| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL PRACTITIONERS ACT 2008 (WA) CITATION : MEDICAL BOARD OF AUSTRALIA and WHITESIDE [2013] WASAT 18 (S) MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) DR H HANKEY (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
MR M ANDERSON (SENIOR SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 20 NOVEMBER 2013 FILE NO/S : VR 108 of 2011 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant
AND
JOHN STANLEY WHITESIDE
Respondent
Catchwords: Costs - Disciplinary proceedings - Whether proceedings unnecessarily prolonged Legislation: Health Insurance Act 1973 (Cth)
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Medical Practitioners Act 2008 (WA), s 76, s 76(1), s 77, s 104(2), s 105, s 116, s 118, s 118(g)
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(2) Result: Application for costs dismissed
Summary of Tribunal's decision: Following a finding by the Tribunal that allegations brought by the Medical Board of Australia against a practitioner were not made out, the practitioner 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 respect of vocational matters and considered whether, in all the circumstances of the case, the conduct of the proceedings by the Board should lead to an order that the Board pay some of the practitioner's costs. It concluded that, while the Board could be criticised for not seeking an earlier outcome of the matter, the Board was entitled to have the evidence in respect of the allegations made tested through the hearing process. Accordingly, the Tribunal concluded that an order for costs should not be made.
Category: B
Representation: Counsel:
Applicant : Ms F Stanton
Respondent : Ms F Vernon
Solicitors:
Applicant : MDS Legal
Respondent : HBA Legal
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Medical Board of Australia and Kyi [2009] WASAT 22
Medical Board of Australia and Teasdale [2012] WASAT 62(S)
Medical Board of Australia and Whiteside [2013] WASAT 18
Summerville and Department of Education and Training & Ors [2006] WASAT 368(S)
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 On 6 February 2013, the Tribunal dismissed an allegation made by the applicant (Board) that the respondent (Practitioner) did not have sufficient knowledge and skill to practise safely and competently as a general medical practitioner; see Medical Board of Australia and Whiteside[2013] WASAT 18 (Whiteside). 2 The Practitioner now applies to the Tribunal for an order that the Board meets the Practitioner's costs incurred in defending the application.
The material before the Tribunal 3 The Practitioner filed submissions in support of his costs application on 6 May 2013. On 22 July 2013 the Board filed its responsive submissions and an affidavit of Ms Fiona Ann Stanton, annexing copies of some email correspondence between the parties. The Practitioner's submissions in reply were filed on 15 August 2013.
Background 4 In July 2009, following a review of the Practitioner's practice by the Professional Standards Review Committee (PSR) under the Health Insurance Act 1973 (Cth), the Board received a series of complaints about the Practitioner from the PSR. The complaints related to the Practitioner's treatment of 21 patients between 2007 and 2009 and specified the following particular concerns: 5 The Board also received a separate complaint in January 2010 from an individual patient. 6 Following the making of those complaints, on 2 August 2010 the Practitioner volunteered to give an undertaking (Undertaking) to the Board which required the Practitioner to: (Page 5)
7 On 16 June 2011 the Board applied to the Tribunal under s 104(2) of the Medical Practitioners Act 2008 (WA) (MP Act), alleging that the Practitioner did not have sufficient knowledge and skill to practise safely and competently as a general medical practitioner and that a competency matter as defined in the MP Act existed in respect of the Practitioner. There were some 25 grounds for that allegation, including grounds relating to: i) the Practitioner's failure to carry out treatment or give advice; ii) the Practitioner's failure to inform a patient's GP or specialist of advice given to that patient; iii) the Practitioner's treatment of patients with thyroid hormones, including his failure to investigate the underlying cause of abnormal thyroid function; iv) the Practitioner's prescription of testosterone; v) the Practitioner's failure to investigate the underlying cause of elevated serum cortisol and prescription of cortisol; vi) the Practitioner's prescription of DHEA, vitamin D and vitamin B12; and vii) the Practitioner's medical record keeping. 8 The Board sought orders pursuant to s 118(g) of the MP Act that the Practitioner's registration be cancelled and the Practitioner's name be removed from the register. 9 The proceedings were originally listed to be heard over three days, on 1, 2 and 3 May 2012 but the Board had not by then completed its case and the matter was adjourned to 18 June 2012. (Page 6)
10 The hearing concluded on 19 June 2012, and the parties then sought and were given leave to file written closing submissions with the Tribunal.
The Tribunal's decision 11 After hearing the evidence, the Tribunal found that a number of the complaints against the Practitioner had been substantiated. Some of the Tribunal's findings of fact were made on the Practitioner's own admission. However, the Tribunal, for the reasons set out in Whiteside, concluded at [256] that a competency matter did not exist in relation to the Practitioner. 12 Accordingly, the Board's application was dismissed. No order was at that time made as to costs.
Costs the statutory context and the applicable principles 13 Section 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides as follows: Costs of parties and others (1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal. (2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35. (3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought. (4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to (a) whether the party (in bringing or conducting the proceeding before the decisionmaker in which the decision under review was made) genuinely attempted to enable and assist the decisionmaker to make a decision on its merits; (Page 7)
(b) whether the party (being the decisionmaker) genuinely attempted to make a decision on its merits. (5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party. (6) The Tribunal may order that the representative of a party, rather than the party, in the representative’s own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs. 14 The MP Act contains no inconsistent provisions regarding the award of costs by the Tribunal. 15 The Tribunal has an unfettered discretion to make an order as to costs. In Medical Board of Australia and Kyi[2009] WASAT 22 (Kyi), Barker J at [73] [74] enumerated a number of situations when that discretion may be exercised. These include, but are not limited to, situations where: a) a party has conducted itself in such a way as to unnecessarily prolong the hearing; b) a party has acted unreasonably or inappropriately in its conduct of the proceedings; c) a party has been capricious; and d) the proceedings otherwise constitute an abuse of process. 16 In Kyi, Barker J went on to say that the above principles: [encompass] a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. 17 In Lourey v Legal Profession Complaints Committee[2012] WASCA 112 (Lourey), Murphy JA at [81] [82] states: 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 (Page 8)
discretion to order 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. 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]. 18 Chaney J in Medical Board of Australia and Teasdale[2012] WASAT 62(S) (Teasdale) gave guidance as to whether an application lacks a reasonable basis. In Teasdale, Chaney J noted at [23] [24] that: 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 ... 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 issues to be fully ventilated at a hearing rather than simply abandoned by a vocational regulatory body because, depending on how the evidence emerges, the allegations might be dismissed at hearing. It needs also to be recognised that, in a practical context, any critical review of the evidence of 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. (Page 9)
The parties' submissions
Practitioner's contentions 19 The Practitioner submits that Teasdale stands for the proposition that the Board has an obligation, while proceedings are on foot, to critically review the allegations made, in light of the available evidence, in order to assess whether the application has reasonable prospects of success. 20 The Practitioner submits that the Board: 21 The Practitioner submits that the Board ought to have reached the conclusion that the application did not have a reasonable prospect of success at each of the following stages: a) on the issue of the application on 16 June 2011; b) on receipt of the Practitioner's statement of evidence dated 6 March 2012 and the expert witness report of Dr Coleman adduced by the Practitioner dated 13 February 2012, served on 7 March 2012; c) on receipt of the offer made by the Practitioner on 1 May 2012 to give the Board a further written undertaking not to prescribe thyroid hormones (Offer); d) during the adjournment of the hearing from 3 May 2012 to 18 June 2012; and e) on 16 August 2012 following the filing of the Practitioner's closing submissions. 22 The Practitioner submits that the Board acted unreasonably in issuing and pursuing the application because: a) the Board based the allegation that the Practitioner was currently not competent to practise medicine in any capacity solely on the basis of historical evidence and did not obtain or present evidence of the Practitioner's current practice, in circumstances where the Board was aware of (Page 10)
uncontradicted evidence of significant, systemic change to the Practitioner's practice; and b) the Board's expert opinion was based, in part, on assumptions that would not be open to the Tribunal to make and in relation to the truth of which the Board had neither sought nor obtained evidence. 23 The Practitioner contends that the Board knew that the Practitioner did not claim to practise as a general practitioner and unreasonably pursued allegations in relation to matters falling within the scope of a general practitioner's usual practice. 24 The Practitioner submits that the Board also unreasonably pursued allegations concerning the Practitioner's prescription of thyroid hormones in circumstances where: a) the Practitioner had made the Offer; and b) the Practitioner adduced the expert evidence of Dr Coleman, which contradicted a central tenant of the criticism of the Practitioner's use of thyroid hormones by the expert relied on by the Board, Prof PearnRowe. 25 Finally, the Practitioner submits that the Board unnecessarily prolonged the length of the proceedings because: a) the Board pursued numerous allegations to a level of detail entirely disproportionate to the prospect that those allegations, even if proved, would support a finding that the Practitioner was not currently competent given: b) the Board continued to pursue, in its closing submissions, the totality of the allegations against the Practitioner when the state of the evidence at that stage should have (Page 11)
resulted in the Board ceasing to pursue a number of those allegations.
Board's contentions 26 The Board submits that for the Practitioner to succeed in his application for costs, he must establish either that the Board lacked any reasonable basis for the application, or that the application was not made in good faith. The Board says that this is the effect of the decision in Lourey, namely to limit the Tribunal's discretion to make an award of costs against a vocational regulatory body to those two circumstances. This is because Kyi was not cited in Lourey with approval and so, to the extent that the principles in Lourey are inconsistent, Kyi cannot be applied. 27 The Board submits that the investigation of the complaint against the Practitioner was in no way unreasonable. The Board had received a complaint which on its face was of a very serious kind. The Board also had evidence from an expert expressing reservations about the Practitioner's competency as a medical practitioner. 28 The Board says that due to the late filing of the Practitioner's witness statement and the statement of the Practitioner's expert, the Board did not have sufficient time before the hearing to enable a detailed evaluation by the Board of all of the evidence prior to the hearing. 29 The Board also says that Dr Coleman did not respond to all of the allegations against the Practitioner. 30 Accordingly, in the Board's submission, there was no point in time prior to the commencement of the hearing when the Board was able to reevaluate its case based on the evidence of the Practitioner and his expert. Moreover, the Practitioner's expert evidence remained incomplete and did not in the Board's view provide any basis on which it could be said that the Board's prosecution of the matter had become unreasonable. 31 So far as regards the Offer, the Board says that the Offer was received late. The Board did not consider that it amounted to an offer at all, and considered that it was nothing more than a statement of the Practitioner's intention. In any event, the Board says, even if the Offer was in fact an offer, it was still not unreasonable for the Board to elect to continue with the hearing, because unwarranted prescription of thyroid hormones was only one of the allegations which had been made against the Practitioner. The Board points out that the original application was (Page 12)
concerned not only with patients' safety, but also with the Practitioner's competency. 32 During the adjournment of the hearing between 3 May 2012 and 18 June 2012, the Board says that it had reviewed the case to date. The Board remained of the view that it should continue with the prosecution on the basis that the Board had formed the view that the incompetency was of such a nature that it could not have been remedied by the Practitioner to the extent asserted by the Practitioner. The Board says that it did in fact put a 'Calderbank' offer to the Practitioner which was not accepted. 33 The Board contends that, in any event, the continuation of the prosecution of this matter properly drew to the Practitioner's attention the deficiencies in his practice and that therefore it was in the public interest for this matter to be 'fully ventilated at a hearing rather than simply abandoned by a vocational regulatory body because, depending on how the evidence emerges, the allegations might be dismissed at hearing'; Teasdale at [23]. 34 Finally, the Board says that even if, which the Board does not concede, there was a strong possibility that the Tribunal would not have made any finding against the Practitioner, that does not mean that the Board lacked a reasonable basis for continuing with the proceedings. There was a serious issue to be tried as to whether the Practitioner could be found to be incompetent in respect of the practice of medicine.
The Board's conduct of the matter 35 As mentioned earlier, the hearing in this matter was originally listed for three days, on the basis of the Tribunal's understanding that the evidence to be heard was that of the Practitioner himself and of two expert witnesses. On the first day of the hearing, the Tribunal raised with counsel for the Board some preliminary questions that it had about the Board's application. The Tribunal noted that the allegation was being made under s 77 of the MP Act, which would require the Board to demonstrate that a competency matter exists because the Practitioner does not have sufficient knowledge or skill to practise medicine safely and competently. The Tribunal queried why the application was not being made under s 76(1) of the MP Act, which would require the Board to demonstrate that the Practitioner had at some point in time in the course of his practice as a medical practitioner acted incompetently. It appeared to the Tribunal, even at that stage in the proceedings, that the Practitioner (Page 13)
was prepared to admit to some past errors in the manner of his practice of medicine. 36 The Board's response, through counsel, was to assure the Tribunal that 'the evidence will show that knowledge and skill isn't there and it[']s not capable of being rectified by insight.'; (T:17, 1.5.12). Counsel went on to say that 'it doesn't make any difference what point in time you are looking at. The Board's position is that [the Tribunal will] be able to see from this evidence that there are those deficiencies to that level that the Practitioner could not remedy by reason of insight or effort.'; (T:18, 1.5.12). 37 The matter then proceeded. During the first day, the Practitioner gave his response to the allegations against him. Over the second day, the experts jointly gave part of their oral evidence and during the third day the Practitioner was questioned again. 38 The Board then informed the Tribunal that it had further questions for the experts and requested that the matter be adjourned to 18 June 2012. On 18 and 19 June 2012 the experts gave further evidence and the Practitioner was subsequently recalled. 39 The parties then wished to return for a sixth day to make oral closing submissions. However, in the interests of concluding the proceedings as speedily as possible and minimising costs in accordance with s 9 of the SAT Act, the Tribunal ordered that closing submissions should be made in writing. 40 The Board's case as presented to the Tribunal comprised a detailed examination of the Practitioner's treatment between 2007 and 2009 of some 22 different patients. That treatment in each case was then subjected to scrutiny by both experts. The Board informed the Tribunal that these complaints were 'illustrative of broad concerns'; (T:151, 2.5.12). 41 The Board then submitted that the Tribunal should find that these failings continue to exist. The Board said in its closing submissions that the Tribunal should find that the Practitioner is a senior practitioner of medicine 'who is unlikely to have gained any significant additional competencies in the years that have passed since the Professional Services Review … hearing from which all but one of the treatment examples has emanated'. 42 In Whiteside, the Tribunal did not accept this; Whiteside at [264]. The Board is aware that, because of the gravity of the allegations against (Page 14)
the Practitioner, reasonable satisfaction of proof must be established so that the Tribunal feels an actual persuasion of the occurrence or existence of the facts in issue; Briginshaw v Briginshaw (1938) 60 CLR 336, referred to in Whiteside at [28]. The Board did not lead any evidence as to the current competency of the Practitioner, even though it has the power under s 105 of the MP Act on a complaint relating to a competency matter to order the practitioner the subject of the complaint to submit to an assessment. The Board clearly expected that the Tribunal would infer that a competency matter exists entirely from the evidence of failings in years past.
Findings 43 The Tribunal considers that the principles set out in Kyi and Lourey are not inconsistent, and that both cases provide important guidance as to when costs may be awarded against a party. There is nothing in the decision in Lourey to suggest that the Tribunal's discretion to award costs is fettered and that it only extends to cases where one or other of the two stated criteria is established. The position continues to be that the Tribunal has an unfettered discretion under s 87(2) of the SAT Act to make an order for costs in a matter. However, as the Tribunal has noted on numerous occasions, it would not be appropriate to attempt to comprehensively delineate the circumstances under which the Tribunal will exercise its discretion and award costs; see, for example, Summerville and Department of Education and Training & Ors[2006] WASAT 368(S). 44 It must be stressed that the Tribunal does not find that the Board's investigation of the complaints against the Practitioner was in any way unreasonable. Indeed, given the seriousness of the complaints, it is inconceivable that the Board would not conduct such an investigation. 45 We also readily accept that the bringing of disciplinary proceedings against a practitioner is appropriate in the public interest, even where there is a possibility that the allegations concerned might be dismissed. Further, medical disciplinary proceedings are often complex and it may be difficult for the Board to assess the strength of the available evidence before the matter has proceeded to a hearing. 46 Accordingly, for the reasons set out in Lourey, the fact that the application was ultimately dismissed, would not in itself have lead the Tribunal to make an order for costs against the Board. (Page 15)
47 However, the Tribunal has some concerns in this case about the amount of time which the proceedings took, which ultimately led to an increase in the Practitioner's costs in defending the Board's allegations, to say nothing of the Board's costs. Had the Board proceeded with this matter under s 76 of the MP Act (disciplinary matter) then it is possible that the Practitioner would have conceded that a disciplinary matter existed and consented to a finding to that effect. There is no obvious reason why the Board did not proceed in that way. The outcome that the Board was seeking was the cancellation of the registration of the Practitioner in the interests of public safety. The power of the Tribunal conferred on it under s 118 (the powers in relation to a competency matter) to suspend or cancel the Practitioner's registration is also available to the Tribunal under s 116 of the MP Act (the powers in relation to a disciplinary matter) and so it would have remained open to the Board to seek such an order. 48 Of course, that is not to say that the Tribunal would have found, or the Practitioner would have consented to a finding, that a disciplinary matter existed. Further, the parties would still have needed to be heard on penalty, because it was clear that the parties had very different views on the appropriate disciplinary outcome. 49 The Tribunal continues to have concerns about the fact that the matter was adjourned for a further two days. As the Tribunal said in Teasdale, it is expected in the interests of all parties that the Board will continually review and re-evaluate its case to ensure that the proceedings are not unnecessarily prolonged. 50 Nonetheless, the Tribunal is not sufficiently persuaded that the Board unnecessarily prolonged the length of the proceedings. It is therefore not appropriate to make the order sought and accordingly the Tribunal dismisses the Practitioner's application. (Page 16)
Orders 1. The application for costs is dismissed. |