MEDICAL BOARD OF AUSTRALIA and TAN
[2022] WASAT 57
•1 JULY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: MEDICAL BOARD OF AUSTRALIA and TAN [2022] WASAT 57
MEMBER: PRESIDENT PRITCHARD
DR B MCGIVERN, MEMBER
DR P WINTERTON, SENIOR SESSIONAL MEMBER
HEARD: 14-17 JUNE 2021, 21-24 JUNE 2021, 28-29 JUNE 2021 AND 21 JULY 2021
DELIVERED : 1 JULY 2022
FILE NO/S: VR 175 of 2019
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
JASON TAN
Respondent
Catchwords:
Vocational regulation Health Practitioner Medical Practitioner Consultant Gynaecological oncologist Disciplinary proceedings, conduct only Allegations of professional misconduct, alternatively unprofessional conduct or unsatisfactory professional performance Orders pursuant to s 196(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) Allegations of professional misconduct in clinical management of patients, below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience
Standard of conduct required for surgical procedures Standard of conduct required for pre-, intra- and post-operative decision-making Standard of conduct required for operation notes/records Standard of conduct required for obtaining informed consent from patients Standard for assessing speed of surgeries and whether surgery performed too quickly
Establishing requisite standard for conduct expected of health practitioner Expert evidence Whether conduct of health practitioner fell below requisite standard If conduct of health practitioner fell below requisite standard, whether conduct fell substantially below requisite standard
Whether alleged conduct occurred Findings that certain notes and records, and conduct in connection with obtaining informed consent, fell below, but not substantially below, standard reasonably expected of a registered health practitioner of an equivalent level of training or experience Turns on own facts
Legislation:
Coroner's Act 1996 (WA), s 3, s 17
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1), s 5, s 6
Health Practitioner Regulation National Law Regulations 2018 (WA), reg 4
Health Practitioner Regulation National Law, s 156(1)(a), s 193(1), s 193(2), s 196(1)(b), s 196(2)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4), s 61(4)(g), s 61(4)(h), s 62(3)
Result:
Finding of unsatisfactory professional performance
Category: A
Representation:
Counsel:
| Applicant | : | Mr M D Cuerden SC |
| Respondent | : | Mr M L Bennett and Ms C Davies |
Solicitors:
| Applicant | : | Tottle Partners |
| Respondent | : | Bennett + Co |
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Chaterson v Gerson [1981] QB 442
Chiropractic Board of Australia and Ebtash [2020] WASAT 86
Hookey v Paterno [2009] VSCA 48
Johnson v Biggs [2000] NSWCA 338
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Panegyres v Medical Board of Australia [2020] WASCA 58
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434
Wallace v Kam (2013) 250 CLR 375
REASONS FOR DECISION OF THE TRIBUNAL:
The Medical Board of Australia (Board) alleges that Dr Jason Tan, a specialist obstetrician and gynaecologist who practises principally in gynaecology and gynaecological oncology, has behaved in a way that constitutes professional misconduct (alternatively, unprofessional conduct or unsatisfactory professional performance) in his clinical management of six patients over a period between late 2015 and 2017.
By an application filed on 16 December 2019 made under s 193(1)(a) of the Health Practitioner Regulation National Law[1] (National Law), the Board applied to the Tribunal for:
(a)an order or orders pursuant to s 196(1)(b) of the National Law, that the conduct alleged against Dr Tan amounts to professional misconduct, alternatively unprofessional conduct or unsatisfactory professional performance, each of which would require a finding that Dr Tan's conduct has fallen below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (Requisite Standard);[2] and
(b)the imposition of a sanction or sanctions pursuant to s 196(2) of the National Law.
[1] The National Law, which comprises the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNL Act), applies as a law of Western Australia: s 4(1) of the HPRNL Act.
[2] As to which, see [9] below.
In summary, and as will be detailed further below, the Board's allegations against Dr Tan:
(a)pertain to his clinical management (including pre- and post-surgical management) of six female patients (who have been anonymised in these reasons),[3] as follows:
[3] On 14 June 2021, pursuant to s 62(3), s 61(4)(g) and s 61(4)(h) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal ordered that the names of the patients the subject of the allegations in these proceedings and any identifying information in relation to them are not to be published.
(i)Patient F, in connection with surgery Dr Tan performed on 8 February 2017;
(ii)Patient P, in connection with surgery Dr Tan performed on 30 July 2016;
(iii)Patient C, in connection with surgery Dr Tan performed on 7 February 2017;
(iv)Patient R, in connection with surgery Dr Tan performed on 9 May 2017 and 30 May 2017;
(v)Patient W, in connection with surgery Dr Tan performed on 6 January 2016; and
(vi)Patient Y, in connection with surgery Dr Tan performed on 19 April 2017;
(b)were described, in opening, as raising issues of concern, not only about the management of each patient, considered in isolation, but as also 'revealing what are properly regarded as patterns of conduct and therefore systemic issues in [his] practice';[4] and
(c)may broadly be organised into allegations about six 'classes' of conduct, being Dr Tan's:
(i)pre-operative decision-making (that is, the rationale for performing surgery) in relation to Patient F, Patient P and Patient W;[5]
(ii)obtaining of informed consent from Patient F and Patient C;
(iii)intra-operative decisionmaking in relation to the surgeries performed on Patient P and Patient W; [6]
(iv)speed of performing the surgeries on Patient R, Patient W and Patient Y;[7]
(v)post-operative conduct in relation to the surgeries on, and sequalae of, Patient F, Patient P and Patient C; and
(vi)notes and records (that is, the adequacy of those records) made in relation to each of the patients, other than Patient W.
[4] Applicant's Opening Submissions, para 2.
[5] A further allegation was made in relation to Dr Tan's pre-operative decision making in relation to Patient C, but was withdrawn in the course of the final hearing.
[6] A further allegation was made in relation to Dr Tan's intra-operative decision making in relation to Patient C, but this was not pressed at the final hearing.
[7] Allegations were initially also made, but later withdrawn, in connection with the speed of the surgery performed on Patient W, and of the second surgery (performed on 30 May 2017) on Patient R (the allegation concerning the speed of the first surgery on Patient R, performed on 5 May 2017, was maintained).
It is uncontentious that Dr Tan:
(a)has been registered as a medical practitioner since 24 July 2004, and is a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists;
(b)is a sub-specialist in gynaecological oncology, whose work history includes a period as a gynaecological oncology fellow at the Queensland Centre for Gynaecological Cancer (QCGC) in Brisbane (where he relevantly worked and trained with Professor Andreas Obermair and Dr Alex Crandon);
(c)at all material times relevantly practised:
(i)from private rooms at the WOMEN Centre in West Leederville (Centre), which he founded in 2014; and
(ii)as a consultant gynaecological oncologist at St John of God Hospital (Hospital) in Subiaco;
(d)has, since 30 April 2018:
(i)been subject to an undertaking which he provided to, and which was accepted by, the Board pursuant to s 156(1)(a) of the National Law (Undertaking); and
(ii)by reason of the terms of the Undertaking, been subject to restrictions on his practice.
As to the Board's stated grounds for the application, Dr Tan:
(a)denies a number of the Board's factual contentions;
(b)in any event, denies that his conduct the subject of the application has fallen below the Requisite Standard; and
(c)says that the evidence is incapable of supporting a finding of professional misconduct on the basis of 'systemic' inadequacies in his practice because:
(i)the number of patients the subject of the application is small relative to the number of (and outcomes for) patients treated by Dr Tan in the relevant period (that is, between late 2015 and 2017);
(ii)Dr Tan specialised in difficult and complex cases in which patients are 'generally faced with few options and hard choices';[8]
(iii)the Board's allegations go to matters of professional judgment (rather than to matters of technical competency) in a complex field where there is a 'pronounced spectrum' of professional judgments which vary from conservative to aggressive;[9] and
(iv)in the circumstances, the Tribunal would need to be persuaded that the expert opinion supportive of the more 'aggressive' approach of Dr Tan is so far removed from an acceptable range of judgment as to represent professional misconduct.
Onus and standard of proof
[8] Respondent's Opening Submissions, para 4.
[9] With 'aggressive' in this context meaning a greater willingness to undertake surgery in circumstances where other practitioners may have a more conservative approach: Respondent's Closing Submissions, paras 4 and 30.
It is uncontentious that the Board bears the onus of proving its case against Dr Tan to the civil standard (being on the balance of probabilities). Nevertheless, given the seriousness of the allegations of professional misconduct which the Board presses in this case:
[C]ogent evidence will be required to establish the facts on which those allegations depend. Satisfaction that such serious conduct … has been proved will not be achieved by inexact proofs, indefinite testimony, or indirect inferences.[10]
Summary of outcome
[10] Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (Ebtash) at [55], citing: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171; Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Briginshaw).
For the reasons that follow, we:
(a)are satisfied, and find that:
(i)certain of Dr Tan's notes and records (specifically, in relation to Patient F, Patient R and Patient Y); and
(ii)Dr Tan's conduct in connection with obtaining consent for the surgery he performed on Patient C on 7 February 2017,
fell below the Requisite Standard such as to amount to unsatisfactory professional performance; and
(b)otherwise find that the Board has not proved the allegations against Dr Tan.
Legislative framework
Pursuant to s 193(1) of the National Law the Board must refer a matter about a registered health practitioner to the Tribunal[11] if the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct.[12]
[11] For the purposes of the National Law, the Board is the National Board under reg 4 of the Health Practitioner Regulation National Law Regulations 2018 (WA), and the Tribunal is a 'responsible tribunal' pursuant to s 6 of the HPRNL Act.
[12] National Law, s 193(1) and (2).
After hearing a matter referred to it, the Tribunal may make one or more of the decisions set out in s 196(1) of the National Law.[13] Relevantly, these include that the practitioner concerned has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct, or professional misconduct. Those terms describe categories of behaviour of different gravity,[14] and are defined[15] as follows:
[13] National Law, s 196(1)(b).
[14] Panegyres v Medical Board of Australia [2020] WASCA 58 (Panegyres) at [139] (Vaughan JA).
[15] National Law, s 5.
(a)'unsatisfactory professional performance' means:
[T]he knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[;]
(b)'unprofessional conduct' means:
[P]rofessional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes [specific examples of conduct which constitute unprofessional conduct set out in pars (a)-(h) of the definition][;][16]
(c)'professional misconduct' includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
[16] The definition of unprofessional conduct is inclusive of, but not limited to, the conduct specified in paras (a)-(h). Such specified conduct (which includes, for example, contraventions of particular laws and convictions for certain kinds of offences) necessarily constitutes, but is not required for the Tribunal to find, unprofessional conduct: see Ebtash at [47].
In Panegyres, Vaughan JA (with whom Buss P and Murphy JA relevantly agreed) observed, in relation to 'professional misconduct', so defined, that:
(a)the definition is inclusive and does not contain an exhaustive statement of what may constitute professional misconduct (accordingly, the concept of professional misconduct is wider than that which is provided for in pars (a) to (c));[17]
[17] Panegyres at [149] and [152].
(b)the definition has both a 'performance component' (in pars (a) and (b)) and a 'conduct component' (in par (c));[18] and
[18] Panegyres at [150].
(c)as to the 'performance component' under pars (a) and (b):
(i)there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct;[19]
[19] Panegyres at [151].
(ii)there is a difference between pars (a) and (b) of the definition – par (a) is concerned with a single instance of unprofessional conduct, while par (b) is concerned with more than one instance (that is, multiple instances) of unprofessional conduct;[20]
[20] Panegyres at [150].
(iii)a finding of professional misconduct under this component involves, in substance, two elements:
1.First, the practitioner's conduct as established must constitute one (in the case of par (a)) or more (in the case of par (b)) instance or instances of unprofessional conduct. (As to this element it is necessary to draw on the s 5 definition of 'unprofessional conduct').
2.Second, the conduct must individually (in the case of par (a)) or taken together (in the case of par (b)) amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The second element involves answering three questions:
1.What level of training or experience is possessed by the practitioner?
2.What standard of conduct would be reasonably expected of a registered health practitioner of that level of experience?
3.Was the conduct of the practitioner substantially below the standard identified in answer to question 2?
The enquiry as to the second element is thus potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience (as applicable under pars (a) and (b) of the definition of professional misconduct). But the standard may not always be the same. More significantly, for professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be 'substantially below' the standard[;][21]
(d)the 'conduct component' under par (c):
(i)expounds the concept of professional misconduct in terms of conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession; and
(ii)provides part of the context in which pars (a) and (b) are to be construed, giving an indication of the degree of serious departure from the Requisite Standard required for conduct to be 'substantially below' the standard, and the gravity of making such a finding.[22]
[21] Panegyres at [153] - [155].
[22] Panegyres at [157].
If any finding is made under s 196(1)(b) of the National Law, the Tribunal may decide to take one or more of the steps set out in s 196(2) in respect of the practitioner. They include:
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration[;]
…
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
Issues to be determined
The hearing dealt only with whether the Board had established the allegations it made against Dr Tan. It follows, therefore, that the issues for the Tribunal to determine are whether, in relation to each of the grounds for the application, the Tribunal is satisfied, on the balance of probabilities, and by reference to cogent evidence (having regard to Briginshaw):[23]
(i)that Dr Tan engaged in the conduct alleged by the Board; and
(ii)if so, that that conduct fell below the Requisite Standard; and
(iii)if so, the degree to which Dr Tan's conduct fell below the Requisite Standard.
Conduct of the proceeding and overview of the evidence
[23] See [6] above.
As noted above, the proceeding was commenced upon the Board filing an application in the Tribunal on 16 December 2019. That application was amended in terms of the Applicant's Amended Application dated 2 June 2021 (Application), to which Dr Tan filed an Amended Response on 11 June 2021 (Response).[24]
[24] For convenience, in these reasons we will refer to the Applicant's Amended Application dated 2 June 2021 as the Application, and to the Amended Response dated 11 June 2021 as the Response.
A final hearing of the proceeding was conducted over 11 days between 14 June 2021 and 21 July 2021.
In addition to their oral submissions, each of the parties filed written submissions as follows:
(a)Applicant's Opening Submissions filed 3 June 2021;
(b)Respondent's Opening Submissions filed 9 June 2021;
(c)Applicant's Closing Submissions filed 16 July 2021;
(d)Respondent's Closing Submissions filed 16 July 2021; and
(e)Respondent's Reply Submissions filed 21 July 2021.
The bulk of the evidence led, and submissions made, by the Board (and the responsive evidence and submissions of the respondent) was directed to allegations about Dr Tan's conduct in connection with Patient F.
Documentary evidence
On 21 May 2021, the parties filed an agreed bundle of documents for hearing, comprising 325 items (Agreed Bundle). A further 66 items were tendered as exhibits in the course of the hearing. The documentary evidence included:
(a)images, including interactive positron emission tomography (PET) scans;
(b)records produced by the rooms of Patient F's general practitioner, Dr W;
(c)records, including computer records, produced by the Centre; and
(d)hospital records.
Expert evidence
The Board and Dr Tan each called two expert witnesses, as follows:
(a)the Board called:
(i)Professor Jonathan Carter, Gynaecological Oncologist, MBBS, DipRACOG, FACS, FRANZCOG, CGO, MS, MD; and
(ii)Associate Professor Peter Grant, Gynaecological Oncologist, MBBS, FRCS (Ed), FRANZCOG, CGO.
(b)Dr Tan called:
(i)Professor Andreas Obermair, Gynaecological Oncologist, MD, FRANZCOG, CGO; and
(ii)Dr Alex J Crandon, Gynaecological Oncologist, MBBS, MRCOG, FRANZCOG, PhD, FRCOG, CGO.
Before the hearing, a conferral of the expert witnesses was conducted by the Tribunal pursuant to which the expert witnesses:
(a)were each provided with a copy of the Agreed Bundle and asked to address an agreed set of questions (Expert Issues);[25]
(b)prior to, and for the purposes of, the conferral meetings (on 31 May 2021 and 2 June 2021) produced individual reports addressing the Expert Issues, which were tendered, as follows:
(i)expert report of Professor Grant dated 27 May 2021;[26]
(ii)expert report of Professor Carter dated 27 May 2021;[27]
(iii)expert report of Dr Crandon dated 27 May 2021;[28] and
(iv)expert report of Professor Obermair dated 26 May 2021;[29] and
(c)following the conferral meetings, produced a joint report (filed on 10 June 2021: Joint Statement), and an addendum to that report (filed on 15 June 2021: Supplementary Joint Statement), addressing the Expert Issues.[30]
[25] Applicant and Respondent's Amended Minute of Proposed Questions to Experts dated 15 April 2021.
[26] Exhibit 374.
[27] Exhibit 375.
[28] Exhibit 376. An earlier report of Dr Crandon dated 5 February 2018, which was not specifically directed to the agreed Expert Issues, was also tendered (Exhibit 382).
[29] Exhibit 377. Two earlier reports of Professor Obermair, which were not specifically directed to the agreed Expert Issues, were also tendered, as follows: report dated 11 February 2018 (Exhibit 379) and report dated 8 July 2020 (Exhibit 380).
[30] Together, Exhibit 378.
The four expert witnesses all attended the hearing via video-link and gave concurrent oral evidence on 21 and 22 June 2021.
Other witnesses
The Board called the following witnesses:
(a)Mr F, the husband of Patient F, who made a witness statement dated 12 March 2021 which was tendered,[31] and gave oral evidence on 15 June 2021;
[31] Exhibit 365.
(b)Ms S, a close friend of Patient F, who made a witness statement dated 17 March 2021 which was tendered,[32] and gave oral evidence on 15 June 2021;
[32] Exhibit 366.
(c)Dr Andrew Dean, a medical oncologist who:
(i)was Patient F's treating oncologist; and
(ii)also made a witness statement dated 31 March 2021, which was tendered,[33] and gave oral evidence on 15 June 2021;
[33] Exhibit 370.
(d)Dr Girolamo ('Jerry') Moschilla, a radiologist and nuclear medicine consultant who:
(i)reported on certain of the imaging relating to Patient F; and
(ii)made a witness statement dated 22 October 2020, which was tendered,[34] and gave oral evidence on 17 June 2021;
[34] Exhibit 371.
(e)Dr Stuart Salfinger, a specialist gynaecologist sub-specialising in gynaecologic oncology who:
(i)was involved in the surgical and medical care of Patient F; and
(ii)made a witness statement dated 30 October 2020 which was tendered,[35] and gave oral evidence on 16 June 2021;
(f)Dr Andrew Wesseldine, a general physician and geriatrician who:
(i)worked at the Hospital at the same material times as Dr Tan and who was involved in the care and management of Patient C; and
(ii)gave oral evidence on 15 June 2021; and
(g)Ms C, the daughter of Patient C, who made a witness statement dated 6 October 2020 which was tendered,[36] and gave oral evidence on 17 June 2021.
[35] Exhibit 367.
[36] Exhibit 372.
Patient F unfortunately passed away on 22 June 2019 and could not, therefore, be called to give evidence. The Board did, however, tender:
(a)a statement made by Patient F on 7 August 2018;[37]
(b)a witness statement of Patient F dated 8 February 2019;[38] and
(c)two magazine articles about Patient F, said to contain her account of various matters; and various social media posts made by Patient F.[39]
[37] Exhibit 282.
[38] Exhibit 364.
[39] Exhibit 362 (being an article published in Stellar magazine dated 9 February 2019) and Exhibit 363 (being an article published in Marie Claire magazine dated 28 February 2018), and Exhibits 308-317.
Dr Tan:
(a)made and tendered three personal witness statements, as follows:
(i)an amended witness statement dated 21 June 2021;[40]
(ii)a supplementary witness statement dated 10 June 2021;[41] and
(iii)a further supplementary witness statement dated 21 June 2021 (with attachments);[42]
(b)gave oral evidence on 24 and 28 June 2021;
(c)called Mr Mark Dutton, the principal of Datamerge, who made a witness statement dated 28 June 2021 (with attachments) which was tendered,[43] and gave oral evidence (by video-link) on 29 June 2021;
(d)tendered the witness statement dated 6 July 2021[44] of Ms Alexei Simone Behr, WA Team Leader at Genie Solutions, who was not required to attend to be cross examined.
General observations on credibility
[40] Exhibit 383.
[41] Exhibit 384.
[42] Exhibit 385.
[43] Exhibit 391.
[44] Exhibit 392
We set out below our general observations about the various witnesses and their credibility. Any further specific findings about the credibility of, or the weight to be given to, particular parts of each witness' evidence will be addressed as necessary in our findings of fact through the remainder of these reasons.
Expert witnesses
We accept the expertise of each of the expert witnesses and, in general:
(a)the relevance of that expertise to the opinions provided; and
(b)the independence of each of the experts in providing their oral and written evidence.
We note that Professor Obermair and Dr Crandon both had a role in training Dr Tan and thus knew him from that training,[45] and clearly shared a number of his views and approaches to clinical practice and surgery. However:
[45] See, for example, Exhibit 376 page 3; ts 515, 22 June 2021. It was not suggested that Professor Obermair or Dr Crandon maintained a friendship with him or had social contact with him.
(a)we did not consider that those matters cast doubt upon the independent and impartial nature of their evidence;
(b)rather, as emerged from the evidence of the four experts, there appears to be a spectrum of views (or different schools of thought) about gynae-oncological surgery. As Professor Obermair commented:
[P]eople say that there are units [in Australia] that employ a different degree of surgical aggressiveness, and what we hear from our fellows and trainees is that in Queensland we are one of the more aggressive units[;][46]
and
(c)we formed the view that the divergence (where it existed) between the evidence of Professor Carter and Professor Grant on the one hand, and Dr Crandon and Professor Obermair on the other, was reflective of that spectrum, or an exercise of judgment referable to the specific facts of a case, rather than of any lack of independence.
[46] ts 514, 22 June 2021.
Indeed, as will be referred to in more detail in the reasons that follow, the experts achieved a considerable degree of agreement across a range of issues, which (as we would expect from independent experts) did not always reflect or support the contentions of their instructors.[47]
[47] This is consistent with the Tribunal's 'Guide for experts giving evidence' which instructs that: 'An expert must exercise his or her independent professional judgment in relation to the conferral and joint statement and must not act on any instruction or request by a party, representative or any other person to withhold or avoid agreement'.
It follows that:
(a)we do not accept the Board's submission that Professor Obermair's evidence (which was described by counsel for the Board as being, in a number of respects, 'plainly argumentative') was such as to 'undermine his impartiality and reliability as an expert witness';[48] and
(b)we are unable to accept the Board's submission that the opinions of Professor Carter and Professor Grant should generally be preferred over that of Dr Crandon and Professor Obermair.[49]
[48] Applicant's Closing Submissions, paras 90-96.
[49] Applicant's Closing Submissions, para 88.
Rather, we have approached the weight to be given to the various expert opinions on an issue-by-issue basis, as reflected in the determination of each ground in the reasons that follow.
Dr Salfinger, Dr Dean and Dr Moschilla
Each of Dr Salfinger, Dr Dean and Dr Moschilla:
(a)had a role in the management, review and treatment of Patient F; and
(b)were called principally as witnesses of fact. However, given their expertise and particular dealings with Patient F, we nevertheless gave weight to the opinions they expressed, within their respective areas of expertise, in their evidence regarding Patient F.
We considered each of them to be reliable witnesses. Specifically:
(a)we regarded Dr Dean as an undoubtedly credible and reliable witness, who gave helpful and measured evidence;
(b)Dr Moschilla impressed us as an honest and reliable witness; and
(c)although there was clearly some tension between the perspectives of Dr Salfinger and Dr Tan (and, it appeared, likely tension in their professional relationship also), that did not raise any doubts in our minds as to Dr Salfinger's truthfulness or the reliability of his evidence.
Mr F and Ms S
Mr F (Patient F's husband) and Ms S (Patient F's close friend) were called as witnesses of fact, principally to address communications that passed between Patient F and Dr Tan before and after the 8 February 2017 surgery (noting that Patient F could not give her own evidence in this regard).[50]
[50] See [125] below.
We accepted Ms S's truthfulness, though ultimately found her evidence to be of limited assistance because:
(a)she was not present during any exchange between Patient F and Dr Tan;
(b)her evidence was therefore limited to her interactions with Patient F (and to some extent, also with Mr F), and the impressions she formed from those interactions; and
(c)in any event, as acknowledged by the Board, her evidence was effectively limited to addressing the allegation that Dr Tan had requested Patient F to withdraw a complaint she made to the medical director of the St John of God Hospital in Subiaco (Hospital).[51]
[51] Applicant's Closing Submissions, para 11.
Mr F's evidence was of more relevance because he attended the consultations between Patient F and Dr Tan, and could also speak to his observations regarding Patient F's symptoms.
We accepted the honesty of Mr F's evidence,[52] but were not satisfied that his evidence was entirely reliable, because:
(a)as will appear in relation to our consideration of the evidence concerning particular grounds relating to Patient F, parts of Mr F's evidence were successfully challenged or undermined by their inconsistency with other evidence;[53]
(b)it was apparent from Mr F's crossexamination that he had a very limited recollection of Patient F's consultation with Dr Tan on 20 December 2016 (December Consultation) and the consultation on 31 January 2017 (January Consultation);
(c)Mr F clearly felt 'lied to and betrayed'[54] by Dr Tan because he and Patient F thought that Dr Tan was going to remove all of Patient F's tumours but felt, after the surgery, that 'there was very limited things done … nothing was done that was planned to remove the tumour'.[55] That antagonism to Dr Tan was clearly evident in some of Mr F's answers in crossexamination, in that he was reluctant to directly answer questions;[56]
(d)the events following Patient F's diagnosis, leading to her death, were understandably deeply emotional for Mr F, as was apparent from his testimony. The impact of the emotional sequelae for Mr F caused us to have a real concern about the clarity of his recollection of the material events; and
(e)in the end, while we did not reach an adverse conclusion about Mr F's honesty, we formed the view that there were some material matters that he did not recall, or (despite his honest claim to the contrary) that he did not accurately recall, and that his recollection of conversations with Dr Tan was not entirely reliable.
Dr Wesseldine
[52] And indeed this is not disputed by Dr Tan: Respondent's Reply Submissions, para 25.
[53] Examples include those identified in the Respondent's Reply Submissions, paras 26-28.
[54] ts 172, 15 June 2021.
[55] ts 172, 15 June 2021.
[56] ts 170, 15 June 2021.
Dr Wesseldine gave evidence in connection with Patient C, including in relation to an interaction he had with Dr Tan following Patient C's death.
Dr Wesseldine demonstrated a limited independent recollection of the relevant events, but we accept that he was reliable to the extent of that recollection.
Ms Behr and Mr Dutton
The evidence of Ms Behr was not challenged, and we accept it. We found Mr Dutton to be a credible and reliable witness
Credibility findings in relation to Dr Tan
The Board invited the Tribunal to find that Dr Tan was not a credible witness.
In its opening submissions, the Board:
(a)pointed to the fact that, to accommodate the availability of all four of the expert witnesses, the concurrent expert evidence was led before Dr Tan gave his oral evidence (with Dr Tan remaining in the room);
(b)noted this to be 'contrary to the Board's preferred position'; and
(c)foreshadowed that consequently it may invite the Tribunal to draw adverse inferences or make adverse findings in relation to Dr Tan's evidence.[57]
[57] Applicant's Opening Submissions, paras 35-37.
In the event, the Board's submissions about the general findings the Tribunal could make about Dr Tan's credibility did not turn on that point.
Rather, the Board contended (in summary) that:
(a)Dr Tan demonstrated a tendency in his evidence to:
(i)exaggerate matters to seek to bolster his position;
(ii)give evasive answers;
(iii)make statements that were unresponsive to the question/s being put to him, and to make unsolicited statements; and
(iv)make statements which were at times speculative, argumentative or untenable in nature;
(b)Dr Tan's truthfulness should be doubted, having regard to inconsistencies in a number of key documents, and Dr Tan's evidence, namely:
(i)three letters, and different versions of those letters, written by Dr Tan on 31 January 2017 regarding Patient F, such that the Tribunal should find that Dr Tan created the amended versions of those letters 'well after [31 January 2017], (and well after the surgery of 8 February 2017), in the context of the [Australian Health Practitioner Regulatory Agency] AHPRA investigation';[58]
(ii)Dr Tan's consultation records, and a screenshot Dr Tan sent to Professor Obermair (Screenshot);[59] and
(iii)Dr Tan's account of his consultations with Patient F and his contemporaneous notes about those consultations.
[58] Applicant's Closing Submissions, para 39.
[59] Exhibit 381.
By way of explanation at this stage, these inconsistencies in the documentation pertained to whether Patient F had symptoms of an impending bowel obstruction when Dr Tan saw her at the January Consultation, and whether that impending bowel obstruction was the basis for Dr Tan's decision to recommend that Patient F undergo surgery on 8 February 2017. The Board's contention was that in the course of the AHPRA investigation into his conduct in relation to Patient F, Dr Tan manufactured evidence, by altering the consultation record he made of the January Consultation, and the letters he sent which referred to the January Consultation, so as to indicate that at the January Consultation he had concluded that Patient F showed symptoms of an impending bowel obstruction. The Board's contention was that Dr Tan manufactured this evidence in order to bolster his claim that his decision to recommend surgery was based on the need to deal with Patient F's impending bowel obstruction.
We note at this point that although the Board's contentions as to Dr Tan's credibility do not of themselves sound in an application for findings to be made under s 196(1)(b) of the National Law:
(a)those contentions, and, in particular, the Board's contentions that Dr Tan altered his records in response to, or in contemplation of, an investigation into his professional conduct, are themselves very serious matters;
(b)further, the inferences the Board invites us to draw, about the authenticity of documents upon which Dr Tan relied, comprise significant evidentiary planks in the Board's case against him; and
(c)accordingly, any associated adverse finding in relation to Dr Tan's credit would have serious consequences for Dr Tan, and should therefore only be made on the balance of probabilities if the Tribunal feels an actual persuasion supported by cogent evidence.[60]
[60] See the discussion at [6] above in relation to Briginshaw.
As is apparent from the summary above, many of the Board's contentions in relation to Dr Tan's credibility relate to evidence relied upon by Dr Tan to support his claim that he offered surgery to Patient F because, at the January Consultation, she had symptoms of an impending bowel obstruction.
The Centre's records are of particular relevance to that issue. It is convenient, therefore, to commence by considering the evidence regarding how those records were created and managed.
Findings as to the creation and management of records at the Centre
We start by considering the evidence as to when the consultation records in relation to Patient F were made.
It was not disputed,[61] and we find, that:
[61] As to the evidence of Mark Dutton (Datamerge) and Alexei Simone Behr (Genie Solutions) about these matters, see Applicant's Closing Submissions, para 86.
(a)the Centre has, since around August 2011, used a document management system known as Genie Desktop, created by Genie Solutions;[62]
[62] Exhibits 383 and 392.
(b)Genie Solutions develops practice management software (including Genie Desktop) for medical practices;[63]
[63] Exhibit 392, para 2.
(c)when the Centre started using Genie Desktop, version 7 of that application was in use. The current version is version 9.3.9 which was released on 22 December 2020;[64]
[64] Exhibit 392, paras 3.2 and 4.1.
(d)it has at all material times been a feature of the Genie Desktop application that:
(i)it 'locks' the consultation record at midnight each day, and as a result, it is not possible to edit and save any changes to a consultation record (that is, to the notes a practitioner makes of a consultation with a patient) after midnight on the date that the consultation record was created; but rather
(ii)if a consultation record is amended after midnight on the day that the consultation is created, the amendment is recorded as an addendum to the consultation record;[65]
(e)a company, Datamerge, has been engaged since 2015 to provide IT infrastructure support to the Centre. Datamerge:
(i)does not have access to the Genie Solutions software (and therefore to the content of the records created using that software);[66] but
(ii)can access the servers on which the Centre's database records (including backups) are stored;[67] and
(iii)is able to ascertain when (but not how) a record is amended.[68]
[65] Exhibit 392, para 4.4.
[66] Exhibit 391; ts 975 and 977, 29 June 2021.
[67] ts 976, 29 June 2021.
[68] ts 975-976, 29 June 2021.
Dr Tan gave evidence, that:
(a)he typed his clinical notes into a consultation record using the Genie software, and he typed those notes during the consultation with the patient. Each consultation record was in a template form, and information was entered under headings in the template;
(b)the Genie Desktop software permitted letters (for example to a patient's referring practitioner) to be generated from a consultation record, so that they automatically incorporated the contents of that consultation record; and
(c)such letters can be modified before they are sent (including after midnight on the day on which a consultation record is created). We understood this evidence to mean that any amendments to a letter, which incorporated the consultation record, would reflect the content of that record at the time the letter was drafted.
As we have noted, the operation of the Genie Desktop system used by Dr Tan was such that any changes made to a consultation record after midnight on the day the record was generated would only appear in the consultation record as an addendum. We make that finding.
Dr Tan's evidence was that he made a consultation record on each occasion on which he saw a patient.
He saw Patient F in the December Consultation and in the January Consultation. He made a consultation record on each occasion. The record of the December Consultation which Dr Tan provided to AHPRA in August 2018, in response to a notice to produce issued by AHPRA in the course of its investigation, was relevantly in the following terms:[69]
[69] Exhibit 51.
Histo: high grade serous adenoCA.
Did not have interval debulking.
…
Wants to know value of surgery.
Most recent PET: residual cystic mass FDG avid in pelvis 6cm.
Patient requesting surgery to remove mass.
…
[I]f pelvic mass symptomatic, then would offer surgery, especially not really decreased in size in last 2 PET scan, and abutting rectum (risk stoma).
…
Other Comments: Long discussion re: pros and cons of surgery, and this being an evidence freee [sic] zone.
Diagnosis: Ovarian high grade serous CA
Persistent symptomatic pelvic mass not responding to chemo.
Treatment/Plan: Repeat PET in 4 week, and if pelvic mass still FDG avid, may offer surgery.
The record of the January Consultation which Dr Tan provided to AHPRA in August 2018, in response to a notice to produce,[70] was, relevantly, in the following terms:[71]
Pt decided to proceed with surgery, knows risks of surgery including stoma.
PET:
There is persistent FDG uptake in relation to calcified pelvic masses and stranding above the uterus. This activity has increased slightly compared to the previous scan. …
…
Diagnosis: Ovarian cancer: suboptimal response to chemo
Residual disease on PET.
Breast lump: previously biopsied.
Treatment/Plan: Laparotomy, remove palvic [sic] mass +/- proceed as required including debulking.
[70] ts 796, 28 June 2021.
[71] Exhibit 51.
Dr Tan's evidence was that he did not remember amending the January Consultation record.[72] Dr Tan also gave evidence (which we discuss in greater detail below) that later (but apparently within a week after the January Consultation) he reviewed and amended the three letters sent on the day of the January Consultation. However, his evidence was that he 'did not consider it necessary to amend the consultation notes (which by then were locked)'.[73] Later, when asked for clarification about his practice in that respect, his evidence was that sometimes after reviewing the letters and amending them, he would change his consultation notes too.[74]
[72] ts 785, 28 June 2021.
[73] Exhibit 385, para 14.
[74] ts 701, 24 June 2021.
However, it emerged during the hearing that a copy of Dr Tan's records from the relevant period, including his consultation records in relation to Patient F, were contained in backup files. Copies of the consultation record for the December Consultation and the January Consultation were obtained from the backup files.[75] The backup copy of the December Consultation record was relevantly in identical terms to the December Consultation record set out above. The backup copy of the January Consultation record was not in the same terms. Relevantly, the backup copy of the January Consultation record was in the following terms:
[75] Exhibit 390.
Pt decided to proceed with surgery, knows risks of surgery including stoma.
PET:
There is persistent FDG uptake in relation to calcified pelvic masses and stranding above the uterus. This activity has increased slightly compared to the previous scan. …
…
Diagnosis: Ovarian cancer: suboptimal response to chemo.
Symptomatic with signs early bowel obstruction.
Residual disease on PET.
Breast lump: previously biopsied.
Treatment/Plan: Laparotomy, remove palvic [sic] mass +/- proceed as required including debulking.
Specifically, the words 'Symptomatic with signs early bowel obstruction' (Disputed Text) appeared in the second line under the heading 'Diagnosis' in the backup copy of the January Consultation record.
The evidence of Mr Dutton, which we accept, was that the backup file contained a copy of all of Dr Tan's electronic records from the Genie Desktop. We understood that evidence to mean that the backup copy of Dr Tan's records constituted an identical copy of those records as they were at the time the backup was made.
A copy of the January Consultation record formed part of the backup copy which had been made of all of Dr Tan's records. Mr Dutton's evidence was that the backup file had been found on a server at the Centre, and the backup file as a whole had last been edited on 22 April 2017.[76]
[76] Exhibit 391, para 8.
Dr Tan's evidence was that a backup copy of all of his records had been made when work was being undertaken on the internet connection to the Centre, which was between November 2016 and January 2017. (He was unable to recall whether it was the case that that work was finished well before 22 April 2017).[77]
[77] ts 786-787, 28 June 2021.
Mr Dutton's evidence, which we accept, was that notwithstanding that the backup file, which was last edited on 22 April 2017, was stored on a server on the Centre's premises, it would have been practically impossible for Dr Tan to have edited the backup file while retaining the same date of entry for the January Consultation record.[78] The only inference which can be drawn from that evidence is that the backup copy is a copy of the January Consultation record, in the form in which it appeared in the Genie Desktop, on the date on which the backup copy was made.
[78] ts 976, 29 June 2021.
There was no evidence as to how often backup copies of the Genie Desktop were generated. Given Mr Dutton's evidence that the backup file was last edited on 22 April 2017, it can be inferred that the backup copy of the January Consultation record came into existence prior to 22 April 2017. We make that finding.
There is nothing on the face of the backup copy of the January Consultation record to indicate that the January Consultation record itself had been amended on a date after 31 January 2017. In other words, the Disputed Text did not appear in the record as an addendum. Given our finding in relation to the operation of the Genie Desktop software, that would tend to suggest that Dr Tan amended the January Consultation record in the Genie Desktop, to include the Disputed Text, on 31 January 2017.
However, as we have already noted, Dr Tan's evidence was that he did not remember amending the January Consultation record.
Given the existence of the backup copy of the January Consultation record, and the fact that it contains the Disputed Text, together with our findings in light of Mr Dutton's evidence, it follows that Dr Tan must have been mistaken as to his recollection that he did not amend the January Consultation record. We make that finding.
Given that the backup copy of the January Consultation record includes the Disputed Text within the entry for 31 January 2017, rather than as an addendum, the only inference which is open is that Dr Tan must have amended the January Consultation record at some stage on 31 January 2017. We make that finding.
There was no specific evidence as to how the January Consultation record Dr Tan produced to AHPRA in August 2018 was actually generated. The evidence was that documents, including the January Consultation record, were provided to AHPRA by the Centre in response to a requirement to produce documents relating to AHPRA's investigation. While they clearly were provided on the basis that they constituted a copy of Dr Tan's records, there was no evidence as to how those documents were actually generated.
Notwithstanding the discrepancy between the content of those records and the backup copy of the January Consultation records, and the Screenshot issue discussed below, the Board did not seek to obtain the evidence of an expert in information technology to contradict the evidence adduced by Ms Behr and Mr Dutton.
As a consequence, we are left in the position where the evidence did not permit us to draw any conclusion as to why the January Consultation record Dr Tan produced to AHPRA in August 2018, was different in terms from the backup copy which had been in existence, and unchanged, since April 2017. That being the case, we are unable to exclude inferences favourable to Dr Tan to explain that discrepancy, such as that a copy of the consultation records made from the Genie Desktop and given to AHPRA copied the version of the January Consultation record made by Dr Tan during his consultation with Patient F on 31 January 2017 but not the version which existed after he made changes made later in the same day (and which version was copied when a backup copy of Dr Tan's records was generated), or that the discrepancy was due to a software 'glitch'. It is not necessary for us to resolve this issue. The point is simply that we are unable to draw the adverse inference against Dr Tan that the Board invites us to draw when that adverse inference is clearly not the only inference open on all of the evidence.
The letters sent on 31 January 2017
We turn, next, to the evidence concerning Dr Tan's letters dated 31 January 2017 regarding Patient F.
There was no dispute that on 31 January 2017, Dr Tan wrote three letters - to each of Dr W (Patient F's general practitioner), to the intensive care unit (ICU) at the Hospital, and to an anaesthetist involved in Patient F's care (Original Letters).[79] Each of those letters referred to the January Consultation in the same terms, relevantly:
[79] Exhibits 60, 106, 357, 366 and 369 (the 'Original Letter' to the anaesthetist was not produced).
Diagnosis: Ovarian cancer: suboptimal response to chemo
Residual disease on PET.
Breast lump: previously biopsied.
Treatment/Plan: Laparotomy, remove pelvic mass +/- proceed as required including debulking.
In short, the content of those Original Letters relevantly was in precisely the same terms as the January Consultation record produced to AHPRA during its investigation, but with one difference, namely the spelling error contained in the January Consultation record was not reproduced in the Original Letters but was, rather, corrected. Furthermore, the formatting of the extract from the Consultation record was altered, so that the heading (for example, 'Diagnosis') was justified to the left-hand side of the document, and the content included under that heading in the Consultation record was set out in a column opposite that heading in the letter.
The only evidence in relation to how the Original Letters were generated came from Dr Tan. There was no evidence which contradicted that part of his evidence, and we accept it. In his further supplementary statement dated 21 June 2021,[80] and in his oral evidence, Dr Tan referred to having a 'standard practice' of generating, reviewing and amending letters, in terms that:
(i)after he completed a consultation with a patient and completed his clinical notes, he would complete a 'cheat sheet' which he would hand to the patient to give to the secretary. This 'cheat sheet' would specify what kind of letter template was required to be used to generate letters after the consultation;
(ii)using Genie Desktop, staff at the Centre generated template letters which were populated from Dr Tan's consultation records, based on the kind of consultation (for example: an initial, pre-operative or post-operative consultation);
(iii)if surgery was scheduled for the patient for less than two weeks after they were seen by Dr Tan, then those letters would be sent without being reviewed by Dr Tan; and
(iv)Dr Tan would review letters of that latter kind within seven days, at which time he would approve or amend the correspondence. His explanation for amending letters was to ensure that his records were accurate.[81]
[80] Exhibit 385.
[81] ts 692, 752 and 754-755, 24 June 2021.
Dr Tan also gave evidence to the effect that if he amended a letter that had already been sent, he would only re-send the amended letter to its recipient if the changes he had made were 'major'.[82]
[82] ts 689-693, 24 June 2021.
Based on that evidence, we find that staff at the Centre generated the Original Letters using templates. The content of the Original Letters was populated directly from Dr Tan's consultation records.
As we understood Dr Tan's evidence, the creation of the letters involved staff populating the letters by copying relevant portions of the consultation records. In light of the correction of the spelling error and the formatting changes, we infer, and we find, however, that in populating the letters with portions of the consultation record, as instructed by Dr Tan, his staff made that correction and formatting changes. There is no alternative explanation for how those changes came about.
We note that the Original Letters bear the words 'Dictated and Electronically Verified by Dr J Tan' above his name at the bottom of each letter. We therefore infer, and we find, that staff were instructed by Dr Tan (via the Cheat Sheet) as to what information from the consultation record should be included in the Original Letters.
However, Dr Tan's evidence was that if a patient's surgery was scheduled for a date less than two weeks after a consultation, the letters sent to the relevant hospital and other practitioners in his name would not be checked by him before they were sent out. That evidence was not contradicted and we accept it.
In this case, Patient F's surgery was scheduled for 8 February 2017, less than two weeks after the January Consultation. We therefore infer, and we find, that the Original Letters were not actually reviewed by Dr Tan before being sent out by his staff on 31 January 2017.
The Original Letters do not contain the Disputed Text adjacent to the heading 'Diagnosis'. If, as we have understood, the Original Letters were generated by being populated with content drawn directly from Dr Tan's consultation records, then it must be the case that the Original Letters reflected the content of the consultation records at the point in time on 31 January 2017 at which the Original Letters were generated. We made that finding.
On 1 August 2018, Dr Tan purported to provide the Board with copies of the Original Letters. However, it was subsequently identified that the documents provided (Amended Letters) were not identical to the Original Letters.[83] Insofar as the Amended Letters referred to the 'Diagnosis' and 'Treatment/Plan', they were in the following terms:
[83] Exhibit 61, 62 and 63 (noting that in exhibit 61, the headings are slightly different 'Proposed Diagnosis' and 'Plan' respectively).
Diagnosis: Ovarian cancer: suboptimal response to chemo
Residual disease on PET.
Breast lump: previously biopsied.
Symptomatic with signs of early bowel obstruction
Treatment/Plan: Laparotomy, remove pelvic mass +/- proceed as required including debulking.
Relevantly, the words 'Symptomatic with signs of early bowel obstruction' were included next to the heading 'Diagnosis'.
We pause there to note that the content relating to 'Diagnosis' is similar, but not identical, to the backup copy of the January Consultation record set out above at [55]. It is not identical in that the words 'Symptomatic with signs of early bowel obstruction' appear in the fourth line rather than the second line under/adjacent to the heading 'Diagnosis' (where the Disputed Text appeared in the backup copy of the January Consultation record). Furthermore, the word 'of' has been inserted whereas that word does not appear in the Disputed Text in the January Consultation record, which reads 'Symptomatic with signs early bowel obstruction'.
Dr Tan accepted that he amended the Amended Letters. He did not recall when he did so. His evidence, rather, was confined to evidence of his standard practice of amending letters within one week of their being generated.
Dr Tan also gave evidence that he did not send out the Amended Letters to the named recipients. We note that he acknowledged that his standard practice of only sending amended letters if the changes made to them were 'major' was 'probably a mistake'.[84]
[84] ts 750, 24 June 2021.
Having regard to all of the evidence, there is no doubt, and we find, that Dr Tan amended the Original Letters on a date prior to 1 August 2018. However, that does not determine precisely when Dr Tan did so, and more specifically, whether he amended the letters only after the investigation into his conduct had begun.
The Amended Letters contain content drawn from the January Consultation record. As we have noted, insofar as the Amended Letters refer to Patient F being 'Symptomatic with signs of early bowel obstruction' they reflect, albeit not in identical terms, the Disputed Text contained in the backup copy of the January Consultation record. As explained above, we have found that the Disputed Text was included in the backup copy of the January Consultation record at some stage on 31 January 2017.
That being the case, we are not able to exclude the possibility that the Amended Letters were created on a date as early as 31 January 2017, but after the January Consultation record was amended, on that date, to include reference to the Disputed Text. We are therefore not persuaded that the evidence permits a finding that Dr Tan altered the Letters after the AHPRA investigation into his conduct commenced (which appears to have been by the end of May 2017).[85]
[85] Exhibit 357.
Furthermore, it is difficult to see what Dr Tan might have hoped to achieve by producing the Amended Letters solely to give to AHPRA in the investigation, particularly when he had not sent the Amended Letters to the addressees. The content of the Amended Letters, on our findings, reflected the backup copy of the January Consultation record which we have found was created on 31 January 2017. Furthermore, given the extent of the AHPRA investigations which were underway (following on from the Hospital's own investigations) it must have been apparent to Dr Tan that AHPRA and the Board would inevitably examine all relevant records in relation to his treatment of Patient F, and thus would have seen the January Consultation record, and also the Original Letters. If the purpose of producing the Amended Letters was somehow to attempt to deceive AHPRA or the Board, it was an astonishingly unsophisticated and unwise attempt.
The Screenshot
We turn, finally, to the evidence concerning the Screenshot.
In the course of the investigation into Dr Tan's conduct, Dr Tan's then solicitors requested Professor Obermair to provide an expert report. In the course of preparing his expert report, in about February 2018,[86] Professor Obermair asked Dr Tan for further documents pertaining to Patient F to fill 'gaps' in the information he had been given.[87] In response, Dr Tan emailed Professor Obermair the Screenshot.[88]
[86] Exhibit 379.
[87] ts 386-388, 21 June 2021.
[88] Exhibit 381.
Thirdly, insofar as the Board was criticised for declining to participate in a further mediation conference shortly before the hearing, we place no weight on that submission. Having regard to the possibility that the joint conferral of the experts might have made a compromise on some issues more likely, the Tribunal inquired whether the parties wished to have a further mediation immediately prior to the hearing. Whether that invitation should be accepted required an assessment by the parties as to whether further mediation would likely be productive. The Tribunal is not privy to counsel's assessment of that matter, or to the without prejudice discussions between counsel in relation to whether a further mediation would be productive. There is no basis for concluding that the Board's decision not to proceed to mediation was unreasonable.
Fourthly, insofar as the Board was criticised for not discontinuing its allegation concerning Dr Tan's alleged failure to comply with his obligations under the Coroner's Act 1996 (WA), we reject that criticism. As the Reasons make clear,[540] the Tribunal's conclusion drew on factual findings relevant to the application of the legislative provisions. We do not consider it was unreasonable for the Board to pursue the Tribunal's determination on that question.
[540] Reasons [438] – [453].
Fifthly, the Board clearly did withdraw allegations when it considered that the evidence was no longer capable of supporting its case.
Sixthly, insofar as the Tribunal observed[541] that Dr Tan's belief that he had been persecuted and victimised was not without some justification, that observation must be understood in the context of a case where there had clearly been a detailed investigation of Dr Tan's practice, where numerous allegations were made, as to both very serious, and much less serious, matters, and where the Board withdrew a number of allegations both before, and during, the hearing. But that observation was not directed to the question whether the Board acted unreasonably for the purposes of an award of costs.
[541] Reasons [113].
Taking a broad brush approach, nothing in the material before us supports the conclusion that the Board commenced and pursued the proceedings as a whole without having a reasonable basis for its belief, discussed at [146]. Nor is there anything in the material which supports the conclusion that the Board has otherwise acted so unreasonably in its conduct of the proceedings as to mean that it would be fair and reasonable to require it to pay some or all of Dr Tan's costs.
Dr Tan's application for costs is dismissed.
(a)The Board's application that Dr Tan pay a contribution towards its costs of the proceedings
The Board sought an order that Dr Tan make a contribution to its costs.
The Board's overall costs up to and including the final hearing totalled $420,684.39 (excl GST) comprising:[542]
(a)Solicitors' fees of $205,726.16;
(b)Counsel's fees of $162,415; and
(c)Disbursements of $52,543.23. (Of those disbursements, the expert fees incurred by the Board totalled $32,282.75).[543]
[542] Board's Submissions [76(g)].
[543] Board's Submissions, Annexure 3.
The Board incurred a further $15,000 in legal costs in preparation for, and attendance at, the penalty and costs hearing.[544]
[544] ts 17, 25 October 2022.
The Board sought a contribution to its overall costs, of a sum fixed at $65,000.[545] That figure represented 15% of the Board's total legal costs up to and including the hearing on penalty and costs.[546]
[545] Board's Submissions [78].
[546] ts 17, ts 19, 25 October 2022.
The Board submitted that that figure was based on the following calculation:
(a)45 hours for senior counsel at $539 per hour (totalling $24,255);
(b)80 hours for junior practitioners at $319 per hour (totalling $25,520); and
(c)$15,763 representing 30% of the total disbursements incurred by the Board.
In the hearing, senior counsel for the Board acknowledged that there was merit in the proposition that that figure was too high.[547] However, junior counsel for the Board submitted that the 15% represented costs reasonably and necessarily incurred by the Board, and recognised the difficulty in working out, with any mathematical accuracy, precisely how much of the costs could be regarded as attributable to the allegations that it succeeded on.[548]
[547] ts 2, 25 October 2022.
[548] ts 18, 25 October 2022.
Furthermore, she submitted that the costs sought were reasonable, on the basis that senior counsel charged only a marginally higher rate than that provided for senior counsel under the scale determinations applicable to the Tribunal and junior counsel's time was charged at a rate less than the rate applicable scale under the applicable determinations.[549]
[549] ts 18, 25 October 2022.
Counsel for Dr Tan submitted that having regard to the very small number of allegations which the Board had actually proved, it was 'preposterous' to even ask for costs.[550] He further submitted that to suggest that to suggest 15% of the Board's costs would be an appropriate reflection of the legal costs incurred in respect of the allegations established by the Board was 'nonsense'.[551] Counsel for Dr Tan submitted that they would hesitate to put any figure on what the Board might appropriately ask for by way of costs, but simply submitted that the Board had failed to offer any persuasive reason for seeking a 15% contribution.[552]
Disposition
[550] ts 40, 25 October 2022.
[551] ts 40, 25 October 2022.
[552] ts 41, 25 October 2022.
Dr Tan's submission – that having regard to the very small number of allegations which the Board had actually proved, Dr Tan should not be ordered to pay costs – has some considerable attraction. However, while the Board should not be compensated for the costs associated with its pursuit of the allegations on which it did not succeed, the fact of the matter remains that it did succeed on the six allegations that constituted the Conduct.
We have also taken into account the fact that had those six allegations been dealt with by the Board or by a panel, Dr Tan would not have been required to pay the Board's costs. That is not an answer to the Board's application here. We have concluded that there was a reasonable basis for the Board commencing the proceedings in the Tribunal. The fact that it did not succeed on all of the allegations it pursued does not warrant denying all of its costs.
Having regard to the principles set out above, we are satisfied that this is an appropriate case for the exercise of our discretion to make an order that Dr Tan make a contribution to the Board's costs of bringing these proceedings.
The Board's case in respect of the six allegations on which it succeeded involved documentary evidence, the evidence of lay witnesses (in the case of the allegation of failure to obtain properly informed consent from Patient C) and expert evidence. In our view, therefore, it is appropriate that the totality of costs claimed by the Board be taken into account for the purpose of determining what contribution should be made by Dr Tan.
However, we reject the Board's submissions as to the appropriate the quantum of that contribution. With the greatest of respect to counsel for the Board, the submission – that a contribution of 15% of the Board's costs was appropriate – bore no resemblance, even on the basis of a rough approximation, to the proportion of the proceedings which was devoted to the six allegations which constituted the Conduct.
We appreciate that no precise mathematical calculation is feasible, nor in the present circumstances should it be attempted. Doing the best we can, our estimate is that the proportion of the Board's case which was devoted to the six allegations that constituted the Conduct involved, was no more than 5%.
Proceeding on that basis, 5% of the Board's overall costs amounts to $21,750.
Approaching the matter from a different perspective, we consider that an award of costs in the vicinity of $10,000 for the alleged failure to obtain fully informed consent, and $2,000 each for the remaining five allegations of failure to keep adequate records, would be a fair and reasonable award of costs in this case.
Taking all of these matters into account, we consider it to be fair and reasonable to fix the costs payable by Dr Tan at $20,000.
In our view, an order that Dr Tan pay a contribution to the Board's costs, fixed in the sum of $20,000, is a fair and reasonable amount to compensate the Board for the six allegations on which it ultimately succeeded.
(h) The orders which should be made
The orders which should be made are:
1.The respondent is reprimanded pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
2.Within 28 days of the date of these orders, or such period as agreed with the applicant, the respondent is to pay a contribution to the applicant's costs of these proceedings, pursuant to s 195 of the National Law or s 87(2) of the State Administrative Tribunal Act 2004 (WA) fixed in the amount of $20,000.
SENIOR SESSIONAL MEMBER DR WINTERTON:
I have read the reasons for decision of the President and Senior Member Le Miere. I agree with their conclusion that Dr Tan should be reprimanded, and with the reasoning to that conclusion.
I also agree with their conclusion that Dr Tan's application that the Board pay his costs of the proceedings should be dismissed, and the reasoning to that conclusion.
However, I am respectfully unable to agree with the conclusion reached by the President and Senior Member Le Miere in relation to the Board's application for costs. Having regard to all of the circumstances, in my view, it would not be fair and reasonable to require Dr Tan to make any contribution to the Board's costs. The Board failed to prove most of its case. It is impossible to determine, with any accuracy, the costs incurred by the Board which are properly attributable to the six allegations on which it succeeded. In my respectful view, in circumstances where Dr Tan has been put to very significant cost in defending the Board's largely unsuccessful case against him, it would not be fair and reasonable to require him to contribute to the Board's costs on the basis of what is, at best, merely an estimate of the Board's costs on those allegations on which it succeeded.
I would dismiss the Board's application for costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
PM
Associate to the Honourable Justice Pritchard
14 NOVEMBER 2023
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