MEDICAL BOARD OF AUSTRALIA and WILD
[2012] WASAT 37
•27 FEBRUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: MEDICAL BOARD OF AUSTRALIA and WILD [2012] WASAT 37
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
MS E PAVLOS (SESSIONAL MEMBER)
HEARD: 9 FEBRUARY 2012
DELIVERED : 27 FEBRUARY 2012
FILE NO/S: VR 154 of 2010
BETWEEN: MEDICAL BOARD OF AUSTRALIA
Applicant
AND
FELICITY HEATHER WILD
Respondent
Catchwords:
Medical practitioner - Disciplinary matters - Acting improperly - Acting carelessly - Minute of Orders - Conditions on registration of practitioner - Suspension from the practice of medicine - Costs
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 17(2)(b)
Medical Act 1894 (WA)
Medical Profession Act 2008 (WA), s 76(1)(a), s 76(1)(b)(i), s 76(1)(b)(iii), s 87, s 116, s 116(1)(j)
State Administrative Tribunal Act 2004 (WA), s 87(1)
Result:
Findings of acting carelessly and of acting improperly
Practitioner suspended for three months and conditions imposed on the registration of the Practitioner
Costs awarded against the Practitioner
Category: B
Representation:
Counsel:
Applicant: Mr P Quinlan SC
Respondent: Mr P Tottle
Solicitors:
Applicant: Panetta McGrath Lawyers
Respondent: Tottle Partners
Case(s) referred to in decision(s):
Cranley v Medical Board of Western Australia, (Unreported, WASC, Library No. 8668, 21 December 1990)
Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992)
Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S)
Medical Board of Western Australia and Pate [2007] WASAT 161
Medical Board of Western Australia and Richards [2010] WASAT 94
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Medical Board of Australia brought an application against Dr Felicity Heather Wild, the practitioner, alleging that her conduct in respect of her relationship with and treatment of a patient constituted, amongst other things, improper conduct and carelessness within the meaning of the Medical Practitioners Act 2008 (WA).
Prior to the hearing of the matter before the Tribunal, the practitioner accepted that her conduct did in fact amount to acting improperly and acting carelessly.
The Board and the practitioner agreed that conditions should be imposed by the Tribunal on the practitioner's registration as a medical practitioner. The Board also sought an order from the Tribunal suspending the registration of the practitioner.
The Tribunal heard submissions from both parties and decided that the practitioner's misconduct was sufficiently serious that a period of three months' suspension was also warranted.
In addition, the Tribunal awarded costs against the practitioner.
Background
The respondent (Practitioner) is registered as a medical practitioner under the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law Act) and at all material times was registered as a medical practitioner pursuant to the now repealed Medical Act 1894 (WA) and the Medical Practitioners Act 2008 (WA) (MP Act) respectively.
The patient concerned (Patient) was a patient of the Practitioner from around August 2004 until the date of the Patient's death in September 2009.
On 20 August 2010, the Board brought an application to the Tribunal alleging that disciplinary matters exist in relation to the Practitioner. Those allegations relate to the Practitioner's relationship with the Patient, the Practitioner prescribing the Patient certain drugs, the maintenance by the Practitioner of two separate sets of notes about the Patient and certain events which occurred on 28 September 2009.
The relevant law for determination of that application is the MP Act, which is preserved by s 17(2)(b) of the National Law Act.
Minute of Orders agreed between the parties
The matter was listed for a final hearing on 8 and 9 February 2012. By 8 February 2012, the parties had reached agreement as to what they consider the appropriate disciplinary matters to be and on that date filed with the Tribunal a proposed Minute of Orders agreed between the parties.
The terms of the Minute of Orders are as follows:
THE PARTIES CONSENT to findings that:
1.The respondent acted improperly contrary to s 76(1)(b)(iii) of the Medical Practitioners Act 2008 (WA) (the Act) in that during the period August 2004 to September 2009 the respondent failed to maintain proper professional boundaries with a patient, in that she:
(a) telephoned the patient every night;
(b)visited the patient at home and on occasion stayed overnight with the patient;
(c) gave the patient money;
(d) travelled interstate with the patient;
(e)expressed her own personal concerns and beliefs to the patient; and
(f)maintained a separate set of notes about the patient containing her personal observations of the kind that would not normally be entered into the patient's clinical file.
2.The respondent acted carelessly contrary to s 76(1)(b)(i) of the Act in that on 28 September 2009, upon being advised that the patient had taken an overdose of 1000mg of morphine and attending upon the patient and finding the patient to be sleepy, with slurred speech and a respiratory rate of five breaths per minute, the respondent:
(a) failed to provide any medical assistance to the patient;
(b)failed to call an ambulance;
(c)failed to seek any other help or assistance for the patient;
(d)proceeded to leave the patient without arranging any alternative medical or other assistance.
THE PARTIES CONSENT to orders that:
3.Conditions be imposed upon the practice of medicine by the respondent in the terms set out in Schedule A to this order.
4.The respondent have liberty to apply to the Tribunal no earlier than 1 November 2012 in relation to the conditions the subject of paragraph 3.
The Tribunal's findings as to the Practitioner's conduct
The Tribunal has considered the proposed findings so far as they relate to the Practitioner's conduct. The Tribunal is satisfied by reason of the Practitioner's admission that proper cause exists for disciplinary action against the Practitioner and on the basis of that admission and the materials before us, we find that the Practitioner acted improperly contrary to s 76(1)(b)(iii) of the MP Act and that the Practitioner acted carelessly contrary to s 76(1)(b)(i) of the MP Act.
Penalty
The Minute of Orders expressly notes that the parties have not agreed on the full nature and extent of the orders that should be made by way of a final disposition of the proceedings.
The parties have proposed in the Minute of Orders that conditions be imposed upon the registration of the Practitioner as a medical practitioner in the terms set out in Schedule A to the Minute of Orders and that the Practitioner has liberty to apply to the Tribunal no earlier than 1 November 2012 in relation to those conditions. However, the parties have not agreed whether any further orders should be made by the Tribunal under s 116 of the MP Act.
Schedule A to the Minute of Orders is as follows:
SCHEDULE A
Definitions
'Psychotherapy' is defined as 'a form of treatment in which a trained therapist establishes a professional therapeutic relationship with a patient, and through communication (verbal and nonverbal) attempts to alleviate emotional disturbance, reverse or change maladaptive behaviours, and encourage personality growth and development.
'Counselling' is defined as 'communicating with a patient who is emotionally disturbed situations or crises of an everyday nature; is aimed at relieving immediate distress or sustaining the patient through the time of difficulty and returning the patient to his or her previous level of functioning over time; and includes empathic listening, reassurance, encouragement and suggestions for solving specific problems.
'Practice' is defined as St Luke's GP Medical Group, 26 McGilvray Avenue, Morley WA 6943 or such other practice (Other Practice) at which Dr Wild may work.
'Supervisor' means Dr Lachlan Dunjey or such other medical practitioner as is notified to and approved by the Board in accordance with condition (k).
Conditions of practice
(a)Dr Wild will not consult or manage any patient at any location other than at the Practice, unless emergency patient circumstances require it. Dr Wild will maintain a separate register of all consultations with patients at any location other than at the Practice, and will make this register available for inspection by the Supervisor and any nominee appointed by the Board.
(b)Dr Wild will not consult or manage any patient outside the hours of 8 am to 6 pm Monday to Friday and 8 am to 12.00 pm on Saturdays, unless emergency patient circumstances require it. Dr Wild will maintain a separate register of all consultations with patients outside of these hours and will make this register available for inspection by the Supervisor and nominee appointed by the Board.
(c)Dr Wild will not provide counselling to the same patient in respect of the same mental health issues in excess of six (6) Level C (Medical Benefits Schedule) consultations per annum. Should a patient require ongoing treatment Dr Wild will refer the patient to another practitioner. That other practitioner may be another medical practitioner or an appropriate mental health provider. Any referral must be approved by the Supervisor.
(d)Dr Wild will not manage any patient by engaging in Psychotherapy including prayer therapy.
(e)Dr Wild will maintain only one set of clinical notes in respect of all patients.
(f)Dr Wild will not hold any clinical notes or records or any information at all outside the Practice.
(g)Dr Wild will ensure that all clinical notes, records and any information at all in respect of all patients will be available to all other practitioners at the Practice at all times.
(h)Dr Wild will be supervised by the Supervisor as follows.
(i)For a minimum of one hour at least every month Dr Wild and the Supervisor will meet for the following reasons.
A The Supervisor will review the circumstances of Dr Wild's prescription of Schedule 8 narcotic drugs.
B The Supervisor will assess Dr Wild's compliance with these conditions of practice.
(ii)The Supervisor will review Dr Wild's current patients (in addition to those referred to in paragraph A above) to consider whether any patient requires referral. On the first working day of each month Dr Wild and the Supervisor will inform the Medical Board of Western Australia in writing of the outcome of the meetings referred to in paragraph (i) above.
(i)Dr Wild agrees to allow Dr Watts to undertake a further audit and report (Third Audit Report) on or before 31 October 2012. The Third Audit Report will be provided to the Board for review and to Dr Wild. The purpose of the Third Audit Report will be as follows.
(i)To assess Dr Wild's compliance with paragraph (h)(i) and (ii) above.
(ii)To assess any matters raised by the Supervisor in the reports referred to in paragraph (h) above.
(iii)To address any matters arising out of the reports referred to in paragraph (h) above.
(j)Dr Wild will submit to a random audit and report by Dr Watts or other practitioner nominated by the Board, if the Board determines that such a random audit is appropriate.
(k)In the event that Dr Wild gives notice to the Practice that she intends to end her employment at the Practice or to commence work at an Other Practice, Dr Wild will immediately inform the Board and provide the Board in writing with the following.
(i)The address of the Other Practice and Dr Wild's intended working hours.
(ii)the name of the Supervisor at the Other Practice who will supervise Dr Wild in accordance with paragraph (c) and (h) above in respect of Dr Wild's patients at the Other Practice.
(l)Dr Wild agrees to the Board providing the Supervisor at the Other Practice with a copy of these conditions of practice and a 'deidentified' copy of Dr Watts' report served on 22 October 2010.
The Tribunal considers that these conditions are appropriate and will order that those conditions are imposed on the registration of the Practitioner and that the Practitioner complies with those conditions.
Turning to what further orders, if any, the Tribunal should make under the MP Act, the Board submits that the circumstances of this matter are such that, for the maintenance of standards in the medical profession and the restoration of the public's confidence in high standards of the profession, the Tribunal should impose a further sanction in relation to the Practitioner's conduct, namely that the Practitioner be suspended from the practise of medicine pursuant to s 116(1)(j) of the MP Act. The Board considers that the appropriate period of suspension for the conduct in question is between three and six months. The Practitioner submits that no suspension should be imposed.
The principles to be applied
The principles in relation to penalty are set out by Owen J in Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992) in the following well known and often quoted passage at 140142:
The general principles which are applicable are not difficult to state. The primary consideration is the public interest. The consequence of an adverse finding is drastic for the practitioner. The purpose of providing such a drastic consequence is not punishment of the practitioner as such, but protection of the public. The public needs to be protected from delinquents and wrongdoers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements: see Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 201.
There is also a need to maintain the high standards and good reputation of the profession generally in the eyes of the community: see Ziderman v General Dental Council (1976) 1 WLR 330 at 333. A further consideration is the need to deter others who may be of a like mind to transgress in the future: see Giordano v Medical Board (198384) 36 SASR 83 at 87. In applying these considerations a tribunal must also bear in mind the warning delivered by Devlin J in Hughes v Architects Registration Council of the United Kingdom [1957] 2 QB 550 at 563:
There is something more important than the standing of a profession about which the council is naturally and properly concerned. There is the right of every man to earn his living in whatever way he chooses unless by the law or by his own voluntary submission his way is taken from him.
There is one final matter of a general nature which I should mention. The respondent has a wide discretion in relation to penalty. The mere fact there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course. An act or omission may constitute infamous conduct but that does not necessarily mean that striking off is the appropriate penalty. The respondent is required to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly.
The Tribunal has made a finding that the Practitioner is guilty of acting improperly, which is conduct which would 'reasonably be regarded as improper by professional colleagues of good repute and competency'; see Cranley v Medical Board of Western Australia, (Unreported, WASC, Library No. 8668, 21 December 1990) at [6].
The Tribunal has also made a separate finding against the Practitioner of acting carelessly. In Medical Board of Western Australia and Richards [2010] WASAT 94 at [26][27], the Tribunal made these observations about the seriousness of this finding:
In our view, acting carelessly for the purposes of the MP Act still requires that the carelessness requires that the conduct complained of assumes a scale of gravity which is sufficiently serious to warrant, in the eyes of professional colleagues of good repute and competence, punishment and disciplinary action for the protection of the public. That is because s 76 is concerned with professional disciplinary proceedings. The objects identified in s 3 of the M Act are designed 'for the purpose of protecting consumers of medical services'. That object is the traditional object of professional regulatory legislation. The MP Act is not concerned with civil redress. The notion of carelessness for the purposes of s 76 differs from what is sometimes described as 'mere negligence' see Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 200 201 (Pillai v Messiter). Acting carelessly involves, for the purposes of the [MP Act], not giving sufficient attention or thought to avoiding harm or mistakes or showing no care or interest or effort in the treatment of a patient, but does not include trivial error not warranting disciplinary action.
In our view, the term 'acted carelessly' does not encompass an error of judgment where the medical practitioner acts with care and diligence, but simply makes a wrong decision unless, to use the words of Kirby P in Pillai v Messiter, the decision involves a departure 'from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant'.
The Practitioner submits that the Tribunal's findings both arise from an 'isolated incident', but the Tribunal does not accept this. While the increasingly inappropriate relationship between the Practitioner and the Patient ultimately led to the events of 28 September 2009, that relationship had developed over a number of years, and at no time during that period did the Practitioner appear to recognise that she was not maintaining proper professional boundaries with the Patient.
The Practitioner has accepted that she failed in her professional obligations to maintain those boundaries, which is to her credit, but it would seem that this insight was only gained after the Practitioner had seen the reports provided to the Tribunal by the expert witnesses.
Also to her credit, the Practitioner has taken steps to ensure that she fully understands her professional obligations, including undergoing counselling with a senior general practitioner.
Had the Tribunal's finding been limited to that of the Practitioner acting improperly, and bearing in mind that this conduct had no element of abuse of trust or misuse of power, the Tribunal may have been inclined to limit the penalty to the imposition of conditions on the Practitioner's registration referred to earlier in these reasons. However, taken together with the second finding against the Practitioner, that of carelessness, the Tribunal considers that a period of suspension is appropriate.
In Medical Board of Western Australia and Pate [2007] WASAT 161 at [21][22], the Tribunal said:
…
Conduct of a medical practitioner of this type must be marked with an appropriate penalty that emphasises the high professional standards the profession of medicine strives to uphold for the benefit of their patients.
This is not a case where a suspension needs to be imposed in order to protect the public from an incompetent practitioner, but rather to let the public know that medical practitioners aim to uphold high standards. A penalty of suspension will transmit that message to members of the profession and to the public generally. It is therefore not necessary to remove the practitioner's name from the register. The imposition of a fine in such circumstances would be inapposite and the mere reprimand of the practitioner similarly would not be appropriate. The question really is what period of suspension is required.
In this case also, the purpose of a period of suspension is not 'to protect the public from an incompetent practitioner'. There has been no suggestion that the Practitioner is incompetent. The purpose of a period of suspension in this case is to assure the public and the members of the medical profession that conduct of this kind will not be tolerated.
We now consider what term of suspension is appropriate. Under s 116(1)(j), the Tribunal may order that the Practitioner be suspended from the practice of medicine for a period not exceeding two years.
The Practitioner in her submissions concedes that the Tribunal would at least consider the imposition of a period of suspension. She says in that regard that the Tribunal should take account in its deliberations that the Board suspended the Practitioner for the period from 10 August 2010 to 31 December 2010 under s 87 of the MP Act. She says that if the Tribunal does not do so, a further period of suspension 'would result in a disproportionately harsh sanction'.
The Tribunal, however, considers that the actions by the Board under s 87 of the MP Act are not for the purposes intended by orders made under s 116 of the MP Act and the Tribunal therefore gives little weight to this submission.
The Tribunal has decided that the Practitioner should be suspended from the practice of medicine for a period of three months commencing on the date seven days after the date of the orders below. This period is not so long that it would cause unnecessary hardship to the Practitioner or create a burden on her workplace colleagues, but it is of a sufficient duration to give the assurance referred to above.
Costs
Notwithstanding the general position espoused in s 87(1) of the State Administrative Tribunal Act 2004 (WA), where disciplinary proceedings have been commenced in the public interest by a vocational regulatory body and the vocational regulatory body has been successful in the prosecution of those proceedings, the affected person may be ordered to contribute to the costs of the proceedings incurred by the vocational regulatory body; see Legal Practitioners Complaints Committee and Benari [2005] WASAT 213(S) at [25].
The Board seeks an order that the Practitioner pay its costs of the application. The Practitioner does not oppose the making of this order.
The Tribunal therefore orders that the Practitioner pays the Board's costs of these proceedings, to be assessed if not agreed.
Findings and Orders
1.Felicity Heather Wild (Practitioner) acted improperly contrary to s 76(1)(b)(iii) of the Medical Practitioners Act 2008 (WA) (the Act) in that during the period August 2004 to September 2009 the Practitioner failed to maintain proper professional boundaries with a patient, in that she:
(a) telephoned the patient every night;
(b)visited the patient at home and on occasion stayed overnight with the patient;
(c) gave the patient money;
(d) travelled interstate with the patient;
(e)expressed her own personal concerns and beliefs to the patient; and
(f)maintained a separate set of notes about the patient containing her personal observations of the kind that would not normally be entered into the patient's clinical file.
2.The Practitioner acted carelessly contrary to s 76(1)(b)(i) of the Act in that on 28 September 2009, upon being advised that the patient had taken an overdose of 1000mg of morphine and attending upon the patient and finding the patient to be sleepy, with slurred speech and a respiratory rate of five breaths per minute, the Practitioner:
(a)failed to provide any medical assistance to the patient;
(b)failed to call an ambulance;
(c)failed to seek any other help or assistance for the patient; and
(d)proceeded to leave the patient without arranging any alternative medical or other assistance.
3.The Practitioner is suspended from practise for a period of three months commencing from the date seven days after the date of these orders.
4.The Practitioner's registration as a medical practitioner has the following conditions imposed upon it which the Practitioner must comply with:
Definitions
'Psychotherapy' is defined as 'a form of treatment in which a trained therapist establishes a professional therapeutic relationship with a patient and, through communication (verbal and nonverbal), attempts to alleviate emotional disturbance, reverse or change maladaptive behaviours, and encourage personality growth and development'.
'Counselling' is defined as 'communicating with a patient who is emotionally disturbed by situations or crises of an everyday nature; is aimed at relieving immediate distress or sustaining the patient through the time of difficulty and returning the patient to his or her previous level of functioning over time; and includes empathic listening, reassurance, encouragement and suggestions for solving specific problems'.
'Practice' is defined as St Luke's GP Medical Group, 26 McGilvray Avenue, Morley WA 6943 or such other practice (Other Practice) at which Dr Wild may work.
'Supervisor' means Dr Lachlan Dunjey or such other medical practitioner as is notified to and approved by the Board in accordance with condition (k).
Conditions of practice
(a)Dr Wild will not consult or manage any patient at any location other than at the Practice, unless emergency patient circumstances require it. Dr Wild will maintain a separate register of all consultations with patients at any location other than at the Practice, and will make this register available for inspection by the Supervisor and any nominee appointed by the Board.
(b)Dr Wild will not consult or manage any patient outside the hours of 8 am to 6 pm Monday to Friday and 8 am to 12.00 pm on Saturdays, unless emergency patient circumstances require it. Dr Wild will maintain a separate register of all consultations with patients outside of these hours and will make this register available for inspection by the Supervisor and nominee appointed by the Board.
(c)Dr Wild will not provide counselling to the same patient in respect of the same mental health issues in excess of six (6) Level C (Medical Benefits Schedule) consultations per annum. Should a patient require ongoing treatment Dr Wild will refer the patient to another practitioner. That other practitioner may be another medical practitioner or an appropriate mental health provider. Any referral must be approved by the Supervisor.
(d)Dr Wild will not manage any patient by engaging in Psychotherapy including prayer therapy.
(e)Dr Wild will maintain only one set of clinical notes in respect of all patients.
(f)Dr Wild will not hold any clinical notes or records or any information at all outside the Practice.
(g)Dr Wild will ensure that all clinical notes, records and any information at all in respect of all patients will be available to all other practitioners at the Practice at all times.
(h)Dr Wild will be supervised by the Supervisor as follows:
(i)For a minimum of one hour at least every month Dr Wild and the Supervisor will meet for the following reasons:
A The Supervisor will review the circumstances of Dr Wild's prescription of Schedule 8 narcotic drugs.
B The Supervisor will assess Dr Wild's compliance with these conditions of practice.
(ii)The Supervisor will review Dr Wild's current patients (in addition to those referred to in paragraph (h)(i)A above) to consider whether any patient requires referral. On the first working day of each month Dr Wild and the Supervisor will inform the Medical Board of Australia in writing of the outcome of the meetings referred to in paragraph (i) above.
(i)Dr Wild agrees to allow Dr Watts to undertake a further audit and report (Third Audit Report) on or before 31 October 2012 or such other date as the Board may specify. The Third Audit Report will be provided to the Board for review and to Dr Wild. The purpose of the Third Audit Report will be as follows:
(i)To assess Dr Wild's compliance with paragraphs (h)(i) and (ii) above.
(ii)To assess any matters raised by the Supervisor in the reports referred to in paragraph (h) above.
(iii)To address any matters arising out of the reports referred to in paragraph (h) above.
(j)Dr Wild will submit to a random audit and report by Dr Watts or other practitioner nominated by the Board, if the Board determines that such a random audit is appropriate.
(k)In the event that Dr Wild gives notice to the Practice that she intends to end her employment at the Practice or to commence work at another practice, Dr Wild will immediately inform the Board and provide the Board in writing with the following.
(i)The address of the Other Practice and Dr Wild's intended working hours.
(ii)The name of the Supervisor at the Other Practice who will supervise Dr Wild in accordance with paragraph (c) and (h) above in respect of Dr Wild's patients at the Other Practice.
(l)Dr Wild agrees to the Board providing the Supervisor at the Other Practice with a copy of these conditions of practice and a 'deidentified' copy of Dr Watts' report served on 22 October 2010.
5.The Practitioner must pay the applicant's costs, of an amount to be assessed if not agreed between the parties, within 30 days of the date of these orders.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
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