Medical Board of Australia v Leggett
[2013] QCAT 182
| CITATION: | Medical Board of Australia v Leggett [2013] QCAT 182 |
| PARTIES: | The Medical Board of Australia (Applicant) |
| v | |
| Dr Andrew Alfred George Leggett (Respondent) |
| APPLICATION NUMBER: | OCR283-12 |
| MATTER TYPE: | Occupational Regulation Matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 19 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Application in respect of paragraphs 1.2, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5 and 1.2.6 of Annexure ‘A’ to the Referral is refused. 2. The words ‘and further no appropriate arrangement for referring EK to an alternative medical practitioner for continuation of any psychiatric treatment’ which appear in paragraph 2 of Annexure ‘A’ to the Referral are struck out. 3. The Medical Board of Australia be permitted to rely upon the particulars provided as Annexure ‘A’ to its Outline of Submissions filed on 14 December 2012 under the heading ‘First Ground for Disciplinary Action’, save for the words ‘during the time of EK going through her divorce proceedings the respondent stated to her in words to the effect ‘we have more in common than you think’. The words or words to this effect were stated in the confines of the respondents therapy room in his practice located at Upper Edward Street, Brisbane’, as they appear in paragraph 2 thereof. 4. The Medical Board of Australia is not permitted to rely upon the additional particulars provided in Annexure ‘A’ to its Outline of Submissions filed on 14 December 2012 under the heading ‘Second Ground for Disciplinary Action’. 5. The Medical Board of Australia is to pay 50% of Dr Leggett’s costs of and incidental to the Application on a standard basis on the scale applicable to matters in the District Court of Queensland to be either agreed or assessed by a costs assessor. |
| CATCHWORDS: | PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where the Board alleged the Registrant engaged in an inappropriate relationship with a patient – where the Registrant requested further particulars – where the Board refused – where the Registrant applied to the Tribunal – where the Registrant provide an unqualified response to allegations – whether the Board should provide further particulars PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONER – DISCIPLINARY PROCEEDINGS – where the Board alleged the Registrant engaged in an inappropriate relationship with a patient – where the Registrant requested further particulars – where the Board refused – where the Registrant applied to the Tribunal – where the Board provided further particulars in their submissions – whether the Board should be permitted to reply upon the further particulars Queensland Civil and Administrative Act 2009, s 32 Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr D Williams of Counsel instructed by McInnes Wilson Lawyers |
| RESPONDENT: | Mr G W Diehm SC instructed by Quinlan Millar and Treston Lawyers |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).
REASONS FOR DECISION
On 30 August 2012 the Medical Board of Australia referred a matter about Dr Leggett to the Tribunal pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law (Queensland). The Board alleges that Dr Leggett has behaved in a way that constitutes professional misconduct.
Attached to the Referral was an Annexure ‘A’. It is asserted, amongst other things, that there had existed a treating relationship between Dr Leggett and a nominated patient, EK, during the period from late 1994 to on or about 13 August 2002.
Two grounds for disciplinary action are alleged. The particulars of the first ground were set out in the annexure as follows:
1.2During the course of the treating relationship the Registrant in breach of his duty as a medical practitioner and as a specialist Psychiatrist and with knowledge of the matters in 1.1.1-1.1.5 inclusive, engaged in the following conduct with EK;
1.2.1Informed EK about aspects of his private life including that he was a poet and performed in public; and/or
1.2.2Stated to EK that he was “found (sic) of her”; and/or
1.2.3Engaged in hugging EK; and/or
1.2.4Had EK sit on his lap during therapy; and/or
1.2.5Stated to EK words to the effect “what a lucky man will have those legs wrapped around him”; and/or
1.2.6Engaged in and maintained a personal and sexual relationship with EK.
The second ground for disciplinary action was stated as:
2.Further and/or in the alternative to the matters in 1.2.6 above, following an inappropriate interval after termination of the Registrant’s treating relationship with EK, from a date unknown on or about 12 August 2002 and with [k]nowledge of the circumstances in 1.1.1 – 1.1.5 inclusive above, the Registrant engaged in and maintained a personal and sexual relationship with EK in breach of his obligations as a medical practitioner and further made no appropriate arrangement for referring EK to an alternative medical practitioner for continuation of any psychiatric treatment.
Dr Leggett has filed an application with the Tribunal seeking to strike out paragraphs 1.2, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5 and 1.2.6.
Further, in written submissions filed on behalf of Dr Leggett, he also seeks to have struck out that part of paragraph 2 which reads: ‘… and further made no appropriate arrangement for referring EK to an alternative medical practitioner for continuation of any psychiatric treatment’. Dr Leggett seeks, to the extent that it is necessary, to amend his strike out application to include this further allegation. The amendment is allowed.
Prior to making his application to the Tribunal to strike out those paragraphs Dr Leggett had requested particulars of them. That request, and the Board’s response to it, are exhibited to the affidavit of Timothy John Hancock filed in the Tribunal on 1 November 2012.[1]
[1] Exhibits TJH-1 and TJH-2.
In respect to paragraph 1.2.1, Dr Leggett sought particulars of those aspects of his private life of which he was alleged to have informed EK, and of when, how and on how many occasions that information was communicated to EK by him. Dr Leggett also sought particulars of how that information and/or those communications constituted a breach by him of his duty to EK as a medical practitioner and specialist psychiatrist, during the course of the treating relationship.
The response provided by the Board was that, first, the aspects of Dr Leggett’s private life of which he was alleged to have informed EK, and the timing and frequency of those communications, were matters of evidence. In respect of the second request the following particulars were provided:
Information and/or communications referred to constitute a breach by the Registrant of his duty to EK as a medical practitioner and specialist psychiatrist, during the course of the treating relationship since it created an overriding obligation upon the [R]egistrant not to exploit the treating relationship by engaging in a personal or sexual relationship with the patient EK. The aggravating circumstances of the breach of the duty were the exploitation of the information and/or communications concerned as alleged which indicates the vulnerability of the patient.
In respect of each of paragraphs 1.2.2, 1.2.3, 1.2.4, 1.2.5 and 1.2.6, Dr Leggett requested particulars of the approximate time and the number of occasions on which he was alleged to have said or done the things referred to in each of the respective paragraphs. The Board’s response in each instance was a refusal to provide any further or better particulars on the basis that each of those matters was a matter of evidence.
In respect of paragraph 2, Dr Leggett sought particulars of each and every fact, matter or circumstance by or from which it is to be inferred that he was under a duty to EK, after termination of the treating relationship, to refer her to a medical practitioner for psychiatric treatment. The Board’s response to that request was:
The the (sic) particulars of each and every fact, matter or circumstance by or from which it is to be inferred that the Registrant was under a duty to EK, after termination of the treating relationship, to refer her to a medical practitioner for psychiatric treatment, is a duty residing in the [R]egistrant to make appropriate referral arrangements of EK to another medical practitioner for psychiatric treatment and in the circumstances, the [R]egistrant by omission did not do so.
Dr Leggett’s request for particulars was made on 16 October 2012. The Board’s response was provided to Dr Leggett’s lawyers on 17 October 2012.
A Response to the Referral signed by Dr Leggett on 16 October 2012 was filed in the Tribunal on 17 October 2012.
In respect of the allegations contained in each of paragraphs 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5 and 1.2.6, Dr Leggett in his Response stated that the allegations were wholly devoid of particularity and that he was unable to better respond to them until such time as the Board had provided full and proper particulars of the matters alleged.
Notwithstanding this complaint about particularity, in respect of each of those allegations Dr Leggett denied that at any time during the treating/doctor-patient relationship he engaged in the conduct alleged.
Dr Leggett’s denials in that regard were complete and unqualified.
Also exhibited to the affidavit of Mr Hancock is correspondence from Dr Leggett’s solicitors of 25 October 2012[2] in which it was said that the response of the Board to the request for further and better particulars was manifestly inadequate. Dr Leggett’s solicitors pressed for the particulars to be provided and foreshadowed this application in the event that they were not.
[2] Exhibit TJH-3.
Mr Hancock also exhibits the Board’s response dated 26 October 2012.[3] The Board responded, in part, as follows:
In order that your client’s concerns in this regard are dispelled, we are in the process of preparing a detailed statement/affidavit of the complainant along with undertaking further investigations in relation to documentary material which will be relevant to the matters in the referral notice.
We suggest at this point in time, it would be appropriate for your client to await the developments in relation to this evidence preparation exercise which will lead to more specific particularity as to the matters in apparent dispute on the application/referral notice.
Once we are in a position to ascertain all of the available particularity of the allegations in this more expansive way, we will provide a copy of the affidavit and any additional particulars which may be taken to respond to the request for further particulars.
[3] Exhibit TJH-4.
Dr Leggett bases his application on a number of provisions of the QCAT Act. Section 28(3)(a) requires the Tribunal in conducting a proceeding to observe the rules of natural justice. Section 29(1)(a)(ii) requires the Tribunal to take all reasonable steps to ensure each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of those assertions. Section 47 permits the Tribunal to strike out a proceeding, or part of a proceeding, if it is, amongst other things, an abuse of process. Section 48 also permits the Tribunal to strike out a proceeding, or part of a proceeding, if the Tribunal considers a party is acting in a way that unnecessarily disadvantages another party.
In submissions filed on behalf of Dr Leggett, it is stated that the essence of his complaint is that the Board, having failed to properly particularise the allegations set out in the Referral, has failed to provide particulars upon request. It is said that the Board’s initial response was evasive and that its assertion that it was not obliged to provide some of the particulars sought on the basis that they were ‘matters of evidence’ was plainly wrong. There is some merit in those submissions made on behalf of Dr Leggett.
Further, Dr Leggett submits that some acceptance on the part of the Board that its position, in its formal response to the request, was untenable can be inferred from its letter of 26 October 2012 in its suggestion that further particularisation would be provided at a later point. There is also some merit in that submission, particularly given the fact the Board annexed to its Outline of Submissions (the “Board’s submissions”) a document headed ‘Additional Particulars of the Grounds for Disciplinary Action’ in which it sets out what I presume to be the best particulars which it is able to furnish after its further investigation of the matter. I shall return to some of the content of those additional particulars later in these reasons.
First, however, it should be observed that the Board has not advanced those additional particulars in response, or as a counter-application, to the application to strike out filed by Dr Leggett. That is, the Board has not, at least not in any formal sense, proposed an order permitting or directing the delivery of those additional particulars as being alternative relief which might be granted in respect of Dr Leggett’s application. Rather, the Board has purported to deliver those particulars as an annexure to its submissions on Dr Leggett’s application and proceeded to make submissions on the presumed basis that those additional particulars have been provided.[4]
[4]That the Board acts on the presumed basis is evident from paragraphs 1(a), 2,3, 15, 18, 23, 24, 25 and 26 of the Boards written submissions.
Whether the Board should be permitted to act on that presumed basis in respect of all or some of the particulars provided is a matter upon which the Tribunal must rule. That decision requires a consideration of the content of the particulars provided. However, in general terms, permitting the Board to proceed on that basis, particularly given that the proceeding remains in its early stages, would facilitate the requirement for the Tribunal to observe the rules of natural justice and to take all reasonable steps to ensure that parties to the proceeding understand the nature of assertions made in the proceeding, as required by sections 28 and 29 of the QCAT Act to which Dr Leggett refers.
In making his submissions, which as I have observed were made without the benefit of the additional particulars now sought to be relied upon by the Board, Dr Leggett complained that the allegations in the first ground for disciplinary action concerned ‘…events alleged to have occurred at unspecified times within an eight year period which ended more than 10 years ago.’[5]
[5]See paragraph 13 of the Outline of Submissions on behalf of Dr Leggett filed 5 December 2012.
The provision of adequate particulars in litigation generally, including disciplinary proceedings such as this, serves a number of purposes. It gives the respondent the ability to properly plead to the charge made against him or her and properly to prepare to meet the case to be presented against him or her. Further, it facilitates the Tribunal hearing the matter to rule upon the admissibility of evidence as the only evidence admissible will be that relevant to the case brought.[6]
[6]Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297 at 302; Johnson v Miller [1937] 59 CLR 467 at 497-498; Ex-Parté Graham: Re Dowling (1968) 88 WN (Part 1) (NSW) 270 at 281.
This is not a case in which the allegation of professional misconduct against Dr Leggett, even as set out in Annexure ‘A’ to the Referral without the additional particulars, is wholly unparticularised.[7]
[7]For example, it does not suffer from the deficiency of the charge in Etherton v Public Service Board of New South Wales (supra) which simply alleged that Mr Etherton was guilty of a breach of discipline within the meaning of s 85 of the Public Service Act, 1979, namely negligence, carelessness, inefficiency or incompetence in the discharge of his duties and where the only particulars provided were that he had failed to carry out his duties as a senior district officer within the Department in the proper manner; supra at 299.
The annexure to the Referral condescended from a general allegation of professional misconduct to particularise six forms of conduct, albeit without any specificity as to time and place. That absence of detail as to time and place did not, however, prevent Dr Leggett from understanding the allegations against him or prevent him from pleading to them. As noted above, in his Response filed on 17 October 2012, he made unqualified denials of each of those six forms of conduct said to constitute professional misconduct. His denial is complete and encompassed any time or place during the treating relationship.
Dr Leggett’s application to strike out paragraphs 1.2, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5 and 1.2.6 should therefore be refused.
The Board has provided, through a schedule of Medicare Australia records in the additional particulars annexed to its submissions, details of the specific dates of each and every consultation between Dr Leggett and EK during the treating relationship period. However, the helpfulness of those records in particularising the allegations is doubtful. The records reveal many hundreds of consultations between 3 October 1994 and 22 August 2002.
The lack of utility of the provision of those records is demonstrated in respect of the allegation that Dr Leggett said to the patient EK that he was ‘fond of her’. Paragraph 3 of the additional particulars provided says that this ‘…occurred in or about the period 1997/1998 on three or four occasions.’ The Medicare records reveal that there was some 314 separate consultations between the patient and Dr Leggett during that period. Informing Dr Leggett that his alleged conduct is said to have occurred on three or four of those 314 occasions is of little help.
Similarly, in respect of the hugging allegation, the additional particulars allege that this ‘occurred on several separate occasions of therapy commencing during the period of August 2000’. No end date to the period is specified. The Medicare records reveal that there were 55 separate occasions from August 2000 on which the patient consulted Dr Leggett. Again, an allegation that the conduct occurred on several separate occasions during such a period is of little help.
The allegations concerning the patient being permitted to sit on Dr Leggett’s lap are particularised in the additional particulars in precisely the same manner as those concerning the hugging allegations. The observation already made as to the unhelpfulness of those particulars applies equally to this allegation.
In respect of the allegation that Dr Leggett said ‘what a lucky man will have those legs wrapped around him’, the additional particulars allege that this ‘…occurred on one occasion in or about the middle part of the period 1994 to 2000.’ Again, those particulars do not provide much assistance in helping to specify the conduct alleged.
Given the observations which the Tribunal has made concerning the unhelpfulness of those further particulars, had it not been for Dr Leggett’s complete and unqualified denial of each of the allegations as contained in his Response, the Tribunal may have been more persuaded as to the merit of Dr Leggett’s application to strike out the paragraphs. However, in the circumstances, it would be inappropriate to strike them out.
There are, however, some further matters concerning the content of the additional particulars provided with the Board’s submissions which must be considered in determining whether those particulars should be permitted to be relied upon by the Board.
In addition to the complaint as to the lack of specificity as to the times and places at which the alleged conduct was said to have been engaged in by him, Dr Leggett further complains that the vagueness of the allegations was compounded by the use of the word ‘including’. It is said this left the Board presumably at large in terms of the nature of the allegations it may pursue in respect of those allegations. This complaint particularly relates to paragraph 1.2.1 concerning the allegation that Dr Leggett ‘[i]nformed EK about aspects of his private life including that he was a poet and performed in public’ (emphasis added).
Dr Leggett’s concerns seem to have been realised. The additional particulars provided as an attachment to the Board’s submissions, include the following:
During the time of EK going through her divorce proceedings the Respondent stated to her in words to the effect “we have more in common than you think”. The words or words to this effect were stated in the confines of the Respondent’s therapy room in his practice located at Upper Edward Street, Brisbane.
This is a further, particular statement said to have been made by Dr Leggett as to an aspect of his private life revealed to the patient. However, this further statement is not specific as to whether it is alleged to have been said on one or more occasions. It might be assumed that it is limited to one occasion. However, the only specificity as to when that occasion (or occasions) may have been is that it occurred during the time of EK going through her divorce proceedings. The only other factual detail revealed in either Annexure ‘A’ to the Referral or the additional particulars concerning the timing of those divorce proceedings is that which appears in paragraph 1.1.1 of Annexure ‘A’ to the Referral. There it is alleged that Dr Leggett became aware of stressors which EK had faced arising from divorce proceedings in or about 1993 – 1994. That allegation, of itself, does not identify whether the divorce proceedings (as opposed to other stressors) occurred in 1993 – 1994 or at some earlier time. Even assuming that those proceedings occurred during that period, the Medicare records reveal that the first consultation between EK and Dr Leggett occurred on 3 October 1994.
Assuming that the particulars now provided concerning that allegation are the best that the Board is able to offer, I am of the view that the further allegation, being one to which Dr Leggett has not provided a response, is lacking in particularity to the extent that it ought not be permitted to be relied upon by the Board.
In respect of the second ground of disciplinary action, Dr Leggett’s request for particulars and the particulars provided by the Board are set above at [11]. Dr Leggett criticises the particulars provided as being nonsensical. The criticism is well placed. They do not provide the facts, matters and circumstances, by or from which, any such duty is to be inferred. Taken literally, they would seem to suggest that a patient must remain under the care of some psychiatrist in perpetuity and that there is a duty on one psychiatrist at the conclusion of his or her treating relationship with the patient to refer the patient to another psychiatrist.
This deficiency in the particulars as provided in the initial Referral is not cured by those now provided in the additional particulars. In those additional particulars, the Board refers to what it calls the knowledge of Dr Leggett of the circumstances set out in paragraphs 1.1.1 to 1.1.5. However, paragraph 1 of the Referral only identifies those matters as being circumstances pertaining to EK of which Dr Leggett became aware during the treating relationship, that is, during an eight year period from October 1994 to August 2002. The circumstances are said to be various stressors which affected EK at various times. However, there is nothing in respect of any of those circumstances, with the exception of those in paragraphs 1.1.2 referred to as ‘[o]ngoing stressors arising from a difficult relationship between EK and her father’, which suggest that those of which Dr Leggett became aware during the period of the treating relationship were extant at the time of the conclusion of the treating relationship.
The Board’s further responses made in both its Outline of Submissions and in the additional particulars[8] that there is no basis for any proper request for particulars, or any complaint in relation to Dr Leggett’s inability to meet or know the case made against him because, first, the request improperly sought particulars of a negative proposition or a failure to do something and, secondly, that Dr Leggett knew the nature of the complaint, are misplaced.
[8]See [7] of the Board’s Outline of Submissions dated 14 December 2012 and [3] under the heading ‘Second Ground for Disciplinary Action in Annexure A, ‘Additional Particulars of the Ground of Disciplinary Action” attached to those submissions.’
The Board’s submissions[9] concerning what is said to be Dr Leggett’s knowledge of the surrounding circumstances and cases which have referred to the preservation of the benefits of therapy in circumstances of sexual misconduct by psychiatrists are neither to the point nor address the deficiency in particularisation properly raised by Dr Leggett in his application.
[9]At [8], [9] and [10] of its outline.
The Tribunal, therefore, proposes to grant that part of Dr Leggett’s application which seeks to have removed from paragraph 2 of Annexure ‘A’ to the Referral the words ‘… and further made no appropriate arrangement for referring EK to an alternative medical practitioner for continuation of any psychiatric treatment.’
Costs
Each party has sought costs. Dr Leggett has been partially successful on the application. Furthermore, even though the Tribunal has refused part of Dr Leggett’s application because of his ability to make a complete and unqualified denial of the alleged conduct without the particulars sought, it is appropriate for the particulars to be provided.
These particulars upon which the Board now relies, were only provided as a consequence of Dr Leggett making his application.
The Board should pay 50% of Dr Leggett’s costs of and incidental to the Application on a standard basis in the scale applicable in the District Court of Queensland to be either agreed or assessed by a costs assessor.
The orders of the Tribunal will be:
1. The Application in respect of paragraphs 1.2, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5 and 1.2.6 of Annexure ‘A’ to the Referral is refused.
2. The words ‘and further no appropriate arrangement for referring EK to an alternative medical practitioner for continuation of any psychiatric treatment’ which appear in paragraph 2 of Annexure ‘A’ to the Referral are struck out.
3. The Medical Board of Australia be permitted to rely upon the particulars provided as Annexure ‘A’ to its Outline of Submissions filed on 14 December 2012 under the heading ‘First Ground for Disciplinary Action’, save for the words ‘during the time of EK going through her divorce proceedings the respondent stated to her in words to the effect ‘we have more in common than you think’. The words or words to this effect were stated in the confines of the respondents therapy room in his practice located at Upper Edward Street, Brisbane’, as they appear in paragraph 2 thereof.
4. The Medical Board of Australia is not permitted to rely upon the additional particulars provided in Annexure ‘A’ to its Outline of Submissions filed on 14 December 2012 under the heading ‘Second Ground for Disciplinary Action’
5. The Medical Board of Australia is to pay 50% of Dr Leggett’s costs of and incidental to the Application on a standard basis on the scale applicable to matters in the District Court of Queensland to be either agreed or assessed by a costs assessor.
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