| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL PRACTITIONERS ACT 2008 (WA) CITATION : MEDICAL BOARD OF AUSTRALIA and WOOLLARD [2012] WASAT 209 (S) MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) PROF M KAMIEN (SENIOR SESSIONAL MEMBER)
DR M LEVITT (SENIOR SESSIONAL MEMBER)
MR M WIKLUND (SENIOR SESSIONAL MEMBER)
HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 19 DECEMBER 2012 FILE NO/S : VR 145 of 2011 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant
AND
KEITH VICTOR WOOLLARD
Respondent
Catchwords: Vocational regulation Medical practitioner Disciplinary matter Practitioner acted carelessly in causing inflation of balloon catheter to a pressure of 18 atmospheres, being four atmospheres above its rated burst pressure, during angioplasty Penalty Costs
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Legislation: Health Practitioner Regulation National Law (Western Australia), s 156
Legal Practitioners (State Administrative Tribunal) Determination 2010
Medical Practitioners Act 2008 (WA), s 76(1)(b), s 76(1)(b)(i), s 76(1)(b)(ii), s 116(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 60(2), s 87(2) Result: Practitioner reprimanded, required to comply with conditions on his registration that he must not perform any angioplasty or stenting procedure unless he is directly supervised by an interventional cardiologist with at least five years' postaccreditation experience approved by the Medical Board of Australia until he has performed 75 angioplasties over a 12 month period under such supervision and that he must not inflate or cause the inflation of any catheter balloon when performing angioplasties and stenting procedures above its rated burst pressure, and ordered to pay a financial penalty of $20,000
Practitioner ordered to pay costs of $77,177
Summary of Tribunal's decision: The Tribunal found that Dr Keith Woollard acted carelessly in causing a balloon catheter that he was using in an angioplasty to be inflated to a pressure of 18 atmospheres (being four atmospheres above its rated burst pressure) and in failing to withdraw the balloon before inflating it beyond 16 atmospheres and failing to replace it with a noncompliant balloon with a higher rated burst pressure. The Tribunal required the parties to file submissions in relation to penalty and costs.
The Medical Board of Australia sought a reprimand, a three month suspension (or a financial penalty of $20,000) and a condition that Dr Woollard must be supervised for 75 angioplasties before he is permitted to conduct angioplasties or stenting procedures on his own. The Board also sought a costs order in the amount of $105,000. Dr Woollard contended that the penalty should be a reprimand, a financial penalty of $10,000 and an undertaking not to inflate or cause the inflation of any angioplasty balloon above its rated burst pressure. He also submitted that the costs order should be limited to $75,000.
The Tribunal determined that the appropriate penalty is that Dr Woollard:
(a) be reprimanded;
(b) be required to comply with conditions that he:
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(i) must not perform any angioplasty or stenting procedure unless he is directly supervised by an interventional cardiologist with at least five years' postaccreditation experience approved by the Board until he has performed 75 angioplasties over a twelve month period under such supervision and has complied with various reporting requirements in relation to the performance of these procedures; and
(ii) must not inflate or cause the inflation of any angioplasty balloon when performing angioplasties and stenting procedures above its rated burst pressure; and
(c) be required to pay a financial penalty of $20,000 to the Board.
The Tribunal also ordered Dr Woollard to pay costs to the Board in the amount of $77,177. The Tribunal assessed costs in this amount because it determined that approximately onethird of solicitors' time for which costs were sought by the Board was not reasonable and necessary to properly prepare and present the case, having regard to the Tribunal's objective to minimise the costs to parties.
Category: B
Representation: Counsel:
Applicant : Ms FA Stanton
Respondent : Mr JRB Ley
Solicitors:
Applicant : MDS Legal
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Craig v Medical Board of South Australia (2001) 79 SASR 545
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242
Law and Town of Vincent [2006] WASAT 263 (S)
Legal Profession Complaints Committee and Detata [2011] WASAT 91 (S)
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Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)
Legal Profession Complaints Committee v Detata [2012] WASCA 214
Marvell Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Medical Board of Australia and Bernadt [2012] WASAT 108
Medical Board of Australia and McClure [2012] WASAT 69 (S)
Medical Board of Australia and Woollard [2012] WASAT 209
Medical Board of Western Australia and Pate [2007] WASAT 161
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Medical Board of Western Australia and Wolman [2011] WASAT 69 (S)
Medical of Board of Western Australia and Richards [2010] WASAT 94
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194
Srna v Medical Board of Western Australia [2004] WASCA 198
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The Tribunal has found that two 'disciplinary matters' exist under s 76(1)(b) of the Medical Practitioners Act 2008 (WA) (MP Act) in relation to Dr Keith Woollard because, in the course of his practice as a medical practitioner, he acted carelessly in causing a balloon catheter that he was using in a right coronary angioplasty to be inflated to a pressure of 18 atmospheres (being four atmospheres above its rated burst pressure) and in failing to withdraw the balloon before inflating it beyond 16 atmospheres and failing to replace it with a noncompliant balloon with a higher rated burst pressure: Medical Board of Australia and Woollard [2012] WASAT 209 (earlier reasons). The Tribunal directed the parties to file written submissions in relation to penalty and costs and ordered that, subject to any further order, the issues of penalty and costs are to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). 2 The Medical Board of Australia contended that the appropriate penalty is that Dr Woollard: a) be reprimanded; b) be suspended from the practice of medicine for a period of three months or, alternatively, be required to pay a financial penalty of $20,000; and c) be required to comply with a condition on his registration that he 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, until he has conducted 75 angioplasties as primary operator under such supervision over a 12 month period and has complied with various reporting requirements in relation to the performance of those procedures. 3 The Board contended that, if the Tribunal determined that it was not appropriate to impose this condition on Dr Woollard's registration, then the Tribunal should either suspend him from practising medicine for a period of four months (rather than three months) or, alternatively, require him to pay the maximum financial penalty of $25,000 that can be imposed under the MP Act (rather than $20,000). (Page 6)
4 The Board also sought an order that Dr Woollard pay its costs of the proceeding in the amount of $105,000. 5 Dr Woollard contended that the appropriate penalty is that he: a) be reprimanded; b) required to pay a financial penalty of $10,000; and c) provide an undertaking to the Tribunal and the Board that, when performing angioplasties and stenting procedures, he will not inflate or cause the inflation of the balloon above its rated burst pressure. 6 Dr Woollard conceded that, having regard to the Tribunal's usual practice in relation to costs, it is appropriate that he be ordered to pay the Board's costs of the proceeding. He submitted, however, that the amount of costs sought by the Board is excessive and that the amount of costs ordered to be paid should be limited to $75,000.
What is the appropriate disciplinary consequence of the Tribunal's findings that Dr Woollard acted carelessly? 7 The objects of the MP Act include regulating the practice of medicine and establishing, maintaining and promoting suitable standards of knowledge and skills among medical practitioners 'for the purpose of protecting consumers of medical services provided by medical practitioners in Western Australia'. As the Tribunal observed in Medical Board of Western Australia and Wolman [2011] WASAT 69 (S) at [17], this is 'a statutory enshrinement of a principle previously identified by courts as being relevant to disciplinary proceedings where professional misconduct is alleged, and with the penalties associated with such'. 8 In an oft quoted statement in Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992) (Jemielita) Owen J said at 141 that the primary consideration in relation to penalty in vocational disciplinary proceedings is the public interest in terms of protection of the public from 'delinquents and wrongdoers within professions' and 'seriously incompetent professional people who are ignorant of basic rules and indifferent to rudimentary professional requirements'. His Honour observed at 141 that the objects of disciplinary proceedings and the imposition of penalties also include the 'need to maintain the high standards and good reputation (Page 7)
of the profession generally in the eyes of the community' and the 'need to deter others who may be like minded to transgress in the future'. 9 It is also well recognised that punishment of the practitioner for wrongdoing is not an object of disciplinary proceedings and, indeed, that 'sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration': Craig v Medical Board of South Australia (2001) 79 SASR 545 (Craig) at [43] (Doyle CJ). 10 The Tribunal has a wide discretion in relation to penalty. As Owen J held in Jemielita at 141 142, 'the mere fact that there has been a finding of infamous conduct or of gross carelessness or incompetency, does not mean that any particular penalty must follow as of course'. The Tribunal is required 'to consider all of the circumstances surrounding the act or omission and to exercise the discretion accordingly' (at 142). 11 Section 116(1) of the MP Act provides that, if the Tribunal is of the opinion that a disciplinary matter exists in relation to a practitioner, it may, among other things, do one or more of the following: (a) decline to make an order or a requirement under this subsection; … (c) caution or reprimand the person; … (f) order that the person comply with such conditions as the Tribunal may impose upon the registration of that person; … (i) order the person to pay a penalty not exceeding $25,000; (j) order that the person be suspended from the practice of medicine for a period, not exceeding 2 years, specified in the order; … 12 The parties agreed that the appropriate disciplinary consequence of the Tribunal's findings that Dr Woollard acted carelessly includes that he be reprimanded pursuant to s 116(1)(c) of the MP Act. Having regard to our findings, we consider that a reprimand is warranted. (Page 8)
13 The parties disagreed in relation to whether Dr Woollard should be suspended from practice for a period pursuant to s 116(1)(j) of the MP Act, whether he should be required to comply with a condition on his registration pursuant to s 116(1)(f) of the MP Act preventing him from performing angioplasties or stenting procedures without supervision until he has satisfied certain requirements, and the amount that should be imposed by way of penalty pursuant to s 116(1)(i) of the MP Act. We will consider each of these matters in turn.
Should Dr Woollard be suspended from practice? 14 Although we found that two disciplinary matters exist in relation to Dr Woollard, these matters involve, in substance, a single instance of acting carelessly on his part. In Srna v Medical Board of Western Australia [2004] WASCA 198 (Srna), Pullin J surveyed penalty decisions of the Medical Board of Western Australia and the Supreme Court of Western Australia between 1999 and 2004 and found that 'in summary … there has not been any instance since 1999 of a suspension of a practitioner for gross carelessness [under the Medical Act 1894 (WA) (Medical Act)] in relation to one instance in relation to one patient' (at [104]). His Honour, therefore, found that the penalty of three months' suspension imposed by the Medical Board of Western Australia in that case was 'out of line with sentences customarily imposed for a single case of gross carelessness' (at [104]). In the circumstances of that case, which involved 'a oneoff incident of gross carelessness associated with one consultation involving one patient, in circumstances not suggesting incompetence' and involving a practitioner who had 'an unblemished record and good testimonials' (at [106]), his Honour held that the penalty imposed was 'unreasonable and manifestly excessive' and imposed a fine of $10,000 in its place. 15 In the course of his reasons, Pullin J said, however, that: I do not mean to say that a single instance of gross carelessness cannot attract suspension or even deregistration. For example, if the incident is provably representative of a course of grossly careless conduct, if the incident has disturbing features indicating a callous disregard for the patient, if it amounts also to improper or infamous conduct to a significant degree, if it indicates incompetence or if the practitioner has a record, then deregistration or suspension may be appropriate. I am not here providing an exhaustive list of circumstances and nor am I attempting to lay down any rule on the point. The matter of penalty is within the Board's discretion. (at [104]) (Page 9)
16 A finding of acting carelessly under the MP Act is analogous to a finding of 'gross carelessness' under the Medical Act: Medical of Board of Western Australia and Richards [2010] WASAT 94 at [25] and [26]. 17 We have been referred to only one case since 1999 in which a medical practitioner has been suspended from practice in relation to a single instance of gross carelessness under the Medical Act or acting carelessly under the MP Act, namely Medical Board of Western Australia and Pate [2007] WASAT 161 (Pate). In that case, a period of suspension of two months' duration was imposed upon a practitioner who failed to examine a patient before discharging him from the emergency department of a hospital. The patient had received severe injuries as a result of being pinned underneath a motor vehicle and died shortly after his discharge. As the Tribunal recently observed in Medical Board of Australia and McClure [2012] WASAT 69 (S) (McClure) at [30], 'although the Tribunal [in Pate] did not make any statement to the effect that the practitioner acted with a reckless disregard for the health of the patient, it is difficult to view the circumstances in any other way'. 18 Although the present case involved, in substance, a single instance of acting carelessly, the Board submitted that a suspension is warranted in light of two factors. First, Dr Woollard's lack of insight in relation to his wrongdoing. The question of whether a practitioner acknowledges and understands the nature of his or her error and has insight into the seriousness of the error is relevant to the question of penalty required for the protection of the public: Legal Profession Complaints Committee v Detata [2012] WASCA 214 at [64]; Legal Profession Complaints Committee and Detata [2011] WASAT 91 (S) at [12]; Medical Board of Western Australia and Wolman [2011] WASAT 69 (S) at [24]. However, as Mr JRB Ley submitted on behalf of Dr Woollard, having given evidence (which we did not accept) that he only caused the inflation of the balloon to a maximum pressure of 15 atmospheres, rather than 18 atmospheres, Dr Woollard 'cannot express contrition for something which he says he did not do'. 19 The second factor emphasised by the Board was Dr Woollard's 'lack of understanding of the consequences of balloon rupture' demonstrated by his letter to the Board dated 2 March 2007 and the evidence he gave during the hearing. As we noted at [97] of the earlier reasons, Dr Woollard said in the letter that balloon rupture 'has no clinical consequences as the balloon contains only a small amount of contrast medium'. In crossexamination, Dr Woollard maintained that 'there are no (Page 10)
proven adverse consequences' of balloon rupture (T:235.8; 27 June 2012). In reexamination, Dr Woollard said that the statement in his letter (and in crossexamination) was based on two journal articles, dating from 1986 and 1999, which we found, at [97], were out of date and inapplicable, respectively. 20 Mr Ley submitted that Dr Woollard's evidence in relation to balloon rupture 'did not differ greatly' from that of the two expert interventional cardiologists who gave evidence, Dr Richard Clugston, called by the Board, and Dr Peter Illes, called by Dr Woollard. Mr Ley's submission is incorrect. Dr Clugston and Dr Illes agreed that balloon rupture can have potentially significant consequences: see the earlier reasons at [76] [79]. Mr Ley also submitted that it was reasonable for Dr Woollard to rely on the two journal articles and therefore that he did not demonstrate any lack of insight into the possible consequences of balloon rupture. However, it was hardly reasonable to rely on articles which were out of date or inapplicable. 21 Dr Woollard's lack of understanding of the consequences of balloon rupture, not only at the time of the angioplasty on Patient S, but at the time of his letter to the Board on 2 March 2007, and even when he gave evidence on 27 June 2012, almost six years after the incident in question, is a matter of significant concern and a factor in favour of the suspension of Dr Woollard from practice for a period, notwithstanding the single instance of acting carelessly in this case. 22 However, on balance, we do not consider that a suspension is warranted in order to protect the public, maintain the high standards and good reputation of the profession, or deter other practitioners from acting in the same way. Although Pullin J said in Srna at [104] that he was not 'providing an exhaustive list of circumstances and nor … attempting to lay down any rule on the point', none of the circumstances identified by his Honour in which a single instance of gross carelessness (or acting carelessly) might lead to a suspension from practice are established in this case. 23 Although Dr Woollard's lack of understanding of the consequences of balloon rupture is a matter of significant concern, there is no evidence before us to indicate that the incident in this case was representative of careless conduct on his part in relation to the overinflation of balloons during angioplasty procedures. Although we found, at [105] and [109] of the earlier reasons, that Dr Woollard did not give sufficient attention or thought to avoiding harm to Patient S, the incident does not indicate a (Page 11)
callous disregard for the patient. Furthermore, although we observed, at [117] of the earlier reasons, that had Dr Woollard been an accredited interventional cardiologist at the time of the angioplasty on Patient S, we would have found that he 'acted incompetently' within the meaning of s 76(1)(b)(ii) of the MP Act, having regard to the fact that Dr Woollard was still in training and, most significantly, that he was carrying out the procedure under the supervision of an accredited interventional cardiologist, we did not find that he acted incompetently. 24 Finally, Dr Woollard has a generally unblemished professional disciplinary record. Dr Woollard has been a medical practitioner for over 40 years, a specialist cardiologist for over 30 years, and a practising interventional cardiologist for the last eight years. He has performed over 10,000 angiograms, has routinely performed other major procedures, including the permanent implantation of pacemakers and defibrillators, and, since 2004, has performed 1,855 angioplasties, most of which have also involved the placement of stents. Prior to the findings that he acted carelessly in this proceeding, Dr Woollard had not been the subject of any adverse findings in disciplinary proceedings brought against him. 25 On 1 June 2012, the Australian Health Practitioner Regulation Agency gave notice to Dr Woollard that it had received notifications from a number of his former patients, including Patient S, making adverse allegations concerning their treatment by him and that the Board was proposing to take immediate action against him pursuant to s 156 of the Health Practitioner Regulation National Law (Western Australia) (National Law) by imposing a condition on his registration preventing him from performing angioplasties until the Board, or, where relevant, the Tribunal, had fully investigated and made determinations in respect of the notifications. On 11 June 2012, Dr Woollard's solicitors wrote to the Agency providing submissions in respect of each of the notifications, requesting the Board not to take immediate action against him, proposing a procedure for independent review of the management of all his future elective angioplasty procedures, and advising that he had changed his practice in relation to the administration of anticoagulants during procedures. The Agency accepted Dr Woollard's proposal and took immediate action against him on 12 June 2012 by imposing conditions on his registration in terms which he had proposed. As Mr Ley submitted, the way Dr Woollard dealt with the notice from the Agency 'is not indicative of a lack of insight into the shortcomings of his practice' and 'shows a willingness to acknowledge those shortcomings and to act quickly to deal with them'. His approach to the notice from the Agency stands in Dr Woollard's favour. (Page 12)
Should a condition requiring supervision be imposed on Dr Woollard's registration? 26 The Board sought an order that Dr Woollard comply with the following condition on his registration (in addition to the conditions imposed by the Board as part of the immediate action taken against Dr Woollard on 12 June 2012 under s 156 of the National Law): 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 order 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. 27 The Board acknowledged that compliance with this condition would put Dr Woollard to considerable expense in securing an appropriate supervisor to attend for 75 procedures. Nevertheless, the Board submitted that the condition is necessary in the public interest to ensure that Dr Woollard does not overinflate balloons. Having regard to Dr Clugston's evidence at the hearing, the Board acknowledged that most lesions are dilated at nominal pressures and, therefore, that compliance with the proposed condition may not result in Dr Woollard being supervised when a balloon fails to dilate a lesion at its rated burst pressure. However, the Board submitted that, irrespective of whether or (Page 13)
not Dr Woollard encounters, while supervised, a situation in which a balloon does not dilate a lesion when inflated to its rated burst pressure, in all such supervised procedures the supervisor would guide Dr Woollard with respect to the need to have regard to the rated burst pressure on the relevant package insert, and to remain mindful of the rated burst pressure throughout the performance of each procedure. 28 Dr Woollard opposed the imposition of this condition on two bases. First, he suggested that it would be impossible for him to comply with such a condition, because it equates to asking a senior interventional cardiologist to spend over 30% of his or her working year supervising him. Second, Dr Woollard argued that the imposition of such a condition would be an unnecessarily harsh and unreasonable response to the Tribunal's findings. Rather, Dr Woollard proposed that he undertake to the Tribunal and the Board that he will not inflate or cause the inflation of a balloon during angioplasty and stenting procedures beyond its rated burst pressure. Mr Ley submitted that this would 'effectively provide the appropriate protection for the public'. 29 The Board submitted that it would be possible to find a supervisor, given that several angioplasties are usually performed together in a halfday session, and that, in any case, if the condition is necessary for the protection of the public, then its imposition is warranted. 30 We consider that it would be possible to comply with the condition proposed by the Board, given that similar supervision occurs when a practitioner is training to be an interventional cardiologist, although it would put Dr Woollard to considerable expense and inconvenience. We also consider that it is necessary to impose the condition in order to protect the public. As we have found earlier, Dr Woollard's lack of understanding of the consequences of balloon rupture, not only when he performed the angioplasty, but also when he corresponded with the Board on 2 March 2007, and even when he gave evidence almost six years after the procedure (by which time he had performed a considerable number of angioplasties), is a matter of significant concern. It reflects a lack of essential knowledge for an interventional cardiologist that exposes patients to potential risk. In our view, to ensure the safety of Dr Woollard's patients, a period of supervision by a senior colleague is warranted. The supervision will ensure that Dr Woollard does not overinflate balloons and receives necessary guidance from a senior practitioner in relation to the need to have regard to and be mindful of the rated burst pressure of balloons for the safety of his patients. While the condition will put Dr Woollard to considerable expense and (Page 14)
inconvenience, as Doyle CJ observed in Craig at [43], 'sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration'. In our view, this is such a case. 31 We do not consider that Dr Woollard's proposed undertaking, or a condition to the same effect, that he will not inflate or cause the inflation of any balloon above its rated burst pressure, is adequate without a condition requiring a period of supervision, to protect the public, because of his demonstrated lack of understanding of the consequences of balloon rupture. However, having regard to his conduct during the angioplasty on Patient S, a condition precluding Dr Woollard from inflating balloons over their rated burst pressure should be imposed for the protection of his patients. 32 We consider that the imposition of a condition is preferable to the provision of an undertaking to the Tribunal and the Board, because, upon the delivery of the Tribunal's decision in relation to penalty, this proceeding will be at an end and, although s 116(1) of the MP Act does not preclude the giving of an undertaking by a practitioner, an undertaking does not have any statutory status.
What is the appropriate monetary penalty in this case? 33 As noted earlier, the Board contended that, if Dr Woollard were not suspended from practice, but the condition requiring supervision were imposed, then the appropriate monetary penalty under s 116(1)(i) of the MP Act is $20,000. Although Dr Woollard conceded that the imposition of a financial penalty is an appropriate disciplinary consequence of the Tribunal's findings, he contended that the penalty should be $10,000. 34 Mr Ley referred the Tribunal to the penalty imposed on 15 August 2012 in proceeding VR 145 of 2010 following the decision in Medical Board of Australia and Bernadt [2012] WASAT 108. In that case, Dr Bernadt, a consultant ear, nose and throat surgeon, was found to have acted carelessly in relation to a single incident concerning a single patient. The penalty imposed by the Tribunal was a reprimand and payment of $7,500. Mr Ley submitted that the case of Dr Bernadt 'has some similarities to this case'. In addition to the fact that the findings of acting carelessly in both cases involved, in substance, a single incident, Mr Ley submitted that the matters are similar because the practitioner in each was very experienced and had practised in the field for many years, without any adverse findings being made against him. Mr Ley noted, however, that as a result of immediate action taken against Dr Bernadt in (Page 15)
relation to another matter, at the time of the penalty hearing, he was no longer performing surgery. 35 In relation to the determination of an appropriate penalty in vocational disciplinary proceedings, great care needs to be taken when having regard to penalties imposed in other cases, although general principles can be observed and applied. A disciplinary tribunal necessarily exercises a broad discretion having regard to the particular circumstances of each case. Furthermore, in relation to the Bernadt matter, the Tribunal did not publish written reasons for the penalty decision made on 15 August 2012. We can, therefore, derive little assistance from that assessment of penalty. 36 In Craig, Doyle CJ said the following at [47]: In other cases, the protection of the public or the public interest may justify an order intended to bring home to the practitioner the seriousness of the practitioner's departure from professional standards, and intended to deter the practitioner from any further departure. A fine might well be imposed with this object. An order imposing a fine might look like a punishment imposed by a court exercising criminal jurisdiction, but in professional disciplinary proceedings it is imposed on a different basis. An order might also be made in professional disciplinary proceedings to emphasise to other members of the profession, or to reassure the public, that a certain type of conduct is not acceptable professional conduct. In the latter case[,] the order is made in part to protect the profession, by demonstrating that the profession does not allow certain conduct. This, in the end, is also in the public interest. 37 In our view, a financial penalty of $20,000 is warranted in light of the seriousness of Dr Woollard's careless conduct and having regard to the other penalties that we are imposing, in particular the condition that Dr Woollard be supervised for a period, which will put him to considerable expense. In our view, a financial penalty of $20,000 is necessary in order to bring home to Dr Woollard the seriousness of his careless conduct, deter him and other practitioners from acting in a similar way, and to reassure the public that what occurred in this case is not acceptable professional conduct. Had we not decided that a condition requiring Dr Woollard to be supervised is warranted, we would have imposed the maximum financial penalty of $25,000. We consider that a reduction of $5,000 from the maximum penalty is appropriate, despite the seriousness of the careless conduct, because of the expense involved in compliance with the condition requiring supervision. (Page 16)
Testimonials and adverse publicity 38 Dr Woollard presented 10 signed testimonials as to his ability and diligence as a cardiologist. Two of the testimonials are from other cardiologists, one is from a cardiothoracic surgeon, three are from general practitioners (the wife of one of whom is also a patient) and four are from patients. Mr Ley submitted that 'the referees all speak very highly of [Dr Woollard] and acknowledge their awareness of the adverse findings made against him'. While the first statement is correct, the second statement is incorrect. A number of the authors of the testimonials refer to being aware of 'allegations' regarding Dr Woollard's conduct, some in rather vague and one in inaccurate terms. However, none of the authors of the testimonials appear to be aware of the Tribunal's findings in the earlier reasons. This greatly reduces the weight that can be given to the testimonials: Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (in de Braekt) at [89] and [91];contrast Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [15]. 39 Finally, we note Mr Ley's submission that, as a result of extensive adverse publicity concerning this case, Dr Woollard has had significantly fewer referrals, with his income from angioplasties being reduced by almost half over the year to 31 October 2012, and has suffered the humiliation of longterm patients seeing other specialists. As the Board accepted, adverse publicity is a matter which the Tribunal may take into account on the issue of penalty. However, the significance of adverse publicity is subject to the paramount public interest considerations of the protection of the public, the need to maintain the high standards and good reputation of the profession generally in the eyes of the community, and the need to deter other practitioners from acting in a similar way. In the circumstances of this case, we do not consider that the testimonials and the adverse publicity and its consequences warrant a reduction in the penalty which we are imposing in terms of reprimand, conditions and financial penalty, having regard to the paramount public interest considerations.
What costs order should be made? 40 In Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) (in de Braekt (S)) at [51], the Tribunal summarised its approach and practice in relation to costs in vocational disciplinary proceedings as follows: (Page 17)
Although s 87(1) of the SAT Act contemplates that, generally, parties bear their own costs in proceedings before the Tribunal, s 87(2) of the SAT Act confers a discretion on the Tribunal to make an order for the payment by a party of all or any of the costs of another party. The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Committee, will usually result in an order for costs being made in favour of the vocational regulatory body: Medical Board of Western Australia and Roberman [2005] WASAT 81 (S); (2005) 39 SR (WA) 47 (Roberman) at [30] referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. The policy basis behind this practice is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources' and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented': Roberman at [30]. 41 Dr Woollard conceded that there is no reason why, in the circumstances of this case, the Tribunal should depart from its usual practice in relation to costs in vocational disciplinary proceedings. An order for costs in favour of the Board should therefore be made. 42 The Tribunal summarised its approach and practice in relation to the assessment of costs in in de Braekt (S) at [53] as follows: In relation to the amount or quantum of costs, the Tribunal's usual practice is to determine the amount of work which was reasonable and necessary to properly prepare and present the case and then to apply, as a useful guide as to the maximum rates which might be allowed on a party/party basis, the relevant hourly or daily rate specified in the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination): J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [35] [36] and [47] [48]. The Determination prescribes the maximum amounts which can be charged without a written agreement as to costs with a client under s 282 of the [Legal Profession Act 2008 (WA)]. The Legal Costs Committee has not prescribed a scale of costs for the Tribunal in respect of party/party costs, because the Legal Costs Committee has recognised that 'the overriding philosophy of the Tribunal, as expressed through its enabling legislation, is that parties appearing before the Tribunal are to bear their own costs of proceedings': Legal Practitioners (State Administrative Tribunal) Report 2010 (WA) para 3b. The Determination is, therefore, not binding in the present case, but rather, is to be used as a guide as to the maximum rates which might be allowed on a party/party basis. (Page 18)
43 The Board presented a detailed schedule of the legal costs and disbursements incurred by it in this proceeding. The schedule was prepared by collating the electronic entries made in the law firm acting for the Board in relation to time spent working on specific tasks in this matter and adding disbursements, including counsel's fees and Dr Clugston's expert fees. Three solicitors in the firm, each with over five years' experience (and, therefore, a senior practitioner for the purposes of the Legal Practitioners (State Administrative Tribunal) Determination 2010 (Determination)), were involved in performing the work. All of their time was recorded at an agreed rate of $351 per hour inclusive of GST, which is just below the maximum amount of $352 per hour which can be charged where there is no written agreement as to costs under the Determination. It was submitted for the Board that its sophisticated nature ensures that negligible 'solicitor and client work' is performed by its legal representatives. 44 The Board's schedule of legal costs and disbursements adds up to a total of $111,052.02 inclusive of GST, being solicitors' fees of $81,314.49 and disbursements of $29,737.53. 45 Mr Ley submitted that the costs and disbursements incurred by the Board in this proceeding should be discounted in three respects. 46 First, although the Board contended in the proceeding that Dr Woollard 'acted carelessly', within the meaning of s 76(1)(b)(i) of the MP Act, and 'acted incompetently', within the meaning of s 76(1)(b)(ii) of the MP Act, it succeeded only in relation to the first contention. The Board properly conceded that its costs and disbursements should be discounted in respect of that part of its case which was unsuccessful. As the Tribunal has observed, 'a person affected by proceedings instituted by a vocational regulatory body should not have to bear the costs of the proceedings or contribute to the costs of those part of the proceedings which were not successfully maintained': Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [46]. 47 As the Board submitted, the task of presenting evidence against Dr Woollard was identical in respect of the allegations of carelessness and incompetency. Accordingly, the only discrete costs incurred by the Board as a result of making allegations of incompetency were in the preparation of the application to SAT and its closing submissions. The Board suggested a discount from $111,052.02 to $105,000 to reflect this work. Having regard to the proportion of the Board's submissions devoted to the contention of incompetency, this is a reasonable discount to make. (Page 19)
48 Second, Mr Ley submitted that there should be a discount for amendments made to the grounds of the application during the proceeding. Mr Ley submitted that this related to costs of approximately $3,000 incurred between 9 November 2011 and 21 February 2012. The Board conceded that a discount was appropriate for this reason, but argued that the period during which amendments to the grounds of the application were proposed and discussed between the parties relevantly ended on 16 December 2011, when consent orders were agreed, rather than on 21 February 2012. This argument is sound. Having reviewed the schedule of costs, it appears that approximately $2,200 was incurred in relation to the amendment to the grounds of the application in November and December 2011. This further discount reduces the amount of costs and disbursements to $102,800. 49 Third, Mr Ley submitted that the amount of costs and disbursements after the first two deductions is excessive and unreasonable 'for a case in which there were only three or four main issues, the [Board] called two witnesses of fact and one expert, there were relatively few documents, there were no complex legal issues and the hearing occupied two days'. He submitted that, having regard to the discounts referred to earlier, and the nature and complexity of the case, a reasonable allowance for the Board's costs and disbursements would be $75,000. 50 The Tribunal's main objectives stated in s 9 of the SAT Act include to 'minimise the costs to parties'. As the Tribunal said in J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 at [38]: … [T]he Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that representatives of parties before the Tribunal will approach a proceeding in a way that minimises costs to their clients. If clients choose to approach proceedings before the Tribunal in a way which substantially increases costs for them, it will be a rare case where that increase in costs will be recoverable through a favourable costs order. 51 The Tribunal assesses costs 'in a relatively robust fashion', consistently with its statutory objectives: Marvell Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]; see, for example, Law and Town of Vincent [2006] WASAT 263 (S). Generally speaking, 'any award should be approached in a broad fashion and should not have to descend into [an] inquiry into small items of (Page 20)
expenditure': Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302; (2008) 60 SR (WA) 194 at [67]. 52 The Board submitted, and we agree, that the disbursements incurred by it are reasonable. The disbursements comprise principally counsel's fees of $23,100 and Dr Clugston's expert fees of $3,520, inclusive of GST. 53 Solicitors' fees account for approximately $73,000 of the $102,800 in costs and disbursements after making deductions for the unsuccessful contention of incompetency and amendment of the grounds of the application. At an hourly rate of $351, this equates to approximately 208 hours of work by senior practitioners in relation to this proceeding. If this work had been done by a single practitioner working a 40 hour week, it would have fully occupied the practitioner for over five working weeks. While the hourly rate was reasonable, for the purposes of a costs assessment in this Tribunal, 208 hours of solicitors' time was not reasonable and necessary, having regard to the complexity of the matter, the number of issues, the documentary evidence, the number of witnesses and the length of the hearing. In short, while the rate charged was reasonable, the number of hours spent was not for the purposes of a favourable costs order in SAT. Having regard to the Tribunal's objective to minimise the costs to parties, Dr Woollard should not be required to compensate the Board for 208 hours of solicitors' time, even at a rate of $351 per hour. 54 For the purposes of the costs assessment in this case, we consider that the following approximate number of hours of solicitors' time would have been reasonable to properly prepare and present the case: |