessed according to the standard described in the 1994 legislation, which was not in force at the time of the conduct of the plaintiff alleged in the notice. It was submitted on behalf of the plaintiff that s 102A of the 1994 Act does not entitle the Board to conduct such a hearing.
The notice itself was undated. It commenced by notifying the plaintiff, by her solicitors, that pursuant to Part 3 and s 102A of the 1994 Act, the Board had determined to hold a formal hearing into her professional conduct as a result of information received by the Board from a named complainant. The note then stated:
“The formal hearing will be concerned with the following allegation –
‘That you engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of ‘unprofessional conduct’ in section 3(1) of the Act by your failure to carry out your professional duties adequately …’.”
The notice then provided four particulars of that alleged conduct. On the second page, after providing those particulars, the notice stated:
“After considering all of the submissions made to the formal hearing, the Panel may find that:
1.In relation to paragraphs (a) and/or (b) and/or (c) and/or (d) [of the particulars] above, you have failed to carry out your professional duties adequately.
Having made this finding, the Panel may do one or more of the following things:
(a)censure you; or
(b)reprimand you.
2.You have not failed to carry out your professional duties adequately.”
Submissions
Mr M Wheelahan SC, who appeared with Mr A Strahan for the plaintiff, submitted that since the conduct which is alleged against the plaintiff took place in 1990 and 1991, the statutory standard against which that conduct is to be judged is that described in ss 16 and 17 of the 1970 Act. He referred to the principle of statutory construction, by which an Act is presumed not to apply retrospectively, unless there is a clear intention in the legislation to the contrary.[1] Mr Wheelahan submitted that there is no indication in the 1994 Act that it was intended to operate retrospectively, so as to apply to conduct of a practitioner which took place before the commencement of the Act. Mr Wheelahan submitted that s 102A is not sufficiently clear, in its terms, to displace the presumption against retrospectivity.
[1]Maxwell v Murphy (1957) 96 CLR 261, 267.
Mr Wheelahan then submitted that the standard of unprofessional conduct, as defined in the 1994 legislation, and particularly as defined in s 3(1)(a) of the Act, is a new standard, which is different to the standard of conduct described in s 16 of the 1970 Act. He submitted that the standard of unprofessional conduct, as defined in s 3(1)(a) and (b) of the 1994 Act, is not equivalent to, or the same as, the standard of conduct described in s 16 of the 1970 Act, namely a failure of the practitioner to carry out his duties adequately or to accept his professional responsibilities.
Mr Wheelahan referred to two previous conflicting decisions of this Court in relation to the construction of s 102A of the Act, namely the decision of Eames J in McGrath v Medical Practitioners Board of Victoria[2], and the decision of McDonald J in QX v The Medical Practitioners Board of Victoria[3]. Mr Wheelahan submitted that I should follow the decision of McDonald J in QX in preference to that of Eames J in McGrath. In particular, he submitted that the decision in McGrath was premised on the proposition that, in effect, there is an equivalence between unprofessional conduct as defined in s 3(1)(a) and (b) of the 1994 Act, and the conduct which is to be investigated under s 16 of the 1970 Act. Mr Wheelahan submitted that that proposition is incorrect.
[2](1996) 10 VAR 454.
[3](Unreported, Supreme Court of Victoria, 11 June 1997; BC9702587).
Mr Wheelahan then submitted that the notice served on the plaintiff purported to combine the concept of “unprofessional conduct” in s 3(1) of the 1994 Act with the concept of a failure to carry out professional duties, under s 16 of the 1970 Act. He submitted that, in effect, the notice thus foreshadowed a formal hearing, which would be conducted by reference to a standard of conduct which was not applicable at the time of the conduct alleged against the plaintiff. Accordingly, he submitted that the Medical Board does not have power to conduct an inquiry in accordance with that notice, and that the notice is invalid.
In response, Ms F McLeod SC, who appeared with Ms D Siemensma for the defendant, submitted that the notice of formal hearing, served on the plaintiff, is valid. She submitted that s 16(1) of the 1970 Act, by referring to an inquiry “with respect to any matter concerning the activities” of a medical practitioner, contemplated a broad range of conduct and inquiry. Ms McLeod submitted that the description of unprofessional conduct, as defined in s 3(1)(a) and (b) of the 1994 Act; is encompassed by the standard described in the s 16(1) of the 1970 Act, namely, a failure to carry out professional duties adequately or to accept professional responsibility. In any event, she submitted that the reference to s 3(1)(a) and (b), in the notice served on the plaintiff, is only indicative of the parameters of the inquiry, and not of the findings which might be made by the panel appointed by the Board. Ms McLeod submitted, by reference to s 102A(2) of the 1994 Act, that the possible findings, referred to in the notice, are all findings “available to” the Board under s 16(1) of the Act, namely, a finding that the plaintiff had (or had not) failed to carry out her professional duties adequately. Similarly, the outcomes referred to on the second page of the notice, namely, censure and reprimand, are determinations which the Board is empowered to make under s 16(1) of the 1970 Act. Ms McLeod noted that it was accepted by the plaintiff that the processes and procedures prescribed by the 1994 Act apply. She submitted that a reference in the notice to the terminology or procedure of the 1994 Act does not deprive the panel of power to conduct the hearing notified in it.
Ms McLeod further submitted that, if s 102A is ambiguous, then it ought not to be construed by reference to the presumption against retrospectivity. She referred to the fact that the legislation itself is protective, and thus ought to be construed in a beneficial manner in accordance with the underlying purpose of the Act.
Ms McLeod submitted that the decision of McDonald J in QX v The Medical Practitioners Board of Victoria might be distinguished. In that case the notice itself foreshadowed findings and outcomes in terms of the 1994 legislation. By contrast, in this case, the notice served on the plaintiff foreshadows findings and determinations in accordance with the 1970 legislation. Further, Ms McLeod submitted that if there is any conflict in the authorities, I should prefer the decision of Eames J in McGrath v Medical Practitioners Board of Victoria. In support of that proposition she referred to and relied on the decision of Beach J in Chen v Chiropractors Registration Board of Victoria[4] and the decision of Deputy President McNamara of the Administrative Appeals Tribunal in CD v Medical Practitioners Board[5].
[4][2000] VSC 480.
[5][1997] VICCAT 795.
Conclusions
The competing submissions of the parties raise four principal issues, namely:
(1)Is the standard of conduct, described in s 16 and s 17 of the 1970 Act, different to the standard of conduct, described as “unprofessional conduct”, and defined in s 3(1)(a) and (b) of the 1994 Act?
(2)If so, does the 1994 Act, and in particular s 102A, have the effect that the standard described in that Act may apply to conduct engaged in by a medical practitioner before the commencement of the 1994 Act, either in addition to, or in exclusion of, the standard described in ss 16 and 17 of the 1970 Act?
(3)Does the notice of formal hearing served on the plaintiff purport to relate to a hearing which is to be conducted by reference to the standard of conduct of “unprofessional conduct” described in the 1994 Act?
(4)If so, is the notice invalid, and would a hearing of a panel of the Board, conducted pursuant to that notice, be invalid?
As noted by counsel in their submissions, there are two main decided cases which relate to the first two questions which I have just posed, namely McGrath v Medical Practitioners Board of Victoria[6] and QX v The Medical Practitioners Board of Victoria[7]. Those two decisions are in conflict in relation to the answer to question 1, and, at least implicitly, on the answer to question 2. I propose to first examine, and express my views on, the first two questions unassisted by authority, and then I shall return to those two authorities.
[6](1996) 10 VAR 454.
[7](Unreported, Supreme Court of Victoria, 11 June 1997; BC9702587).
The first question, then, is whether the standard of conduct, described in s 16 of the 1970 Act, is different to the standard of “unprofessional conduct”, as defined by s 3(1)(a) and (b) of the 1994 Act.
In my view, there is an important difference between the standard, posited in s 16(1) of the 1970 Act, and the standard, described in the definition of “unprofessional conduct” in s 3(1)(a) and (b) of the 1994 Act. In the 1970 Act, the standard is assessed by reference to whether the practitioner has carried out his or her professional duties adequately, and has accepted his or her professional responsibilities. By contrast, s 3(1)(a) and (b) of the 1994 Act describe the relevant standard of “unprofessional conduct” in terms of whether the professional conduct of the practitioner is of a lesser standard than that which either the public or the peers of the practitioner might reasonably expect of a medical practitioner. In other words, the focus in the 1970 legislation is on the discharge by the medical practitioner of his or her duties and obligations. The issue to be determined by the Board, under that section, depends on an identification of the relevant professional duties and responsibilities of the practitioner, and an appropriate assessment by the Board whether the practitioner has adequately discharged or accepted those duties or responsibilities. That test is not assessed by reference to the notional reasonable expectations of the public or the peers of the practitioner, but by reference to the duties and responsibilities of the practitioner, and whether that practitioner has carried out his or her duties adequately, or accepted his or her responsibilities.
By contrast, the focus required by s 3(1)(a) and (b) of the 1994 Act is on the notional reasonable expectations of the public and of the peers of the medical practitioner. That test is different, and distinct, from the test postulated by the 1970 Act. While the question, whether a practitioner has discharged his or her duties adequately, might be relevant to an assessment of the reasonable expectations of the public or of the peers of the practitioner, under the 1994 Act, it is not determinative of that issue. Rather, in assessing whether a medical practitioner has engaged in “unprofessional conduct” for the purposes of s 3(1)(a) or (b) of the 1994 Act, the ultimate question is whether the professional conduct of the relevant practitioner fell short of that which might be reasonably expected by the public or by the peers of the practitioner.
It might be observed that s 3(1)(b) does not postulate a test which is new, or was hitherto unknown, to the law. That subparagraph, in essence, incorporated the common law definition of “unprofessional conduct”, namely, conduct which is contrary to the standards of professional conduct observed and approved by members of the profession of good repute and competency.[8] By contrast, as Mr Wheelahan pointed out in argument, the test of “unprofessional conduct”, described in s 3(1)(a) of the 1994 Act, imports a new concept, involving an assessment of the notional reasonable expectations by the public of conduct of a registered medical practitioner. That feature of the 1994 Act emphasises and highlights the difference in the tests, and the differences in the approach required of the Board, under the two sets of legislation.
[8]See for example In Re A Practitioner of the Supreme Court [1927] SASR 58, 60; In the Matter of a Practitioner (1975) 12 SASR 166, 171 to 172 (Bray CJ).
As I have stated, one would ordinarily expect that conduct falling within s 16(1) of the 1970 Act (a failure to carry out professional duties adequately or to accept professional responsibilities) would also constitute conduct defined in s 3(1)(a) and (b) of the 1994 Act. However, that does not mean that the two sets are identical or equivalent, nor does it mean that the same result would necessarily flow from the application of the two tests to the same conduct of a medical practitioner. The two tests are different, both in terms of their focus, and also in terms of the particular standard postulated in the two sets of legislation. While, ultimately, the difference between the two tests may not be substantial, nevertheless there is a real, and substantive, distinction in the two standards. They are neither equivalent nor identical to each other. Accordingly, in my view, the standard described in s 16 of the 1970 Act is different from, and distinct to, the standard of unprofessional conduct, as defined by s 3(1)(a) and (b) of the 1994 Act.
That conclusion, then, brings me to the second question which I have posed. That question is whether the 1994 Act, and in particular s 102A, has the effect that the standard described and defined in that Act may apply to conduct engaged in by a medical practitioner before the commencement of the 1994 Act, either in addition to, or to the exclusion of, the standard described in s 16 of the 1970 Act.
In my view, it is clear that the 1994 Act did not operate so as to apply to conduct, which occurred before the commencement of that Act, the standard of “unprofessional conduct” described and defined in s 3 of that Act. On its proper construction, the 1994 Act left undisturbed, and indeed expressly preserved, the application of the 1970 Act in respect of conduct of medical practitioners taking place before the commencement of the 1994 Act on 1 July 1994.
The appropriate starting point for the construction of the 1994 Act is the well known rule of statutory construction, that an amending Act is presumed not to have retrospective operation, unless there is a clear indication of a legislative intention that it has such an effect. That rule was stated in clear terms in the often cited dictum of Dixon CJ in Maxwell v Murphy[9]:
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with the reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”
[9](1957) 96 CLR 261, 267.
In the same case, Fullagar J stated the principle in similar terms as follows:
“The general rule on which the respondent relies is perhaps as well established as anything in English law. It is that a statute is prima facie to be construed as not having a retrospective operation. Two typically succinct statements of the rule may be cited. In Moon v Durden Alderson B said that in construing statutes the general rule is that ‘They are not to be supposed to apply to a past, but to a future, state of circumstances’. In Gardner v Lucas, Lord Blackburn said: ‘Prima facie, any new law that is made affects future transactions, not past ones’.”[10]
[10]Ibid, 285 (citations omitted).
Fullagar J revisited and restated the rule in similar terms in Ku-Ring-Gai Municipal Council v Attorney-General for the State of New South Wales[11] as follows:
“What the rule really means is that prima facie a statute must not be construed so as to change the legal character, or the legal consequences, of past events and transactions. The expression ‘change the character of past transactions’ is used by Willes J in the well known passage in Phillips v Eyre. In R v Guardians of Ipswich Union, Cockburn CJ said: ‘It is a general rule that, where a statute is passed altering the law, unless the language is expressly to the contrary, it is to be taken as intended to apply to a state of facts coming into existence after the Act’.”[12]
[11](1957) 99 CLR 251, 269 (citations omitted).
[12]See also RS Howard & Sons Limited v Brunton & Ors (1916) 21 CLR 366, 371 (Griffith CJ); Fisher v Hebburn Limited (1960) 105 CLR 188, 194 (Fullagar J); Dolling v National Australia Bank Limited (2002) 5 VR 234, [12] (Phillips JA); Rodway v R (1990) 169 CLR 515, 518.
In this case, at the time of the conduct alleged against the plaintiff in the notice of formal hearing served on her by the defendant, the plaintiff’s conduct was governed by the 1970 Act, and in particular by ss 16 and 17 of that Act. The law then in operation exposed the plaintiff to disciplinary action under s 16, if she failed to carry out her professional duties adequately, or to accept her professional responsibilities, and, under s 17, if (inter alia) she was guilty of professional misconduct. Those two sections constituted the applicable law setting the standard of conduct then expected of the plaintiff in performance of her professional duties, and set the standard, then applicable, against which her conduct might be judged. The law did not then prescribe a different standard of conduct, namely, the standard of “unprofessional conduct” as defined in the 1994 Act, as the standard against which her conduct might be judged.
In those circumstances, in my view, it would require a clear expression of statutory intention to permit the 1994 Act to be construed, so as to apply to the plaintiff’s conduct in 1990 and 1991, the standard of “unprofessional conduct” introduced in 1994 by statute. I note that in this case, as I understand it, there was no suggestion by the defendant that the 1994 Act should be construed so as to operate retrospectively in that respect. Further, I can find no indication in the 1994 Act, either expressly or as a matter of necessary intendment, that the Act should so operate. In McGrath v Medical Practitioners Board of Victoria[13] and QX v The Medical Practitioners Board of Victoria[14], the judgments quoted the relevant passage of the second reading speech of the responsible Minister in introducing the amending legislation, by which s 102A was incorporated into the 1994 Act. In that speech, the Minister expressly disavowed any intention that the amendments would operate so as to give retrospective operation to the 1994 Act. The Minister stated:
“The amendments ensure that the law that will be applied by the Boards will be the law that applied at the time of the incident being inquired into. This is not retrospective legislation.”
[13](1996) 10 VAR 454, 462.
[14](Unreported, Supreme Court of Victoria, 11 June 1997; BC9702587 at 27).
In this context, I note that while the effect of the decision of Eames J in McGrath might be to give retrospective operation to the 1994 Act, his Honour did not purport, in his judgment, to identify any indication of intention in the 1994 Act that it operate retrospectively. Clearly, in QX, McDonald J construed the Act in a manner which did not give it any retrospective effect.
In my view, on its proper construction, s 102A operates to preserve the standards set in ss 16 and 17 of the 1970 Act, in respect of conduct of a practitioner occurring before the commencement of the 1994 Act. Section 102A(1) expressly provided that, in the case of activities of a medical practitioner which occurred before 1 July 1994, the Act applied “insofar as there was power to conduct an inquiry under s 16 or 17 of the old Act into those activities”. Thus, s 102A(1) expressly conditioned the application of the 1994 Act on the existence of a power of the previous Board to hold an inquiry under s 16 or 17 of the 1970 Act. It is important, in this respect, to bear in mind that s 16(1) of the 1970 Act did not empower the Board to enter upon an inquiry, at large, into the “activities” of a medical practitioner. Rather, on its proper construction, s 16(1) empowered the old Board to enter into an inquiry which had a specific content, namely, an inquiry into activities of the medical practitioner so as to determine whether or not the practitioner, in respect of those activities, had failed to carry out his or her professional duties adequately, or to accept his or her professional responsibilities. Similarly, under s 17 of the 1970 Act, the old Board had power to hold an inquiry concerning the activities of a medical practitioner, so as to determine (inter alia) whether that practitioner had been guilty of professional misconduct. Critically, the old Board, under the 1970 Act, did not have power to conduct an inquiry under s 16 or 17 of the 1970 Act into the activities of a medical practitioner to determine whether that practitioner had engaged in “unprofessional conduct”, as subsequently defined by s 3(1)(a) or (b) of the 1994 Act. Accordingly, in my view, the proper construction of s 102A(1) of the 1994 Act militates against the implication of any legislative intention that that Act operate retrospectively, so as to entitle the Board to hold an inquiry into the conduct of a practitioner by reference to the standard set in the 1994 Act.
That conclusion is reinforced by s 102A(2) of the 1994 Act, which provides that any “determination or outcome” of a hearing into the activities of the practitioner must be one which would have been available as a “finding or decision” in an inquiry by the old Board under the 1970 Act. The only findings available to the old Board, under the 1970 Act, were findings, under s 16(1) that the practitioner had failed to carry out his or her professional duties adequately or to accept his or her professional responsibilities, and (inter alia), under s 17(4) that the practitioner had been guilty of professional misconduct. A finding as to “unprofessional conduct” under s 3 of the 1994 Act was not available to the old Board under the 1970 Act, either as a matter of form or as a matter of substance. While, as I have already stated, conduct which may previously have been characterised as a failure to properly discharge professional duties under s 16(1) of the old Act, or professional misconduct, under s 17(4) of the 1970 Act, might usually constitute “unprofessional conduct” as defined in s 3 of the 1994 Act, that is not necessarily so. The two tests are different, and thus any findings as a result of the application of those tests must be different.
Furthermore, if the 1994 Act were to be given retroactive effect, so as to apply to conduct occurring before the commencement of the Act the standard of “unprofessional conduct”, that would produce unusual and clearly unintended consequences. First, it is clear, by the terms of s 102A(1) and (2), that the concept of “unprofessional conduct” could not be applied, without limitation, to conduct which occurred before 1 July 1994. At the most, it could only apply to conduct which could also be described as a failure to carry out professional duties adequately or to accept professional responsibilities (under s 16), or professional misconduct (under s 17). Further, the remedies prescribed by the 1994 Act could only be applied in respect of conduct occurring 1 July 1994, if they were also available under the 1970 Act. That being so, a construction of the 1994 Act, so as to import its provisions into an inquiry into conduct occurring before 1 July 1994, would give rise to a two tiered approach by the Board. There is no reason why Parliament would have intended that such a complicated system of inquiry should take place in respect of conduct preceding 1 July 1994.
For those reasons, in my view, the 1994 Act, and in particular s 102A, on their proper construction, do not have the effect that the standard of “unprofessional conduct”, defined in that Act, applies to an inquiry into the conduct of a medical practitioner in respect of activities of that practitioner which took place before 1 July 1994. In my view, the intention of the 1994 Act was to preserve, in respect of such an inquiry, the standard prescribed in s 16(1) and 17 of the 1970 Act.
In light of those views, I turn to the cases which relate to this question, and to which I have been referred.
The first decision was that of Eames J in McGrath v Medical Practitioners Board of Victoria[15]. In that case the Board, in October 1994, determined to conduct a formal hearing into a complaint against the plaintiff, a medical practitioner, in respect of her treatment of a patient in October 1992. In November 1994, the Board sent to the plaintiff a notice that it would conduct a formal hearing to inquire whether she was “guilty of unprofessional conduct”, particularised in terms of paragraphs (a) and (b) of the definition of “unprofessional conduct” in s 3 of the 1994 Act. At the hearing of that notice, the panel accepted an objection to the notice. Subsequently, s 102A was introduced into the 1994 Act, with effect from 1 July 1994. The defendant then sent to the plaintiff a second notice which was in similar terms to the first notice, but also adding a category of unprofessional conduct in terms of paragraph (c) of the definition of “unprofessional conduct”, namely “professional misconduct”. The plaintiff issued an originating motion seeking to prohibit the defendant proceeding with a second formal hearing in respect of that notice. Eames J held that the terms of the notice did comply with s 102A of the Medical Practice Act, notwithstanding that it was expressed in terms of the definition of “unprofessional conduct” introduced in the 1994 Act. However, his Honour held that the notice was invalid, because the Board had not made a further determination to issue the notice before it was served on the plaintiff. Accordingly, his Honour made a declaration to that effect.
[15](1996) 10 VAR 454.
In concluding that the terms of the notice complied with s 102A of the 1994 Act, Eames J stated:
“… Parliament has empowered the new Board to conduct an inquiry into such activities as were activities which the old Board may have inquired into. The conduct which is alleged against the plaintiff under paragraphs (a) and (b) concerns activities which could undoubtedly have been investigated under section 16 of the old Act. They could have constituted, at least, a ‘failure to carry out professional duties adequately’, or ‘failure to accept professional responsibility’, within the meaning of section 16(1). Those activities may therefore be inquired into under the provisions of the new Act insofar as ‘this Act applies’ to such activities. The new Act does apply to such activities, the activities are capable of constituting unprofessional conduct as defined, and the inquiry powers are capable of being applied to the process of inquiry which is to be adopted.”
Pausing there, with respect, I do not agree with the reasoning thus stated by his Honour. As I have already pointed out, there is not a necessary equivalence between the conduct described in s 16(1) of the 1970 Act, and the conduct defined in paragraphs (a) and (b) of the definition of “unprofessional conduct” in s 3(1) of the 1994 Act. The application of the 1994 standard to conduct occurring before 1 July 1994 necessarily gives to the 1994 Act retrospective effect, which, as I have stated, was not intended by the legislature. For those reasons, I do not agree with the reasoning of Eames J in McGrath.
In McGrath, Eames J reasoned that s 102A(2):
“ensures that no penalty can be imposed which is of a character more severe than may have been imposed for the like conduct under the 1970 Act. Although the new Act uses the words, and defines them of ‘unprofessional conduct’, that characterisation of conduct does not mean that a higher standard of conduct is being imposed …”.[16]
[16]Ibid, 464; emphasis added.
Again, with respect, I disagree with the reasoning thus stated by his Honour. Under s 102A(2), the question is not whether, under the 1994 Act, a penalty is prescribed which is “more severe” than that imposed for like conduct under the 1970 Act; rather, the question is whether the determination (that is the remedy) is one which would have been “available” under the 1970 Act. Similarly, the question is not whether the characterisation of the conduct of the practitioner was a “higher standard” of conduct than under the 1970 Act. Rather, the question is whether a finding as to “unprofessional conduct” was available to the old Board under the 1970 Act.
In QX v The Medical Practitioners Board of Victoria[17], the defendant Board gave to the plaintiff practitioner a notice dated 15 May 1996 of its intention to conduct a formal hearing as to whether the plaintiff had “engaged in unprofessional conduct as defined” in para (a), para (b), para (c), and/or para (d) in s 3” of the 1994 Act. The notice foreshadowed potential findings that by the panel that the plaintiff may (or may not have) engaged in unprofessional conduct of a serious nature, or in unprofessional conduct. It foreshadowed the sanctions then prescribed in s 50(2) of the 1994 Act (now in s 45A). The panel, on the ensuing hearing, found that the plaintiff had engaged in “unprofessional conduct” as defined in paras (a) and (b) of the definition in s 3 of the 1994 Act. The plaintiff then issued an originating motion seeking relief in the form of certiorari in respect of that finding.
[17](Unreported, Supreme Court of Victoria, McDonald J, 11 June 1997; BC9702587).
Upon the hearing of that originating motion, the plaintiff’s counsel made two primary submissions. First, he submitted that s 102 of the Act applied, because the old Board had given a previous notice to the plaintiff before 1 July 1994 of an investigation into the conduct which was described in the May 1996 notice. Alternatively, the plaintiff submitted that, if s 102 of the 1994 Act did not apply because the earlier investigation had been abandoned, then the power of the panel to investigate the conduct of the plaintiff, under s 102A of the 1994 Act, did not empower the Board to find that the conduct of the plaintiff was “unprofessional conduct” as defined by s 3 of the 1994 Act.
In granting relief in the form of certiorari, McDonald J noted that if, in the circumstances of the case, an investigation or inquiry into the activities had commenced but not been completed before 1 July 1994, then s 102 operated, so that the panel lacked jurisdiction to find that the conduct of the plaintiff amounted to “unprofessional conduct” under the 1994 Act. His Honour further held that, if, on the other hand, s 102 did not apply, then by the terms of s 102A, the defendant did not have power to investigate whether or not the conduct of the plaintiff amounted to “unprofessional conduct” under the 1994 Act.
In reaching his conclusion in relation to the latter matter, McDonald J stated the critical question as follows:
“The question that must be addressed is whether section 102A(1) makes the conduct of a medical practitioner occurring before 1 July 1994 and not being the subject of 102 of the new Act, the subject of the whole Act including the categorisation of conduct by reference to ‘unprofessional conduct’ as defined by the new Act or whether the procedures under the new Act are available but the jurisdiction of the new Board or a panel investigating such activities is limited to the powers able to be exercised by the old Board under section 16 and section 17 of the old Act.”[18]
[18]Ibid, BC9702587 at 25 to 26.
Having posed that question, his Honour examined the decision of Eames J in McGrath. McDonald J then stated:
“… with respect to his Honour, I disagree that under section 102A of the new Act, when conducting an inquiry or investigation into a medical practitioner’s conduct which occurred before 1 July 1994, the new Board or a panel has jurisdiction to inquire into whether particular conduct is conduct identified as ‘unprofessional conduct’ as identified by para (a) or para (b) of the definition of that phrase in the new Act.
Section 102A(1) … provides the new Board with jurisdiction to investigate such activities of a medical practitioner as the old Board was able to do under section 16 and section 17 of the old Act, but not to investigate activities of a nature not identified or categorised by such sections of the old Act. The new Board has jurisdiction by section 102A(1) to investigate whether conduct of a medical practitioner which occurred before 1 July 1994 was that which amounted to ‘professional misconduct’ or ‘infamous conduct in a professional respect’. However, by conducting such investigation within its power under that section the new Board by a panel is not investigating whether the conduct is ‘unprofessional conduct’ but rather whether it was conduct as identified in para 17(4)(d) or para (4)(A) of the old Act. Similarly, whereas under section 102A(1) of the new Act the Board or panel has jurisdiction to investigate whether conduct of a medical practitioner occurring before 1 July 1994 was a ‘failure to carry out his professional duties adequately or to accept his professional responsibilities’ and even though it may be said that such conduct is able to be categorised in some cases as conduct within that defined as ‘unprofessional conduct’ in para (a) or para (b) of the definition, it again does not have the statutory power to investigate whether or not that conduct of a medical practitioner amounts to ‘unprofessional conduct’. That this is the meaning of section 102A(1) and its proper application is in my view supported by section 102A(2).”[19]
[19]Ibid, BC9702587 at 29 to 30.
For reasons which I have set out in this judgment, I respectfully agree with the views thus expressed by McDonald J. In particular, I agree with his Honour’s analysis that the Board must conduct an inquiry, into conduct of a practitioner which took place before 1 July 1994, by applying the standards described in s 16 and s 17 of the 1970 Act, and not the standard of “unprofessional conduct” described in s 3(1) of the 1994 Act. As is also implicit in his Honour’s judgment, I agree that the differences in the standards specified in the two sets of legislation are not just matters of nomenclature, but are matters of real substance.
Finally, and for the purpose of completeness, I mention the decision of Beach J in Chen v Chiropractors Registration Board of Victoria[20]. In that case his Honour had before him an application for extension of time within which the plaintiff might apply to the Court for leave to appeal against the orders of the Victorian Civil and Administrative Tribunal. The Tribunal had suspended the plaintiff’s registration as a chiropractor on the basis of the finding that the plaintiff had engaged in “unprofessional conduct” as defined in the Chiropractors Registration Act 1996. That Act commenced operation on 1 July 1997, which was subsequent to the date of the relevant conduct in respect of which the plaintiff’s registration was suspended. The 1996 Act defined “unprofessional conduct” in similar terms to that found in s 3 of the Medical Practice Act 1994. The previous legislation was a 1978 Act. That Act also used the standard of “unprofessional conduct”, but did not define it. The Tribunal made a finding against the plaintiff of unprofessional conduct, in terms of both the 1978 Act and the 1996 Act. Beach J held that it was open to the tribunal to make that finding. His Honour stated[21]:
“In my opinion it was open to … the tribunal to find that any conduct of the plaintiff which came within the category of the conduct specified in the definition of unprofessional conduct in section 3 of the 1996 Act came within the common law definition of unprofessional conduct and was therefore covered by section 13A of the 1978 Act.”
[20][2000] VSC 480.
[21]Ibid, [27].
It thus seems that Beach J, in Chen, considered that the finding of the Tribunal of unprofessional conduct under the 1996 Act was equivalent to the finding which was available to the tribunal under the common law definition of “unprofessional conduct” which was covered by the 1978 Act. However, as I have already stated, the position is different in respect of the legislation with which this case is concerned. By contrast, as I have already stated, the standard of conduct described in ss 16 and 17 of the 1970 Act is different to and distinct from the standard of “unprofessional conduct” defined in the 1994 Act. Thus, the decision of Beach J in Chen may be distinguished from this case.
The next, and third, question, then, is whether the notice of formal hearing served on the plaintiff on 15 June 2007 purports to relate to a hearing which is to be conducted by reference to the standard of conduct of “unprofessional conduct” described in the 1994 Act.
I have already set out the contents of the notice earlier in this judgment[22]. In my view, on a plain reading of the notice, it does purport to import into the intended formal hearing the standard of “unprofessional conduct” defined in paragraphs (a) and (b) of the definition of “unprofessional conduct” in s 3(1) of the Act. That is made plain in the third paragraph of the notice, on the first page, in which notice is given that the formal hearing will be concerned with the allegation “that you engaged in unprofessional conduct as defined in paragraphs (a) and (b) of the definition of ‘unprofessional conduct’ in s 3(1) of the Act by your failure to carry out your professional duties adequately … “. Certainly, that allegation seems to combine the concept of “unprofessional conduct” in the 1994 Act with the concept of the failure to carry out professional duties adequately in s 16(1) of the 1970 Act. However, the primary allegation, foreshadowed in the notice, is that of the engagement by the plaintiff in unprofessional conduct within subparagraphs (a) and (b) of the definition of that term in s 3(1) of the 1994 Act. The notice, by its terms, seeks to refine that allegation by limiting it to an alleged failure by the plaintiff to carry out her professional duties adequately. However, that does not overcome the fact that the primary allegation, in the notice, is of the engagement by the plaintiff in unprofessional conduct.
[22]See paras [17] to [19].
Under ss 46 and 48 of the 1994 Act, the notice of formal hearing to be given to a practitioner must “state the nature of the hearing and the allegations made against the practitioner …”. Thus the description of the “allegation” in the notice, to which I have referred, is not adventitious; it is in purported compliance with s 48 of the 1994 Act. It is an essential part of the notice. It is that allegation which will be the subject of the hearing foreshadowed by the notice. Clearly, by its terms, the notice thus foreshadows a hearing which will be conducted by reference to the standard of “unprofessional conduct” prescribed by the 1994 Act.
It is true, as submitted by Ms McLeod, that on the second page, the notice expresses the possible findings and decisions by the panel in terms which are derived solely from s 16(1) of the 1970 Act. No doubt, that part of the notice was drafted in order to comply particularly with s 102A(2) of the 1994 Act. However, that part of the notice does not negate or alter the fact that the basic allegation, notified by the defendant to the plaintiff, in terms of s 48 of the 1994 Act, is an allegation that the plaintiff engaged in unprofessional conduct as defined in the 1994 Act. If the hearing proceeds under the notice, it is that allegation which the plaintiff will be required to meet, in accordance with the standard defined in subparagraphs (a) and (b) of the definition of “unprofessional conduct” in s 3(1() of the 1994 Act. In that way, the notice, in my view, by its terms, relates to a formal hearing which is to be conducted by reference to the standard of conduct of “unprofessional conduct” described in the 1994 Act.
That conclusion leads me to the fourth question raised in this case, namely, whether the notice is accordingly invalid, and whether a panel of the Board has power to conduct a hearing pursuant to that notice.
As I have stated, s 46(f) of the 1994 Act requires that, if the Board has determined to conduct a formal hearing, it must first serve a notice on the practitioner which complies with s 48. Section 48(a) requires that the notice of formal hearing “state the nature of the hearing and the allegations made against the practitioner”. In this case, the allegations made against the practitioner, as stated in the notice, are allegations in respect of which the Board does not have power to conduct a formal hearing. It therefore follows that the notice is invalid, and that a panel of the Board does not have power to conduct a hearing pursuant to that notice.
Summary of conclusions
Accordingly, for the reasons which I have expressed in this judgment, I can summarise the conclusions which I have reached in terms of the four questions which I posed earlier in this judgment, namely:
(1)In my view the standard of conduct, described in ss 16 and 17 of the 1970 Act, is different to the standard of conduct, described as “unprofessional conduct”, and defined in s 3(1)(a) and (b) of the 1994 Act.
(2)The 1994 Act, and in particular s 102A, does not have the effect that the standard of “unprofessional conduct” described in that Act may apply to conduct engaged in by a medical practitioner before the commencement of the 1994 Act on 1 July 1994, either in addition to, or in exclusion of, the standard described in ss 16 and 17 of the 1970 Act.
(3)The notice of formal hearing served on the plaintiff on 15 June 2007 does purport to relate to a hearing which is to be conducted by reference to the standard of conduct of “unprofessional conduct” described in the 1994 Act.
(4)Accordingly the notice is invalid, and the panel of the Board does not have power to conduct the hearing referred to in the notice.
Relief
As I have stated, in the originating motion, the plaintiff initially sought orders in the nature of prohibition and certiorari. In the course of submissions, I gave leave to the plaintiff to add, to the prayer for relief, a claim for an injunction. However, in the course of further submissions as to the appropriate relief, it was agreed by both parties that if the plaintiff’s principal submissions are upheld, it will be sufficient for me to make a declaration or declarations to that effect. The Board is a statutory body carrying out an important public function. I have no doubt that it will consider itself bound by the terms of any declaration I make in relation to its processes, and thus, in any event, it would be unnecessary for me to grant prerogative or other relief.
Accordingly, I shall grant to the plaintiff declarations in accordance with the reasons which I have just stated. Subject to hearing from counsel as to the terms of the declaration, I propose to make declarations to the following effect:
(1)Declare that the notice of formal hearing served on the plaintiff’s solicitors by the defendant under cover of letter dated 15 June 2007 is invalid.
(2)Declare that the panel of the defendant does not have power to conduct a formal hearing into the activities of the plaintiff pursuant to that notice.
I shall hear counsel on the question of costs.
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