Marin v The Chiropractic & Osteopathy Board of South Australia
[2008] SADC 173
•18 December 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative Appeals Tribunal)
MARIN v THE CHIROPRACTIC & OSTEOPATHY BOARD OF SOUTH AUSTRALIA & ANOR
[2008] SADC 173
Judgment of Her Honour Judge Shaw
18 December 2008
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - OTHER FIELDS OF PRACTICE - CHIROPRACTORS
Appeal from decision of Chiropractors and Osteopaths Board of South Australia – whether Board improperly took into account irrelevant and speculative considerations, adverse to the appellant. Held:- the appellant was denied procedural fairness – suspension of registration for a period of four months excessive – substituted suspension of registration for one month – remaining orders and undertakings not interfered with.
District Court Act 1991 42E, 42F; Chiropractic and Osteopathy Practice Act 2005 s45, referred to.
The Law Society of South Australia v Neville John Jordan Unreported judgment No. S.6809 delivered 21 August 1998; Craig v Medical Board of South Australia (2001) 79 SASR 545; NAFF V MIMIA (2004) 221 CLR 1; Collection House Limited v Taylor [2004] VSC 49; Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; Elderly Citizens Homes of SA Inc v Workcover (1999) 73 SASR 457; Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, considered.
MARIN v THE CHIROPRACTIC & OSTEOPATHY BOARD OF SOUTH AUSTRALIA & ANOR
[2008] SADC 173
This is an appeal by the appellant (“Dr Marin”) a chiropractor, against the decision of the Chiropractors and Osteopaths Board of South Australia (“the Board”), delivered on 2 July 2008, in relation to a complaint against Dr Marin of unprofessional conduct in his practice as a registered chiropractor. The complaint alleged various breaches by Dr Marin of the Code of Professional Conduct and Practice for chiropractors during the course of administering chiropractic treatment to ten patients, who lodged complaints with the Board between October 2004 and July 2007. Dr Marin admitted that the conduct alleged in the Amended Complaint before the Board, amounted to unprofessional conduct.
Decision of the Board
The Board found that Dr Marin was guilty of unprofessional conduct. The Board found that such conduct was in breach of various paragraphs of the Chiropractors’ Board of South Australia Code of Professional Conduct and Practice as revised in July 2003, March 2005, August 2005 and October 2005, and the Chiropractors’ Board of SA “Notice to the Profession” dated June 2004.
The Board found that Dr Marin had acted in a manner likely to bring the profession of chiropractic into disrepute. The Board found that the financial arrangements entered into with five of the patients identified in the Amended Complaint were inappropriate.
The Board formally censured Dr Marin in relation to his conduct. The Board ordered that Dr Marin’s registration be suspended for a period of four months.
Further, the Board ordered a number of conditions attach to Dr Marin’s registration for a period of 12 months which required his co-operation with a mentoring program that would provide regular supervision and instruction from a senior chiropractor appointed by the Board and at Dr Marin’s cost. In addition, he was ordered to pay the sum of $45,000 in respect of the Registrar’s costs.
Notice of Appeal
By Notice of Appeal dated 31 July 2008, Dr Marin complains that the suspension of his registration for a period of four months was manifestly excessive. He also complains that the Board erred in its approach to the determination of the matter, in that the Board took an overly punitive approach and had regard to allegations and material which were not admitted by Dr Marin. Further, Dr Marin complains that the manner in which the Board arrived at its decision denied Dr Marin procedural fairness. Dr Marin does not otherwise challenge the findings of the Board.
Background
Dr Marin had practiced as a registered chiropractor for over 20 years with no prior disciplinary history.
At the hearing, Dr Marin admitted the allegations in the Amended Complaint save and except for those which were highlighted and underlined.
Dr Marin admitted that he had treated the ten patients who had complained to the Board, and that he was guilty of unprofessional conduct in his treatment of them. The unprofessional conduct included a failure to adequately explain to patients that his practice was not directed specifically to the relief of pain. Further, it was admitted that he acted inappropriately in relation to pre-payment ‘care plans’ for chiropractic treatment. In addition, Dr Marin admitted that between June 2003 and June 2006, he had inappropriately used testimonials and had included misleading information in advertisements for his services. I will not repeat all of the allegations in the Amended Complaint which were admitted by Dr Marin but it is necessary that I have careful regard to all of them in the determination of the appeal.
The Hearing Before the Board
The complaint was laid on 31 July 2007. Dr Marin retained a solicitor on 14 October 2007. On the day that the matter was set for hearing on the 19th of February 2008, Dr Marin admitted unprofessional conduct. Between February and April 2008, the parties conducted negotiations which resulted in the resolution of the factual basis for the admitted conduct in the Amended Complaint. Further, the parties reached agreement as to certain undertakings that would be given by Dr Marin and orders that would be recommended to the Board on behalf of the Registrar in relation to Dr Marin’s registration and conditions of practice. This included suggested strict conditions requiring a mentoring arrangement that were to be attached to Dr Marin’s registration. In addition, Dr Marin offered certain undertakings in relation to the manner of his practice. He offered reimbursement of all monies received from the patients who had complained to the Board. Further, he undertook to complete further education in professional ethical practice.
Oral submissions commenced before the Board on 21 February 2008. Subsequently, further negotiations and written submissions to the Board clarified the matters which were not admitted.
Having regard to the proposed strict conditions of Dr Marin’s future practice and the undertakings offered by Dr Marin, it was agreed that counsel for the Registrar would recommend to the Board the imposition of a suspension of Dr Marin’s registration for a period of one month. Although it was made plain that any suspension was a matter for the Board, it was accepted by the Registrar, that a period of suspension of one month would be sufficient to ensure that the public interest would be adequately protected. The Board received further written submissions.
On 9 April 2008, the Board received final submissions from counsel for each of the parties. Counsel for Dr Marin submitted that a six month period of mentoring, rather than the 12 month period recommended by the Registrar, would be sufficient to protect the public interest, particularly having regard to the financial burden to Dr Marin of such a condition.
It was acknowledged that Dr Marin’s offer to reimburse the patients’ fees was a matter in mitigation in that the Board had no statutory power to make such an order.
As a result of a request from the Board, Dr Marin subjected himself to questioning by each of the Board members. He was not sworn. At the outset, Dr Marin was asked questions by his own counsel. Dr Marin outlined the changes to his practice that he had undertaken. He confirmed his commitment to abide by the undertakings that he had offered, and the proposed strict conditions upon his registration and practice. On 10 April 2008, a final marked-up version of the Amended Complaint was provided to the Board. This identified by means of highlighting and underlining, those parts of the Amended Complaint which were not admitted. The Registrar by email to the Board, advised that the highlighted and underlined sections of the Amended Complaint were not to be relied upon by the Board.
Respondent’s Submissions at the Appeal
The respondent submitted that the Board, a specialist professional body, was entitled to depart from the period of suspension recommended on behalf of its Registrar. The Board informed the parties that it would exercise its independent discretion.
It was submitted that the unprofessional conduct admitted by Dr Marin was extremely serious and that the orders made by the Board were entirely justified.
The respondent submitted that the Board was entitled to question the insight, resolve and commitment of Dr Marin.
It was submitted that the Board was entitled to take the view that a suspension of one month would not provide a sufficient deterrent to Dr Marin and would fail to protect the public.
Counsel for the respondent submitted that there was no procedural unfairness. He acknowledged that the Board was not entitled to make any adverse findings as to primary facts that were not admitted by Dr Marin. However, it was submitted that the reasons of the Board did not disclose error in this respect. The respondent emphasized the seriousness of Dr Marin’s conduct, which was detailed in the written and oral submissions on behalf of the respondent.
Legal Principles
Section 42E of the District Court Act 1991 provides that, on appeal, the court must examine the decision of the original decision maker and must give due weight to the decision being appealed against and the reasons therefor and “not depart from the decision except for cogent reasons”.
Section 42F of the District Court Act 1991 provides that on appeal, the court may:
(a) affirm the decision appealed against;
(b) rescind the decision and substitute a decision that the Court considers appropriate;
(c)remit matters to the original decision-maker for consideration or further consideration in accordance with any directions or recommendations of the Court.
Pursuant to s45 of the Chiropractic and Osteopathy Practice Act 2005 (“the Act”), the Board may conduct an inquiry of a disciplinary nature. Disciplinary inquiries are not to be regarded in the same way as proceedings of a criminal or civil nature. I refer to the remarks of Doyle CJ in The Law Society of South Australia v Neville John Jordan[1].
In such proceedings, the court is concerned to protect the public from misconduct on the part of practitioners. In such proceedings, issues cannot be resolved simply on the basis of considerations applicable to ordinary adversarial proceedings.
[1] Unreported judgment No. S.6809 delivered 21 August 1998 at pp 34-35
In Craig v Medical Board of South Australia[2], the Full Court explained the principles which govern the approach of disciplinary tribunals. His Honour the Chief Justice stated[3]:
The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practicing, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.
[2] (2001) 79 SASR 545
[3] ibid at p553
Dr Marin was entitled to be accorded procedural fairness during the hearing before the Board.
I refer to the remarks of Kirby J in NAFF v MIMIA[4]
Every person, in respect of whom material decisions are made by a repository of public power conferred by Parliament, is ordinarily entitled to have such power exercised in accordance with law. That includes, relevantly to this case, in accordance with the requirements of procedural fairness.
The ultimate outcome of such insistence on fair procedures might eventually be the same. But where the issue is whether additional evidence and submissions might have affected the outcome of the decision-maker’s consideration of the matter, it cannot normally be said with certainty that affording such an opportunity was futile.
[4] (2004) 221 CLR 1, 26-27
The Board was not entitled to have regard to allegations or other material adverse to Dr Marin which were not the subject of the Amended Complaint. In Elderley Citizens Homes of SA Inc v Workcover[5], His Honour Justice Debelle observed that:
…one of the most fundamental rules of natural justice is the right to be informed of any adverse point that is going to be relied upon and to be given an opportunity of stating what the answer is[6].
[5] (1999) 73 SASR 457
[6] ibid at p466, [25]
In relation to the effect of a denial of natural justice, upon the determination of an appeal, I refer to the observations of Nettle J in Collection House Limited v Taylor[7].
But common sense and high authority suggest that it is never an easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could not have borne on the outcome of an issue of fact. The difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness[8].
[7] [2004] VSC 49, [33] Also see Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181, [77]
[8] Also see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-146. Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, 153
Findings in Relation to the Reasons of the Board
Having considered the reasons of the Board and the conduct of the proceedings before it, I am satisfied that Dr Marin was denied procedural fairness in a number of respects.
I find that the Board appears to have taken into account material which was expressly excluded from Dr Marin’s admitted conduct in the Amended Complaint, and which was adverse to Dr Marin.
The Board proceeded upon the following basis[9]:
The Board considers it can have regard to the original form of the complaint and the allegations therein or any other material, if it considers it appropriate to do so, having regard to section 20 of the Act
[9] Decision of the Board paragraphs 16 and 17
The Board appears to have misunderstood section 20 of the Act which provides:
(1) In proceedings before the Board under this Act, the Board -
(a)is not bound by the rules of evidence and may inform itself on any matter as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
In my view, the Board was not entitled to have regard to the allegations in the original form of the complaint which were not admitted. Those allegations included for example, a description of conduct as “unconscionable” which was not admitted.
The Board acknowledged that it could not resolve conflicts between Dr Marin and the statements of the ten patients, and it was required to “fall back on the admissions made by Dr Marin in the marked-up complaint”[10].
[10] Decision of Board paragraph 17
The Board went on to say:
However, we are not obliged to ignore all other material[11].
[11] ibid paragraph 17
In my view, the Board was required to ignore all material other than that which was consistent with the admitted conduct of Dr Marin.
Although the Board was not bound by the rules of evidence, it was required to ignore any allegations or material which was inconsistent with or unrelated to the specific conduct admitted by Dr Marin at the hearing. It is impossible to assess how much weight was given by the Board to the disputed allegations in its consideration of Dr Marin’s conduct or in its determination of the period of suspension of his registration.
This error is further evidenced in the reasons of the Board in relation to allegations concerning his examination of patients. The Board stated:
Another aspect of this process, which is perhaps of greater concern in a clinical context is the repeated complaints that Dr Marin failed to appropriately or adequately examine patients before offering them the long-term treatment plan. Dr Marin denies he failed to examine the patients….[12].
[12] ibid paragraph 41
It was not admitted and it was made plain in the Amended Complaint as marked-up, that the allegation that Dr Marin failed to physically examine patients was to be disregarded[13].
[13] Decision of Board paragraph 41 marked-up complaint folder 1, volume 1, page 17
The Board was in error in having regard to alleged failures by Dr Marin to examine patients before offering them the long-term treatment plan.
In my view, this was a significant matter in the Board’s consideration of the seriousness of Dr Marin’s unprofessional conduct and in its determination of the orders to be made against Dr Marin to protect the public interest.
A further example of this kind of error is the Board’s consideration of Dr Marin’s “long consultation” fee. The Board stated:
Although this is not part of the complaint, one is also forced to wonder at the appropriateness of Dr Marin’s practice of charging a “long consultation” fee for a group education session[14].
[14] At paragraph 40
This was not a matter which was the subject of the Amended Complaint nor was it canvassed directly during the proceedings. The Board erred in speculating adversely to Dr Marin in relation to this aspect of his practice.
In my view, if the Board was concerned about this aspect of Dr Marin’s practice for the purpose of considering what orders ought to be imposed upon him, it was necessary to raise those concerns during the course of the hearing so that Dr Marin could be afforded the opportunity to respond.
The Board appears to have speculated that Dr Marin’s delivery of his services “could also be seen as over-servicing”[15]. Again, this was not an allegation in the complaint, nor was it a matter addressed during the hearing.
[15] At paragraph 42
In my view, the Board also erred in its consideration of the potential impact of the proceedings upon the potential witnesses. The Board improperly speculated about whether witnesses had been ‘proofed’ prior to the hearing, and whether they may have been stressed as a result of such a proofing[16].
[16] At paragraph 45
The Board also speculated about the possibility that some of the patients might have “preferred to have their day before the Board: some may not. We do not know”[17].
[17] Paragraph 45. Also see another example of speculation at Paragraph 26.
These matters were not the subject of evidence or submissions to the Board and ought not have informed the Board’s reasoning.
I also have grave concerns about what use the Board made of Dr Marin’s demeanor and responses to the questions from the Board. The Board said in its reasons:
The Board has also had the opportunity to observe Dr Marin’s demeanor and responses whilst he was questioned directly by the members of the Board[18].
[18] at paragraph 68
Unfortunately, neither in its reasons nor during the hearing did the Board reveal what view it took of Dr Marin’s demeanor, nor the relevance of his responses to its reasons for Decision.
In view of the orders made and the Board’s trenchant criticisms of Dr Marin’s explanations and lack of insight into his conduct, it seems unlikely that the Board viewed Dr Marin’s demeanor or responses positively. The Board is also silent as to what use it made of Dr Marin’s demeanor and his responses. Counsel for the respondent submitted that the Board was using demeanor to decide whether or not Dr Marin was going to act differently in the future, rather than for the purposes of determining whether they could believe him or not[19].
[19] T p124 L3-23
I am not convinced that such a use of demeanor is a permissible use. However, it highlights the uncertainty that remains in relation to the use that the Board may have made of Dr Marin’s responses to the Board’s questioning of him. Therefore, the appeal court is unable to determine whether the responses of Dr Marin and his demeanor, were used permissibly or impermissibly by the Board in arriving at its view of the gravity of Dr Marin’s unprofessional conduct.
Conclusion
I do not propose to address all of the appellant’s criticisms of the Board’s reasons for Decision. However, I am satisfied that the Board erroneously took into account material adverse to Dr Marin which was not admitted by him and in respect of which he was not provided with an opportunity to answer.
I find that the Board speculated about facts and considerations which were either irrelevant or unspecified and which were not the subject of Dr Marin’s admitted conduct in the Amended Complaint. In my view, the Board appeared to rely upon allegations that were not admitted and upon speculation, in its formation of an unduly harsh view of Dr Marin’s admitted unprofessional conduct. There remains uncertainty in relation to the extent to which the Board’s views and, ultimately, its decision as to the appropriate period of suspension of Dr Marin’s registration, were informed by immaterial and speculative allegations. If such matters were to be relied upon, it was necessary for the Board to give Dr Marin notice of its intention to proceed in this manner. I find that Dr Marin was denied procedural fairness.
I find that the errors to which I have referred were material to the decision of the Board. In my view, it is likely that these errors contributed to the Board’s determination that Dr Marin lacked insight in relation to his conduct. I find that the erroneous reasoning of the Board contributed to an overly punitive approach by the Board in its consideration of the orders necessary to protect the public.
In my view, the errors in approach have resulted in an adverse view of Dr Marin’s commitment to the changes in his practice and that this in turn, has resulted in the imposition of a longer period of suspension of his registration than ought to have been imposed. I am not satisfied that if the Board had not made the errors which I have identified, the decision of the Board would have been the same.
I find there are cogent reasons to depart from the decision of the Board. I find that upon the basis of the admitted unprofessional conduct, the undertakings offered by Dr Marin to the Board, and the orders by the Board imposing conditions upon Dr Marin’s registration, the period of four months suspension of Dr Marin’s registration is manifestly excessive. I conclude that the appeal should be allowed. I conclude that I ought to rescind the order suspending Dr Marin’s registration for a period of four months. On appeal, there was no real issue taken with the remaining orders made by the Board.
I bear in mind that it is necessary for the appeal court to arrive at its own decision even though, before the Board, the parties had presented an agreed recommendation as to the period of suspension of Dr Marin’s registration. I have considered the appropriate orders afresh. I have had particular regard to the oral and written submissions of the respondent in relation to the seriousness of Dr Marin’s conduct. I have carefully considered the relevant Codes of Conduct, the Notice of June 2004 published to the profession, the Newsletters of October 2004 and October 2005, the number of patients involved and the period of time during which Dr Marin’s conduct continued. It is necessary to bear in mind that the primary purpose of such disciplinary proceedings is the protection of the public. In determining the appropriate period of suspension of Dr Marin’s registration, I am mindful of the various undertakings given by Dr Marin and the strict conditions which will govern Dr Marin’s practice for a period of 12 months. In my view, it is appropriate for the court to substitute an order that Dr Marin’s registration be suspended for a period of one month. All other conditions imposed on Dr Marin’s registration will stand.
It is my view that these orders will provide the necessary deterrence and ensure that public confidence in the behavior of chiropractors is maintained.
Orders
I therefore make the following orders:
Appeal allowed. Orders of the Board rescinded. Substitute orders imposed as follows:
1.Dr Marin’s registration be suspended for a period of one (1) month from a date to be fixed by the Court.
2.The following conditions on Dr Marin’s registration, to be effective from a date to be fixed by the Court.
2.1 For a period of 12 months commencing at the expiry of the period of one month suspension.
Dr Marin shall submit to a mentoring program, with a registered senior chiropractor to be appointed by the Board who shall:
(a)attend on Dr Marin at his practice at least once every six weeks to discuss with Dr Marin any matter relevant to his professional obligations with respect to the conduct of the practice, as the mentor may see fit, including but not limited to:
(i)ensuring at all times Dr Marin’s practices comply with the undertakings given to the Board signed by him on the 9th of April 2008.
(ii)the need for a proper examination to be undertaken of each patient and a diagnosis arrived at and communicated to the patient in each case;
(iii)the necessity for him to explain in a clear and open manner his recommendation as to the treatment to be performed;
(iv)his obligations of compliance with the Code of Professional Conduct and Practice and the Code of Ethics and ensure his familiarity with both so that his practice is completely compliant therewith;
(v) peruse and review patient records selected at random;
(vi)review advertisements and materials held in the practice including, but not limited to, client contracts, patient care plans, publicity documents and the like;
(b)make recommendations to Dr Marin as to any of the above matters (or any other matters) as the mentor may see fit, including, but not limited to, as to changes to be made in Dr Marin’s practice or the mode thereof.
(c)Report to the Board following each attendance upon Dr Marin concerning the mentorship, including Dr Marine’s responses to any request for change and any other relevant matter.
(d) Review Dr Marin’s compliance with these conditions.
3. Dr Marin shall make himself available as required to the mentor to discuss such matters as the mentor shall see fit and shall genuinely and conscientiously consider and, in a timely manner, attend to implement all and any requests for change and any recommendations made by the mentor.
4. Dr Marin shall within one month of invoices being provided to him by the Board pay the reasonable costs of the mentoring at commercial rates.
5.Subject to the mentor’s confirmation in writing to the Board that, to the best of his or her knowledge and belief, Dr Marin has familiarised himself with the Code of Professional Conduct, and complied with these conditions and his undertakings and made such changes as requested by the mentor and responded appropriately to the mentor’s recommendations, and that his conduct and practices have attained the requisite standards, the mentoring program shall be ceased no earlier than 12 calendar months after its commencement.
6.Dr Marin is to pay to the Registrar within 28 days the agreed compromise sum in respect of the Registrar’s costs being $45,000.
6
1