| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF AUSTRALIA and McCLURE [2012] WASAT 69 (S) MEMBER : MR C RAYMOND (SENIOR MEMBER) MS M CONNOR (MEMBER)
DR B MENDELAWITZ (SENIOR SESSIONAL MEMBER)
DR F NG (SENIOR SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 AUGUST 2012 FILE NO/S : VR 91 of 2010 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant
AND
ROBERT JAMES McCLURE
Respondent
Catchwords: Professions Medicine Disciplinary proceedings Gross carelessness Penalty Costs Legislation: Legal Practitioners (State Administrative Tribunal) Determination
Legal Practitioners (State Administrative Tribunal) Determination 2010
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Medical Act 1894 (WA), s 13(3)
Medical Practitioners Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 87, s 89
State Administrative Tribunal Rules 2004 (WA), r 43 Result: Practitioner reprimanded and fined $10,000
Practitioner ordered to pay costs fixed in the sum of $113,664.43 Category: B
Representation: Counsel:
Applicant : Ms F Stanton
Respondent : Mr P Tottle
Solicitors:
Applicant : MDS Legal
Respondent : Tottle Partners
Case(s) referred to in decision(s):
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Jemielita v Medical Board of Western Australia unreported; SCt of WA; Library No 920584, 13 November 1992
Medical Board of Australia and McClure [2012] WASAT 69
Medical Board of Western Australia and Pate [2007] WASAT 161
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Medical Board of Western Australia v Wild [2012] WASAT 37
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
NSW Bar Association v Ebatt [1968] 117 CLR 177
Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216 (S)
Srna v Medical Board of Western Australia 2004 WASCA 198
Thomas v Medical Board of Western Australia [2005] WASC 244
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 In an earlier decision, the Medical Board of Australia and McClure [2012] WASAT 69, the Tribunal made findings of gross carelessness against the respondent under the Medical Act 1894 (WA). The proceedings were then adjourned to enable the parties to file submissions on the questions of penalties, costs and the correct form of citation of the applicant. 2 After consideration of those submissions, the Tribunal made orders substituting the Medical Board of Australia for the Medical Board of Western Australia, reflecting the Tribunal's earlier findings of gross carelessness, imposing a fine of $10,000, and ordering the respondent to pay costs fixed in the sum of $113,664.43. The application was otherwise dismissed to reflect that the applicant had failed on four grounds upon which it had relied to establish gross carelessness.
Introduction 3 On 13 April 2012, the Tribunal delivered reasons for decision in this matter, concluding that the respondent was guilty of gross carelessness in three respects in relation to the medical care of a newborn infant, Ethan, during the period 1 August 2005 to 2 August 2005. 4 The three respects in relation to which the respondent was found guilty of gross carelessness were: 1) failure to ensure antibiotics were administered to the patient within an acceptable time; 2) failure to attend upon and examine the patient after being advised of an abnormal blood gas result for the patient; and 3) leaving the patient in order to attend to another patient without instituting emergency medical treatment for the patient. 5 The application failed in respect of four other grounds on which it had been alleged that Dr McClure was guilty of gross carelessness. The matter was then adjourned to enable the parties to file and serve submissions on penalty and costs, as well as to address an apparent confusion about the correct entity to be cited as applicant. (Page 4)
6 In order to avoid repetition, these reasons for decision should be read together with those which were published on 13 April 2012, in Medical Board of Australia and McClure [2012] WASAT 69. Orders, consistent with the above findings, were not made on 13 April 2012 because of the need to first clarify the entity to be correctly cited as the applicant. The parties are in accord with the view expressed by the Tribunal, subject to submissions by the parties, that the correct body to be cited is the Medical Board of Australia and not the Medical Board of Western Australia. As no formal order had been made previously substituting the Medical Board of Australia for the Medical Board of Western Australia (which commenced the application), that order will now be made, together with orders reflecting the Tribunal's above findings. 7 It remains to determine the appropriate penalty to be imposed and the applicant's application for costs.
The available sanctions 8 In a finding of gross carelessness against practitioners, the Tribunal may, under s 13(3) of the Medical Act 1894 (WA), do any one or more of the following: a) remove the practitioner's name from the register; b) suspend the practitioner's registration for a period of up to 12 months; c) impose a fine of up to $10,000; and d) reprimand the practitioner. 9 The Medical Board of Australia (Board) contends that the appropriate penalty, in all of the circumstances, is either a reprimand and fine in the sum of $10,000, or a reprimand and a period of suspension of registration of two to three months duration. 10 It is submitted, on behalf of Dr McClure, that the appropriate disposition is the imposition of a reprimand.
The applicable principles 11 A sanction imposed in disciplinary proceedings is not imposed as a punishment. The function of the Tribunal in imposing a sanction is to protect the public interest: see NSW Bar Association v Ebatt [1968] 117 (Page 5)
CLR 177 at [183] [184]. As set out by Judge Chaney, as his Honour then was, in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman), the general principles applicable in determining the appropriate penalty are as identified by Owen J in Jemielita v Medical Board of Western Australia unreported; SCt of WA; Library No 920584, 13 November 1992 at [146] [147]: The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not a punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrongdoers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements. See Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at [201]. There is also a need to maintain the high standards and good reputation of a profession generally in the eyes of the community: see Zidermann v Genesal Dental Council (1976) 1 WLR 330 at [333]. A further consideration is the need to deter others who may be of like mind to transgress in the future: see Giordino v Medical Board (1883 84) 36 SASR 83 at [87]. In applying these considerations the Tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of UK [1957] 2 QB 550 at [563]. 'There is something more important than the standing of a profession about which counsel is naturally and properly concerned, there is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.' There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalties. The mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly.
The findings against Dr McClure 12 As we found in our earlier decision at [98] [100], the failure to ensure that antibiotics were administered to the infant, Ethan, within an acceptable time, being within 4 5 hours following the onset of Ethan suffering respiratory distress, that is, by no later than 5 pm on 1 August 2005, was a serious omission. It was a fundamental requirement of proper clinical treatment that antibiotics be administered in such (Page 6)
circumstances. Further, as we noted at [24] and [25] of our earlier reasons for decision, the unchallenged evidence was that Ethan might have survived if antibiotics had been administered, which is relevant to assessing the gravity of the omission to do so. 13 It is difficult to understand how Dr McClure came to make such a serious error. He was fully aware of the accepted medical doctrine requiring the administration of antibiotics. There is no issue concerning Dr McClure's competency. He is very well qualified and has had considerable clinical experience in neonatology. There is nothing to suggest any indifference or recklessness in his attendances upon Ethan. 14 We accept the submission, made on behalf of Dr McClure, that the most probable explanation is that Dr McClure's judgment was affected by tiredness and the pressure under which he was working. Dr McClure had referred to the extra workload imposed as a result of the death of one of his colleagues, Professor Grauaug. Nurse Collins, in her evidence, referred to the emotional, as well as physical, impact of this event and, specifically, that Dr McClure looked tired when she spoke to him on 1 August 2005. 15 The Board accepts that it is appropriate that tiredness resulting from the unavoidable demands of practising in the area of neonatology be taken into account. However, the Board submits that, in doing so, it is to be noted that the evidence establishes that, in the seven day period prior to Ethan's birth, Dr McClure had been on call for only two of the seven nights and had not been on call at all over the weekend of 30 and 31 July 2005, immediately preceding the day of Ethan's birth on 1 August 2005. While that is undoubtedly so, this does not discount the evidence that Dr McClure looked tired on 1 August 2005. Dr McClure had been working for some months under increased pressure due to Professor Grauaug's death in May 2005 and it was at his 5 pm review of Ethan, nine hours after he came on duty, that he should have recognised the need to administer antibiotics. It is, in any event, the only plausible reason for Dr McClure's conduct, not only in relation to this particular finding of gross carelessness, but also in respect of the other two similar findings which we refer to below. 16 The second finding of gross carelessness against Dr McClure related to his failure to attend upon and examine Ethan after being advised of an abnormal blood gas analysis at 10.40 pm on 1 August 2005. (Page 7)
17 As we have already observed, the failure to attend upon Ethan was in no way attributable to indifference or any reckless disregard of Ethan's medical needs. Dr McClure made it clear that he should be called during the night if Ethan's condition deteriorated. Nurse Collins testified to Dr McClure's willingness to respond to calls to attend when called outside normal hours. Nevertheless, on the symptoms reported to him during the telephone discussion with Nurse Naidu at 10.40 pm on 1 August 2005, as we found in our earlier reasons for decision, and by reason of the anomalous blood gas results obtained, it was incumbent on Dr McClure to have attended Ethan and to have taken responsibility for collecting a blood sample by an arterial specimen. It was a serious failure on his part not to do so. 18 We indicated in our reasons for decision, at [98], that Dr McClure appeared to have become fixed in his view about Ethan's correct diagnosis and treatment. Although that view was expressed in the context of a discussion of the failure to administer antibiotics, we consider that this impacted upon his failure to recognise factors indicating the need for him to attend upon Ethan following the telephone discussion in question. We think that tunnel vision also influenced his conduct which led to the third finding of gross carelessness. 19 The third finding of gross carelessness related to Dr McClure leaving Ethan at approximately 8 am on 2 August 2005 in order to attend another patient without instituting emergency medical treatment for Ethan, including the administration of antibiotics and respiratory support in the form of intubation and ventilation and urgent transfer to Princess Margaret Hospital when he knew, or should have known, at that time, that Ethan was in urgent need of such treatment and transfer. 20 This was a serious omission. Ethan had, by then, been suffering from respiratory distress for some 20 hours. Nurse Sims had reported to him the frequent desaturations that had occurred during the immediately preceding period. On his own evidence, Dr McClure did not examine Ethan, and we rejected his evidence that he was given an indication from Nurse Sims that it would be in order for him to attend the elective caesarean section and then return to review Ethan. To an extent, the submissions for Dr McClure tend to minimise this serious omission by pointing out that the expert witnesses recognised that Dr McClure was 'on the horns of a dilemma'. When that view was expressed, there was uncertainty amongst the expert witnesses as to whether or not Dr McClure had to attend an emergency caesarean operation. We found that the procedure was an elective caesarean operation. And, in any event, (Page 8)
Dr McClure could not exercise any proper judgment without having examined Ethan. In the circumstances which prevailed, it was a serious departure from acceptable medical practise giving rise to our finding of gross carelessness. Dr McClure simply did not recognise the seriousness of Ethan's condition and, again, we think that was due, in part, to his rigid adherence to the diagnosis which he had made the previous day. Given Dr McClure's unquestioned competence, we consider that the stress under which Dr McClure was working, and his tiredness, were factors which featured significantly in all of Dr McClure's conduct resulting in the findings of gross carelessness on his part.
Other factors 21 Dr McClure is 48 years of age. His qualifications and clinical skills in neonatology have not been questioned. His curriculum vitae shows that, prior to August 2005, he had been responsible for supervising the care of thousands of newborn infants. Evidence, elicited under crossexamination, established that Dr McClure was held in good regard by nursing staff. Nurse Collins thought Dr McClure's approach to patient care was excellent; that she quite often had to call him out of hours, and that he came into the hospital every time if requested. Nurse Pellicciotta said that she had a high regard for Dr McClure. She described his approach to patient care as being very professional, she said that she felt very safe and comfortable (in working with him), that he was very approachable and, indeed, that she had consulted him about her own child. Nurse Sims considered that Dr McClure was very polite, very respectful and got on well with people, and she never received any complaints from nursing staff about him. 22 It is against that background of professional and clinical experience that the transgressions concerning Ethan on 1 and 2 August 2005 must be viewed. There is no suggestion of any prior complaints concerning Dr McClure, so that we are dealing with these isolated incidents which are not representative or indicative of any general deficiency in the way in which Dr McClure practised neonatology. 23 In 2008, Dr McClure ceased practise as a neonatologist and commenced training as an anotomical pathologist. He is currently in his fourth year of specialist training in that area. 24 A number of character references have been provided in support of Dr McClure from prominent members of the medical fraternity. With one exception, the references are all from practitioners in anatomical pathology. All referees provided their reference with full knowledge of (Page 9)
the findings against Dr McClure. The references, in aggregate, reflect opinions that Dr McClure is hard working, meticulous, reliable, intelligent, that his work reflects a high professional and academic standard, and that he is a deeply caring physician who has the best interests of the patient at heart. 25 In this context, we accept the characterisation given by counsel for Dr McClure, that his conduct in relation to the findings of gross carelessness is an aberration. 26 It was also urged upon us by counsel for Dr McClure that consideration should be given to the emotional anguish arising from Ethan's death, the inquest which followed, the disciplinary proceedings themselves, and the adverse findings, which, we accept, have had a severe impact on Dr McClure. The disciplinary proceedings were not commenced until almost five years after Ethan's death. The inquest, held in August 2008, attracted considerable publicity, some of which was directed towards Dr McClure. This led to Dr McClure's 15yearold daughter being taunted at school, so that there was immense pressure on Dr McClure and his family. The proceedings before the Tribunal have been protracted. All of these factors have resulted in enormous emotional pressure on Dr McClure, his wife and his children. It is further submitted that the medical community in Western Australia is small and closeknit, and that the loss of reputation, and the embarrassment and shame felt by Dr McClure and his wife has compounded the emotional pressure on him. We are further told that Dr McClure's income suffered as a result of a drop in referrals while he continued to practise in neonatology. 27 It is submitted for Dr McClure that Ethan's death, and Dr McClure's part in it, was central to Dr McClure's decision to cease the practise of neonatology and to train as an anatomical pathologist. The Board does not accept this submission and challenges it based on the only evidence which is before the Tribunal, which is that, in giving an explanation for this move to the Coroner, Dr McClure referred only to the stress and long hours associated with neonatology. In the circumstances, we proceed simply on the basis that Ethan's death, and Dr McClure's part in it, contributed to the pressure on Dr McClure, impacted on his income due to a fall in referrals, and therefore featured as a factor, to some extent, in the decision to change careers.
The appropriate sanction 28 The Board does not endeavour to make out any case for deregistration, and that is clearly an appropriate position to adopt. (Page 10)
Dr McClure has changed careers and, in any event, having regard to the manner in which he has conducted his practise in neonatology, and that the conduct giving rise to the gross carelessness findings was an aberration, there is no risk of reoccurrence. There is therefore no need to protect the public by such a sanction. 29 While the Tribunal has a wide discretion in relation to penalties, consideration of the cases to which we have been referred show that between 1999 and 2012, suspension for gross carelessness has been ordered or upheld in only three cases: Thomas v Medical Board of Western Australia [2005] WASC 244 (Thomas); Medical Board of Western Australia and Pate [2007] WASAT 161 (Pate); and Medical Board of Western Australia v Wild [2012] WASAT 37 (Wild). In our view, these cases are distinguishable. 30 In Thomas, the imposition of a suspension of 12 months was in respect of eight findings of gross carelessness concerning the treatment and management of four patients during a period between November 2002 and April 2003. Pate was a case involving a single finding of gross carelessness as a result of the practitioner discharging a patient from an emergency department without having examined him. The patient had received severe injuries as a result of being pinned beneath a motor vehicle and died shortly after his discharge. Although the Tribunal did not make any statement to the effect that the practitioner acted with a reckless disregard for the health of the patient, it is difficult to view the circumstances in any other way. In Wild, the practitioner was found to have failed to maintain proper professional boundaries with a patient, which had been maintained over a period of some five years, and had acted carelessly in failing to provide any medical assistance to the patient who had taken a significant overdose of morphine, which resulted in the death of the patient. The findings were made under the Medical Practitioners Act 2008 (WA). In the finding that the practitioner acted carelessly, the Tribunal applied the principle that such conduct involves a departure from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say he or she was ignorant. 31 In this case, the adverse findings arise from the treatment of a single patient within a 20 hour period. Although there are three separate findings, and a separate penalty could apply to each, the events are closely related with the subsequent events having been influenced, at least to some extent, by the circumstances leading to the first transgression. It is appropriate to approach the question of penalty having regard to (Page 11)
Dr McClure's conduct as a whole in respect of the three findings of gross carelessness. 32 We do not consider that there is any point in a suspension order in this case when the public interest can be adequately served by other means. As the analysis of previous decisions by Pullin J in Srna v Medical Board of Western Australia 2004 WASCA 198, shows, it is rare that suspension has been imposed on a practitioner for a one off failure to observe acceptable standards: see the discussion from [95] [104] inclusive. 33 We are, however, unable to accept the submission made on behalf of Dr McClure that the imposition of a reprimand would be a sufficient penalty, consistent with the decision in Roberman. Although there are three separate findings of gross carelessness, and not an isolated incident of gross carelessness as submitted for Dr McClure, the distinction is not significant because of the clear relationship of the findings relating to a single patient within a limited time frame. We also accept the submission on behalf of Dr McClure that his conduct was not symptomatic of a wider course of gross carelessness, that he did not act with a callous disregard of his patient's welfare and, further, that there are no other aggravating factors. We also accept that tiredness, brought about by the pressure of his work, affected Dr McClure's decisionmaking. 34 The public interest aspect which concerns us is that the penalty must be sufficient to demonstrate the need to maintain high standards and the good reputation of the profession, and to act as a deterrent. We accept the submission for Dr McClure that deterrence may be of greater relevance in cases of impropriety, but we think the submission that deterrence 'is of very limited relevance in clinical competence cases: the members of the medical profession do not need to be told that they must discharge their duties with care' is too wide. There may be some cases in which the nature of the deviation from an acceptable standard of medical practise is attributable to a serious error, unrelated to factors from which it is possible, by any order, to deter practitioners. In this case, tiredness was a factor which Dr McClure should have recognised was likely, at some point, to affect his judgment. He also failed to pay sufficient regard to concerns raised by the nursing staff. This occurred during the discussion with Nurse Collins at 8 pm on 1 August 2005, when she expressly raised whether antibiotics should be administered. It occurred again when he failed to have proper regard to the concerns raised by Nurse Sims at approximately 7.55 am on 2 August 2005. This was contrary to his own published advice in the Oxford Handbook of Paediatrics (Oxford (Page 12)
University Press, 2008), as referred to at [93] of the original decision, to listen to the nurse, examine the baby carefully and act if in any doubt. This is conduct in relation to which an appropriate order can have a deterrent effect. Medical practitioners need to give careful consideration to concerns raised by nursing staff. They also need to be alert to the affect of working under sustained periods of pressure and take steps, as far as practicable, to address the issue. Deterrence can be achieved by an order which demonstrates that Dr McClure's conduct in relation to the three adverse findings was not acceptable, and that the failure to maintain the required standards will be taken very seriously. 35 We take into account the extent to which the death of Ethan, the inquest, these proceedings and the adverse publicity received has impacted, not only directly upon Dr McClure, but indirectly on him because of the effect on his family and the matters related thereto. Similar factors featured in the Roberman decision, in which the Tribunal decided only to reprimand the practitioner. Although that particular case involved a single transgression, there had been earlier successful disciplinary proceedings against Dr Roberman, and there was a common thread showing a course of grossly careless conduct. There are, otherwise, many similarities with this matter. However, the Tribunal in Roberman was persuaded that, in the context of the consequences of an extensive inquiry into services provided by a public hospital together with the publicity surrounding the previous finding against the practitioner, the finding in the current proceedings, together with attendant publicity, were a sufficient demonstration of the seriousness in which the matters were dealt with to provide the necessary deterrent and maintain public confidence. There were other consequences suffered by the practitioner which the Tribunal also took into account, including that he was dismissed. 36 There will always be a level of publicity which attaches to cases such as this. The publicity which featured in the Roberman case was out of the ordinary. 37 Overall, taking into account all matters, and in particular Dr McClure's otherwise blemishfree record and his undoubted qualifications and qualities as a medical practitioner, we think that the case calls for a reprimand and a fine of $10,000, in order to demonstrate the seriousness with which these matters are dealt, to provide a deterrent and to maintain public confidence in the high standards and good reputation of the medical profession. (Page 13)
38 We turn to address the question of costs.
The costs application 39 The Board has provided a detailed schedule of costs totalling $143,279.29, together with submissions in which it contends that Dr McClure should be ordered to pay 90% of that amount, taking into account the grounds upon which the Board was not successful. Dr McClure has not filed submissions in opposition to the costs application. 40 Pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the starting point in the Tribunal is that each party should bear its own costs, but, unless otherwise specified in the enabling Act, the Tribunal can make an order for payment by a party of the costs of another party. There is no provision of the Medical Act 1894 (WA) (as amended) that prevents the Tribunal from exercising its discretion to award costs. 41 The Tribunal will usually order costs in favour of a regulatory authority which successfully proves conduct justifying disciplinary action; however, costs will not usually be awarded in relation to such proceedings, or parts of proceedings, which are not successfully maintained: see Roberman and Motor Vehicle Industry Board and Dawson [2006] WASAT 8. 42 If costs are awarded in a proceeding, the SAT Act contemplates either that the Tribunal makes an order for payment of costs and fixes the amount of costs, or that the amount be assessed or settled in accordance with the rules: s 89 of the SAT Act. The State Administrative Tribunal Rules 2004 (WA) provide by r 43 for the amount of costs to be assessed or settled by the Executive Officer in a process which requires attendance of the parties at an assessment before the Executive Officer. The manner in which costs are 'assessed' by the Tribunal for the purposes of fixing costs have been the subject of numerous decisions. The Board has referred to Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216 (S) at [14] and J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] (J & P Metals). The assessment of costs requires a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, its urgency and the amount of time and effort required to properly prepare and present the case. 43 In J & P Metals, the Tribunal noted that there is no prescribed scale in relation to work done in relation to proceedings before the Tribunal, and observed that the scales applicable to the Supreme Court or (Page 14)
Magistrates Court might be used as a guide, depending upon the nature of the case and in order to maintain proportionality between the subject matter of the proceedings and the associated costs. On that basis, the Board contends that the analogous scale to be used in this matter is that applicable to Supreme Court proceedings. 44 However, subsequent to J & P Metals, the Legal Practitioners (State Administrative Tribunal) Determination (2008 Determination) and the Legal Practitioners (State Administrative Tribunal) Determination 2010 (2010 Determination) were published under the Legal Profession Act 2008 (WA). The 2008 Determination came into effect on 1 March 2009 (Western Australian Government Gazette (27 February 2009), at 511) and remained in force until its replacement by the 2010 Determination which came into effect on 1 October 2010 (Western Australian Government Gazette (21 September 2010), at 4804). Subject to any written costs agreement, both Determinations prescribe the maximum hourly and daily rates, inclusive of GST, which may be charged by a legal practitioner, clerk or paralegal in providing advice and services to clients in respect of proceedings and potential proceedings in the Tribunal. Neither purports to prescribe the party and party rates applicable, but they are useful guides to what might be allowed on a party and party basis for an hourly or daily rate, as the case may be. 45 Having regard to the nature of the matter, its complexity, its importance, and the amount of time and effort required to properly prepare and present the case, we consider it appropriate to apply the maximum rates set out in the 2008 Determination and the 2010 Determination, as applicable to the period when services were performed. 46 In reviewing the Board's schedule of costs, we have borne in mind the statement of principle by Judge Chaney, Deputy President of the Tribunal, as he then was, in J & P Metals at [38], to the effect: … the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceedings in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order. (Page 15)
47 This reflects the stringent approach to costs taken by the Tribunal. 48 In the affidavit of Ms Fiona Ann Stanton, sworn on 11 May 2012, to which the schedule of costs was annexed, Ms Stanton stated that she was a director of the Board's firm of legal practitioners, that she had the conduct of the matter, and that the schedule did not purport to differentiate between party and party costs and solicitor and client costs. Ms Stanton stated that the Board is a sophisticated client and, for this reason, a very small proportion of the time recorded relates to solicitor and client costs. 49 We are satisfied that the resources applied to the preparation of the matter are entirely proportionate to the nature of the case and its complexity. There is no duplication of costs due to internal conferrals, and the time spent on the various attendances appears reasonable. We have therefore not disallowed any costs because of unnecessary duplication or because we thought the time spent on attendances was at a level which should not be passed on as a party and party cost. 50 The above affidavit and schedule of costs did not identify the individual practitioners who had been engaged on the matter, other than by initials, nor was any detail provided as to their dates of admission, which are relevant because both the 2008 Determination and 2010 Determination provide for differential rates depending upon the period for which the practitioner has been admitted to the practise of law, which determines whether the practitioner is to be classified as either a senior practitioner or a junior practitioner. In response to a request from the Tribunal, these particulars were provided by letter dated 8 August 2012. Two of the three practitioners who were involved at different times fall within the category of a senior practitioner, being a person who has been admitted for five years or more. One of the practitioners, identified by the initials JMM, had been admitted for a period of less than five years during a period when she provided services, and during this period is classified as a junior practitioner. 51 In terms of the 2008 Determination, a senior practitioner may charge up to $330 per hour, inclusive of GST, and a junior practitioner may charge up to $230 per hour, inclusive of GST. Under the 2010 Determination, the same maximum rates are $352 and $253 per hour, respectively. (Page 16)
52 During the period 19 October 2010 to 31 March 2011, a senior practitioner provided all services for which charges were made, which we calculate total $40,289.25. These charges were all made at a rate of $330 per hour, inclusive of GST, which is within the maximum rates under the 2008 Determination and the 2010 Determination. 53 Between 9 July 2011 and 4 November 2011, a significant amount of services were provided by a junior practitioner, which we calculate as being charged to the value of $33,451.39. These charges have been made at rates which exceed the maximum rates set out in the 2010 Determination, as discussed more fully below. On 9 July 2011, charges totalling $64.13 were made in respect of attendances for a total period of 10 minutes. The time was charged at a rate of $5.83 per minute, plus GST. This equates to a rate, inclusive of GST, of $385 per hour as compared to the maximum under the 2010 Determination of $231 per hour. We accordingly disallow the difference, which we calculate is $26 for a 10 minute period. 54 Between 18 July 2011 and 3 August 2011, services totalling 108 minutes were provided at a rate of $6.25 per minute to which GST is added, to equate to a rate of $412.50 per hour, compared to the rate allowable under the 2010 Determination of $231 per hour. We calculate the amount to be disallowed in respect of a period of 108 minutes is $328. 55 During the period 3 August 2011 and 4 November 2011, we calculate that the junior practitioner provided services for a total of 5,073 minutes, which were charged at a rate of $5.85 per minute, exclusive of GST. With the addition of GST, this equates to a rate of $368 per hour, inclusive of GST, as compared to the maximum under the 2010 Determination of $231 per hour, inclusive of GST. We calculate that the amount to be disallowed, being the difference between the two rates in respect of the total time of 5,073 minutes, is $13,105.25. 56 The balance of the services provided were all provided by senior practitioners. As the value for the total services is $109,209.11, the value of this balance of the work is $35,468.47, based on our calculations. All of this work was charged for at a rate of $5.85 per minute, exclusive of GST, which equates to a rate of $386 per hour, inclusive of GST. Under the 2010 Determination, which applies to all of the work, the maximum allowable rate for a senior practitioner is $352 per hour, inclusive of GST. The difference represents 8.8% of the hourly rate charged, inclusive of GST, of $386. The amount which we disallow is therefore 8.8% of $35,468.47, that is, $3,121.23. (Page 17)
57 It follows that the amount claimed in respect of fees is to be reduced by a total amount of $16,580.48 to an amount of $92,628.63. 58 The Board acknowledges that there should be a reduction in the costs allowed to take into account the extent to which it failed on four grounds which were relied upon as constituting gross carelessness. However, it is submitted that the Board should be entitled to recover all of its costs in respect of an interim application, brought on behalf of Dr McClure, which was substantially unsuccessful. It is submitted that all costs between 31 August 2010 and 30 November 2010 should be paid entirely by Dr McClure. We have not been provided with a specific breakdown of the attendances related to the interim application, and it is apparent that there were other matters dealt with during this period. Significantly, a mediation was conducted, and therefore a number of communications and attendances must have related to that procedure. In these circumstances, particularly because of the difficulty in accurately assessing what percentage of costs should be disallowed overall because of the grounds on which the Board failed, we have not treated the costs incurred during the period 31 August 2010 to 30 November 2010 any differently. 59 The Board contends that only a 10% reduction should be made in respect of the grounds on which it failed. It failed in respect of four out of seven grounds, but we accept that the grounds on which the Board failed would have taken up a relatively small portion of the hearing time. We do not think that the factual evidence would have changed to any measurable degree. It is a question of how much time was taken up by instructing expert witnesses and the time taken up by expert witnesses in considering these issues, reporting on them and giving evidence at the hearing. Account also needs to be taken of the time taken by Dr McClure in giving evidence concerning these matters. All in all, we accept that a 10% reduction is appropriate. We shall apply that percentage reduction once we have determined the amount of disbursements which would otherwise be allowable. 60 The total disbursements claimed is $34,070.18. We have considered all of the disbursements and consider that they should be allowed in full, save in relation to part of counsel's fees. Senior counsel's fees total $8,013.50. The fees appeared to relate only to the interim application which has been referred to above. There are two charges for half day attendances in an amount of $2,068 each. The 2010 Determination, which was applicable during the period of the charges, permits a daily rate which is more than double the half day fees that were charged, that is $4,620 per day, inclusive of GST. There is, however, a total of 7.5 hours of time (Page 18)
charged on an hourly basis at a rate which we calculate to be $516.66 per hour, inclusive of GST, whereas the maximum allowable under the 2010 Determination is $462 per hour, inclusive of GST. We calculate, therefore, that the disbursement in respect of counsel's fees should be reduced by $405. Consequently, the total disbursements allowable is $33,665.18. 61 The total fees and disbursements allowable is $126,293.81, and that total falls to be reduced by 10% in relation to the grounds on which the Board was unsuccessful. Accordingly, the total costs which we will order Dr McClure to pay is the sum of $113,664.43.
Orders 62 As reflected in the introduction to these reasons for decision, it remains necessary to make an order substituting the Medical Board of Australia for the Medical Board of Western Australia, together with orders reflecting the Tribunal's findings in its earlier decision. Orders will therefore issue as follows: 1. The Medical Board of Australia is substituted for the Medical Board of Western Australia as applicant. 2. The Tribunal finds that Robert James McClure (the practitioner) is guilty of gross carelessness in relation to the care of the patient, Ethan, on 1 and 2 August 2005, in that the practitioner: (i) failed to ensure that antibiotics were administered to Ethan within an acceptable time, being four to five hours, following the onset of Ethan suffering respiratory distress; (ii) failed to attend upon and examine Ethan after being advised of an abnormal blood gas result for Ethan at about 10.40 pm on 1 August 2005; and (iii) left Ethan at approximately 8 am on 2 August 2005 in order to attend another patient without instituting emergency medical treatment for Ethan, including the administration of antibiotics and respiratory support in the form of intubation and ventilation, and urgent transfer to Princess Margaret Hospital, when he knew, or (Page 19)
should have known at that time, that Ethan was in urgent need of such treatment and transfer. 3. Save in respect of the above findings and the further orders below, the application is otherwise dismissed. 4. The practitioner is reprimanded. 5. The practitioner is fined the sum of $10,000, which sum is to be paid to the applicant on or before 30 September 2012. 6. The practitioner is to pay the applicant's cost of the proceedings, fixed in the sum of $113,664.43, which sum is to be paid to the applicant on or before 30 September 2012. |