MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2016] WASAT 26 | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:239/2014 | 4 NOVEMBER 2015 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 17/03/16 | |
| 54 | Judgment Part: | 1 of 1 | |
| Result: | Paragraphs of the amended application are struck out as an abuse of process under s 47(1) of the State Administrative Tribunal Act 2004 (WA) | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA KEITH VICTOR WOOLLARD |
Catchwords: | Abuse of process Delay Prejudice 'Double jeopardy' Public interest |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010, s 23, s 25, s 26(1)(c), s 31, s 35, s 160(2), s 196, s 196(2) Limitation Act 2005 (WA), s 14(2) Medical Practitioners Act 1938 (NSW) State Administrative Tribunal Act 2004 (WA), s 47, s 47(1) |
Case References: | Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 Gill v Walton (1991) 25 NSWLR 190 Herron v McGregor (1986) 6 NSWLR 246 Jago v District Court of New South Wales (1989) 168 CLR 23 Medical Board of Australia and Costley [2011] WASAT 171 Medical Board of Australia and Myers [2014] WASAT 137 (S) Medical Board of Australia and Woollard [2012] WASAT 209 Medical Board of Australia and Woollard [2012] WASAT 209 (S) Medical Board of Australia and Woollard [2013] WASAT 101 Walton v Gardiner (1993) 177 CLR 378 |
Orders | 1. Save for paragraphs 23 to 27 of the Medical Board of Australia's amended application, as amended by the Tribunal's order of 22 July 2015, the amendments made by the order of 22 July 2015 be struck out as an abuse of process pursuant to s 47(1) the State Administrative Tribunal Act 2004 (WA). |
Summary | Patient B died in September 2005. His widow lodged a complaint in 2012 against the practitioner. The Medical Board of Australia took until December 2014 to file an application with the Tribunal. ,In July 2015, the Board amended its application to make new and very serious allegations.,The practitioner established that he had suffered serious prejudice by reason of the Board's delay in making the allegations in the amended application. ,The relevant paragraphs of the amended application were struck out as an abuse of process pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : 4 NOVEMBER 2015 DELIVERED : 17 MARCH 2016 FILE NO/S : VR 239 of 2014 BETWEEN : MEDICAL BOARD OF AUSTRALIA
- Applicant
AND
KEITH VICTOR WOOLLARD
Respondent
Catchwords:
Abuse of process - Delay - Prejudice - 'Double jeopardy' - Public interest
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010, s 23, s 25, s 26(1)(c), s 31, s 35, s 160(2), s 196, s 196(2)
Limitation Act 2005 (WA), s 14(2)
Medical Practitioners Act 1938 (NSW)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)
Result:
Paragraphs of the amended application are struck out as an abuse of process under s 47(1) of the State Administrative Tribunal Act 2004 (WA)
Summary of Tribunal's decision:
Patient B died in September 2005. His widow lodged a complaint in 2012 against the practitioner. The Medical Board of Australia took until December 2014 to file an application with the Tribunal.
In July 2015, the Board amended its application to make new and very serious allegations.
The practitioner established that he had suffered serious prejudice by reason of the Board's delay in making the allegations in the amended application.
The relevant paragraphs of the amended application were struck out as an abuse of process pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA)
Category: B
Representation:
Counsel:
Applicant : Ms FA Stanton
Respondent : Ms G Archer SC
Solicitors:
Applicant : MDS Legal
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Gill v Walton (1991) 25 NSWLR 190
Herron v McGregor (1986) 6 NSWLR 246
Jago v District Court of New South Wales (1989) 168 CLR 23
Medical Board of Australia and Costley [2011] WASAT 171
Medical Board of Australia and Myers [2014] WASAT 137 (S)
Medical Board of Australia and Woollard [2012] WASAT 209
Medical Board of Australia and Woollard [2012] WASAT 209 (S)
Medical Board of Australia and Woollard [2013] WASAT 101
Walton v Gardiner (1993) 177 CLR 378
Introduction
1 These reasons consider whether an application by the Medical Board of Australia (Board) against Dr Keith Victor Woollard should be dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) by reason of an alleged abuse of process by the Board in proceeding with the application.
The death of Patient B
2 On 15 December 2005, Dr Woollard was undertaking an angioplasty procedure on Patient B. During the procedure, Dr Woollard attempted to position a guide wire across a lesion in Patient B's left anterior descending coronary artery. During that procedure Dr Woollard dissected that artery. As a result, it was necessary for a cardiothoracic surgeon, Dr Alvarez, to perform emergency coronary surgery to repair the artery. Patient B died early the following morning as a result of cardiogenic shock (Board's Grounds,paragraphs 712).
3 On 31 January 2008, the State Coroner found that the death arose by way of accident. He was satisfied that Patient B was suffering from severe coronary artery disease requiring coronary angioplasty (Affidavit of Nicholas Jonathon Cooper sworn 6 October 2015 (Cooper Affidavit page 16)).
The Widow's complaint
4 On 22 May 2012, Patient B's Widow (the Widow) filed a complaint with the Australian Health Practitioner Regulation Agency (AHPRA) (Cooper Affidavit pages 1725). The Coroner's report was published two and a half years after Patient B's death. The Widow filed her complaint some six and a half years after the death of Patient B, just under four years after the Coroner's report was published. The total period that elapsed between Patient B's death and the filing of the complaint was six and a half years.
The Board's notification to Dr Woollard
5 On 1 June 2012, the Board wrote to Dr Woollard in relation to the Widow's notification and gave notice of proposed immediate action under s 155 to s 157 of the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law) (Cooper Affidavit pages 2632). Thereafter, there was correspondence between the Board and Dr Woollard's solicitors, Clayton Utz (Cooper Affidavit, pages 3343).
The Board's application before this Tribunal
6 On 15 January 2014, the Board decided to refer the matter to the Tribunal. On 18 February 2014, the Board notified Dr Woollard of its decision.
7 On 19 December 2014, 11 months after the Board's decision to refer the matter to the Tribunal, and some two and a half years after the lodging of the complaint by the Widow, the Board filed an application in this Tribunal under s 196 of the National Law.
8 Some five months later, on 7 May 2015, a minute of proposed amended grounds of application was prepared by the Board. However, that document was not filed until 21 July 2015 some eight months after the original application was filed.
9 It is now over 10 years since Patient B died.
Dr Woollard's interim application to dismiss the Board's application
10 On 5 October 2015, Dr Woollard applied for interim orders that:
1) the Tribunal dismiss the Board's application, pursuant to s 47(1) of the SAT Act;
2) in the alternative, the Tribunal strike out the Board's application, pursuant to s 47(1) of the SAT Act.
The relevant legislation
11 Section 47 of the SAT Act provides:
Frivolous etc. proceedings, dismissal of etc.
(1) This section applies if the Tribunal believes that a proceeding
(a) is frivolous, vexatious, misconceived or lacking in substance; or
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process.
(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
…
The Tribunal's power to dismiss for abuse of process
12 Section 47(1)(c) of the SAT Act gives the Tribunal an express power to order that the proceedings be dismissed or struck out or to make any appropriate orders where it believes that a proceeding is an abuse of power.
13 The expression 'abuse of process' has an acquired legal meaning. Unless a contrary indication appears from the context, it is presumed that it is used in s 47 of the SAT Act in that context. There is no contrary indication in the SAT Act. Section 47(1) shows an intention to use the expression in its acquired meaning, that is, as that expression is used in the sense understood in a superior civil court of record (Erujin Pty Ltd v Western Australian Planning Commission [2010]WASC326 at [28], [56] cited with approval in Medical Board of Australia and Costley [2011] WASAT 171 at [12][13]).
14 In the cases referred to below, an order was typically made in terms that the proceedings be permanently stayed. The principles that apply to a permanent stay are equally applicable to the exercise of the Tribunal's power under s 47(1) of the SAT Act.
Chelmsford Private Hospital
15 In the early 1970's, a form of psychiatric treatment known as 'deep sleep' therapy was conducted at Chelmsford Private Hospital (Chelmsford) in Sydney. The treatment was led by Dr Bailey. Drs Gardiner, Herron and Gill worked with Dr Bailey. These doctors had ceased using deep sleep therapy by no later than 1979.
16 A significant number of patients died as a result of deep sleep therapy and a coronial inquiry took place. In March 1982, the Coroner found a prima facie case of negligence against Drs Bailey, Gardiner and Herron. Criminal and civil proceedings were initiated.
17 In 1985, Dr Bailey took his own life.
18 In 1986, disciplinary proceedings under the Medical Practitioners Act 1938 (NSW)were initiated against Drs Gill and Herron arising from complaints made between 1982 and 1986 relating to treatment carried out by them between 1973 and 1977.
The Chelmsford cases
19 In Herron v McGregor (1986) 6 NSWLR 246 (Herron), the New South Wales Court of Appeal considered an application brought by Drs Herron and Gill to stay the disciplinary proceedings, on the basis that the long delay in bringing proceedings was oppressive and an abuse of process. The Court of Appeal stayed the disciplinary proceedings. The Court of Appeal's decision largely relied on what it found to be a right to a speedy trial and a presumption of prejudice arising from long delay.
20 Following the decision in Herron the High Court handed down its decision in Jago v District Court of New South Wales (1989) 168 CLR 23 (Jago). Although Jago related to a criminal case, the principles stated therein are relevant to whether there has been an abuse of process in disciplinary proceedings.
21 Following the decision in Herron, a Royal Commission into the use of deep sleep therapy at Chelmsford was held which produced further evidence against Drs Herron, Gill and Gardiner. On the basis of the further evidence from the Royal Commission, further disciplinary proceedings were initiated against Drs Herron, Gill and Gardiner.
22 In Gill v Walton (1991) 25 NSWLR 190 (Gill) Drs Gardiner, Gill and Herron successfully brought an application before the New South Wales Court of Appeal seeking an order that the further disciplinary proceedings be permanently stayed on the basis that they were an abuse of process.
23 The decision in Gill was appealed to the High Court. In Walton v Gardiner (1993) 177 CLR 378 (Walton) the High Court dismissed the appeal.
The Chelmsford considerations abuse of process in disciplinary proceedings
24 The series of cases that arose from Chelmsford and the decision in Jago considered three areas in relation to dismissal for abuse of process in disciplinary hearings:
a) prejudice by reason of delay;
b) 'double jeopardy'; and
c) public interest.
25 These principles are not an exhaustive statement of the basis upon which disciplinary proceedings may be dismissed for abuse of process. However, they are sufficient to determine Dr Woollard's application.
The general principles
26 The Tribunal has the power to dismiss proceedings if it is satisfied that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process (Gill at 200 per Gleeson CJ; at 204205 per Kirby P; Walton at 392 per Mason CJ, Deane and Dawson JJ).
27 The Tribunal would only be so satisfied that there has been an abuse of process in an exceptional or extreme case (Gill at 204 per Kirby P, Jago at 34 per Mason CJ; Walton at 392 per Mason CJ).
28 Either prejudice arising from delay or double jeopardy may provide a basis for dismissal of an application as an abuse of process (Herron at 253 per McHugh JA, Gill at 196 per Gleeson CJ).
Prejudice - principles
29 In Jago, the High Court held that actual prejudice must be established by a party seeking to have proceedings dismissed as an abuse of process (Jago at 332 per Mason J; see also Brennan J at 44, Deane J at 60, Toohey J at 7172, Gaudron J at 78; Gill at 200 per Gleeson CJ). The High Court further held that there is no right to a speedy trial.
30 In Walton, the High Court followed Jago in holding that the right to a speedy trial and the existence of presumptive prejudice relied upon by the Court of Appeal in Herron is not sufficient to establish abuse of process in disciplinary proceedings.
31 In Jago, Mason CJ stated at 3334:
The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as [i] the length of the delay, [ii] the reasons for the delay, [iii] the accused's responsibility for asserting his rights and, of course, [iv] the prejudice suffered by the accused: Barker v. Wingo (1972) 407 US 514; Bell v. Director of Public Prosecutions [1985] AC 937, as explained in Watson (1987) 8 NSWLR 685, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. …
32 Similarly, in Jago at 6061, Deane J identified five heads of relevant circumstances which a court should consider in deciding whether proceedings should be stayed or dismissed:
(i) the length of the delay;
(ii) reasons given by the prosecution to explain or justify the delay;
(iii) the accused's responsibility for and past attitude to the delay;
(iv) proven or likely prejudice to the accused; and
(v) the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.
33 Deane J stated:
Those five 'heads' provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of the delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf. Mills v. The Queen [1986] 1 SCR at pages 924925); Aboud v. AttorneyGeneral (N.S.W.) (1987) 10 NSWLR at pages 683684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts (see the judgment of Gaudron J on this appeal).
…
34 In Gill, at 198, Gleeson CJ stated:
Recognising, in the light of the High Court's decision in Jago, the importance of demonstrating actual prejudice rather than relying simply on 'presumptive prejudice', the claimants nevertheless refer to and rely upon the practical considerations as to the usual consequences of delay that were referred to by McHugh JA in Herron v McGregor (at 254-255). 'Memories fade. Relevant evidence becomes lost.' In the very nature of the adversarial process, which applies in the Medical Tribunal as well as in the ordinary civil and criminal courts, a person's capacity to wage a forensic contest in defence of conduct which occurred some fifteen or more years earlier may reasonably be expected to be diminished by the lapse of time. That is a matter of common experience and commonsense.
35 In Herron, at 254255, McHugh JA stated :
Since no time limit has been laid down under the Act, a complaint may be made at any time unless the institution of the proceedings in the circumstances is oppressive and an abuse of process. Nevertheless, while the Act contains no time limitation for lodging a complaint it does not follow that a complainant, with knowledge of the facts, can stand by and allow time to pass. The public interest requires that complaints be lodged and dealt with as expeditiously as possible: see Birkett v James (at 329). A person with reasonable ground for complaint, therefore, should pursue it with reasonable diligence. Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) 'what has been forgotten can rarely be shown'. In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: 'Where there is delay the whole quality of justice deteriorates.' The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9-10):
'In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.
It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance indeed, the enormity of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place.'
36 In Gill,at 197, Gleeson CJ stated:
In summary, the new complaints are not the very complaints that were previously stayed, but they arise out of the same pattern of professional conduct as gave rise to the earlier complaints, and there is a substantial degree of overlapping between the issues to which the new complaints give rise and the issues that would have arisen under the previous complaints. …
37 In Gill, at 200, Gleeson CJ stated:
The present case also gives rise to a difficult problem of what is sometimes referred to as a principle or rule against double jeopardy: cf Davern v Messel (1984) 155 CLR 21 and Cooke v Purcell (1988) 14 NSWLR 51. As Mahoney JA observed in the latter case (at 68) this is a principle that informs rather than states the law, and, when it is invoked in a given case, it may be necessary to address the particular circumstances of its suggested application with some care. In the former case Gibbs CJ (at 33) warned that the rule against double jeopardy is not to be applied as a 'mere fetish', and the judgments of the various members of the High Court contain numerous examples of the wide variety of practical problems that could be grouped under the rubric of 'double jeopardy' and of the differing solutions that have resulted.
It cannot be said that the present case falls squarely within any of the settled particular instances of specific legal rules informed by the principle against double jeopardy. There was no hearing on the merits of the original charges against the claimants. Indeed the original charges, although similar, are not identical to, the present charges. This is not a case where a defence of, or analogous to, autrefois acquit could be raised.
38 In Gill, at 201, Gleeson CJ also stated:
There is considerable force in these submissions. The combination of the time that has elapsed, by virtue of unreasonable delay on the part of the department, between the time of the conduct in question and the time of the laying of the new charges, with its consequent prejudice, and of the fact that the new charges are closely related to charges that this Court ordered should not be proceeded with, and that the claimants were therefore entitled to regard as behind them, gives rise to a powerful argument that what is now attempted by the department is oppressive. In Herron v McGregor, McHugh JA (at 257) described the original proceedings as 'tantamount to persecution'.
39 Similarly, Kirby P found the complaints in Gill were a species of double jeopardy. He stated, at 206207:
The real explanation for the reworking of the particulars and the effective revival of the disciplinary proceedings, despite this Court's earlier clear orders, appears to be the punishment of the claimants for what they did so long ago. In the circumstances, such a revival of the proceedings is unjustifiably oppressive. It therefore involves consideration by the Court of the request by the claimants that they be protected, including against the form of double jeopardy which the revived proceedings constitute: see Cooke v Purcell (1988) 14 NSWLR 51 at 56ff.
Protection against double jeopardy … applies equally, I believe, to an inquiry into the right of a person to continue the practice of his or her profession, the denial of which would have grave consequences for that person's reputation and livelihood. The present may not be a pure case of double jeopardy, in the sense that the complaints and factual material before the Court today are not precisely the same as they were in 1986. But if, in substance, the complaints are the same and the evidence lost and disadvantages suffered by the claimants are substantially the same, the new case is a species of double jeopardy: cf R v Tait and Bartley (1979) 46 FLR 386 at 388; 24 ALR 473 at 476; R v Hayes (1987) 29 A Crim R 452 at 467; cf Davern v Messel (1984) 155 CLR 21 at 67f.
…
40 The test enunciated in Gill is:
a)whether the complaints are, in substance, the same or closely related; and
b) whether by reason of the conduct of the regulator:
i) the parties the subject of the complaints are entitled to regard the proceedings as behind them (Gleeson CJ); or
ii) the bringing of the second proceedings can be seen as punitive (Kirby P).
41 The purpose of disciplinary proceedings is primarily to protect the public.
42 In Medical Board of Australia and Myers [2014] WASAT 137 (S) at [8][9] the Tribunal stated:
The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Craig v Medical Board of South Australia (2001) 79 SASR 545 at [41] (Craig); ReMaraj (a Legal Practitioner) (1995) 15 WAR 12 at 25 (Maraj);LegalProfession Complaints Committee v Love [2014] WASC 389 (Love) at [19];Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G441A - B; Legal Profession Complaints Committee and indeBraekt [2013] WASAT 124 at [24]-[26]; New South Wales Bar Associationv Hamman [1999] NSWCA 404 (Hamman) at [21] and [77]).
The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
43 In Gill, both Gleeson CJ and Kirby P considered the role of public interest in determining which proceedings should be dismissed as an abuse of power. Gleeson CJ at 201 referred to the balancing exercise required by the court:
However, before this Court exercises its supervisory jurisdiction to stay the proceedings in the Medical Tribunal it is important to weigh in the balance considerations of public interest. Those considerations are not all one way. There is a public interest in fairness of judicial and disciplinary procedure. The arguments so far canvassed do not merely reflect the private interests of the claimants. Nevertheless, there is a public interest in the due prosecution of charges such as those presently involved and it is necessary to measure the weight of that interest in the present case.
44 The fact that any sanction is to be considered at the time of ordering the sanction, rather than when the conduct occurred, means that whether the conduct complained of is still occurring or of recent occurrence is relevant. Both Gleeson CJ and Kirby P found that the fact that the conduct complained of has ceased, particularly when it has ceased long ago, is relevant to determining where the public interest lay.
45 In Gill, at 201202, Gleeson CJ stated:
… However the fact that nothing is presently occurring, or has recently occurred, in respect of which the public need protection from the claimants is a matter to be taken into account.
46 In Gill, at 206, Kirby P stated:
[Deep Sleep Therapy] is now administered nowhere in the State. It is unlawful. There is no suggestion that its use has been revived or will be used again by anyone, least of all the claimants. Such is the passage of time since the events the subject of the complaints (which date back to 1970) that one of the claimants has retired from practice. Doubtless the other claimants are now in many ways different people, exercising different skills according to different professional knowledge. In such circumstances, to suggest that the public interest requires an inquiry into the claimants' fitness to practise their profession now, by reason of events fifteen to twenty years ago, is wholly unconvincing.
Relevance of limitation period
47 Before this Tribunal, Dr Woollard submitted that:
a) where the ability to commence an action is subject to a limitation period, the limitation period represents the legislature's judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create (Herron, per McHugh JA (as his Honour then was), with whom Street CJ and Priestley JA agreed, at page 253E);
b) the limitation period that would have applied to a civil action in the matter of Patient B was a period of three years after his death (s 14(2) of the Limitation Act 2005 (WA), with powers given to the Court to extend time in appropriate cases) and therefore expired in December 2008; and
c) even if the proceedings are brought within the relevant limitation period that applies to the action, or where the action is not governed by a limitation period, proceedings may still be stayed as an abuse of process, if the conduct of the regulator is oppressive (Herron, ibid, at pages 253F and 254C).
48 One needs to be careful in drawing comparisons between civil matters and quasicriminal matters such as disciplinary proceedings. Civil proceedings are essentially a resolution of private interests. Disciplinary proceedings involve the public interest and the expiration of limitation periods relating to civil cases are of less significance in quasicriminal proceedings such as disciplinary proceedings. Ultimately, the significance of Herron is found in submission (c) above proceedings may be stayed if the conduct of the regulator is oppressive.
AHPRA is a delegate of the Board
49 The history set out below evidences that the conduct that is to be considered is largely the conduct of AHPRA rather than the Board.
50 The Medical Board of Australia is established under s 31(1) of the National Law.
51 Section 31(2) of the National Law provides:
A National Board
(a) is a body corporate with perpetual succession; and
(b) has a common seal; and
(c) may sue and be sued in its corporate name.
52 The functions of National Boards, including the Medical Board of Australia, are set out in s 35 of the National Law. Section 35 relevantly provides:
The functions of a National Board established for a health profession are as follows
…
(g) to oversee the receipt, assessment and investigation of notifications about persons who
(i) are or were registered as health practitioners in the health profession under this Law or a corresponding prior Act[.]
…
(i) to refer matters about health practitioners who are or were registered under this Law or a corresponding prior Act to responsible tribunals for participating jurisdictions;
…
53 AHPRA was established under s 23 of the National Law.
54 Section 25 of the National Law relevantly provides:
The functions of the National Agency are to provide administrative assistance and support to the National Boards, and the Boards' committees, in exercising their functions[.]
55 Section 26(1)(c) of the National Law provides:
The National Agency must enter into an agreement (a health profession agreement) with a National Board that makes provision for the following the services to be provided to the National Board by the National Agency to enable the National Board to carry out its functions under this Law.
56 Under s 37 of the National Law, the Board may delegate its functions to AHPRA.
57 The Board had delegated the relevant functions to AHPRA. Accordingly, in considering the conduct of the Board, the conduct of AHPRA as a delegate of the Board is relevant conduct.
The history
58 In order to place the present application by the Board in context it is important to understand the conduct of this application in relation to other proceedings brought by the Board against Dr Woollard.
59 There are seven proceedings that are relevant. These are set out below. The Tribunal has used the first initial of the various patients' names for the purpose of identification.
60 Five matters may be relevant to this chronology:
1) the date of the conduct complained of;
2) the date of the complaint to the Board;
3) the date of the notification by the Board to Dr Woollard;
4) the date of the application by the Board either to this Tribunal or to a performance and professional standards panel (PPS panel) (s 182(1) of the National Law); and
5) the date of resolution.
61 Not all of the details stated above are apparent from the evidence. However, sufficient information has been provided for the Tribunal to reach its conclusions.
62 A schedule of relevant events is annexed to these reasons.
63 Between 2005 and 2009, Dr Woollard carried out a series of coronary angioplasty procedures that were subsequently investigated by the Board:
a) Patient B on 16 December 2005;
b) Patient S on 30 August 2006;
c) Patient C on 22 March 2007;
d) Patient M on 12 September 2007;
e) Patient W on 21 January 2009;
f) Patient H on 14 May 2009; and
g) Patient A (precise date unknown).
64 The Board received complaints in relation to Patients C and H in February 2009.
65 On 22 July 2011, the Board filed an application with the Tribunal in relation to Patient S (VR 145 of 2011).
66 On 22 February 2012, the Board filed an application with this Tribunal in relation to Patient C (VR 31 of 2012).
67 On 22 May 2012, the Widow notified AHPRA of a complaint in relation to Patient B.
68 Dr Woollard does not assert that the delay by the Widow was inexcusable.
69 While the assessment of the length of the delay incorporates the entire period from the relevant events to the present, the question of whether the delay was inexcusable is confined to the conduct of the Board once the complaint was received.
70 The Tribunal fully understands that AHPRA has an enormous workload. Many of its applications are dealt with by this Tribunal. However, that workload cannot excuse, of itself, a failure to proceed expeditiously where there is a long delay.
71 The fact that by the time the complaint was lodged by the Widow some six and a half years had elapsed since Patient B's death required the Board to act expeditiously. It goes without saying that, over time, memories fade and, particularly after six and a half years, there is a risk that records may have been lost or that as further time elapses, memories may further weaken or further records may be lost.
72 The factors identified by McHugh JA in Herron made it imperative that the Board acted expeditiously once it received the notification by the Widow on 22 May 2012.
73 The Board gave evidence that as at 23 May 2012 the proceedings relating to Patient S had already been listed for a final hearing in the Tribunal and were in an advanced state of preparation for hearing (Fiona Ann Stanton Affidavit (Stanton Affidavit) 19 October 2015[6]).
74 The Tribunal accepts that in May 2012, having regard to the state of the Patient S proceedings, it was appropriate to continue those proceedings without resolving the issues surrounding Patient B.
75 On 25 May 2012, the Board notified Dr Woollard of a complaint in relation to Patient M.
76 About a week later, on Friday, 1 June 2012, AHPRA wrote to Dr Woollard giving notice of proposed immediate action under s 155 to s 157 of the National Law (Cooper Affidavit pages 2830) and notifying Dr Woollard of a complaint in relation to Patient B (Cooper Affidavit pages 2627). The notice stated:
As you are aware, the Australian Health Practitioner Regulation Agency (AHPRA) has received a number of notifications regarding your alleged performance as a cardiologist. These include the following Notifications:
1. [Patient S] (2006)
2. [Patient M] (2007)
3. [Patient C] (2007)
4. [Patient H] (2009)
5. [Patient C] (2010)
Since 18 May 2012, AHPRA has received 3 new notifications regarding your performance as a cardiologist. You have already been notified in respect of the notification from [Patient M]. Please find enclosed correspondence in relation to the 2 other notifications received in May 2012, not yet provided to you as follows:
6. Notification from [the Widow] on behalf of [Patient B] (deceased) (2005)
7. Notification from [the widow of Patient G] on behalf of [Patient G]
The notifications together raise a number of concerns including:
• Performance of angioplasties;
• Patient selection and management of angioplasty patients; and
• Management of anticoagulants.
(Cooper Affidavit page 28)
77 What is evident is that as at 1 June 2012, AHPRA was aware of complaints in relation to at least seven coronary procedures relating to Dr Woollard. Plainly, it regarded those seven matters as providing a basis for immediate action.
78 The Board's notice of 1 June 2012 is compelling evidence of a need for urgency on the part of the Board in relation to the complaint concerning Patient B.
79 Clayton Utz responded on behalf of Dr Woollard on 11 June 2012 with a detailed eight page letter. Clayton Utz's letter noted that a number of the matters concerning Dr Woollard's patients were before this Tribunal (Cooper Affidavit pages 3340).
80 The Board's application concerning Patient S (VR 145 of 2011) was heard in the Tribunal on 26 and 27 June 2012 (Stanton Affidavit 19 October 2015 [6]).
81 The Tribunal notes that the Patient S matter was heard by this Tribunal less than a year after the Board filed its application in this Tribunal and about six years after Patient S's procedure.
82 On 29 June 2012, AHPRA wrote to Clayton Utz requesting that Dr Woollard provide to its investigator Ms Moyle, any further submissions relating to the complaint by the Widow and any documents in relation to Patient B (Cooper Affidavit pages 4142).
83 On 3 July 2012, Clayton Utz sent AHPRA Dr Woollard's clinical notes in relation to Patient B (Kirsty Bradshaw Affidavit (Bradshaw Affidavit) 29 October 2015[7]; Cooper Affidavit page 43). Clayton Utz's letter stated:
We look forward to receiving your update in relation to the progress of the investigation. If you require any further information please do not hesitate to contact us.
84 Dr Hockings assisted Dr Woollard immediately after Patient B's coronary artery was dissected. On 13 August 2012, AHPRA sent a letter to Dr Hockings seeking copies of all relevant documents and a summary of his involvement with Patient B during the coronary angioplasty procedure performed on 15 December 2005 (Bradshaw Affidavit 29 October 2015 [9]).
85 On 15 August 2012, a letter was sent from AHPRA to the Coroner's Court seeking a copy of the Coroner's report and findings in relation to Patient B, and copies of all correspondence relating to Patient B between the Coroner's Court and the Widow (Bradshaw Affidavit 29 October 2015[10]).
86 Dr Hockings replied promptly. On 30 August 2012 AHPRA received a letter and documents from Dr Hockings in response to its letter of 13 August 2012 (Bradshaw Affidavit 29 October 2015 [11]).
87 The Tribunal delivered its decision in relation to Patient S on 19 October 2012 (Medical Board of Australia and Woollard [2012] WASAT 209 (Woollard 'S') (Stanton Affidavit 19 October 2015 [6]).
88 On 1 November 2012, Investigator's Notices requesting information in relation to Patient B were sent to potential witnesses: Ms Knowles, Ms Collins and Dr Alvarez. These notices were sent by Ms Gnasso who replaced Ms Moyle (Bradshaw Affidavit 29 October 2015 [12]).
89 On 2 November 2012, the Board notified Dr Woollard of a complaint in relation to Patient A (Cooper Affidavit page 11).
90 On 5 November 2012, Ms Gnasso spoke to Ms Knowles and received an email from Ms Collins (Bradshaw Affidavit 29 October 2015 [13]).
91 On 7 November 2012, the Board filed an application with the Tribunal in relation to Patient H (VR 182 of 2012).
92 Between 23 November 2012 and 3 December 2012, Ms Gnasso received an email and a letter from Dr Alvarez (Bradshaw Affidavit 29 October 2015 [14][16]).
93 By this stage, about six months had passed between the Widow's notification to AHPRA and the gathering of evidence from nonexpert witnesses. Seven years had passed since Patient B's death. Up to this point, there could be no complaint about the Board's action.
94 On 19 December 2012, in Medical Board of Australia and Woollard [2012] WASAT 209 (S) (Woollard 'S' (S)) at [59] the Tribunal delivered its decision in relation to penalty and ordered that:
1. [Dr Woollard] is reprimanded pursuant to s 116(1)(c) of the Medical Practitioners Act 2008 (WA).
2. Pursuant to s 116(1)(f) of the Medical Practitioners Act 2008 (WA), [Dr Woollard] must comply with the following conditions on his registration as a medical practitioner (in addition to any other conditions imposed on his registration by the [Board]):
(i) Dr Woollard must not perform any angioplasty or stenting procedure unless he is directly supervised and observed by an interventional cardiologist with at least five years' postaccreditation experience in percutaneous interventional cardiology who has been approved by the Board as Dr Woollard's supervisor until:
(a) Dr Woollard has completed within a 12 month period at least 75 angioplasty procedures as the primary operator whilst under such supervision and has submitted to the Board a log book setting out:
(i) a record of the date of each supervised procedure;
(ii) the laboratory where each supervised procedure took place;
(iii) the vessel or vessels in respect of which angioplasty was carried out and details of whether the procedure involved balloon angioplasty and/or stenting; and
(iv) details of any complications of the procedure that were known at the time of submitting the log book;
(b) the supervisor has verified that the supervisor provided supervision in according with this condition in respect of each procedure referred to in the log book; and
(c) the Board has approved the log book and advised Dr Woollard in writing of that approval.
(ii) Dr Woollard must not inflate or cause the inflation of any angioplasty balloon used when performing angioplasties and stenting procedures above its rated burst pressure.
3. Pursuant to s 116(1)(i) of the Medical Practitioners Act 2008 (WA), [Dr Woollard] must pay to the [Board] a penalty of $20,000 by 16 January 2013.
4. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), [Dr Woollard] must pay the [Board's] costs of this proceeding assessed in the sum of $77,177 by 16 January 2013.
95 The orders made by the Tribunal in VR 145 of 2011 imposed significant restrictions on Dr Woollard. In effect, he was unable to carry out unsupervised angioplasty or stenting procedures on patients.
96 On 15 January 2013, the Board considered Patient B's case and decided to seek an opinion from a cardiologist, Dr Richard Clugston (Bradshaw Affidavit 29 October 2015 [17]).
97 The Tribunal can accept a delay over the Christmas/New Year holiday period. However, after 15 January 2013, no explanation has been offered by AHPRA or the Board for the delays that followed.
98 After 15 January 2013, Ms Bradshaw prepared a letter to Dr Clugston. Ms Bradshaw sent the letter to Dr Clugston on 19 March 2013. The letter sought an independent opinion from him as to Dr Woollard's treatment of Patient B (Bradshaw Affidavit 29 October 2015 [18]; Cooper Affidavit page 5052). There is no explanation as to why it took two months to send the brief.
99 On 6 May 2013, Ms Gnasso sent an email to Dr Clugston asking if he could let her know when he would be a position to provide his report in response to her letter dated 19 March 2013. On the same date, Dr Clugston emailed Ms Gnasso and advised that he would need copies of the discs pertaining to Patient B's procedure. (Bradshaw Affidavit 29 October 2015 [19]). There is no explanation as to why Dr Clugston took two months to determine that he needed the discs.
100 On 9 May 2013, Ms Gnasso wrote to the Director of Clinical Services at the Mount Hospital asking for the discs requested by Dr Clugston (Bradshaw Affidavit 29 October 2015[20]).
101 The Tribunal applications concerning Patient C (VR 31 of 2012) and Patient H (VR 182 of 2012) were able to be resolved by agreement between the parties on 21 May 2013 (Stanton Affidavit 19 October 2015 [7]).
102 On 30 May 2013, AHPRA sent a letter to Dr Clugston enclosing Patient B's discs (Bradshaw Affidavit 29 October 2015 [21]).
103 On 31 May 2013 AHPRA sent a letter to notify Clayton Utz of the decision to refer Dr Woollard to a performance and professional standards panel (PPS panel) (Cooper Affidavit pages 6163).
104 On 4 June 2013, Clayton Utz responded to AHPRA asking why the matter had been referred when Dr Woollard had agreed that he would no longer perform stenting procedures for a period of at least 5 years (Cooper Affidavit page 64).
105 On 12 June 2013, in in relation to Patient H (VR 182 of 2012) and Patient C (VR 31 of 2012) (see Medical Board of Australia and Woollard [2013] WASAT 101) (Woollard C & H), the Tribunal relevantly ordered:
Being satisfied by reason of the respondent's admissions that proper cause exists for disciplinary action against the respondent (referred to in these orders as the practitioner) and in order to give effect to the agreed terms of the proceedings it is on 12 June 2013 ordered pursuant to section 56(1) of the State Administrative Tribunal Act 2004 (WA) that:
(i) The practitioner is reprimanded in relation to his conduct referred to in paragraphs 44 (concerning VR 31 of 2012) and 59 (concerning VR 182 of 2012), including each sub-paragraph of those paragraphs.
(ii) From the date of this order the practitioner's registration is subject to the condition that the respondent is prohibited from performing any angiogram procedure and is prohibited from performing any angioplasty and stenting procedure on any person.
(iii) The review period in respect of the condition referred to in (ii) is 5 years from the date of this order.
(iv) Within 14 days of the date of this order the practitioner must pay to the applicant a fine in the sum of $75,000.00.
(v) The practitioner must pay the applicant's costs and disbursements of these proceedings to be assessed by the Tribunal if not agreed.
106 The conditions imposed on Dr Woollard by the Tribunal's consent orders of 12 June 2013, were even stricter that those imposed by the Tribunal on 19 December 2012 in Woollard 'S' (S), in that he could not perform angioplasty and stenting procedures, even under supervision.
107 The application to the Tribunal in relation to Patient C had been filed in February 2012. It was resolved about 18 months later.
108 The application to the Tribunal in relation to Patient H had been made in November 2012. It was resolved a little over six months later.
109 On 26 July 2013, Clayton Utz emailed AHPRA asking the Board to reconsider its decision to bring Dr Woollard before the PPS panel given the outcome of the Tribunal's orders in regards to Patients C and H (Cooper Affidavit page 65).
110 On 3 September 2013, Ms Gnasso sent an email to Dr Clugston asking when he would be in a position to provide his report. On the same date Dr Clugston advised Ms Gnasso that he would prepare the report over the weekend (of that week) (Bradshaw Affidavit 29 October 2015 [22]).
111 On 9 September 2013, Dr Clugston emailed Ms Gnasso advising that it had been necessary for him to work at a hospital for most of the weekend, and that he would attempt to have his opinion to Ms Gnasso by the end of that week (Bradshaw Affidavit 29 October 2015[23]).
112 On 13 September 2013, Dr Clugston's report dated 12 September 2013 was received by AHPRA (Bradshaw Affidavit 29 October 2015[24]; Cooper Affidavit page 5359). Dr Clugston's report stated:
If Dr Woollard had not yet completed a training program in coronary angioplasty at the time that he undertook what was a complex multivessel stenting procedure then my personal opinion is that that circumstance was entirely unacceptable.
My understanding is that the Cardiac Society of Australia and New Zealand had in place guidelines for training in coronary angioplasty in 2005. I do not know whether the Cardiac Society itself has any authority in declaring a Cardiologist competent or otherwise to proceed to undertake angioplasty without supervision. Likewise I do not know whether the Mount Hospital had in place at the time (December 2005) credentialling criteria to ensure that Doctors performing angioplasty had undertaken a formal training program.
Worldwide, and in Australia in particular, training programs in angioplasty generally specify a precise number of angioplasties which must be undertaken either as primary or secondary operator. In general, as of 2005, an individual would not be considered competent until they had completed a training program.
I would not consider it appropriate that [Patient B] should have had a complex angioplasty procedure performed by an operator who had not completed a training program, or who was yet to complete a training program and was unsupervised.
I would note that I do not know that whether from a legal perspective completion of a training program is a prerequisite for an operator to undertake a coronary angioplasty procedure within Australia, either now or as of December 2005,
To summarise using the information available it is impossible to tell whether the adverse outcome (death) which occurred was in the setting of a competent operator encountering an avoidable or unavoidable complication which was managed well expertly, albeit with an adverse outcome, versus a less than expert operator performing to a standard below that expected of an interventional Cardiologist.
…
The inference drawn from Dr Hockings letter of 8 December 2005 was that Dr Keith Woollard may still have been in training as of the date of the procedure (15 December 2005) during which the patient died. If that was the case, and he was unsupervised, I would consider that unacceptable and entirely inappropriate. To perform the procedure unsupervised during a period of (incomplete) training may have contributed to or directly resulted in the patient's death. I would reiterate that I do not know whether in December 2005 there was any legal requirement for Dr Woollard to be 'trained' if he were undertaking an angioplasty procedure of any sort.
113 It had taken six months for Dr Clugston to reply. Other than the weekend around 9 September 2013, there is no explanation for Dr Clugston's delay.
114 The matters concerning Patients S, C and H were very similar. Dr Clugston gave evidence in the Patient S case. The Tribunal can understand why AHPRA chose to seek Dr Clugston's opinion. However, the Board should not have been content to wait six months. Dr Clugston was plainly very busy. The Board should have ensured that Dr Clugston was going to be in a position to produce a report promptly or it should have engaged another expert. A delay of six months in receiving an expert report might be acceptable in other circumstances but not in the circumstances where Patient B had died in 2005.
115 On 23 September 2013, AHPRA sent a letter to the Mount Hospital seeking further information relating to the general accreditation of practitioners performing coronary angioplasty procedures and Dr Woollard's particular accreditation (Bradshaw Affidavit 29 October 2015 [25]).
116 Surely, well prior to this date, having regard to the number of complaints involving Dr Woollard, as disclosed in AHPRA's notice of 1 June 2013, the Board must have been concerned about Dr Woollard's training. It was certainly not the case that the complaint in relation to Patient B was isolated.
117 No explanation is offered by the Board as to why it took so long after the complaint in late May 2012 to seek that information. It is easy to be wise after the event, but surely the number of complaints against Dr Woollard indicated a systematic failure.
118 On 26 September 2013, Ms Gnasso spoke to an officer of the Mount Hospital in relation to AHPRA's letter dated 23 September 2013 (Bradshaw Affidavit 29 October 2015 [26]).
119 On 26 September 2013, Ms Gnasso made further enquiries of the Mount Hospital in order to ascertain the appropriate person to serve with an Investigator's Notice in relation to Patient B (Bradshaw Affidavit 29 October 2015 [27]).
120 On the same date, Ms Gnasso spoke to Ms Jade Phelan of the Mount Hospital and discussed the further information sought by AHPRA from the Mount Hospital (Bradshaw Affidavit 29 October 2015 [28]).
121 On 1 October 2013, AHPRA signed a letter to Ms Phelan requesting information (Bradshaw Affidavit 29 October 2015 [29]).
122 On 14 October 2013 AHPRA received a letter from Ms Phelan attaching:
• a copy of the letter from Dr Woollard to Dr Crawford dated 14 December 2005 and the procedure logs of Dr Woollard headed 'Primary Operator' and 'Secondary Operator';
• a copy of a letter from the Mount Hospital, Hospital Director, Mr Brad Sebbes, to Dr Woollard dated 13December 2005;
• a copy of a further letter from Mr Sebbes to Dr Woollard dated 13 December 2005;
• a copy of a letter from Mr Sebbes to Dr Woollard dated 2 December 2005 (with a handwritten annotation 29 October 2005); and
• a copy of a letter from Dr Woollard to Dr Crawford dated 10 October 2005
(Bradshaw Affidavit 29 October 2015 [30])
123 On 23 October 2013, Ms Gnasso spoke to Mr Sebbes and obtained information from him in relation to the correspondence received by AHPRA from Ms Phelan (Bradshaw Affidavit 29 October 2015 [31]).
124 An agenda paper was prepared by Ms Gnasso for the purpose of a meeting of the Western Australian Notifications Committee of the Board on 12 November 2013. That report was considered by the Notifications Committee on 12 November 2013. The Notifications Committee deferred making a decision concerning Patient B pending the receipt of legal advice in relation to the matter (Bradshaw Affidavit 29 October 2015[32]).
125 On 13 November 2013, Clayton Utz wrote to AHPRA requesting an update on the investigation relating to Patient B (Cooper Affidavit page 60).
126 On 28 November 2013, the Board's solicitors provided legal advice in relation to the matter to Ms Gnasso, for the purpose of submission to the Notifications Committee (Bradshaw Affidavit 29 October 2015[33]).
127 On 19 December 2013, the Notifications Committee considered the legal advice and made a decision to recommend to the Board that the matter involving Patient B be referred to the Tribunal (Bradshaw Affidavit 29 October 2015 [34]).
128 It was now eight years since Patient B's death and 18 months since his Widow's complaint. The Board simply failed to appreciate the need for urgency.
129 On 15 January 2014, the matter was considered by the Board and the Board decided to refer the matter to the Tribunal (Bradshaw Affidavit 29 October 2015 [35]).
130 On 18 February 2014, AHPRA wrote to Clayton Utz advising that the Board had referred the complaint in relation to Patient B to the Tribunal (Cooper Affidavit page 44).
131 On 12 March 2014, Clayton Utz wrote to AHPRA. In that letter, Clayton Utz submitted to AHPRA that the Patient B Notification was an abuse of process:
3.1 The [Patient B] Notification was made on 23 May 2012, at a time when the [Patient S], [Patient H] and [Patient C] Proceedings (all relating to the performance by Dr Woollard of angioplasty procedures) were still before the SAT. At this time, it was open for the Board to expedite its investigation into relation to the [Patient B] Notification, make a decision to refer it to the SAT, and join it to the [Patient H] or [Patient C] Proceedings before the SAT. The Board chose not to do so.
3.2 The Board's decision to now refer the [Patient B] Notification to the SAT for determination is a decision to re-litigate circumstances already dealt with in earlier proceedings. That is, it is a referral in relation to the performance by Dr Woollard of an angioplasty procedure, when Dr Woollard's performance of angioplasty procedures has already been dealt with by SAT in the three separate proceedings (being [Patient S], [Patient H] and [Patient C] Proceedings).
(Cooper Affidavit at pages 4647)
132 On 14 March 2014, AHPRA sent an email to Clayton Utz to advise that the matter of Patient B was in the process of being briefed to its solicitors, MDS Legal (Cooper Affidavit page 49).
133 On 20 March 2014, AHPRA sent a brief to MDS Legal in relation to Patient B (Bradshaw Affidavit 29 October 2015 [36]).
134 There is no explanation for the two month delay in sending the brief.
135 On 7 May 2014, Clayton Utz wrote to AHPRA in relation to its ongoing investigation of the complaint concerning Patient M which was to be considered by the Board on 13 May 2014. Clayton Utz provided further submissions in relation to the appropriateness of any decision to continue with an investigation into the complaint about Patient M (Cooper Affidavit pages 8791).
136 On 7 May 2014, AHPRA advised that the matter would be presented to the Board at its meeting on 3 June 2014 (Cooper Affidavit page 92).
137 On 26 June 2014, AHPRA wrote to Clayton Utz advising of its decision to refer Dr Woollard's treatment of Patient M to a PPS panel (Cooper Affidavit pages 9496).
138 On 29 August 2014, there was a hearing before the PPS panel in relation to Patient A. The panel decided that Dr Woollard had behaved in a way that constituted unsatisfactory professional performance and cautioned him (Cooper Affidavit page38). Patient A's matter was resolved within 18 months of notification.
139 On 18 November 2014, there was a hearing before the PPS panel in relation to Patient M. The PPS panel held that there was no case to answer (Cooper Affidavit [39]). Patient M's matter was resolved just over two years after notification.
140 The complaints in relation to Patients M, A and W were all received at the time of or later than the complaint received in relation to Patient B. By November 2014, the complaints in relation to Patient M, A and W had all been resolved.
141 There is no satisfactory explanation for AHPRA's delay in relation to Patient B. All that the Board has done is given evidence of the dates when certain steps were taken. No explanation has been offered as to the reason for the time interval between various steps. The fact that no explanation was offered in the Board's affidavits is a reasonable basis for the Tribunal to infer that there is no explanation.
Dr O'Shea's death 15 March 2015
142 Dr O'Shea died on 15 March 2015. The significance of this is set out below.
The Board's original application to the Tribunal 19 December 2014
143 Having detailed the history of the matter, it is now appropriate to turn to the specific allegations against Dr Woollard in relation to Patient B.
144 The relevant grounds in the Board's original application can be summarised as:
a) a failure to have a supervisor present when Dr Woollard was performing the angioplasty procedure on Patient B (paragraph 15);
b) a failure to inform Patient B of the risks of the procedure (paragraph 17); and
c) deliberately misleading the Widow as to the reasons for the death of Patient B.
Failure to have a supervisor present
145 In its original application in relation to the failure to have a supervisor present, the Board alleged that:
13. As at 15 December 2005:
13.1 [Dr Woollard] was undergoing training in the performance of angioplasty procedures; and
13.2 the Credentialing Committee of the Medical Advisory Committee of the Hospital had authorised [Dr Woollard] to undertake angioplasty procedures at the Hospital only if Dr Hockings was available to provide assistance to the [Dr Woollard] in the event that [Dr Woollard] required immediate assistance while performing an angioplasty procedure.
14. As at the date of the Procedure [Dr Woollard] was not sufficiently experienced in the performance of complex coronary angioplasty procedures to justify him attempting to perform a complex angioplasty procedure without the direct supervision of a suitable supervisor.
15. For the reason referred to above, and because of the matters referred to in paragraph 14, [Dr Woollard] should not have attempted to perform the Procedure on the Patient in the absence of a suitable supervisor who was present during the Procedure.
146 The Tribunal understands the allegation in paragraphs 13 to 15 of the original application to be an allegation of performing an angioplasty procedure without a suitable supervisor, Dr Hockings, being present during the procedure. In particular, it refers to subparagraph 13.2 which alleges that the credentialing committee of the medical advisory committee of the Mount Hospital had authorised Dr Woollard to undertake angioplasty procedures at the hospital, only if Dr Hockings was available to provide assistance to Dr Woollard.
147 In these circumstances, the question to be determined at the hearing will be whether the fact that Dr Hockings was performing a procedure in an adjoining room constituted being available to provide assistance to Dr Woollard in the event that required immediate assistance.
Failure to inform Patient B of the risks
148 In its original application in relation to the failure to inform Patient B of the risks, the Board alleged that:
16. Prior to performing the Procedure and prior to seeking the Patient's consent to undergo an angioplasty procedure it was necessary for [Dr Woollard] to:
16.1 inform the Patient of the risks of treating his coronary artery disease by means of an angioplasty procedure having regard to the complex nature of the Patient's coronary artery disease; and
16.2 inform the Patient of the option of being referred to a cardiothoracic surgeon for consideration of a coronary artery bypass grafting procedure as a means of treating the Patient's coronary artery disease.
17. Prior to performing the Procedure [Dr Woollard] failed to inform the Patient, either adequately or at all, of either or alternatively of both of:
17.1 the risks of treating the Patient's coronary artery disease by means of angioplasty; and
17.2 the option of referral to a cardiothoracic surgeon for consideration of coronary artery bypass grafting as a means of treating the Patient's coronary artery disease.
149 In its original application in relation to a deliberate misleading of the Widow, the Board alleged that:
18. Following the death of the Patient, [Dr Woollard] said to the wife of the Patient, words to the effect that the Patient had died because a section of plaque had dislodged and occluded the Patient's main coronary artery.
19. [Dr Woollard's] advice referred to above was wrong in that the cause of the Patient's death was the dissection referred to … .
20. The respondent gave the advice referred to at 18;
20.1 knowing that the advice was wrong; and
20.2 for the purpose of misleading the Patient's wife as to the cause of the Patient's death.
21. The [Board] alleges that [Dr Woollard] behaved in a way which constituted professional misconduct, unprofessional conduct or unsatisfactory professional performance for the purposes of the National Law in that [Dr Woollard]:
21.1 attempted to treat the Patient's complex triple-vessel coronary artery disease by means of coronary angioplasty when he was not sufficiently experienced in the performance of complex angioplasty procedures in order to justify attempting that procedure without direct supervision;
21.2 failed to adequately inform the Patient of the risks associated with treating his coronary artery disease by means of coronary angioplasty;
21.3 failed to inform the Patient of the option of referral to a cardiothoracic surgeon for consideration of a coronary artery bypass grafting procedure in order to treat his coronary artery disease; and
21.4 deliberately misled the wife of the Patient as to the cause of the Patient's death.
152 On 23 March 2015 Clayton Utz wrote to MDS Legal inviting the Board to discontinue proceedings (VR 239 of 2014) in the Tribunal (Cooper Affidavit pages 9899).
The Board's amended application dated 7 May 2015, filed on 21 July 2015
153 The amended application was prepared about six months after the original application and filed over two months after that. The Board did not explain the delay.
154 The Board's amended application included a number of minor amendments. More importantly, there were a number of significant amendments about Dr Woollard which are set out below. These may be summarised as:
a) inadequate training (at paragraph 15);
b) false representations about his training in angioplasty procedures (at paragraph 17); and
c) failure to use adequate anticoagulation (at paragraph 23).
Inadequate training
155 In its amended application in relation to inadequate training, the Board alleged that:
15. As at the date of the Procedure:
15.1. [Dr Woollard's] training in coronary angioplasty was incomplete; and
15.2. [Dr Woollard] was not sufficiently experienced in the performance of complex coronary angioplasty procedures to justify him attempting to perform a complex coronary angioplasty procedure such as the Procedure without the direct supervision of a suitable supervisor.
Particulars
15.3. [Dr Woollard] commenced training in the performance of coronary angioplasty procedures on or about 4 April 2004.
15.4. [Dr Woollard's] training in coronary angioplasty procedures was provided by medical practitioners who were engaged or retained by [Dr Woollard], and who usually practised in States of Australia other than Western Australia, or in countries of the World other than Australia (collectively the Trainers).
15.5. The Trainers visited Western Australia in order to provide training to Dr Woollard in the performance of coronary angioplasty procedures at the Hospital.
15.6. As at the date of the Procedure, [Dr Woollard's] records showed that he had been supervised by the Trainers in respect of a total of 101 coronary angioplasty procedures performed at the Hospital.
15.7. Of the 101 procedures referred to in 15.6, [Dr Woollard's] records showed that he had provided assistance to the Trainers as a secondary operator in respect of 35 procedures and that he had performed the remaining 66 procedures as the primary operator.
15.8. Prior to the date of the Procedure, [Dr Woollard] had not performed any angioplasty procedures without one of the Trainers being present for the duration of his performance of the procedure.
15.9. On or about 4 August 2001 the Cardiac Society of Australia and New Zealand (the Cardiac Society) published guidelines for achieving competency in the performance of coronary angioplasty (the 2001 Guidelines).
15.10. The 2001 Guidelines specified, inter alia, in effect, that in order to become competent in the performance of coronary angioplasty trainees in coronary angioplasty should:
15.10.1. participate in the performance of at least 200 procedures with significant contribution to the pre-procedure assessment, the interventional procedure and post-operative patient care;
15.10.2. perform a minimum of 75 procedures as the primary operator; and
15.10.3. record all cases performed during their training in a log book detailing clinical indications including assessment of procedural risk, the interventional procedure performed, its outcome and its complications.
15.11. On or about 22 April 2005 the Cardiac Society published new guidelines for competency in coronary angioplasty (the 2005 Guidelines).
15.12. The 2005 Guidelines specified, inter alia, in effect, that in order to become competent in the performance of coronary angioplasty trainees in coronary angioplasty should:
15.12.1. participate in at least 400 procedures with significant contribution to the pre-procedure assessment, the interventional procedure and post-operative patient care;
15.12.2. perform a minimum of 200 procedures as primary operator; and
15.12.3. record all procedures performed during their training in a log book detailing clinical indications including assessment of procedural risk, the interventional procedure performed, its outcome and complications.
15.13. As at the date of the Procedure, [Dr Woollard] had not met the requirements of either the 2001 Guidelines or the 2005 Guidelines in that:
15.13.1. [Dr Woollard] had not performed the minimum number of coronary angioplasty procedures required by either of the 2001 Guidelines or the 2005 Guidelines: and
15.13.2. [Dr Woollard] had not performed the minimum number of procedures as primary operator required by either of the 2001 Guidelines or the 2005 Guidelines.
156 Amended paragraph 15 introduced a raft of particulars. Most importantly, the amendments alleged that Dr Woollard's training was incomplete rather than that a supervisor was not present.
157 The Board was plainly aware of issues as to Dr Woollard's training by 13 September 2013 as a result of Dr Clugston's report. No explanation is offered as to why it took nearly two years to file the amendment or why it was not in the original application.
False representations
158 In its amended application in relation to Dr Woollard's false representations, the Board alleged that:
17. By a letter to Dr Patrick Crawford as the Chairman of the MAC dated 10 October 2005 [Dr Woollard] represented to Dr Crawford and the MAC that he had, as at that date, performed at least 75 coronary angioplasty procedures as the primary operator and at least 125 coronary angioplasty procedures as the secondary operator.
18. By a letter to Dr Patrick Crawford as the Chairman of the MAC dated 14 December 2005 and by the two documents provided under cover of that letter headed 'Primary Operator' and 'Secondary Operator' respectively, [Dr Woollard] represented to Dr Crawford and the MAC that he had, as at that date:
18.1 performed 104 coronary angioplasty procedures at the Hospital as the primary operator;
18.2 performed 49 coronary angioplasty procedures at the Hospital as the secondary operator;
18.3 undertaken training in the performance of coronary angioplasty procedures by assisting as a secondary operator in coronary angioplasty procedures carried out at Royal Perth Hospital on over 100 occasions, which cases were additional to those referred to in the document headed 'Secondary Operator' and the document headed 'Primary Operator'; and
18.4 performed significantly in excess of the number of procedures required by the guidelines for achieving competency in coronary angioplasty published by the Cardiac Society.
Particulars of 18.4
[Dr Woollard's] letter to Dr Crawford as Chairman of the MAC dated 14 December 2005 stated in reference to the number of coronary angioplasty procedures performed by [Dr Woollard]:
'The number of procedures greatly exceeds the minimum suggested in the Cardiac Society guidelines applicable to cardiologists currently in training.'
19.1 [Dr Woollard] had performed only 35 coronary angioplasty procedures at the Hospital as secondary operator and only 66 coronary angioplasty procedures at the Hospital as primary operator, amounting to a total of only 101 procedures performed by the respondent at the Hospital;
19.2 [Dr Woollard] had not assisted as secondary operator in any coronary angioplasty procedure carried out at Royal Perth Hospital; and
19.3 [Dr Woollard] had not met the requirements of either the 2001 Guidelines or the 2005 Guidelines as to the number of procedures to be performed by a trainee in order to achieve competency in performing coronary angioplasty procedures.
20. [Dr Woollard] made each of the false representations referred to at 17 and 18:
20.1 when he knew that each of those representations was false; and
20.2 for the purpose of misleading Dr Crawford and the MAC in an attempt to achieve accreditation to perform coronary angioplasty procedures at the Hospital without any form of supervision.
160 Again, there is no explanation by the Board as to the reason for the delay.
Failing to ensure adequate anticoagulation
161 In its amended application in relation to failing to ensure adequate anticoagulation, the Board alleged that:
23. The use of guidewires, the deployment of stents and the inflation of balloons within vessels during angioplasty procedures disrupts the lining of those vessels giving rise to the likelihood of development of thrombus or thrombi within the vessels which can increase in size rapidly, propagate and embolise.
24. In order to avoid the formation of thrombi in the course of angioplasty procedures, it is standard practice for cardiologists to order the administration of an anticoagulant agent following the percutaneous puncture of the patient's femoral artery or arteries at the commencement of the procedure.
25. During the Procedure [Dr Woollard] either administered or caused the administration of 5.000 units of the anticoagulant agent Heparin at 2.20 pm and a further 5,000 units of Heparin at 2.52 pm.
26. Each of the administrations of Heparin referred to in 25 was insufficient to ensure adequate anticoagulation in the Patient at all times during the Procedure.
27. In order to ensure adequate anticoagulation in the Patient, [Dr Woollard] should either have ordered the testing of the activated clotting time of the Patient's blood after the first administration of 5,000 units of Heparin or alternatively, should have ordered or administered a larger dose of Heparin for the Patient.
162 Once again, the Board has not explained the delay.
Dr Woollard's affidavit in support of the s 47(1) application
163 Dr Woollard's interim application was supported by his affidavit of 7 October 2015. The affidavit is set out in full because actual prejudice is so central to Dr Woollard's abuse of process claim. His affidavit states:
Dr O'Shea & background to angioplasty training
3. Dr John O'Shea recently passed away on 15 March 2015. He was 62 years old.
4. Dr O'Shea was a cardiologist who I had worked with since the 1980's. He was my partner in WA Cardiology for several decades prior to his death. Dr O'Shea developed an angioplasty training programme, and we also trained together, I discuss this programme and its development further below. However, to summarise, the angioplasty training programme was developed jointly, and we acted as primary operator for our own patients and secondary operator for each other's patients.
5. By way of background, in the early 1980s, when angioplasty was first introduced at Royal Perth Hospital, I indicated a desire to participate.
6. There was no formal training program. However, over a subsequent period of 1-2 years, I was involved with more than 100 angioplasty procedures carried out by Dr Geoffrey Cope at Royal Perth Hospital. Many, but not all, of the patients were my patients from Fremantle Hospital who I had referred for angioplasty, I sometimes stayed on after my angiogram sessions at Royal Perth Hospital for Dr Cope's subsequent angioplasty sessions on patients who were not mine.
Obstacles
7. After that initial 1-2 year period, Dr Cope advised me that angioplasty procedures were to be restricted to just Royal Perth Hospital cardiologists.
8. For many years after this point, Dr Cope, Dr Neil Cumpston and Dr Geoffrey Mews were the only doctors performing angioplasty services in Perth.
9. Sometime later, angioplasty and cardiac surgery facilities were established at both Sir Charles Gairdner Hospital and Fremantle Hospital, despite opposition from the cardiologists at Royal Perth Hospital.
10. I made several further approaches to the Cardiology Department of Royal Perth Hospital to train me in angioplasty, and an official request was made on my behalf by Fremantle Hospital. Dr Geoffrey Cope denied these requests without providing reasons. I no longer have a copy of this correspondence.
11. I also approached cardiologists at Fremantle and Sir Charles Gairdner Hospitals to assist in training myself prior to 2004 and they refused. They also refused to train Dr John O'Shea.
12. I discuss below the training program developed by myself and Dr John O'Shea with the assistance of Dr Mathew Kalarickal, Dr Kalarickal is an internationally recognised angioplasty expert. In the initial part of the training program that we set up, I arranged for Dr Kalarickal to perform angioplasty procedures at Fremantle Hospital on my patients. However, this was prohibited by the coronary angioplasty operators at Fremantle Hospital, despite Dr Kalarickal's international reputation and the educational advantages of the visit. As a result the visit did not take place.
13. After Dr O'Shea was accredited to carry out angioplasty procedures at the Mount Hospital, he was refused accreditation to carry out angioplasty procedures at Fremantle Hospital despite his desire to do so.
Formal angioplasty training
14. In 2004, Dr Kalarickal offered to assist in training Dr O'Shea and I in coronary angioplasty. Dr Kalarickal is an internationally recognised angioplasty expert based in India.
15. A program was developed by myself and Dr O'Shea with the assistance of Dr Kalarickal and accepted by the Mount Hospital. Seven expert cardiologists from the eastern states, India and the United Kingdom attended for repeated one week sessions during which Dr O'Shea and myself would carry out angioplasty procedures at the Mount Hospital in Perth under their supervision, These are the procedures listed in the log book attached to the letter to Dr Patrick Crawford dated 14 December 2005,
16. The training program was discussed with the Mount Hospital, and the Manager subsequently gave his approval to conduct the training program. The supervising cardiologists were all accredited for that purpose by the Mount Hospital prior to their participation in 2004 and 2005.
Clinical records
17. On 22 April 2015 the Board wrote to Clayton Utz seeking documents relating to procedures. I attach hereto and mark 'KVWl' a copy of the letter.
18. Clayton Utz, on my behalf, provided documents to the Board on 24, 25 and 27 May 2015.
19. On 27 May 2015 the Board wrote to Clayton Utz raising alleged discrepancies in the records created by different people of the same procedures.
20. On 16 June 2015 Clayton Utz wrote to the Board and explained the alleged discrepancies.
21. I am not sure what, if any, reliance the Board intends to place on the alleged discrepancies. By email dated 21 July 2015 the Board stated that 'Enquiries are continuing in relation to the ma[t]ers raised in our letter to you dated 27 May 2015. I am not in a position to advise whether the Board will seek to make any further amendments to the grounds in relation to any of the matters raised in that correspondence'.
22. Had these issues been raised at any time between the procedure on 15 December 2005 (or the complaint on 22 May 2012) and shortly before Mr O'Shea's death in March 2015, 1 would have instructed my lawyers to contact Dr O'Shea and request all of his books and records regarding the relevant procedures and to obtain a witness statement from him.
23. I am sure that Dr O'Shea would have confirmed that my records were accurate.
24. At the time of the training procedures performed in the lead up to 15 December 2005, my secretary collected from Dr O'Shea the procedure reports and Mount Hospital event logs for each angioplasty patient. However, she did not collect all clinical, or any administrative, records from Dr O'Shea. For example, none of the ancillary records, such as Dr O'Shea's accreditation application records, were collected by my secretary. Further, after Dr O'Shea passed away, my secretary informed me that Dr O'Shea's wife and his secretary had told her that they had collected and then destroyed all of his administrative records stored at our rooms e.g. log books and accreditation material. Therefore, I believe that a complete set of his angioplasty files and records are no longer available.
25. Further, my practice is to retain only the clinical notes of my patients for more than 5 years. All the ancillary and administrative files are destroyed (e.g. log books). Therefore, I no longer have all of the written material in relation to every angioplasty procedure.
Discussions with Dr O'Shea
About cases
26. Prior to my ceasing to perform angioplasties, Dr O'Shea and myself had regular meetings to discuss cases and we would have discussed [the Patient]. I myself cannot remember what we discussed about [the Patient], as I can now only remember the fact that we had discussions, not their content. I do not know what, if anything. Dr O'Shea remembered about our discussions.
Counting of procedures
27. Dr O'Shea and I also discussed the counting of angioplasty procedures. To the best of my recollection and belief, Dr O'Shea agreed with my approach that one stenosis could count as one procedure.
The allegations
28. After I received the initial notification from the Board that I was not sufficiently experienced in the performance of angioplasty procedures to justify performing the procedure on [the Patient], I told Dr O'Shea about it. He expressed surprise. He spoke to me in a supportive manner and left me with the impression that he would have given evidence to support the adequacy of my training and experience.
164 Dr Woollard was not crossexamined by the Board as to his affidavit and the Board accepts that the factual contents of the affidavit are true.
165 In essence, Dr Woollard identified three areas of prejudice:
1) the death of Dr O'Shea;
2) the destruction of some of Dr O'Shea's records; and
3) the destruction of some of Dr Woollard's records.
Three sections
166 In determining whether there has been an abuse of process by the Board, different considerations apply to the various grounds alleged by the Board. Accordingly, in order to properly apply those considerations, it is necessary to divide the grounds alleged by the Board into three distinct sections as follows:
a) the grounds contained in the original application;
b) the grounds introduced by the amended application other than the use of anticoagulants; and
c) the use of anticoagulants introduced by the amended application.
167 As stated above, the Chelmsford considerations are:
a) prejudice by reason of delay;
b) double jeopardy; and
c) public interest.
Prejudice by reason of delay
168 As stated above, four matters need to be considered in relation to prejudice by reason of delay:
i) the length of the delay;
ii) the reasons given by the Board to explain or justify the delay;
iii) Dr Woollard's responsibility for, and past attitude to, the delay; and
iv) proven or likely prejudice to Dr Woollard.
169 Matters i) to iii) are common to each of the sections set out above and can be considered together.
i) The length of delay
170 The delay between the death of Patient B and the filing of the application and the amended application was extremely long. Most importantly, the delay between the complaint by the Widow in May 2012 and the filing of the application and the amended application was two and a half years. There can be no question that there has been a long delay by the Board in filing the original application and the amended application.
ii) The reasons given by the Board to explain or justify the delay
171 The Board has not provided any reasons to explain or justify the delay between the filing of the complaint in May 2012 and the filing of the application in January 2015 and the amended application in July 2015. There is nothing to explain or justify the delay.
iii) Did Dr Woollard have any responsibility for, and past attitude to, the delay?
172 Dr Woollard has not in any way been responsible for or tolerated the delay. To the contrary, his solicitors, Clayton Utz, pressed the matter on a number of occasions as set out above.
iv) Proven or likely prejudice to Dr Woollard
173 The real issue in determining whether there has been an abuse of process is whether there is any proven or likely prejudice to Dr Woollard by reason of delay. Different considerations apply to the three sections set out above.
Prejudice or likely prejudice to Dr Woollard in relation to the original application
174 The Tribunal now turns to a consideration of the actual or likely prejudice to Dr Woollard in relation to the grounds set out in the original application.
175 Dr Woollard's affidavit does not establish that any actual prejudice has arisen in relation to the Board's original application. Dr Woollard was able to resolve the matters in relation to Patient S, M and C, despite the fact that these matters arose in 2007 and 2009.
176 The evidentiary issue of whether Dr Hockings' presence in an adjoining room complied with the supervision requirement of the Medical Advisory Committee (MAC) is essentially limited. There appears to be no real issue as to the relevant facts. The resolution of that question requires a determination of whether the requirement was complied with. This is largely a matter of interpretation.
177 Dr Woollard has made a number of points in relation to the conversation with the Widow concerning the cause of Patient B's death. It is not necessary to set them all out because the essential point made by Dr Woollard, is that there is a conflict of evidence between the Widow and Dr Woollard and memories may be unrealistic after 10 years .
178 However, at the end of the day, the findings the Tribunal will have to make are fairly simple: Who said what and who is to be believed?
179 The effect of the long delay is to make it all the more difficult for the Board to prove the allegation that Dr Woollard deliberately misled the Widow as to the cause of Patient B's death.
180 As Justice Deane noted in Jago in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case'. In essence, the Board's case will turn on a credibility finding related to several short conversations.
181 Although the Board's allegation in relation to Patient B's consent is more complex than a conversation between two people, there is no suggestion that the documents are unavailable. The prejudice or likely prejudice to Dr Woollard arising from the grounds introduced by the amended application other than the use of anticoagulants
182 The Tribunal now turns to a consideration of the prejudice or likely prejudice to Dr Woollard arising from the grounds introduced by the Board's amended application, other than the use of anticoagulants.
183 Dr Woollard's training had been raised by Dr Clugston's report dated 12 September 2013 which was received by AHPRA on 13 September 2013.
Dr O'Shea's death
184 The most important area of prejudice is the death of Dr O'Shea. Dr O'Shea died on 15 March 2015. He was a long time business partner of Dr Woollard. He and Dr O'Shea developed an angioplasty training programme and trained together. They acted as primary operators for their own patients and as secondary operators for each other's patients. The details of that training programme are contained in paragraphs 14 and 15 of Dr Woollard's affidavit above.
185 In particular, Dr O'Shea and Dr Woollard had regular meetings to discuss cases and patients. Dr Woollard's evidence is that he discussed Patient B with Dr O'Shea.
186 Dr Woollard's evidence is that he discussed the counting of angioplasty procedures with Dr O'Shea and that to the best of Dr Woollard's recollection, Dr O'Shea agreed with Dr Woollard's approach that one stenosis could count as one procedure. These matters are plainly relevant to the allegations in paragraphs 17 to 20 of the Board's amended application. The Board alleges in paragraph 18 of its amended application that, in Dr Woollard's letter to Dr Crawford, Dr Woollard represented to Dr Crawford and the MAC that he had falsely misrepresented the number of procedures he had carried out. It alleged that Dr Woollard had performed only 35 coronary angioplasty procedures.
187 It is clear that a finding as to what Dr Woollard believed to constitute a procedure is an essential element of the allegation that Dr Woollard made false representations.
188 Proof of false representations by the Board requires proof of Dr Woollard's intention. A crucial part of Dr Woollard's defence will be evidence as to his intention.
189 Dr O'Shea's evidence as to what he considered a procedure to be, and any discussion with Dr Woollard, would have been very relevant to Dr Woollard's defence and to the Tribunal's determination of Dr Woollard's intent.
190 The Board also submitted that the letter of 14 December 2005 and the two schedules annexed to it were false. Dr Woollard's witness statement dated 29 September 2015 annexed the letter and the two schedules.
191 An extract from the first schedule is set out below:
PROCEDURE NO | DATE | VESSEL | FAILURE Y/N | BALLOON/ STENT | Tn RISE | WACS |
13 |
| R | N | STENT | N | 166428 |
14 |
| R | N | STENT | N | 166428 |
15 |
| CX | N | STENT | N | 166829 |
16 |
| CX | N | STENT | N | 166154 |
17 |
| DISTAL CX | N | STENT | Y | 163961 |
18 |
| PROX CX | Y | Y | 163961 |
192 It is clear from a reading of that letter, and the schedules, that Dr Woollard claimed that he was counting individual vessels the subject of an intervention or attempted intervention, rather than whole procedures.
193 In Dr Woollard's letter of 14 December 2005, at page 43, he notes in the 'PS' that the 'complete details of all procedures are contained in a set of individual files kept at my office. I will be happy to arrange for you or a nominee to review the files if necessary'.
194 The Board submits that the presentation of those schedules does not make Dr Woollard's counting method clear because it is only possible to appreciate the counting method by scrutinising the numbers beneath the heading WACS and noticing that the same numbers are repeated. In effect, the Board contends that the schedule is misleading if you do not read it carefully or properly.
195 One would expect Dr Crawford, as Chairman of the MAC at the Mount Hospital, to have read such documents carefully and properly.
196 The submission made by the Board that the letter and the presentation of the two schedules could amount to false representations that is, fraud, is not sustainable.
197 It is difficult to see how a finding of fraud against Dr Woollard could ever be made in the face of the actual terms of the letter and schedule and Dr Woollard's willingness to make his records available. Nevertheless, that is the allegation made against Dr Woollard and the allegation he must defend.
198 Dr O'Shea's evidence, which relates to Dr Woollard's intention may have been critical to Dr Woollard's defence. Dr O'Shea's death constitutes actual prejudice to Dr Woollard.
199 In Dr Woollard's letter of 14 December 2005 he states:
…
Previous Experience.
My initial training in angioplasty commenced well before any Cardiac Society or other guidelines had been drawn up. The experience at that time was as a secondary operator assisting with the angioplasty procedures carried out on my patients at Royal Perth Hospital.
There is no official record of these procedures as there was no reason to keep log books. Exposure took place over several years and involved well over 100 patients.
Management Experience.
The guidelines developed by various specialist bodies for training in angioplasty and other procedures are focused on the training of newly qualified cardiologists with little management experience.
The Cardiac Society has recognised that established cardiologists['] training in coronary angioplasty do not need to follow the same pathway as a newly qualified cardiologist. In my case, I have had management experience (deciding to refer patients for angioplasty and managing them both before and after the procedure) for over 20 years involving well over 2000 patients.
…
200 The Board submits:
Dr Woollard stated in the 14/12/05 letter that he had performed other procedures as a secondary operator whilst working at Royal Perth Hospital, but he did not specify when he claimed to have undertaken that additional training. It is apparent from Dr Woollard's witness statement filed in these proceedings that the training that Dr Woollard contends occurred at Royal Perth Hospital allegedly took place during the 1980s. In paragraph 23 of his witness statement, Dr Woollard refers to the introduction of angioplasty at Royal Perth Hospital in the ''early 1980s''. In paragraph 24 of his statement, Dr Woollard says that ''over a subsequent period of 1-2 years [he] … was involved with more than 100 angioplasty procedures carried out by Dr Geoffrey Cope at Royal Perth Hospital''. By paragraph [56] of his statement, Dr Woollard says that in addition to the 49 procedures he has counted in his secondary operator log, it was his work with Dr Cope that made up the remaining necessary procedures performed as secondary operator.
201 The Tribunal agrees with the Board's submission that if Dr Woollard had undergone training in coronary angioplasty procedures at Royal Perth Hospital during the 1980s, that training could not be considered relevant to the acquisition of competency after a break of many years.
202 However, it is a long bow to draw from a failure by Dr Woollard to state when his training took place to proof of false representations to MAC. MAC could always have asked. The tenor of Dr Woollard's letters makes it clear that he was not seeking to withhold information, but rather that he was willing to provide further information.
203 There are further disputes about the extent of whether Dr Woollard had any involvement in assisting with angioplasty procedures in the 1980s. There are no records. Over 30 years later, it is now impossible to reach a conclusion in a fair manner.
204 Further, however neatly it may be possible to separate out the allegations concerning the letter in submissions, a decision on each of the Board's allegations in relation to the letter would be intertwined. Any finding the Tribunal made on one part of the letter would inevitably be influenced by its findings on other parts. The absence of Dr O'Shea's evidence in relation what constitutes a 'procedure', potentially impacts on the other allegations the Board alleges concerning the letter.
The loss of results
205 At paragraph 25 of Dr Woollard's affidavit, he notes that his practice is to retain only the clinical notes of his patients for not more than five years and that all the ancillary and administrative files are destroyed (for example, log books) and therefore he no longer has all of the written material in relation to every angioplasty procedure.
206 It is also the case as noted in paragraph 24 of Dr Woollard's affidavit that his secretary collected the procedure reports and Mount Hospital event logs for each angioplasty patient from Dr O'Shea. However, Dr Woollard did not collect all of Dr O'Shea's records. He does not have any of Dr O'Shea's administrative records.
207 After Dr O'Shea passed away, Dr Woollard's secretary informed him that Dr O'Shea's wife and secretary had collected and then destroyed all of Dr O'Shea's administrative records stored at his rooms, for example, log books and accreditation material.
208 Dr Woollard's evidence is that he believed that a complete set of his angioplasty files and records were no longer available.
Conclusion on prejudice
209 Plainly, Dr Woollard's or Dr O'Shea's records would be relevant to Dr Woollard's training, the number of procedures he conducted and to the allegation of fraud.
210 The death of Dr O'Shea and the loss of the records constitute actual prejudice to Dr Woollard in relation to the amended application, apart from the use of anticoagulants.
The use of anticoagulants
211 The allegation in the Board's amended application, paragraphs 23 to 27, related to the administration of anticoagulants during the operation on Patient B on 15 December 2005.
212 The hospital records are available as to the angioplasty procedure and in particular as to the anticoagulants administered. Dr Woollard's affidavit does not identify any prejudice.
213 The Tribunal is not satisfied that there is any proven or likely prejudice to Dr Woollard arising from the anticoagulant ground.
Double jeopardy
214 The Tribunal now turns to consider whether there has been an abuse of process by the Board arising from double jeopardy.
The Board's original application
215 The complaints in relation to Patient B in the Board's original application are, in substance, the same or closely related to those relating to the other patients.
216 The Board's original application related to, in essence, Dr Woollard's procedures during the course of angioplasty. By the time the application was filed in December 2014, Dr Woollard had been subject to six other matters involving angioplasty procedures, all of which had been resolved.
217 The Tribunal is not satisfied that Dr Woollard was entitled to regard the subject of his angioplasty procedures as behind him. He had been notified by the Board of Patient B's complaint in June 2012. Complaints in relation to the patient were still outstanding. The complaints in relation to Patients S, C, M, W, H and A were all resolved without seeking to resolve the complaint about Patient B.
218 A more difficult question is whether the bringing of the proceedings in relation to Patient B can be seen as punitive.
219 There is obviously no direct evidence that the conduct of the Board was punitive. The question is what inferences can be drawn from the Board's conduct.
220 In considering the inferences to be drawn, the Tribunal has borne in mind that:
a) there was an extraordinary delay;
b) there is no explanation for the extraordinary delay; and
c) Dr Woollard is no longer undertaking angioplasty procedures.
221 An allegation against the Board, that the bringing of the application in relation to Patient B was punitive is extremely serious. The Tribunal is not satisfied that it should make such a finding. The more probable explanation is that the complaint in relation to Patient B was poorly managed because the Board failed to really appreciate its urgency.
The Board's amended application, other than the use of anticoagulants
222 The Board's written submissions at paragraph 7 make it clear that the grounds raised in the amended application, other than the anticoagulants, are new. Accordingly, double jeopardy does not apply.
The use of anticoagulants
223 The use of anticoagulants by Dr Woollard for angioplasty procedures was considered by the Tribunal in Woollard C & H (see, for example, at [59.4] and [59.5]).
224 The Tribunal is satisfied that the grounds in relation to anticoagulants set out in the amended application are, in substance, the same or closely related to those previously dealt with.
225 However, the Tribunal is not satisfied that Dr Woollard was entitled to regard the subject matter of the anticoagulants as behind him. Nor is the Tribunal satisfied that the amendments in relation to the use of anticoagulants on Patient B can of itself be seen as punitive.
Public interest
226 The public interest in the complaint against Dr Woollard being resolved by a hearing must be balanced against the fairness of the hearing.
227 In relation to the grounds contained in the original application and the use of anticoagulants, the orders made by the Tribunal in Woollard 'S' (S) and Woollard C & H ensure that Dr Woollard will not carry out any angioplasty procedures until at least 12 June 2018. The conduct complained of completely ceased prior to December 2012. It is difficult to see that there is any public interest in making further orders against Dr Woollard in relation to carrying out angioplasty procedures when those orders would only replicate Dr Woollard's existing restrictions in WoollardC & H.
228 In relation to the grounds submitted in the amended application, other than the use of coagulations, in paragraph 30 of its submissions, the Board submits that Dr Woollard's:
1. attempting to perform angioplasty on [Patient B] when he had not completed his training;
2. misleading the Committee of the Mount Hospital; and
3. misleading [the Widow],
are important matters which go to the practitioner's fitness to be registered as a medical practitioner. The first two of those matters represent entirely distinct subject matter to that of any matters previously heard against Dr Woollard. All three of those matters are of relevance to the public interest in respect of Dr Woollard's right to perform other procedures (that is, procedures other than coronary angioplasty) and to [practise] as a consultant cardiologist.
229 Obviously, the allegation of false representations in relation to training is a different allegation and one that goes to Dr Woollard's fitness to practise, rather than his fitness to carry out particular procedures.
230 However, in reaching a conclusion as to whether there is a public interest in proceeding at this point, it is important to bear in mind that Dr Woollard has been in practice for many years. Other than the angioplasty procedures, nothing has come before this Tribunal or its predecessors in relation to his fitness to practise.
231 The Tribunal notes that it was not until the Board's submissions were filed on 2 November 2015 that an allegation of fitness to practise was made (see Cooper Affidavit 4 November 2015 at pages 34).
232 It is also the case that after the allegation was raised in 2013 by Dr Clugston the Board took nearly two years to do anything about it. In those circumstances, it is very difficult to accept any proposition from the Board that there is a public interest in allowing the matters raised in the Board's amended application to proceed.
233 The Widow's original complaint of 22 May 2012 stated:
Perhaps he (Dr Woollard) should not be attempting this procedure, or if so, perhaps he should be under supervision.
234 The orders of the Tribunal ensured that Dr Woollard would not be allowed to do so until at least 12 June 2018. The Widow's request has been met.
235 The Tribunal finds that there is no public interest in the grounds introduced by the amended application, other than the use of anticoagulants, for the proceeding being pursued against Dr Woollard.
236 Accepting for the sake of argument the Board's submissions that it was obliged to refer Dr Woollard to the Tribunal over Patient B, that did not diminish the Board's obligation to proceed fairly. It remains open to the Board to resolve Patient B's case by mediation.
Conclusion
237 Dr Woollard has not established abuse of process by delay in relation to the original application nor the anticoagulants ground in the amended application.
238 The Tribunal is satisfied that, in relation to the amendments identified in the Board's amended application, other than the anticoagulant ground, the issues raised in the amendments should be struck out as an abuse of process. The stage has been reached where the delay in the prosecution of the disciplinary proceedings against Dr Woollard is so prolonged that it is unreasonable. Dr Woollard has suffered actual prejudice. Dr Woollard does not share responsibility for the delay. Dr Woollard can justifiably claim that the application has passed beyond what can be justified in the due administration of justice. There would be no public interest in combining two parts of the proceeding. The Tribunal is satisfied that the continuation of this part of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
239 Dr Woollard has satisfied the Tribunal that the exceptional circumstances justify the Tribunal striking out those paragraphs pursuant to s 47(1) of the SAT Act.
Want of prosecution
240 By reason of the Tribunal's conclusion on abuse of process by delay, it is unnecessary to consider dismissal for want of prosecution.
Orders
1. Save for paragraphs 23 to 27 of the Medical Board of Australia's amended application, as amended by the Tribunal's order of 22 July 2015, the amendments made by the order of 22 July 2015 be struck out as an abuse of process pursuant to s 47(1) the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [240] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
ANNEXURE
- AGLC
- MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2016] WASAT 26
- Case
- [2016] WASAT 26
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the Board's application to amend its pleadings constituted an abuse of process under section 47(1) of the State Administrative Tribunal Act 2004 (WA), and whether the amendment would cause delay, prejudice, or result in a form of 'double jeopardy' for Mr Woollard. Additionally, the court had to consider the public interest in ensuring that proceedings were conducted fairly and efficiently.
In addressing these issues, the Tribunal found that the Board's application to amend its pleadings was indeed an abuse of process. The amendment sought to include new allegations that were not only outside the scope of the initial proceedings but also introduced significant delay and prejudice to Mr Woollard. The Tribunal emphasised that the public interest required that proceedings be conducted with fairness and that allowing such amendments would undermine these principles. Consequently, the Tribunal struck out the paragraphs of the amended application that were deemed abusive, ensuring that the proceedings remained fair and efficient.
Orders
Orders of the court
Paragraphs of the amended application are struck out as an abuse of process under s 47(1) of the State Administrative Tribunal Act 2004 (WA)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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