MEDICAL BOARD OF AUSTRALIA and TEASDALE
[2012] WASAT 62 (S)
•22 APRIL 2013
| JURISDICTION | : | STATE ADMINISTRATIVE TRIBUNAL |
| STREAM | : VOCATIONAL REGULATION | ||
| ACT |
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| CITATION |
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| MEMBER |
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| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| BETWEEN |
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AND
JOHN ELVIN TEASDALE
Respondent
Catchwords:
Costs - Disciplinary proceedings - Some allegations abandoned at hearing -
Whether continuing proceedings unreasonable
Legislation:
Medical Practitioners Act 2008 (WA), s 84, s 87
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Result:
Application for costs dismissed
[2012] WASAT 62 (S)
Summary of Tribunal's decision:
Following the abandonment by the applicant of several allegations at the conclusion of the hearing, and findings by the Tribunal that the balance of the allegations were not made out, the respondent sought an order that the Medical Board of Australia pay a portion of his costs.
The Tribunal reviewed the applicable principles in relation to costs of proceedings in the Tribunal in relation to vocational matters, and considered whether, in all the circumstances of the case, the continuation of the proceedings by the Board should lead to an order that the Board pay some of the applicant's costs. It concluded that while criticisms of the Board's case could be made with the benefit of having heard three days of evidence, the Board was entitled to have the evidence, both as to fact, and as to opinion, tested through the hearing process, and that an order for costs should not be made.
Category: B
Representation:
Counsel:
| Applicant | : | Mr P Tottle and Mr M Davies |
| Respondent | : | Mr PD Quinlan SC and Mr N Cooper |
Solicitors:
| Applicant | : | Tottle Partners |
| Respondent | : | Clayton Utz |
Case(s) referred to in decision(s):
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Medical Board of Australia and McCarthy, (unreported, VR 21 of 2011,
30 January 2013)
Medical Board of Australia and Teasdale [2012] WASAT 62
Medical Board of Western Australia and Roberman [2005] WASAT 81(S)
[2012] WASAT 62 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1 On 30 March 2012, the Tribunal dismissed a number of allegations
brought against a medical practitioner, Dr John Elvin Teasdale - see Medical Board of Australia and Teasdale [2012] WASAT 62 (the substantive decision). Dr Teasdale now seeks to have the Medical Board (Board) pay a portion of his costs. The Board contends that, in accordance with the usual practice of the Tribunal, each party should bear its own costs.
The applicable principles
2 There was no issue between the parties as to the general principles
applicable to the question of awards of costs in relation to vocational disciplinary matters before the Tribunal. Those principles are now well established.
3 The starting point, is that generally, pursuant to s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) parties will bear their own costs. Section 87(2) of the SAT Act empowers the Tribunal, however, to make an order for the payment by a party of all or any of the costs of another party. Particular practices have developed in the Tribunal in relation to the question of costs of vocational disciplinary matters. Generally speaking, where a vocational regulatory body is successful in prosecuting disciplinary action, a respondent will be ordered to pay the vocational regulatory body's costs for reasons which were explained in Medical Board of Western Australia and Roberman [2005] WASAT 81(S) at [30]. The position where, as in this case, the prosecution of a vocational disciplinary matter is unsuccessful, the position was recently confirmed in Lourey v Legal Profession Complaints Committee [2012] WASCA 112 per Murphy JA (with whom Pullin JA agreed) at [81] - [83] where it was said:
81 The general considerations relevant to the award of costs in disciplinary proceedings in the Tribunal were outlined by Barker J in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 [43], [47] - [48]:
So far as the general question of costs is concerned, s 87(1) of the SAT Act provides the starting out rule that parties to proceedings should bear their own costs in the absence of an order of the Tribunal to the contrary. However, s 87(2) gives the Tribunal the discretion to order
[2012] WASAT 62 (S)
the payment by a party of all or any of the costs of another
party.
...
The decision in the Roberman case does not support the view that [a successful respondent] in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful. If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed. Consequently, the Tribunal considers that, ordinarily, unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.
Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case.
82 Barker J's observations in Motor Vehicle Industry Board and Dawson at [47] as to what would 'ordinarily' be the position were cited with approval by this court in Paridis at [36].
83 The Victorian decision of Re Chen and Chiropractors Registration Board of Victoria [2000] VCAT 1461, dealing with a broadly analogous (but more prescriptive) legislative provision in Victoria, provides an example of where costs have been ordered against a vocational body, notwithstanding that the vocational body had proceeded in good faith and on reasonable grounds. In that case, the regulatory body was ordered to pay certain costs arising from an adjournment which was, in effect, unnecessarily caused by the regulatory body's conduct of the proceedings (see at [41] - [43]).
The case against Dr Teasdale
4 The allegations against Dr Teasdale involved six patients. The issues
which arose were summarised by the Tribunal in the substantive decision
at [6] where it said:The Board makes a number of criticisms of Dr Teasdale's choice of approach to the procedure, and his performance of the procedure. Some criticisms are made in relation to the procedures on all six patients, but there are some criticisms which relate only to some patients. Those criticisms initially gave rise to five issues, which were:
(i) whether Dr Teasdale made an excessive number of skin needle punctures to the lower abdomens of the patients, and if so whether doing so amounted to acting carelessly or incompetently;
[2012] WASAT 62 (S)
(ii) whether choosing a bilateral intervention on patient 1 amounted to carelessness or incompetence;
(iii) whether choosing an antegrade approach to the femoral artery, and failing to consider alternative techniques, constituted carelessness or incompetence;
(iv) whether Dr Teasdale failed to apply manual pressure to the site of patient 2's right femoral artery when he removed a needle; and
(v) whether Dr Teasdale withdrew a hydrophilic coated guide wire back through a percutaneous needle contrary to the manufacturer's guidelines and thereby caused the coating of a guide wire to be retained in patient 5's left leg, whether he failed to ascertain the location of the retained section, and if so whether that conduct amounts to acting carelessly or incompetently.
5 Two of those issues, being issues numbered (iii) and (iv) were not
pursued by the Board after the evidence, which extended over three days, was completed. The Board accepted that, as the evidence had emerged at the hearing, the allegations could not be established having regard to the requisite standard of proof. Issue (v) was not pursued in its entirety. The allegation that the withdrawal of the guide wire caused the coating to be retained in the patient's leg, and that Dr Teasdale failed to ascertain the location of the retained section, was abandoned, so that the allegation pursued was simply that he withdraw the wire through a needle contrary to the manufacture's guidelines.
The Tribunal concluded that none of the other remaining allegations was made out, accordingly the application was dismissed.
The respondent's submissions
7 Counsel for the respondent noted that, notwithstanding the reference
in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 to demonstration 'that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith', Murphy JA in Lourey noted that those observations related to what would 'ordinarily' be the position, but in every case there remain a discretion to order costs in the circumstances of a particular case. In other words, he submitted that a finding of unreasonableness or lack of good faith were not necessary prerequisites to the making of an order. He contended that, in the circumstances of this case, the general rule in relation to costs should be departed from having regard to the particular context in which the allegations against Dr Teasdale were made.
[2012] WASAT 62 (S)
8 The respondent noted that while the complaints against Dr Teasdale
appear to have been precipitated by a complaint from the Mount Hospital,
the complaints had the following features:
(a) all of the patients were difficult patients (Reasons, [12]); (b) all the patients were satisfied with their treatment (Reasons, [26]); (c) all the treatment was, relevantly, successful - that is, insofar as improvement in the patients' arterial occlusions could be opened, they were (Reasons, [26]); (d) there was no criticism of the Respondent's clinical decision-making or the appropriateness of the procedures (Reasons [27]); (e) no medical practitioner who attended the procedures were critical of the Respondent. Indeed, their evidence was to the opposite effect - they spoke highly of Dr Teasdale's surgical practice (Reasons [39]); (f) insofar as the allegations related to the risks associated with some of the allegations (such as arterial penetration from multiple punctures) in no case was that risk said to have eventuated (Reasons [35]); and (g) the allegations ultimately determined by the Tribunal were not based on precise objective evidence as to inappropriate technique being employed but to generalized - and necessarily subjective - observations made by nursing staff (see e.g. Reasons [41], [42], [46], [53].
9 The respondent also submits that the initial report of Professor Grigg
dated 23 April 2010, which was Professor Grigg's primary report upon which the Board relied, was drawn in terms which essentially expressed a preference for a different approach from that taken by Dr Teasdale in relation to the patients, using expressions such as 'It may have been preferable' or 'I have doubts as to appropriateness …' fall short of an opinion which would support findings of carelessness or incompetency.
10 Counsel for Dr Teasdale also submitted that the Board should have,
but did not, ascertain the views of the other medical practitioners present at the various operations such as the anaesthetist, to ascertain whether they had concerns about Dr Teasdale's operative techniques. Rather, Counsel observed, it was left to Dr Teasdale to call those assisting him in the operation to give evidence at the hearing, and the evidence was to the effect that they all regarded Dr Teasdale's skills highly and had not had
[2012] WASAT 62 (S)
any concerns about techniques utilised in the particular cases under
review.11 The respondent submits that a proper, more critical, review of the
evidence should have been taken by the Board, and that review would have revealed the evidentiary difficulties which led to the abandonment of several of the allegations. Because there was a link between the allegation concerning the number of skin punctures to the choice of an antigrade approach to the arteries, that that review would also, it was submitted, have led to a realisation that the other allegations would fail, or did not need to be pursued in the public interest.
12 The respondent also notes that the Tribunal's observations in the
substantive decision at [29] that much of the expert evidence dealt with the appropriateness of an antegrade versus a retrograde approach, being the subject matter of one of the allegations which was abandoned late in the hearing and submits that that issue led to unnecessary costs being incurred by the respondent in meeting that allegation and adducing expert evidence in support of his response.
13 As to the abandonment of parts of the guidewire allegation, the
respondent submits that proper examination of the witnesses prior to hearing would have resulted in a realisation that the allegation could not succeed, at least as initially drawn.
14 Finally, the respondent relies on the fact that in November 2009, his
solicitors wrote to the applicant's solicitors setting out in some detail his response to the allegations which had led to the making of an order under s 84 of the Medical Practitioners Act 2008 (WA) (MP Act) based substantially on the matters which ultimately fell for determination in these proceedings. In December 2009, the respondent's solicitors wrote to the Board in the context of negotiations in relation to proceedings concerning that order, and in that letter sought payment of Dr Teasdale's costs on the basis that the allegations against him lacked substance.
The applicant's submissions
15 The applicant points out that the initial complaint against the
respondent was made by the General Manager of Mount Hospital concerning the treatment of the six patients whose treatment became the subject of these proceedings. The Hospital had terminated the respondent's clinical privileges as a result of the concerns underlying that notification to the Board. The Board appointed their investigator, and subsequently received a recommendation from the Complaints
[2012] WASAT 62 (S)
Assessment Committee that the Board seek an undertaking from the respondent to cease practising certain particular operations. That undertaking was not proffered, and accordingly the interim order under s 87 of the MP Act was made. These proceedings subsequently ensued.
16 The applicant notes that the letter written in December 2009 seeking
costs was written following the receipt by the respondent of Professor Fletcher's expert report, but at that time the opinions in that report were at odds with the expressions of opinion in an expert report which had been obtained by the Board. The Board submits that it is only with the benefit of hindsight, and having the Tribunal's views after hearing the evidence in detail, that the respondent seeks to recover costs against the applicant. It submits that it was necessary for the Tribunal to hear both the witnesses of fact and the expert witnesses called by the parties, and to have that evidence tested in cross-examination, before the conclusions ultimately reached by the Tribunal could be reached.
17 The respondent points to evidence in relation to different allegations
which was capable of supporting the conclusion originally contended for in each of the abandoned allegations, notwithstanding that, after all of the evidence was heard, the Board accepted that those allegations could no longer be sustained.
Conclusion
18 The arguments for and against the making of a costs order in the
circumstances of this case are finely balanced. The applicable principles set out above draw upon, and give weight to, the role of vocational regulatory bodies to pursue allegations of breaches of professional standards in the public interest. The role of such bodies, acting in the public interest, underlies the reasoning as to why, in the absence of unusual circumstances, a vocational regulatory body will generally be awarded costs in the Tribunal if it is successful in establishing the complaints against a practitioner, but will not usually be ordered to pay the costs of a respondent where the Tribunal finds the allegations are not established.
19 In a recent decision on costs delivered orally immediately following
argument (Medical Board of Australia and McCarthy, (unreported, VR 21 of 2011, 30 January 2013)) the Tribunal referred to that general approach and said:
The reasons for that have been discussed in the various authorities like Roberman and Dawson and they exist for the good reasons set out in those
[2012] WASAT 62 (S)
decisions. But attendant with that privilege is an obligation that it not be open to any form of abuse; that is, it behoves regulatory authorities to continue to monitor whether or not the public interest which they sought to serve by instituting the proceedings, remains to be served by their continuation.
20 In that case, the Tribunal ordered the Board to pay costs in
circumstances where, in the course of proceedings in relation to very old allegations, the Board's case changed 'relatively fundamentally', and a critical analysis would have revealed that the complaints had no reasonable prospect of success. Accordingly, the Board was ordered to pay costs after the filing of the substituted application upon which the final hearing proceeded.
21 While accepting merit in many of the submissions made by the
respondent in this case, I have reached the view that the circumstances are not such as to justify the Tribunal departing from the usual position that parties should bear their own costs. To a certain extent, the force of the respondent's submissions comes with the benefit of hindsight. I acknowledge that, from as early as late 2009, the respondent asserted that the allegations against him lacked substance, and that he provided some independent expert opinion to support that contention. However, the Board had evidence, both as to factual matters and as to expert opinion, which was capable of supporting its position.
22 It is true that, after three days of hearing, the Board itself recognised
that some of its allegations could not succeed, and the Tribunal found the other allegations not to have been established. Those outcomes emerged, however, when both the Board and the Tribunal were in a position to assess all of the evidence having regard to detailed (and able) cross-examination of the various witnesses and thus the opportunity to have regard to all of the evidence in its totality.
23 It is necessary that a vocational regulatory body continually review
and assess its allegations, in the case which it is to present, during the currency of proceedings before the Tribunal. The process of mediation which the Tribunal usually undertakes (and undertook in this case) often throws light on the issues in a way which calls for critical review by both parties as to their respective positions. There will be cases, however, where it is necessary for a hearing to take place before final conclusions can be drawn on the evidence. Depending on the nature of the allegations, there will be cases where it is in the public interest for the issues to be fully ventilated at a hearing rather than simply abandoned by a vocational
[2012] WASAT 62 (S)
regulatory body because, depending on how the evidence emerges, the
allegations might be dismissed at hearing.24 It needs also to be recognised that, in a practical context, any critical
review of the evidence by the Board, or those advising it, will lack the benefit of a full testing of all of the evidence which is achieved by a hearing.
25 In my view, this case falls amongst those where the Board was
entitled to test the allegations which it made against the respondent by a full hearing. The Board should not be, in effect, penalised by its abandonment of some of the allegations once all of the evidence was in. Abandonment of the complaints was simply a responsible and appropriate step by counsel for the Board having regard to the way that the evidence had emerged.
26 It is relevant that these proceedings came to the Board's notice
following the removal of Dr Teasdale's operating privileges at the Mount Hospital. That was a serious step for the Hospital to take, and the Board was entitled to be concerned about the circumstances which led to that action. Its initial investigation and assessment by the Complaints Assessment Panel, and initial expert advice reinforced that concern. Although, looking back, it is possible to identify weaknesses in evidence which was then gathered, I do not consider that it is possible to identify a point of time where pursuit of the Board's case could be said to have become unreasonable.
27 In reaching this conclusion, I am mindful of the devastating effect
that the costs of proceedings of this nature can have on a member of a regulated profession, especially where that member has to bear those costs personally. Although the amount of costs which the respondent sought to recover, were an order to be made, was only a fraction of the overall costs, the correspondence tendered in relation to the application for costs reveals total costs incurred which are likely to have a devastating effect on a respondent. The complexity of the issues in medical disciplinary proceedings which concern allegedly inadequate or incompetent medical procedures commonly results in very high costs for both parties. That may sometimes be inevitable, but it highlights the need for care in the management of such cases on the part of all concerned to avoid situations where the costs of proceedings can be potentially as, if not more, devastating to a practitioner than an adverse outcome of the proceedings. That reality reinforces the need for applicants in vocational proceedings to critically review the strength of the evidence supporting allegations, and
[2012] WASAT 62 (S)
the public interest in pursuing those allegations, as matters develop during the course of proceedings. For reasons which I have expressed, however, this is not a case where it can be said that the Board has acted unreasonably in pursuing the matter.
Orders
The application for costs is dismissed.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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