Medical Board Of Australia and Roberts
[2014] WASAT 76 (S2)
•27 JANUARY 2015
MEDICAL BOARD OF AUSTRALIA and ROBERTS [2014] WASAT 76 (S2)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 76 (S2) | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:99/2013 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) DR E ISAACHSEN (SENIOR SESSIONAL MEMBER) DR H HANKEY (SENIOR SESSIONAL MEMBER) MS F CHILD (MEMBER) | 27/01/15 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay costs fixed in the sum of $40,000 | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA DAVID EVAN ROBERTS |
Catchwords: | Medical practitioner Disciplinary matters Unprofessional conduct Assessment for the purpose of fixing costs |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 193, s 193(1)(a)(i), s 195, s 196(2) State Administrative Tribunal Act 2004 (WA), s 87, s 87(2) State Administrative Tribunal Rules 2004 (WA), r 42(2), Div 6, Pt 2 |
Case References: | Medical Board of Australia and Costley [2013] WASAT 2 Medical Board of Australia and Roberts [2014] WASAT 76 Medical Board of Australia and Roberts [2014] WASAT 76 (S) Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S) |
Orders | On the application before Deputy President, Judge Sharp and Member Felicity Child and Senior Sessional Member Eric Isaachsen and Senior Sessional Member Helen Hankey on 27 January 2015, it is ordered that:,1. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) and s 195 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) the respondent must pay to the applicant its costs of the proceeding in terms of disbursements to the extent of $40,000 within four weeks of the date of this order or within such further period as agreed by the applicant. |
Summary | In Medical Board of Australia and Roberts [2014] WASAT 76, delivered on 1 July 2014, the Tribunal found that the respondent was guilty on three counts of unprofessional conduct as defined in the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The applicant had made a number of other allegations against the respondent, but those were dismissed.,The applicant subsequently sought an order for costs to be made against the respondent in respect of the proceedings.,The Tribunal reviewed the history of the matter and the principles which have been adopted in the Tribunal in relation to an award of costs in vocational matters. It concluded that, on the facts of this case, it was appropriate that the respondent be ordered to contribute one half of the applicant's costs of the proceedings in the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and ROBERTS [2014] WASAT 76 (S2) MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
MS F CHILD (MEMBER)
- Applicant
AND
DAVID EVAN ROBERTS
Respondent
Catchwords:
Medical practitioner Disciplinary matters Unprofessional conduct Assessment for the purpose of fixing costs
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 193, s 193(1)(a)(i), s 195, s 196(2)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(2)
State Administrative Tribunal Rules 2004 (WA), r 42(2), Div 6, Pt 2
Result:
Respondent to pay costs fixed in the sum of $40,000
Summary of Tribunal's decision:
In Medical Board of Australia and Roberts [2014] WASAT 76, delivered on 1 July 2014, the Tribunal found that the respondent was guilty on three counts of unprofessional conduct as defined in the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The applicant had made a number of other allegations against the respondent, but those were dismissed.
The applicant subsequently sought an order for costs to be made against the respondent in respect of the proceedings.
The Tribunal reviewed the history of the matter and the principles which have been adopted in the Tribunal in relation to an award of costs in vocational matters. It concluded that, on the facts of this case, it was appropriate that the respondent be ordered to contribute one half of the applicant's costs of the proceedings in the Tribunal.
Category: B
Representation:
Counsel:
Applicant : Mr M Cuerden SC
Respondent : Ms G Archer SC
Solicitors:
Applicant : MDS Legal
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Medical Board of Australia and Costley [2013] WASAT 2
Medical Board of Australia and Roberts [2014] WASAT 76
Medical Board of Australia and Roberts [2014] WASAT 76 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S)
Background
1 Between 2008 and 2011, the respondent (Practitioner) had been treating twin boys (K and R and collectively the patients) for certain long standing behavioural problems.
2 The applicant (Board) in 2012 received a notification about the Practitioner's conduct concerning his treatment of the patients. The Board then made an application to the Tribunal alleging that the Practitioner was guilty of professional misconduct as defined in the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law). The Board's grounds for making that application were as follows.
3 The Board alleged that at a consultation early in 2009 between the Practitioner, the patients and the patients' mother (J), the Practitioner said to J, in the presence of the patients and with reference to disciplining the Patients, that she should 'find anything in arms reach … the cord of the electric frying pan would do well' (the 2009 advice).
4 The Board said that the 2009 advice should not have been given to J as it:
a) amounted to a recommendation to J that she should use corporal punishment to discipline the patients; and
b) constituted or was capable of being perceived by the patients as a threat directed towards the patients.
5 The Board then alleged that at another consultation between the Practitioner, the patients and J in 2009, the Practitioner read to the patients and to J the contents of a document headed 'The Burning Platform' (the Burning Platform story) and then gave a copy of the document to J.
6 The Burning Platform story concerned the circumstances of men aboard an oil platform following an explosion, and includes references to the oil platform melting around the men, the men being overcome by smoke and dying.
7 The Board said that the Practitioner should not have read the Burning Platform story to the patients and should not have given the Burning Platform story to J because it constituted or was capable of being perceived by the patients as a threat directed towards the patients.
8 The Board further alleged that during a consultation in or about 2010, the Practitioner gave to J a typewritten note (the first consultation note) commencing with the words:
[K]
• beware of unrealistic expectations …
9 The first consultation note referred to the behaviour of the patients as 'psycho manipulative' and describes that behaviour as 'complete rubbish'.
10 The first consultation note also referred to K as having 'learned helplessness'.
11 The first consultation note concluded with the following points:
• It[']s not they [sic] they want to be men, they don't
• they don't want to have any testes …
• they just don't want anyone [sic] to either.
12 The Board said the first consultation note should not have been given to J as it:
a) was derogatory of the Patients; and
b) was accusatory towards the Patients.
13 The Board further alleged that at a consultation between the Practitioner, the patients and J on 15 April 2010, the Practitioner:
a) typed a document (the second consultation note) which commences '[R] & [K] … There is the continuing relentless and merciless teasing between these two twin boys … it will stop as of now';
b) spoke aloud the contents of the second consultation note as he typed it;
c) printed out the second consultation note;
d) gave the second consultation note to J;
e) said to the patients:
Enough is enough I am sick of this this is the last time I will be speaking to you about this;
f) said to the patients words to the effect that their father should be dealing with their behaviour.
14 The second consultation note referred to R as:
a) indulging in selfpity;
b) engaged in selfindulgent thinking (described as 'Oh woe is me'); and
c) a 'sooky la la'.
15 In relation to R, the second consultation note stated 'toughen up Princess'.
16 In relation to both patients, the second consultation note also stated:
Swearing .. vulgar .. is so .. not on .. I can't even begin to describe it .. I recommend to your husband that he beat (physically) each and any of you our [sic] sons who swear and offend his wife (that is Mother) .. to within in [sic] an inch of his life.
17 The Board said that the second consultation note:
a) was derogatory of one of the patients;
b) was accusatory towards one of the patients; and
c) contained a recommendation that the patients' father should use corporal punishment to discipline the patients.
18 The Board also said that the statements made to the patients at the time when the second consultation note was given to J were made in the context of the Practitioner speaking aloud the contents of the second consultation note and giving the second consultation note to J. The Board says that this constituted a threat directed at the patients, or was capable of being perceived by the patients as a threat directed towards the patients.
19 The Board further alleged in its application that, following a consultation between the Practitioner and J in or about July 2011, during which the patients waited in the Practitioner's reception area with a receptionist and other patients, the Practitioner:
a) entered the reception area;
b) told the patients to 'bend over';
c) swung a cane towards the patients (without allowing the cane to touch the patients); and
d) as he swung the cane, said to the patients the words 'this is what you will get if you misbehave'.
20 The Board says that these words and actions:
a) were derogatory of the patients;
b) were capable of humiliating the patients and J; and
c) constituted a threat directed towards the patients or were capable of being perceived by the patients as a threat directed towards the patients.
21 The Board said that none of:
a) the 2009 advice;
b) the reading and provision of the Burning Platform story;
c) the provision of the first consultation note;
d) the provision of the second consultation note;
e) the words spoken to the patients at the relevant consultation; and
f) the conduct concerning the alleged use of the cane in the Practitioner's reception area
was capable of leading or contributing to any improvement in or resolution of the patients' behaviour.
22 The Board said that each of:
a) the 2009 advice and the reading and provision of the second consultation note;
b) the words spoken when the second consultation note was given to J; and
c) the conduct concerning the alleged use of the cane in the Practitioner's reception area;
to the knowledge of the Practitioner had the potential to:
a) cause J to use corporal punishment in an effort to discipline the patients; and/or
b) cause J's husband (indirectly as a result of such conduct being related to him and/or by the second consultation note being shown to him) to use corporal punishment in an effort to discipline the patients.
23 The Board said that the use of corporal punishment as a method of disciplining the patients was capable of:
a) worsening the patients' behaviour;
b) giving rise to further antisocial behaviour of the patients; and
c) causing or contributing to the development of psychological problems or psychiatric ill heath in the patients or either of the patients.
24 The Board said that each of:
a) the 2009 advice;
b) the reading of and providing the Burning Platform story;
c) the reading of and providing the second consultation note;
d) the Practitioner's conduct at that consultation; and
e) the alleged use of the cane by the Practitioner in the Practitioner's reception area;
25 gave rise to risks of:
a) worsening the patients' behaviour;
b) causing further antisocial behaviour of the patients; and
c) causing or contributing to the development of psychological problems or psychiatric ill health in the patients or either of the patients.
26 The Board concluded that the Practitioner's conduct constituted professional misconduct for the purposes of s 193(1)(a)(i) of the National Law (in that his behaviour was substantially below the standard reasonably expected of an experienced specialist in paediatrics and child health).
27 The matter was heard over three days in March 2014. On the first day of the hearing, the Board withdrew the allegation about the use of the cane by the Practitioner.
28 In Medical Board of Australia and Roberts [2014] WASAT 76 (Roberts) the Tribunal found that the Practitioner was guilty on three counts of unprofessional conduct (not professional misconduct), both terms as defined in the National Law.
29 Firstly, the Tribunal found that the Practitioner was guilty of unprofessional conduct when he gave to J the first consultation note which was derisory of both patients.
30 Secondly, the Tribunal found that the Practitioner was guilty of unprofessional conduct when he gave to J the second consultation note which was derisory of one of the patients in that it stated that the patient was 'a princess' and 'a sooky la la'.
31 The third finding was that the Practitioner was guilty of unprofessional conduct because the second consultation note constituted a recommendation that J and her husband use corporal punishment to bring about behavioural modification in the patients, which put the patients' health, safety and welfare at risk.
32 The other allegations made by the Board against the Practitioner were dismissed by the Tribunal.
33 The Tribunal then ordered the parties to file submissions on penalty. In Medical Board of Australia and Roberts [2014] WASAT 76 (S) (penalty decision), the Tribunal made orders in substantially the following terms:
1) In respect of the finding that the Practitioner gave to J the first consultation note which was derisory of both patients, and in respect of the finding that the Practitioner gave to J the second consultation note which was derisory of one of the patients, the Practitioner was reprimanded pursuant to s 196(2) of the National Law.
2) In respect of the finding that the Practitioner gave to J the second consultation note which contained a recommendation that J and her husband use corporal punishment to bring about behavioural modification in the patients, the Practitioner was reprimanded and fined an amount of $15,000 pursuant to s 196(2) of the National Law.
3) In respect of all of the findings of the Tribunal, the Tribunal also imposed a condition upon the Practitioner's registration that a limited audit of the Practitioner's file should be undertaken by a senior medical practitioner approved by the Board in respect of any written contact between the Practitioner and his patients or parents of his patients.
34 The Tribunal also ordered that the parties file and serve written submissions in relation to costs.
35 The award of costs is the subject of these reasons.
Applicable legislation
36 Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides as follows:
Costs of parties and others
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
…
37 Section 195 of the National Law applies to proceedings where the Board refers matters to the Tribunal under s 193 of the National Law, as was the case in Roberts. Section 195 of the National Law provides that the Tribunal may make any orders about costs that 'it considers appropriate for the proceedings'.
The principles to be applied
38 As already stated, s 87(2) of the SAT Act gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. The provisions of this section are not displaced by any provisions of the National Law.
39 However, as the Tribunal observed in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman), where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. It is in the public interest that such bodies have an expectation that, if the allegation is made out, the offending professional will meet or at least contribute to the costs incurred in bringing about the application; Robermanat [30].
40 In Roberman, the applicant was unsuccessful in relation to some of the allegations brought against the practitioner in question. The Tribunal considered that it was appropriate in that case that the respondent pay onethird of the applicant's costs.
41 In terms of the actual amount of costs claimed, the Tribunal's approach is to look not at what has actually been charged to the client, but rather, to consider what reasonable allowance should be made, taking a robust and broad brush approach, in respect of the work necessary to be done to bring the proceedings to a conclusion; Medical Board of Australia and Costley [2013] WASAT 2 at [66], The Owners of Strata Plan 41133 and Lendlease Project Management and Construction (Australia) Pty Ltd [2014] WASAT 6 (S) at [5].
The parties' submissions
42 The Board relies on the principles set out in Roberman and seeks an order that the Practitioner pays 100% of the Board's costs of the proceedings.
43 However, the Board recognises that it is open to the Tribunal to award something less than 100% of its costs to take account of the fact that the Board was unsuccessful in relation to some of the allegations brought against the Practitioner. In those circumstances, the Board contends that the Tribunal should order the Practitioner to pay 70% of the Board's costs.
44 The Board says that if this is the finding of the Tribunal, then the limit of 70% should only apply in respect to the costs incurred by the Board up to 29 November 2013. The Board submits that it is then entitled to 100% of its costs incurred from 30 November 2013.
45 The relevance of the date of 30 November 2013 is that this is the day following what the Board describes as the rejection by the Practitioner of an offer from the Board to settle the matter prior to the hearing. In the Board's view, the Tribunal's findings were consistent with that offer of settlement. The Board says that the Practitioner was unreasonable by not accepting the offer at the relevant time.
46 This 'offer of settlement' is relevant to both the Board's and the Practitioner's submissions and it is appropriate to deal with that at this point.
47 It is common ground between the parties that attempts were made between them to try and settle this matter prior to the hearing. The parties have each provided the Tribunal with copies of some of their correspondence, together with a draft of a document entitled 'Statement of Agreed Facts and Agreed Findings'. This latter document appears to be the basis of proposed orders with consent which were to be put to the Tribunal for consideration. The document shows, by way of 'tracked amendments', what seem to be various revisions made or suggested by the respective parties during the course of the negotiation of the terms of that document.
48 At the point where negotiations appear to have ceased, the proposed orders were in essence that the Practitioner would admit to all of the Board's allegations with the exception of the allegation about the 2009 advice and the caning incident. The Practitioner would also concede that these findings constituted professional misconduct. There was no attempt in the proposed orders to agree penalty. The proposed orders refer only to 'the pending determination of penalty'.
49 The parties have informed the Tribunal that the terms of this document could not be finally agreed between the parties. The Board and the Practitioner have both suggested that the reason for the failure to settle and sign the document was the Practitioner's refusal to admit that he had deliberately recommended that the patients' parents use corporal punishment to bring about behavioural change in the patients and the Board's insistence that he should make that admission.
50 What the Tribunal takes from this is that there was never an 'offer of settlement' from the Board in the sense of, for example, what is contemplated by Div 6 of Pt 2 of the State Administrative Tribunal Rules 2004 (WA) (Rules). The document under consideration is not an agreement which, if concluded, would have led to the Board withdrawing its application to the Tribunal. Rather, it was an attempt by the parties to agree the terms of proposed consent orders which they would then be asking the Tribunal to make. They failed to reach agreement as to what should be put before the Tribunal. At least one reason for this was that the Practitioner was not prepared to admit that he had deliberately recommended corporal punishment for the patients.
51 Even if agreement had been reached, there were still a number of further hurdles to be crossed before the matter could have been regarded as being resolved. Not the least of these is that the Tribunal would have needed to be satisfied that it has the power to make the proposed orders, both as to the facts and the appropriate characterisation of the conduct. The Tribunal is not bound to make those orders.
52 Also, it is clear that the parties were proceeding on the basis that any agreement was to be limited to findings by the Tribunal about the Practitioner's conduct and not to the disciplinary outcome. Accordingly, any such agreement could not have led to the matter being finalised without any further proceedings.
53 Further, we are informed by the Practitioner, and have no reason to believe otherwise, that the draft orders were prepared in the context of and following mediation between the parties. The Tribunal regards mediation in vocational and, indeed, all matters, as an important part of the Tribunal's processes and procedures because it enables parties to communicate their respective positions in a way that might lead to the proceedings being discontinued or to consent to orders. It would be unfortunate if the spectre of an adverse costs order following a breakdown in negotiations would lead to one or other party refusing to enter into the mediation process at all.
54 That is not to say that in every vocational matter any attempt by one of the parties to reach a resolution by consent will necessarily be disregarded in considering whether to award costs to one or other party. Each case will turn on its own facts. In most cases, of course, the Tribunal is not privy to information about any negotiations between the parties to resolve a matter. However, where those details have been lawfully disclosed and it appears to the Tribunal that one party has rejected a clear offer from the other to conclude the matter without the need for either party to incur further expense, the Tribunal would take into account in any subsequent award of costs the considerations under r 42(2) of the Rules. We would include in our deliberations a consideration of the merits of the 'offeror's' case and the prospects of the 'offeree' achieving a better outcome from the Tribunal than what has been offered.
55 In this case, it is clear from the Tribunal's findings in Roberts that the Board was successful against the Practitioner in part, and that the Practitioner successfully defended some of the allegations made against him by the Board. The Board has not shown that its offer provided an equal or more favourable outcome for the Practitioner that was in fact achieved.
56 For those reasons, in respect of the parties' attempts to settle or partially settle the matter prior to the hearing, the Tribunal concludes that this should not have any bearing on the outcome of the Tribunal's deliberations.
57 Turning to the Practitioner's submissions, the Practitioner contends that the Tribunal should order that each party bears its own costs in the matter.
58 In the event, however, that the Tribunal decides to order that the Practitioner pays the Board's costs, then the Practitioner submits that costs should only be awarded to the Board in respect of the allegations which were made out and limited to those costs incurred before the settlement negotiations broke down. The Practitioner says in particular that the Board should not be awarded costs in respect of the allegations which were dismissed by the Tribunal.
59 The Practitioner accepts that some of the allegations which were not made out were not discrete issues. However, the Practitioner nonetheless submits that the Tribunal should apply 'the usual rule' that a vocational regulatory body ought not be entitled to a costs order in respect to allegations brought which were ultimately unsuccessful (respondent's submissions 24 November 2014, paragraph 45).
The Tribunal's findings
60 The Board has quantified their claim in an amount of $80,000, exclusive of GST. The hearing of the matter took place over three days and separate submissions were made later in respect of penalty. The engagement of counsel by the Board was entirely appropriate. Taking into account the amount of preparation time which would have been required, and in accordance with the principles enunciated earlier in these reasons, we consider this amount to be a reasonable basis upon which to make our decision.
61 The Tribunal notes that the Board was successful to some extent in its allegations against the Practitioner, albeit that the Tribunal's findings in each case were of unprofessional conduct rather than professional misconduct. Accordingly, we consider that some of the Board's costs should be met by the Practitioner. However, a number of the Board's allegations were dismissed and it is therefore not appropriate to award all of the costs claimed by the Board against the Practitioner.
62 We agree with the Practitioner that it is difficult to conclude with any degree of accuracy how much of the costs can be attributed to the allegations which were made out as opposed to the allegations which were dismissed. The allegations all related to the Practitioner's treatment of the same patients and all of the allegations arose from a single complaint. The Tribunal's decision is that costs should be awarded against the Practitioner in an amount $40,000, being one half of the Board's costs. GST should not be recovered as part of the order.
63 The Tribunal will so order.
Orders
64 The Tribunal orders:
1. Pursuant to s 87(2) of State Administrative Tribunal Act 2004 (WA) and s 195 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) the respondent must pay to the applicant its costs of the proceeding in terms of disbursements to the extent of $40,000 within four weeks of the date of this order or within such further period as agreed by the applicant.
I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
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