MEDICAL BOARD OF AUSTRALIA and DEKKER
[2013] WASAT 182
•14 NOVEMBER 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL ACT 1894 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and DEKKER [2013] WASAT 182
MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR B JONES (SESSIONAL MEMBER)
HEARD: 22 OCTOBER 2013
DELIVERED : 14 NOVEMBER 2013
FILE NO/S: VR 127 of 2006
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
LEILA MARIA DEKKER
Respondent
Catchwords:
Vocational regulation - Medical practitioner - Whether practitioner guilty of infamous or improper conduct in a professional respect - Practitioner failed to stop and render assistance after 'near miss' incident involving her motor vehicle and a second motor vehicle - Practitioner drove a short distance to police station where she reported incident - Whether practitioner's conduct would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency - Whether practitioner's conduct would reasonably be regarded as improper by professional colleagues of good repute and competency - Whether practitioner's conduct sufficiently linked to the profession of medicine
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Interpretation Act 1984 (WA), s 37(1)(c), s 37(1)(f)
Medical Act 1894 (WA), s 13(1), s 13(1)(a)
Medical Practitioners Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Practitioner guilty of improper conduct in a professional respect
Proceeding listed for further hearing in relation to penalty and costs
Summary of Tribunal's decision:
The Medical Board of Australia alleged that Dr Leila Maria Dekker may be guilty of 'infamous or improper conduct in a professional respect' because she failed to stop and render assistance after a 'near miss' incident involving her motor vehicle and a second motor vehicle. The second vehicle crashed and rolled. The practitioner did not see the second vehicle crash, but heard noise of impact. The practitioner drove a short distance to a police station where she reported the incident and alerted the police to the possibility that another vehicle had driven off the road. The practitioner contended that, when viewed in context, her actions were appropriate.
The Tribunal determined that the practitioner was guilty of improper conduct in a professional respect, because her conduct would reasonably be regarded as improper by professional colleagues of good repute and competency and there is a sufficiently close link or nexus between her conduct and the profession of medicine even though it did not occur in medical practice.
The Tribunal determined that it is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, even where the practitioner immediately reports the matter to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.
The Tribunal observed that, had the practitioner not immediately reported the incident to the police after leaving the scene of the accident, she would have been guilty of infamous conduct in a professional respect, because failure to stop, make an assessment and render assistance, and failure even to report the matter to police or other emergency services, would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.
The Tribunal listed the matter for hearing in relation to penalty and costs.
Category: B
Representation:
Counsel:
Applicant: Mr PD Quinlan SC with Ms J Tavelli
Respondent: Mr NF Morrissey
Solicitors:
Applicant: Integra Legal
Respondent: Bradford and Co
Case(s) referred to in decision(s):
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Briginshaw v Briginshaw (1938) 60 CLR 336
Cranley v Medical Board of Western Australia (Unreported, WASC Library No. 8668, 21 December 1990)
Hoile v The Medical Board of South Australia (1960) 104 CLR 157
Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163
Medical Board of Western Australia and Smith [2006] WASAT 213
Roylance v General Medical Council (No 2) [2000] 1 AC 311
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Medical Board of Australia (Board) alleges that Dr Leila Maria Dekker, a medical practitioner, (practitioner) may be guilty of 'infamous or improper conduct in a professional respect' under s 13(1)(a) of the Medical Act 1894 (WA) (Medical Act), in consequence of the practitioner's failure to stop and render assistance after a 'near miss' incident involving her motor vehicle and a second motor vehicle at Roebourne in the north west of Western Australia on 27 April 2002. 'Infamous conduct' is conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency, whereas 'improper conduct' is conduct that would reasonably be regarded as improper by professional colleagues of good repute and competency. Although 'infamous or improper conduct in a professional respect' is not restricted to misconduct in carrying out medical work, there must be a sufficiently close link or nexus between the conduct and the profession of medicine for the misconduct to be 'in a professional respect'.
The Board and the practitioner filed an agreed statement of facts and an agreed bundle of documents. The Tribunal initially listed the matter, other than in relation to penalty, for determination entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). However, as, in her written submissions, the practitioner relied on factual assertions which were additional to the agreed facts, the Tribunal directed the practitioner to advise it and the Board as to whether she intended to file a witness statement in relation to the factual assertions and directed the parties to jointly advise the Tribunal as to whether a hearing would be required. The Tribunal also enabled the practitioner to file and serve any witness statement in relation to the factual assertions in her written submissions and the Board to file and serve any evidence in reply. The practitioner subsequently filed a witness statement and the parties advised the Tribunal that the matter would consequently require a hearing.
At the hearing, the parties tendered the agreed statement of facts and the agreed bundle of documents. The practitioner's counsel tendered the practitioner's witness statement which became her evidence in chief. The practitioner was crossexamined by senior counsel for the Board. However, most of the factual matters in the practitioner's witness statement were not disputed.
The parties then made brief oral submissions in addition to the written submissions which they had previously filed. Whereas the Board contends that the largely agreed facts should lead to a finding that the practitioner is guilty of infamous or improper conduct in a professional respect, the practitioner argues that her actions after the 'near miss' incident were reasonable and appropriate in the circumstances of the case and do not constitute improper, much less infamous, conduct in a professional respect.
Although the Medical Act was repealed by the Medical Practitioners Act 2008 (WA) after the commencement of this proceeding (and although that Act was itself repealed by the Health Practitioner Regulation National Law (WA) Act 2010 (WA)), it is common ground between the Board and the practitioner, and clearly correct, that the Tribunal has jurisdiction and power to determine the proceeding under the Medical Act as though it had not been repealed: see s 37(1)(c) and (f) of the Interpretation Act1984 (WA).
We will determine whether the practitioner is guilty of infamous or improper conduct in a professional respect after outlining the agreed facts, the practitioner's evidence, the applicable legal framework and principles and the parties' submissions.
Agreed facts
The parties agree in relation to the following facts:
1. The practitioner is a registered medical practitioner.
2. On Saturday 27 April 2002, at some time between 6.15 pm and 6.30 pm, a Toyota Hilux utility vehicle driven by the practitioner and a Land Rover vehicle were involved in a 'near miss' event at a road junction on Cherratta Road, Roebourne, resulting in the Land Rover mounting the embankment at the edge of the road surface and rolling into a ditch abutting Cherratta Road (accident).
3. It was dark at the time of the accident and the headlights of both vehicles were illuminated.
4. The practitioner's stationary vehicle was turning right at the road junction in Cherratta Road to return from the tip to the Roebourne township.
5. The circumstances of the 'near miss' event were as follows:
(a) the practitioner's vehicle, which was travelling in a northerly direction, slowed down on approaching the road junction and came to a halt at the junction;
(b) the second vehicle, which was heading in a westerly direction, approached the road junction from the east at an excessive speed, estimated as 50 60 kilometres per hour;
(c) for reasons unknown, the second vehicle veered towards the practitioner's stationary vehicle;
(d) the practitioner took evasive action and drove across the junction onto the embankment on the northern side of the road surface, narrowly avoiding a collision;
(e) the practitioner's manoeuvre resulted in the second vehicle passing just behind the practitioner's vehicle as it crossed the road junction;
(f) subsequent evidence revealed that the second vehicle left the road surface, mounted the embankment on the western side of the junction and rolled into the ditch abutting the road; and
(g) the practitioner heard noise of impact but could no longer see the second vehicle.
6. The practitioner did not stop immediately and check the location to see if any people required medical assistance from the practitioner.
7. The practitioner instead left the scene of the accident and drove a short distance to the police station in Roebourne where she reported the 'near miss' event and alerted the police to the possibility that another vehicle had driven off Cherratta Road.
Practitioner's evidence
The practitioner's witness statement, which is her evidence in chief in this proceeding, states as follows:
1. My name is Leila Maria Dekker and I reside at [address redacted] in the [S]tate of Western Australia.
2. I make this statement pursuant to Order 2 of the Deputy President, Judge Parry, made on 20 August 2013.
3. After the near miss incident on 27 April 2002 in Roebourne, I was in a state of shock.
4. I was terrified as I thought I had almost been killed.
5. To the best of my memory I was physically shaking and screaming.
6. I was unable to think in a coherent manner.
7. In that moment I feared for my life and personal safety.
8. After the near miss I thought I heard a noise but I was not sure as to what it was.
9. I looked in front of the car but could not see over the top of the bush.
10. It was dark and there was no street lighting.
11. Shortly afterwards my passenger, [name redacted], suggested that we go to the police.
12. I did not have a mobile telephone with me. I did not own a mobile telephone at this time.
13. I did not have a torch with me.
14. During short stays in Roebourne working on my house I was very aware not to approach anybody due to alcoholism, drug use and violent behaviour in the town.
15. I did not know where the vehicle had gone.
16. I did not have any medical equipment or even a first aid kit with me.
17. I was aware that the police station was nearby.
18. At the time all I could think of was to get to the police station.
19. I drove my car to the police station, parked and ran to the front door.
20. I banged on the front door and shortly thereafter reported the near miss.
21. I did not know the occupants of the vehicle before the near miss.
22. In the period that I was living and working in the Karratha region leading up to the incident on 27 April 2002, I was aware of and witnessed violence.
23. Violence was a common occurrence in the region.
24. I was careful not to approach strangers as I was aware of other town residents being attacked.
25. I declare this statement to be true and correct to the best of my knowledge and belief.
The practitioner was crossexamined by Mr PD Quinlan SC, who appeared with Ms J Tavelli on behalf of the Board. Under crossexamination, the practitioner conceded that her statements in relation to alcoholism, drug use and violent behaviour in Roebourne at paragraphs 14, 22, 23 and 24 of her witness statement refer to the 'general conditions of the area at the time' (T:10.6, 22.10.13), but she '[wasn't] thinking of any of those things' (T:10.9, 22.10.13) when she made the decision to leave the scene of the 'near miss' incident. The practitioner also conceded that her statements in relation to alcoholism, drug use and violent behaviour in Roebourne have 'nothing to do with the incident' (T:11.5, 22.10.13).
The practitioner also gave evidence under crossexamination that, after the 'near miss' incident, she was 'not thinking at all' (T:10.9, 22.10.13) and that:
… At that time, I was [in] a state of shock as well, I think. Yes. Yes. I didn't know what was happening around me. I had no idea what was happening. I was in absolute shock from the moment of the nearmiss, just before the nearmiss, … (T:12.4, 22.10.13).
and
You could just as easily have checked on the people in the other car, couldn't you?I don't think so. In that moment of time in that specific moment of my life special moment of my life two moments of my life, I freaked out completely. I was almost hit by a car and killed recently then I found myself in the edge of the embankment, then I thought I was going down the hill. (T:21.922.1, 22.10.13).
Similarly, in reexamination, the practitioner said that:
… I think I was in a state of shock from the moment that I saw the headlights in collision course with my car … to the moment that I found myself at police station. And after as well, outside of police station, shaking. Took a long time, yes. (T:23.6.7, 22.10.13).
The practitioner was also crossexamined and reexamined in relation to sworn evidence that she gave on 6 December 2005 in a trial in the District Court of Western Australia concerning the 'near miss' incident. Under crossexamination in this proceeding, the practitioner agreed with the proposition that 'the evidence you gave back in 2005 is going to be a better record of what you remembered than what you can tell us now?' (T:21.5, 22.10.13). This is hardly surprising, given that her evidence at the District Court trial was given three and a half years after the 'near miss' incident, whereas her evidence in this proceeding was given 11 and a half years after the incident. At the commencement of her crossexamination in this proceeding, the practitioner said that her witness statement contains '… my faint recollection of events' (T:7.8, 22.10.13).
In her evidence in the District Court trial, the practitioner said on a number of occasions that, during and after the 'near miss' incident, she was in a 'state of shock'. The practitioner also gave the following evidence in chief in the District Court trial as to what happened after her car came to a halt on the embankment:
What did you do then?I was petrified, petrified, and then I heard a noise. I was not sure about the noise, so I looked to the side and asked the passenger, "What's this noise about?" and then he looked at me and said, "I think they roll it," and I look in the front again and I couldn't see even the top of the bush and they I turn again to him and I said, "What are we going to do now?" I was talking about direction of the car, and he said, "I think it's better to go to the police," and then I turned to the front again and I put the car in rear
In reverse?In reverse, the car went back and I drove to the police.
Under crossexamination in the District Court trial, the practitioner confirmed that her passenger had told her 'I think they roll it' in relation to the second vehicle.
Under crossexamination in the District Court trial, the practitioner agreed that in a police record of interview conducted five days after the 'near miss' incident she said the following in response to the question 'Why did you drive away without stopping to offer assistance?':
As a medical doctor, I know there would be a bad injury and I know it was a waste of time so I go to police so they can get help[.]
When asked by the crossexaminer in the District Court trial whether that statement was 'the truth', the practitioner said:
I describe that, I said that and probably that description of my instinct as a doctor.
When she was asked in crossexamination in this proceeding about her statement in the police record of interview that 'As a medical doctor, I know there would be a bad injury and I know it was a waste of time so I go to police so they can get help', the practitioner said 'I don't remember that anymore' (T:18.8, 22.10.13). However, as the practitioner agreed in her sworn evidence in 2005 that she made that statement only five days after the incident and said that it was a description of her 'instinct as a doctor', we feel an actual persuasion based on clear and cogent evidence, in accordance with the Briginshaw approach (see legal framework and principles below), and find that the practitioner told the police five days after the 'near miss' incident that she knew that there would be a bad injury and that that was her instinctive understanding as a medical practitioner at the time she left the scene of the 'near miss' incident on 27 April 2002.
Furthermore, given that the practitioner gave sworn evidence in examination in chief and in crossexamination in the District Court trial that her passenger told her 'I think they roll it' after she heard the noise while on the embankment, we feel an actual persuasion based on clear and cogent evidence, in accordance with the Briginshaw approach, and find that the practitioner was aware that the second vehicle may have rolled over when she left the scene of the 'near miss' incident.
Legal framework and principles
Section 13(1) of the Medical Act states, in part, as follows:
Where it appears to the Board that a medical practitioner, not being a body corporate, may be
(a)guilty of infamous or improper conduct in a professional respect;
…
the Board may allege to the State Administrative Tribunal that disciplinary action should be taken against the medical practitioner for that reason.
In Cranley v Medical Board of Western Australia (Unreported, WASC Library No. 8668, 21 December 1990) (Cranley), Ipp J held at 5 as follows in relation to the meaning of the expressions 'infamous' and 'improper' conduct in s 13(1)(a) of the Medical Act:
The established test of "infamous conduct in a professional respect" is that adopted by the Court of Appeal in Allinson v General Council of Medical Education and Registration [1894] 1QB 750: "If it is shown [in the original shewn] that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the general medical council [in the original General Medical Council] to say that he has been guilty of infamous conduct in a professional respect".
In Felix v General Dental Council [1960] AC 704 Lord Jenkins said at 720, in relation to "infamous conduct in a professional respect" that the conduct in question falls to be judged in relation to the acceptable ethical standards of the profession concerned and that the adjective "infamous" is a term "denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off".
In their reasons, the Board pointed out that improper conduct is conduct which falls short of "infamous conduct". "It is constituted by something less than serious professional conduct that is nevertheless conduct which would reasonably be regarded as improper by professional colleagues of good repute and competency".
I agree, with respect, with this statement by the Board.
The 'established test of "infamous conduct in a professional respect"', as Ipp J referred to it in Cranley, was formulated by Lopes LJ (with the assistance of Davey LJ) at 763 and adopted by Lord Esher MR at 760 761 and by Davey LJ at 766 in the decision of the English Court of Appeal in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Allinson). In Medical Board of Western Australia and Smith [2006] WASAT 213 at [106], the Tribunal referred to the statement in Allinson as 'the established and accepted test of infamous conduct' and said that:
… Whilst made in the late 19th century, this statement has stood the test of time and has been applied repeatedly in this State. The text makes it clear that the primary inquiry is to be directed as to how particular conduct is to be regarded by professional colleagues of the medical practitioner, not by the community more generally, and that the conduct complained of must be in pursuit of the practitioner's profession.
Equally, 'improper conduct in a professional respect' must be conduct 'in pursuit of the practitioner's profession'. However, a medical practitioner's conduct may be 'in pursuit of the practitioner's profession' even where it does not occur in the carrying out of medical practice, provided that there is a sufficiently close link or nexus between the conduct and the profession of medicine.
Roylance v General Medical Council (No 2) [2000] 1 AC 311 (Roylance) was an appeal to the Privy Council by a medical practitioner who was the Chief Executive Officer of a National Health Service Trust with responsibility for a particular hospital against findings of professional misconduct by the Professional Conduct Committee of the General Medical Council against the doctor for failure to take adequate steps to prevent an operation conducted by other doctors from proceeding at the hospital. In delivering the judgment of the Privy Council, Lord Clyde said the following in Roylance at 331:
In the present case the critical issue is whether, if there was misconduct, the misconduct was "professional misconduct". As counsel for the General Medical Council pointed out it is not simply clinical misconduct which is in issue. Professional misconduct extends further than that. So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. …
In Roylance, the Privy Council said the following in relation to the appellant medical practitioner at 333:
… He was both a registered medical practitioner and chief executive of a hospital. In each capacity he had a duty to care for the safety and wellbeing of the patients. As chief executive that duty arose out of his holding of that appointment. As a registered medical practitioner he had the general obligation to care for the sick. That duty did not disappear when he took on the appointment but continued to coexist with it. There was a sufficiently close link with the profession of medicine in the case of the doctor as chief executive of a hospital in respect of patients at the hospital. …
Indeed, even conduct by a medical practitioner in their personal life may constitute 'conduct in a professional respect' where there is a sufficiently close link or nexus with the profession of medicine.
In Hoile v The Medical Board of South Australia (1960) 104 CLR 157 the High Court of Australia held that it was open to the Medical Board of South Australia to find that a medical practitioner, who was the medical superintendent of a country hospital, was guilty of 'infamous conduct in a professional respect' by engaging in sexual intercourse with a nurse at the hospital while they were on duty. On at least one occasion, the nurse was the only member of the nursing staff on duty at that time. The High Court reasoned at 163 as follows:
However much the general moral aspect of the matter may be emphasized as going to the relationship between man and woman, it remains true that the place was the hospital, the woman was a nurse, the man was a doctor and moreover superintendent of the hospital. It arose out of a relationship professionally established and it was destructive of the position he should have held in the hospital and of his influence. All these are matters enabling the Board to find as they did.
Finally, we note that although the civil standard of proof ('on a balance of probabilities') applies in disciplinary proceedings, because of the serious nature of allegations to be determined and the potential consequences of such proceedings on a person's lawful capacity to pursue their vocation, in accordance with the socalled Briginshaw approach, cogent evidence is required and the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts: Briginshaw v Briginshaw (1938) 60 CLR 336; Legal Practitioners Complaints Committee and Gandini [2006] WASAT 163 at [62] [65].
Parties' submissions
The Board submits that the practitioner's conduct in failing to stop after the 'near miss' and render assistance, by way of first aid, to the occupant or occupants of the second vehicle would reasonably be regarded as disgraceful or dishonourable by colleagues of good repute and competency. The Board submits that the practitioner was under a professional duty, as a medical practitioner, to stop and attend in circumstances where an injury might have occurred following the incident and that there is no competing or countervailing duty or obligation which might excuse the practitioner from not having done so.
The Board also submits that the practitioner's conduct in failing to stop and render assistance is sufficiently linked with the profession of medicine, because she was 'made aware of the real possibility that another person may be in need of urgent medical treatment' and a practitioner in those circumstances 'would be reasonably expected to employ their medical skills by rendering assistance'.
The Board, therefore, submits that it is open to the Tribunal to find that the practitioner's conduct in failing to stop and render assistance following the 'near miss' incident constitutes 'infamous or improper conduct in a professional respect' within the meaning of s 13(1)(a) of the Medical Act.
In contrast, Mr NF Morrissey, counsel for the practitioner, submits that the practitioner's actions in immediately driving to the Roebourne police station and reporting the near miss and possible accident, rather than stopping and rendering assistance, 'were appropriate when taking into account' certain matters. In particular, Mr Morrissey submits that the practitioner:
… made an automated decision to drive to the nearby police station. She was in a wellfounded state of shock having immediately been involved in an incident where she thought her own life was in danger. (T:27.4, 22.10.13).
Mr Morrissey submits that the circumstances rendering the practitioner's conduct appropriate include that her passenger 'actively encouraged her that the best course of action would be to attend at the nearby Roebourne police station' and that 'although she thought it was possible, the [practitioner] did not know that the second vehicle had rolled over after the near miss'. Mr Morrissey submits that the relevant circumstances also include that the practitioner did not have a mobile telephone, a torch, or any medical equipment with her. He submits that it could not reasonably be found that:
… in those trying circumstances on 27 April 2002 … a shocked and distraught woman should have snapped out of it and ran into the unknown darkness … . (T:27.7, 22.10.13).
In his written submissions, filed prior to the preparation of the practitioner's witness statement, Mr Morrissey submits that 'the [T]own of Roebourne was plagued by social issues in the period leading up to 27 April 2002, violence towards women was a common occurrence and this was known to the [practitioner]'. However, although, in her witness statement the practitioner referred to alcoholism, drug use and violent behaviour in Roebourne in the period leading up to the incident on 27 April 2002 (paragraphs 14, 22, 23 and 24), she did not give any evidence about 'violence towards women' being a common occurrence and known to her. Furthermore, as noted earlier, the practitioner conceded in crossexamination in this proceeding that alcoholism, drug use and violent behaviour in Roebourne were not matters about which she was thinking at the time when she made the decision to leave the scene after the 'near miss' incident.
Mr Morrissey also submits that:
In the event that [the practitioner] did locate and approach the second vehicle after the near miss it is reasonable to expect that the occupant or occupants of the second vehicle would have been agitated and might have posed a risk to the [practitioner's] personal safety.
However, the practitioner was aware, by way of instinct as a doctor, that the occupant or occupants of the second vehicle would have suffered 'a bad injury'. It is highly unlikely that they might have posed a risk to the practitioner's personal safety. In any case, this possibility would not excuse the practitioner from stopping, making an assessment and rendering assistance. If she had sought to make an assessment and render assistance and was met by a threat of violence towards her, then she would have complied with her professional obligation and could have left the scene to alert the police.
Finally, Mr Morrissey submits that the practitioner did not know the occupant or occupants of the second vehicle and had no doctorpatient relationship with them. He submits that:
In the circumstances which faced the [practitioner] on the night, there was no positive duty on the [practitioner] to act as a medical practitioner to other unknown people and any finding against the [practitioner] in these proceedings will send a message to other medical practitioners that they are required to act positively, treat or help in circumstances similar.
The practitioner ultimately contends that, when taking into account the context of her actions, 'her conduct cannot reasonably be regarded as improper [or as disgraceful or dishonourable] by professional colleagues of good repute and competency, as is required for a finding of improper or infamous conduct to be made against her'.
Is the practitioner guilty of infamous or improper conduct in a professional respect?
We consider that the practitioner's conduct in failing to stop and render assistance to the occupant or occupants of the second vehicle, but instead leaving the scene of the accident and reporting the incident and possibility that the second vehicle had driven off the road to police, would reasonably be regarded as improper by medical practitioners of good repute and competency and that there is a sufficiently close link or nexus between the practitioner's conduct and the profession of medicine for her conduct to constitute 'improper conduct in a professional respect' within the meaning of s 13(1)(a) of the Medical Act. However, because the practitioner drove to the police station and reported the incident and the possibility that the second vehicle had driven off the road, we do not consider that the practitioner's conduct is sufficiently heinous to be regarded as 'infamous conduct'. It is not conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency. Had the practitioner not reported the incident immediately to the police after leaving the scene of the accident, she would have been guilty of 'infamous … conduct in a professional respect', because failure to stop, make an assessment and render assistance, and failure even to report the matter to emergency services, would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.
It is improper conduct in a professional respect for a medical practitioner who is aware that a motor vehicle accident has or may have occurred in their vicinity and that anyone involved has or may have suffered injury not to make an assessment of the situation, including the nature of any injuries and needs of persons involved, and render assistance, by way of first aid, when the practitioner is physically able to do so, notwithstanding that the practitioner immediately reports the matter to police or other emergency services. It matters not that there is no existing professional relationship between a medical practitioner and the persons involved in the accident. Because saving human life and healing sick and injured people is a core purpose and ethic of the medical profession, and because members of the profession have the knowledge and skills to do so, the failure by a medical practitioner to make an assessment and render assistance when he or she is aware that a motor vehicle accident has or may have occurred in their vicinity and that people have or may have been injured, when the practitioner is physically able to do so, would, notwithstanding that the practitioner reports the matter immediately to police or other emergency services, reasonably be regarded as improper by medical practitioners of good repute and competency, and there is a sufficiently close link or nexus with the profession of medicine.
In this case, the practitioner was aware that a motor vehicle accident had or may have occurred and that people involved had or may have been injured, because the second vehicle was travelling at an excessive speed and narrowly missed her vehicle, she heard noise of impact and was told by her passenger that 'I think they roll it', and, as a medical practitioner, she instinctively knew that there would be 'a bad injury' as a consequence. The practitioner was in the vicinity and was physically able to assist. Although it was dark and the practitioner did not have a torch with her, there is no reason why she could not have used the headlights of her vehicle to illuminate the scene. Although the practitioner did not have any medical equipment or a first aid kit with her, her knowledge and skills as a medical practitioner would have enabled her to make an assessment of the condition of the occupant or occupants of the second vehicle and render first aid to them if necessary.
Furthermore, the fact that she did not own or have a mobile telephone with her at the time and the fact that the police station to which she drove to report the incident was only a short distance away did not discharge her professional duty to make an assessment and render assistance at the scene. Notwithstanding these circumstances, the practitioner's conduct would reasonably be regarded as improper by professional colleagues of good repute and competency. In order to save life, first aid may need to be rendered immediately. Any delay in providing first aid after a traumatic injury, even a delay of a short period, could result in death. Furthermore, even if it were necessary to leave the scene of the accident to call for assistance from emergency services, it was necessary for the practitioner to determine the number of persons who were injured, to assess their injuries and needs to the greatest extent possible in the circumstances, and to see if they were trapped, in order for appropriate emergency services to be dispatched.
The practitioner gave evidence that shortly after the 'near miss', her passenger 'suggested that we go to the police'. Mr Morrissey's written submission for the practitioner said that the passenger 'actively encouraged [the practitioner] that the best course of action would be to attend at the nearby Roebourne police station'. Whether the passenger actively encouraged her or merely suggested that they go to the police station, it could not possibly have the effect that the practitioner's conduct would not reasonably be regarded as improper by professional colleagues of good repute and competency. Given that saving of human life and healing sickness and injury is at the core of the profession of medicine, a medical practitioner must adhere to their duty irrespective of what others may suggest or encourage.
The fact that the practitioner was 'in a state of shock', 'petrified' and 'freaked out' after the 'near miss' incident is hardly surprising in a case where a person is involved in an accident or in a nearmiss situation. However, the practitioner was not simply 'a shocked and distraught woman', to quote Mr Morrissey's submission, but rather a member of the medical profession who had gone through a no doubt frightening nearmiss experience, but was thankfully physically unharmed, and was aware that another vehicle had or may have crashed in her vicinity. Because she is a member of the medical profession, and therefore a person with medical knowledge and skills to save life and to heal the sick and injured in the community, her professional duty required that she overcome or at least put aside the shock and provide assistance to the occupant or occupants of the second vehicle. Although the practitioner's 'shock' may be relevant in relation to penalty, it does not have the consequence that her conduct would reasonably be regarded as anything other than improper (or, had she not immediately reported the matter to police or other emergency services, disgraceful or dishonourable) by professional colleagues of good repute and competency.
Finally, as noted earlier, the practitioner did not give evidence that 'violence towards women was a common occurrence and this was known to [her]', as suggested in Mr Morrissey's submission. The practitioner did refer to alcoholism, drug use and violent behaviour as a common occurrence in the locality. However, she conceded in crossexamination that these were not matters about which she was thinking at the time when she made the decision to leave the scene after the 'near miss' incident.
In any case, even if the practitioner had been thinking of these issues, they would not have absolved her from her professional obligation to make an assessment and render assistance to the occupants of the second vehicle. Furthermore, contrary to Mr Morrissey's submission, it was not reasonable to expect that the occupant or occupants of the second vehicle 'would have been agitated and might have posed a risk to the [practitioner's] personal safety', given that the practitioner was aware, by instinct as a doctor, that they had suffered 'a bad injury'. Of course, if the occupant or occupants of the second vehicle had threatened violence towards the practitioner, the practitioner would have discharged her professional obligation and could have driven to the police station.
Conclusion
The practitioner's conduct in failing to stop and render assistance immediately after the 'near miss' incident involving her vehicle and a second vehicle on 27 April 2002, but instead leaving the scene of the accident and reporting the incident and the possibility that the second vehicle had driven off the road to the police, would reasonably be regarded as improper by professional colleagues of good repute and competency. Although the practitioner's conduct did not occur in medical practice, there is a sufficiently close link or nexus between her conduct and the profession of medicine for the conduct to be 'in a professional respect'. The practitioner is therefore guilty of 'improper conduct in a professional respect' within the meaning of s 13(1)(a) of the Medical Act.
The matter should now proceed to hearing in relation to penalty and costs.
Orders
We, therefore, make the following orders:
1. The practitioner is guilty of improper conduct in a professional respect in consequence of her failure to stop and render assistance immediately after a 'near miss' incident involving her motor vehicle and a second motor vehicle on 27 April 2002.
2. By 28 November 2013 the parties are to jointly advise the Tribunal in writing of their mutually available dates for the hearing in relation to penalty and costs in February 2014.
3. By 12 December 2013 the applicant must file and serve its written submissions in relation to penalty and costs and supporting information in relation to costs to enable the Tribunal to assess costs if an order for the payment by the respondent of the applicant's costs of the proceeding is made.
4. By 16 January 2014 the respondent must file and serve her written submissions in relation to penalty and costs and any character references on which she relies.
5. By 23 January 2014 the applicant must advise the Tribunal and the respondent in writing as to whether it requires the author of any character reference filed by the respondent to attend for crossexamination.
6. The Tribunal will administratively list the matter for hearing in relation to penalty and costs in February 2014.
I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE D R PARRY, DEPUTY PRESIDENT
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