Legal Profession Complaints Committee v A Practitioner
[2010] WASC 13
•1 FEBRUARY 2010
LEGAL PROFESSION COMPLAINTS COMMITTEE -v- A PRACTITIONER [2010] WASC 13
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 13 | |
| FULL BENCH | 01/02/2010 | ||
| Case No: | LPD:2/2009 | 21 DECEMBER 2009 | |
| Coram: | MARTIN CJ MURRAY J HASLUCK J | 21/12/09 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Practitioner struck off Roll of Practitioners | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PROFESSION COMPLAINTS COMMITTEE A PRACTITIONER |
Catchwords: | Legal practitioners Disciplinary proceedings Removal from Roll of Practitioners Practitioner's conduct occurred whilst practitioner suffering from mental illness |
Legislation: | Legal Practice Act 2003 (WA) Legal Profession Act 2008 (WA), s 438, s 444, s, 445, s 621, s 622 State Administrative Tribunal Act 2004 (WA), s 61, s 62 |
Case References: | A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253 Legal Practitioners Complaints Committee v De Pardo [2007] WASC 266 Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 Re Maraj (a practitioner) (1995) 15 WAR 12 Re Stokes [2008] WASC 269 Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : FULL BENCH CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE -v- A PRACTITIONER [2010] WASC 13 CORAM : MARTIN CJ
- MURRAY J
HASLUCK J
- Applicant
AND
A PRACTITIONER
Respondent
Catchwords:
Legal practitioners - Disciplinary proceedings - Removal from Roll of Practitioners - Practitioner's conduct occurred whilst practitioner suffering from mental illness
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Legislation:
Legal Practice Act 2003 (WA)
Legal Profession Act 2008 (WA), s 438, s 444, s, 445, s 621, s 622
State Administrative Tribunal Act 2004 (WA), s 61, s 62
Result:
Practitioner struck off Roll of Practitioners
Category: B
Representation:
Counsel:
Applicant : Mr M E Herron
Respondent : Mr A J Power
Solicitors:
Applicant : Legal Profession Complaints Committee
Respondent : Mr A J Power
Case(s) referred to in judgment(s):
A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253
Legal Practitioners Complaints Committee v De Pardo [2007] WASC 266
Legal Practitioners Complaints Committee v Pepe [2009] WASC 39
Re Maraj (a practitioner) (1995) 15 WAR 12
Re Stokes [2008] WASC 269
Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
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1 MARTIN CJ: (This judgment was delivered extemporaneously on 21 December 2009 and has been edited from the transcript.)
2 The Legal Profession Complaints Committee moves for an order striking the practitioner off the Roll of Practitioners. For reasons to which I will come, I do not propose to name the practitioner in these reasons, and order that the name of that practitioner be suppressed from publication.
The statutory context
3 The court has received a report from the State Administrative Tribunal (the tribunal) pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA) (the Act). Pursuant to s 444(1) of the Act, the report is to be taken to be conclusive as to all facts and findings contained in the report. Although the conduct of the practitioner giving rise to the proceedings before the tribunal occurred prior to the commencement of the Act and during the currency of the Legal Practice Act 2003 (WA), by s 622 of the Act pt 13 of the Act applies to conduct of a practitioner which constituted a contravention of the Legal Practice Act 2003. The practitioner's conduct, as found by the tribunal, was of that kind. Further, by s 621(3) of the Act a complaint may be made under pt 13 of the Act, notwithstanding that the conduct giving rise to the complaint occurred before the commencement of the Act.
4 The motion before the court is made pursuant to s 444(2) of the Act. That section provides that upon reading a report from the tribunal, the court may make a variety of orders including the removal from the roll of the name of a practitioner.
The report from the tribunal
5 The report from the tribunal establishes that on 24 September 2009, by consent, following mediation of the complaint by the tribunal, the tribunal ordered that:
Being satisfied by reason of the practitioner's admissions that proper cause exists for disciplinary action against the practitioner, and in order to give effect to the agreed terms of settlement of the proceedings, it is ordered that:
1. The Tribunal funds that the practitioner has engaged in professional misconduct by illegal conduct;
2. The Tribunal will make and transmit a report of this finding to the full bench of the Supreme Court with a recommendation that the
- name of the practitioner be removed from the local roll (pursuant to s 438(2)(a) of the Legal Profession Act 2008 (WA)); and
- 3. The material facts agreed to by the parties (as set out in the schedule to this order but not published) will be included in the report to the Supreme Court. However, by reason of concerns for the applicant's health and well being, the material facts will not otherwise be published (pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA)).
6 Section 62(3) of the State Administrative Tribunal Act 2004 (WA) empowers the tribunal to make an order of non-publication in circumstances described in s 61(4) of that Act. Amongst those circumstances is the circumstance in which the tribunal considers an order of non-publication is necessary to avoid endangering the physical or mental health or safety of any person.
7 The schedule of material facts included within the report from the tribunal establishes that the illegal conduct found by the tribunal was constituted by the practitioner's conviction, on her plea of guilty, of two charges of forging medical reports in the name of a psychiatrist, and two charges of uttering each of those reports. The offences occurred between 30 April 2007 and 7 December 2007. The practitioner was fined a total of $2,000 as a result of her conviction of those offences, and ordered to pay $110.20 in costs.
8 The schedule to the report from the tribunal further establishes that the practitioner was admitted to practise on 2 March 2007. On 30 April 2007, the Legal Practice Board (the Board) issued a practice certificate to the practitioner for the year 2007/2008, with a condition that the practitioner authorise her treating psychiatrist to provide a report to the Board every three months. The first such report was to be provided to the Board by 1 June 2007, with further reports to be provided by 1 September 2007, 1 December 2007 and 1 March 2008. Although not established by the report of the tribunal, it appears from other evidence that the imposition of that condition by the Board upon the grant of the practising certificate to the practitioner came about as a consequence of her misappropriation of a small amount of petty cash from the law firm by which she was employed, and which came to the attention of the Board.
9 The report from the tribunal further establishes that on 5 June 2007, the practitioner sent an email to the Board indicating that she had recently changed psychiatrists, and seeking an extension of time to allow her new psychiatrist to complete the necessary report. On 14 June 2007, the relevant committee of the Board resolved that the practitioner's practice
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- certificate would not be renewed until she had complied with the condition regarding the psychiatric report, and the practitioner was notified of this resolution.
10 On 31 July 2007 the practitioner delivered or caused to be delivered to the Board a report purporting to have been written by a psychiatrist. The report was not in fact written by a psychiatrist, but was forged by the practitioner.
11 On 29 November 2007, and again on 5 December 2007, an employee of the Board telephoned the practitioner to inquire as to why the second report due from the practitioner's psychiatrist had not been delivered to the Board. The practitioner advised that the report would be provided.
12 On 7 December 2007, the practitioner delivered to the Board a second psychiatric report purporting to have been written by the same psychiatrist. The report was not in fact written by that psychiatrist but was forged by the practitioner.
13 Upon inquiry made by the Board, the psychiatrist in question confirmed that she had never treated the practitioner, nor provided either of the reports which had been produced by the practitioner to the Board.
14 On 14 December 2007, the tribunal ordered the cancellation of the practitioner's practising certificate.
15 A number of reports from a psychiatrist who is now in fact treating the practitioner have been tendered in evidence. That psychiatrist has been treating the practitioner since May 2009, and has seen her on many occasions since then. The following facts are taken from those reports.
16 The practitioner is 26 years of age, and currently lives with her parents and two brothers. Since the cancellation of her practice certificate, she has been working in the human resources area and undertaking studies in that field.
17 It seems that the practitioner's current condition may be attributed at least in part to sexual abuse which she suffered between the ages of eight and 12 years of age. Abuse was also suffered by her brother, and was committed by someone from outside her family. Criminal charges were brought against the abuser many years later and the practitioner was required to give evidence in the course of those proceedings.
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18 According to her treating psychiatrist, the practitioner first became symptomatic in 2003 when she was approximately 19 years of age. Over a short period of three weeks or so, she suffered a relationship breakup, a miscarriage, and the death of her grandmother. This precipitated an episode of depression which lasted for some months. This in turn precipitated suicidal thoughts and self-medication through the consumption of substantial amounts of alcohol. During these periods, her social behaviour would become erratic, and she suffered extreme mood swings. She has been diagnosed as suffering Bipolar I Disorder and Borderline Personality Disorder.
19 Since the onset of her symptoms, the practitioner has been treated with various different medications. She has had differing reactions to those medications over the years. Her symptoms have included low self-esteem, self-guilt and panic attacks.
20 In a number of separate reports, the practitioner's treating psychiatrist has referred to the practitioner's concern at the effect which publicity concerning her behaviour, and her removal from the Roll of Practitioners, would have upon her family. Those concerns have precipitated suicidal thoughts. The treating psychiatrist is concerned that any significant publicity associated with these proceedings could cause a significant risk of suicide. This assessment is made in the context of suicidal episodes in the past, which in turn have followed periods of self-harm during her teenage years. On the materials before the court, that assessment appears to be well founded and reasonable.
The suppression of identity
21 There is a motion before the court to the effect that the published reasons of the court and the practitioner's identity be suppressed.
22 There is a long-standing presumption that all court proceedings, including proceedings relating to the regulation of the legal profession, will be conducted openly and transparently, and will be fully accessible to the public. That presumption is not lightly displaced, and will only be displaced to the minimum extent necessary to protect the interest to be served by suppressing publication. In a context in which the evidence establishes reasonable grounds for an apprehension that the identification of the practitioner may precipitate a course of self-harm, and in which there is no indication that the public identification of the practitioner is necessary to protect the public from her conduct, the presumption of transparency is displaced.
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23 The practitioner seeks an order suppressing publication of these proceedings in their entirety and the LPCC consents to such an order. However, such an order would go further than is necessary to protect the interests identified. Those interests are sufficiently protected by an order suppressing publication of the identity of the practitioner, such an order would not prevent the entry of the practitioner's name in those documents required to be kept pursuant to the provisions of the Act - being the notice provided by the Principal Registrar pursuant to s 445(2) of the Act, or the Register of Disciplinary Action maintained pursuant to the Act - but it would prevent anybody from publishing anything that would enable the practitioner to be identified in connection with these proceedings.
24 The factual matters to which I have referred in these reasons have been expressed in such general terms as to be unlikely to lead to identification of the practitioner, and therefore there is no reason to prohibit publication of these reasons, under a suitably anonymous heading.
The principles to be applied
25 The principles to be applied when an application is made for the removal of the name of a practitioner from the Roll of Practitioners are well established. The objectives to be pursued by the court in considering such applications are the protection of the public and the maintenance of proper standards in the legal profession, rather than punishment (Re Maraj (a practitioner) (1995) 15 WAR 12, 25; Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 286; Legal Practitioners Complaints Committee v Pepe [2009] WASC 39, [5] - 12]).
26 The ultimate question is whether the conduct of the practitioner establishes that he or she is not a fit and proper person to be a legal practitioner of this court (A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253, [15]). The practitioner accepted before the tribunal, and accepts before this court, that her illegal conduct in forging and uttering psychiatric reports to the Board shows that she is not a fit and proper person to be a legal practitioner of this court. There is a significant element of tragedy in this concession, given that it comes after the practitioner had spent less than a year in practice, and given that it is associated with mental illness. However, as the dominant objective of the court in cases such as this is the protection of the public and the maintenance of proper standards of legal practice, considerations personal to the practitioner cannot deflect the court from the only reasonable
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- conclusion open on the facts which she has admitted, and that is that her name must be removed from the Roll of Practitioners.
27 Although the tribunal made no finding to this effect, it seems a reasonable inference from the materials before the court that the practitioner's conduct was closely associated with the psychiatric conditions from which she suffers. Those conditions create a degree of risk to the public, in the event that the practitioner was permitted to remain in practice, which is unacceptable. However, should those conditions and the symptoms associated with those conditions subside, it is not beyond the realm of possibility that the practitioner might be readmitted (Re Stokes [2008] WASC 269). That prospect might provide some incentive to the practitioner to undertake the treatment regime which has been proposed for her. Only time will tell whether the practitioner's condition will improve to the point where readmission could be contemplated.
28 For these reasons, I would propose to grant the motion and order that the practitioner's name be removed from the Roll of Practitioners. As the practitioner consented to orders to this effect both before the tribunal and in this court, the costs of these proceedings and the motion for suppression of publication should be regarded as part of the cost of the function of regulating the legal profession, and no order made as to costs (Legal Practitioners Complaints Committee v De Pardo [2007] WASC 266, [17]). I would also order that the identity and name of the practitioner be suppressed from publication, save in those documents required to be provided and maintained pursuant to the Act.
29 MURRAY J: Yes, I am of the same view for the reasons given by the Chief Justice and I would join in the orders that the practitioner's name be removed from the roll and that to the extent mentioned by his Honour publication should be suppressed.
30 HASLUCK J: I agree with the reasons provided by the Chief Justice and the orders proposed.
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