Medical Board of Australia v Roberts
[2014] WASAT 76
•1 JULY 2014
MEDICAL BOARD OF AUSTRALIA and ROBERTS [2014] WASAT 76
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 76 | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:99/2013 | 26 TO 28 MARCH 2014 | |
| Coram: | JUDGE T SHARP (DEPUTY PRESIDENT) DR E ISAACHSEN (SENIOR SESSIONAL MEMBER) DR H HANKEY (SENIOR SESSIONAL MEMBER) MS F CHILD (MEMBER) | 1/07/14 | |
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Findings of three counts of unprofessional conduct Other allegations not established | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF AUSTRALIA DAVID EVAN ROBERTS |
Catchwords: | Medical practitioner Allegations of professional misconduct Consultation notes which were derisory of and accusatory towards patients Recommendation to discipline children by way of corporal punishment Conduct below or substantially below standard reasonably expected of health practitioner of an equivalent level of training or experience |
Legislation: | Health Practitioner National Regulation Law (WA) Act 2010 (WA), Pt 8, s 193, s 193(1), s 193(1)(a)(i), s 196, s 196(1)(b)(i)(ii)(iii), s 196(2) Medical Act 1894 (WA) |
Case References: | Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Bernadt v Medical Board of Australia [2013] WASCA 259 Briginshaw v Briginshaw (1938) 60 CLR 336 Felix v General Dental Council [1960] AC 704 Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992) |
Orders | On the application before Deputy President, Judge Sharp and Member F. Child and Senior Sessional Member H. Hankey and Senior Sessional Member E. Isaachsen on 1 July 2014, it is ordered that:,1. The Tribunal finds the following disciplinary matters exist:,(a) The respondent is guilty of unprofessional conduct by providing two written notes to the mother of two of his patients, both of which were derisory of one or both of those patients, as the case may be.,(b) The respondent is guilty of unprofessional conduct by providing a written note to the mother of two of his patients recommending that the mother and also the father of those patients (whom the practitioner had not met and whom the practitioner knew may have been suffering from stress or depression) use corporal punishment to bring about behavioural modification in those patients.,(c) The other remaining allegations of professional misconduct, unprofessional conduct and unsatisfactory professional performance are dismissed.,2. The applicant is to file and serve submissions on penalty within 14 days of the date of these orders.,3. The respondent is to file and serve submissions in response on the question of penalty within 28 days of the date of these orders.,4. Subject to any further order of the Tribunal, the question of penalty is to be dealt with on the documents. |
Summary | The Medical Board of Australia made a number of allegations against a medical practitioner arising from his treatment of two young boys whom he had diagnosed as suffering from ADHD. The most serious of the allegations was that the practitioner had given a note to the patients' mother which included the words '... I recommend to your husband that he beat (physically) each [of your sons] ... to within an inch of his life'. The practitioner admitted giving the note to the patients' mother, but denied that the note was a recommendation to both parents to physically abuse the children. He said that the note was metaphoric or hyperbolic and was merely suggesting that the father of the boys (whom the practitioner had not met) became more involved with the discipline of his children. ,The Tribunal did not accept the practitioner's explanation. It concluded that, while the note could not have been understood by either parent in its literal sense, it could nonetheless be understood as a recommendation to the parents that they must discipline their children by way of corporal punishment.,The Tribunal regarded the practitioner's conduct in giving this note as being of a lesser standard than that which is expected of him by the public and by his peers.,The Tribunal also considered that some of the other notes which the practitioner handed to the children's mother following certain consultations were derogatory of the children.,The Tribunal found that the practitioner's conduct amounted to unprofessional conduct within the meaning of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).,The Tribunal found that the other allegations made by the Board against the practitioner had not been established. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and ROBERTS [2014] WASAT 76 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT)
- DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
MS F CHILD (MEMBER)
- Applicant
AND
DAVID EVAN ROBERTS
Respondent
Catchwords:
Medical practitioner Allegations of professional misconduct Consultation notes which were derisory of and accusatory towards patients Recommendation to discipline children by way of corporal punishment Conduct below or substantially below standard reasonably expected of health practitioner of an equivalent level of training or experience
Legislation:
Health Practitioner National Regulation Law (WA) Act 2010 (WA), Pt 8, s 193, s 193(1), s 193(1)(a)(i), s 196, s 196(1)(b)(i)(ii)(iii), s 196(2)
Medical Act 1894 (WA)
Result:
Findings of three counts of unprofessional conduct
Other allegations not established
Summary of Tribunal's decision:
The Medical Board of Australia made a number of allegations against a medical practitioner arising from his treatment of two young boys whom he had diagnosed as suffering from ADHD. The most serious of the allegations was that the practitioner had given a note to the patients' mother which included the words '... I recommend to your husband that he beat (physically) each [of your sons] ... to within an inch of his life'. The practitioner admitted giving the note to the patients' mother, but denied that the note was a recommendation to both parents to physically abuse the children. He said that the note was metaphoric or hyperbolic and was merely suggesting that the father of the boys (whom the practitioner had not met) became more involved with the discipline of his children.
The Tribunal did not accept the practitioner's explanation. It concluded that, while the note could not have been understood by either parent in its literal sense, it could nonetheless be understood as a recommendation to the parents that they must discipline their children by way of corporal punishment.
The Tribunal regarded the practitioner's conduct in giving this note as being of a lesser standard than that which is expected of him by the public and by his peers.
The Tribunal also considered that some of the other notes which the practitioner handed to the children's mother following certain consultations were derogatory of the children.
The Tribunal found that the practitioner's conduct amounted to unprofessional conduct within the meaning of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
The Tribunal found that the other allegations made by the Board against the practitioner had not been established.
Category: B
Representation:
Counsel:
Applicant : Mr M Cuerden
Respondent : Ms G Archer SC
Solicitors:
Applicant : MDS Legal
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Bernadt v Medical Board of Australia [2013] WASCA 259
Briginshaw v Briginshaw (1938) 60 CLR 336
Felix v General Dental Council [1960] AC 704
Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992)
Background
1 The respondent (Practitioner) is a consultant paediatrician, first admitted as a medical practitioner in 1977. He has been in paediatric practice since 1988.
2 On 15 March 2012, the Australian Health Practitioner Regulation Agency (AHPRA) received a notification from Dr Gervase Chaney about the Practitioner's conduct. The notification was made after Dr Chaney had received an anonymous letter in the following terms:
Dear Dr Chaney
You say no to smacking children. Please find a note presented to a parent of 2 boys who went to seek behavioural advice from one of your colleagues.
Anon.
3 The note referred to in the anonymous letter was a copy of a typed note on the Practitioner's letterhead and contained the words:
… I recommend to your husband that he beat (physically) each and any of you our sons [sic] who swear and offend his wife (that is Mother) .. to within an inch of his life.
4 The applicant (Board) subsequently applied to the Tribunal for an order or orders pursuant to s 196(1)(b)(i)(ii) and/or (iii) and s 196(2) of the Health Practitioner National Regulation Law (WA) Act 2010 (WA) (National Law).
Events leading up to the application
5 These events are not in contention between the parties.
6 K and R (Patients) are twin boys who were born on 23 February 2000. On 2 September 2008, the Patients' mother, (J) consulted the Practitioner for the first time. The consultation was upon referral from the Patients' general practitioner, Dr Norcott. Dr Norcott considered that the Patients should be assessed for their behavioural problems and that a diagnosis of attention deficit hyperactive disorder (ADHD) might be considered.
7 The nature of the Patients' behaviour about which J consulted the Practitioner included the Patients:
a) physically fighting with one another;
b) not listening to requests and instructions; and
c) being disobedient.
8 J informed the Practitioner that the Patients' behavioural problems were long standing and that she had consulted psychologists about these problems on a number of occasions since the Patients were three years old.
9 During the first consultation, the Practitioner suggested to J that she introduce highly structured time out (HSTO).
10 Following further consultations on, respectively, 3 October 2008 and 4 November 2008, the Practitioner diagnosed the Patients with ADHD and commenced a trial of the drug Ritalin for both of them. After the 4 November 2008 consultation, the Practitioner also referred the Patients to Dr Nigel Jones, a clinical psychologist, for behavioural therapy.
11 J continued to consult with the Practitioner on a regular basis during 2009 and 2010, with a final consultation on 18 July 2011.
12 After each consultation, it was the Practitioner's practice to either type or create through voice recognition dictation what he refers to as progress notes, which he retained on a computer file for each of the Patients. These notes were for the Practitioner's own use. He would also, following some consultations, prepare, either by typing them himself or creating through voice recognition dictation, what he calls consultation notes. The consultation notes contained the Practitioner's comments about the progress of the Patients and his recommendations for treatment. These consultation notes were all printed on the Practitioner's letterhead, without bearing a date and they were not signed. Each one was handed to J immediately after the relevant consultation. We will refer again to these progress and consultation notes in more detail later in these reasons.
The Board's allegations
13 The Board's application to the Tribunal is dated 31 May 2013. The Board filed an amended application with the Tribunal on 11 March 2014.
14 The Board alleges in its application, as amended, that at a consultation early in 2009 between the Practitioner, the Patients and J, the Practitioner said to J, in the presence of the Patients and with reference to disciplining the Patients, that she should 'find anything in arms reach … the cord of the electric frying pan would do well' (the 2009 advice).
15 The Board says that the 2009 advice should not have been given to J as it:
a) amounted to a recommendation to J that she should use corporal punishment to discipline the Patients; and
b) constituted or was capable of being perceived by the Patients as a threat directed towards the Patients.
16 The Board further alleges that at a consultation between the Practitioner, the Patients and J in 2009, the Practitioner read to the Patients and to J the contents of a document headed 'The Burning Platform' (the Burning Platform story) and then gave a copy of the document to J.
17 The Burning Platform story, the Board says, refers to the circumstances of men aboard an oil platform following an explosion, and includes references to the oil platform melting around the men, the men being overcome by smoke and dying.
18 The Board says that the Practitioner should not have read the Burning Platform story to the Patients and should not have given the Burning Platform story to J because it constituted or was capable of being perceived by the Patients as a threat directed towards the Patients.
19 The Board further alleges that during a consultation in or about 2010, the Practitioner gave to J a typewritten note (the first consultation note) commencing with the words:
[K]
• beware of unrealistic expectations …
20 The first consultation note refers to the behaviour of the Patients as 'psycho manipulative' and describes that behaviour as 'complete rubbish'.
21 The first consultation note also refers to K as having 'learned helplessness'.
22 The first consultation note concludes with the following points:
• It[']s not they [sic] they want to be men, they don't
• they don't want to have any testes …
• they just don't want anyone [sic] to either.
23 The Board says the first consultation note should not have been given to J as it:
a) was derogatory of the Patients; and
b) was accusatory towards the Patients.
24 The Board further alleges that at a consultation between the Practitioner, the Patients and J on 15 April 2010, the Practitioner:
a) typed a document (the second consultation note) which commences '[R] & [K] … There is the continuing relentless and merciless teasing between these two twin boys … it will stop as of now';
b) spoke aloud the contents of the second consultation note as he typed it;
c) printed out the second consultation note;
d) gave the second consultation note to J;
e) said to the Patients:
Enough is enough I am sick of this this is the last time I will be speaking to you about this;
f) said to the Patients words to the effect that their father should be dealing with their behaviour.
25 The second consultation note refers to R as:
a) indulging in selfpity;
b) engaged in selfindulgent thinking (described as 'Oh woe is me'); and
c) a 'sooky la la'.
26 In relation to R, the second consultation note states 'toughen up Princess'.
27 In relation to both Patients, the second consultation note states:
Swearing .. vulgar .. is so .. not on .. I can't even begin to describe it .. I recommend to your husband that he beat (physically) each and any of you our [sic] sons who swear and offend his wife (that is Mother) .. to within in [sic] an inch of his life.
28 The Board says that the second consultation note:
a) was derogatory of one of the Patients;
b) was accusatory towards one of the Patients; and
c) contained a recommendation that the Patients' father should use corporal punishment to discipline the Patients.
29 The Board also says that the statements made to the Patients at the time when the second consultation note was given to J were made in the context of the Practitioner speaking aloud the contents of the second consultation note and giving the second consultation note to J. The Board says that this constituted a threat directed at the Patients, or was capable of being perceived by the Patients as a threat directed towards the Patients.
30 The Board further alleged in its application that, following a consultation between the Practitioner and J in or about July 2011, during which the Patients waited in the Practitioner's reception area with a receptionist and other patients, the Practitioner:
a) entered the reception area;
b) told the Patients to 'bend over';
c) swung a cane towards the Patients (without allowing the cane to touch the Patients); and
d) as he swung the cane, said to the Patients, the words 'this is what you will get if you misbehave'.
31 The Board says that these words and actions:
a) were derogatory of the Patients;
b) were capable of humiliating the Patients and J; and
c) constituted a threat directed towards the Patients or were capable of being perceived by the Patients as a threat directed towards the Patients.
32 The Board says that none of the:
a) 2009 advice;
b) reading and provision of the Burning Platform story;
c) provision of the first consultation note;
d) provision of the second consultation note;
e) the words spoken to the Patients at the relevant consultation; and
f) the conduct concerning the alleged use of the cane in the Practitioner's reception area
- were capable of leading or contributing to any improvement in or resolution of the Patients' behaviour.
33 The Board says that each of the:
a) 2009 advice and the reading and provision of the second consultation note;
b) the words spoken when the second consultation note was given to J; and
c) the conduct concerning the alleged use of the cane in the Practitioner's reception area;
- to the knowledge of the Practitioner had the potential to:
a) cause J to use corporal punishment in an effort to discipline the Patients; and/or
b) cause J's husband (indirectly as a result of such conduct being related to him and/or by the second consultation note being shown to him) to use corporal punishment in an effort to discipline the Patients.
a) worsening the Patients' behaviour;
b) giving rise to further antisocial behaviour of the Patients; and
c) causing or contributing to the development of psychological problems or psychiatric ill heath in the Patients or either of the Patients.
35 The Board says that each of:
a) the 2009 advice;
b) reading and provision of the Burning Platform story;
c) reading and providing the second consultation note;
d) the Practitioner's conduct at that consultation; and
e) the alleged use of the cane by the Practitioner in the Practitioner's reception area;
- gave rise to risks of:
a) worsening the Patients' behaviour;
b) causing further antisocial behaviour of the Patients; and
c) causing or contributing to the development of psychological problems or psychiatric ill health in the Patients or either of the Patients.
The Practitioner's response to the Board's allegations
37 The Practitioner agrees with the Board's description of the Patients' behaviour at the time when J first consulted him. The Practitioner says that the Patients' behaviour included a range of behavioural difficulties involving physical and verbal aggression, vulgar swearing and intense sibling rivalry.
38 He says that he diagnosed the Patients with ADHD in 2008.
39 The Practitioner describes how K would destroy his bedroom and his mother would literally have to drag him to his bedroom to impose time out. He also describes how K verbally and physically abused his parents, which included threatening J with his fists, furniture or any items near him when angry. He says that the Patients' vulgar swearing included calling their mother 'a fucking cunt'.
40 He adds that K would ruthlessly and mercilessly tease his younger brother, R.
41 The Practitioner denies advising J to discipline the Patients with 'the cord of the electric frying pan'. He says that it is his usual practice when reassuring parents if they have relied upon smacking their children for discipline to inform them that:
a) eighty per cent of Australian parents smack their children; and
b) the Practitioner's own mother used to smack the Practitioner and his brother with an electric frying pan cord in the late 1950s and early 1960s.
42 He says that he has never recommended to the parents of any patients that they use the cord of an electric frying pan to smack their children.
43 So far as regards the Burning Platform story, the Practitioner says that the story describes the behaviour of men who died on an oil drilling platform and says that the story illustrates how, even in extreme conditions, entrenched behaviour is not changed. He says that he uses the story to explain to parents how difficult it can be to effect improvement in entrenched behaviour problems.
44 He denies reading the Burning Platform story to the Patients and says that his usual practice is to speak to the Burning Platform story and then hand a copy of the story to the parents.
45 The Practitioner agrees that he gave the first consultation note to J but says that his advice that the Patients' behaviour was 'complete rubbish' is a recommended solution for dealing with psychologically manipulative behaviour. He says that the reference to 'learned helplessness' is not derogatory but simply describes the behaviour of K which involved displaying a lack of initiative or motivation to overcome obstacles. He says that the first consultation note was created and given to J as an aid to assisting her to deal with the Patients' physical and verbal aggression, vulgar swearing and intense sibling rivalry.
46 Finally, on the first consultation note, the Practitioner says that the references to not wanting to be men, not wanting to have testes and not wanting anyone else to either, were not about the Patients.
47 The Practitioner also admits giving the second consultation note to J but denies that he spoke out loud the contents of the second consultation note as he typed it and denies saying 'enough is enough …'. He also denies saying to the Patients that their father should be dealing with their behaviour. He further denies recommending that the Patients' father should use corporal punishment to discipline the Patients.
48 He says that his references to R indulging in selfpity is a comment about R adopting a victim mentality instead of controlling his own emotional states or his own sense of purpose. He says that his language in that regard was using humour which is his way of defusing tension when explaining sensitive and emotional issues. In contrast, he says that the reference to 'beat (physically) each … to within in [sic] an inch of his life' was speaking not humorously but metaphorically. At no time did he intend to convey a recommendation that the Patients' father in fact beat his children to within an inch of their lives. Rather, it was a recommendation that the Patients' father take an active role in defending his wife's honour on the next occasion the Patients engaged in the conduct referred to.
49 He adds that the second consultation note was to assist J in looking after her own well being and as an aid to assisting her to deal with the Patients' physical and verbal aggression, vulgar swearing and intense sibling rivalry.
50 The Practitioner points out that on 30 June 2011, J wrote to the Practitioner thanking him for his care and support of the Patients.
51 So far as regards the alleged use by the Practitioner of a cane in the Practitioner's reception area, the Practitioner denies this allegation entirely.
The hearing of the matter
52 The hearing of this matter took place over three days on 2628 March 2014 inclusive. At the hearing, the Board handed up a consolidated book of documents and a supplementary book of documents (CBD and SBD respectively). The Board also handed up a consolidated book of witness statements (CBWS) which comprises the witness statements tendered by both the Practitioner and the Board. Even though each witness statement was tendered separately, when we refer to a particular witness statement we will refer to it by reference to the relevant page number in the CBWS.
53 The CBWS contains witness statements from the following persons:
• J dated 27 July 2013;
• Suzanne Cooper (the Practitioner's receptionist, both now and at the relevant time) dated 25 June 2013;
• D, the mother of another patient of the Practitioner, dated 23 July 2013;
• the Practitioner dated 21 August 2013;
• R dated 2 December 2013;
• K dated 2 December 2013;
• Patient A dated 11 February 2014;
• S, the father of another patient of the Practitioner, dated 11 February 2014;
• P, the mother of another patient of the Practitioner, dated 11 February 2014;
• L, the mother of another patient of the Practitioner, dated 19 February 2014.
54 In addition, the Board tendered an expert witness statement from Dr Michael McDowell dated 31 July 2013.
55 The Practitioner tendered an expert report from Professor Robert Larzelere dated 20 September 2013 and two supplementary expert reports from Professor Larzelere dated respectively 12 February 2014 and 18 February 2014. The Practitioner also tendered an expert witness statement from Professor Kate Burridge dated 10 September 2013.
56 Finally, the parties filed a joint statement of experts dated 12 March 2014.
57 The expert witness statements, expert reports and the joint statement are also included in the CBWS and, again, when we refer to those in these reasons we will do so by reference to the relevant page number in the CBWS.
58 At the hearing, J was crossexamined. This was also the case in respect of Suzanne Cooper, D, R, K and L. The Practitioner supplemented his evidence in chief with oral testimony and was also crossexamined.
59 Dr McDowell and Professor Larzelere gave evidence by video at the hearing concurrently, Dr McDowell from London, England, and Professor Larzelere from Oklahoma, USA.
60 Professor Burridge gave her evidence separately, also by video, and in her case from Melbourne.
The expert witnesses
61 Dr McDowell is a specialist paediatrician. He holds the position of Associate Professor at the University of Queensland in the Department of Paediatrics and Child Health. He practises as a paediatrician in the area of developmental and behavioural paediatrics at the Child Development Network in South Brisbane. He is the director and founder of that service.
62 From 1995 to 2010, Dr McDowell was the director of the child development programme for the Royal Children's Hospital. He has a masters degree in public health (Harvard University, 1993) and a PhD in neurological signs (University of Queensland, 2003). In October 2012, he was elected the foundation President of the Neurodevelopmental and Behavioural Paediatric Society of Australasia, a society created to support paediatricians with a particular interest in the care of children with developmental and behavioural disorders.
63 Professor Burridge has since 2003 been a Professor of Linguistics at Monash University and she holds a Bachelor of Arts (first class Honours) (University of Western Australia, 1978). She has received numerous honours, awards and fellowships, including the Talkley Award (Australian Linguistic Society) for promoting linguistics to the general public in 2011.
64 Professor Larzelere is a research psychologist who specialises in research on parental discipline and research methodology. He is currently a Professor of Human Development and Family Science at Oklahoma State University, Stillwater, Oklahoma, USA. He has held two postdoctoral research positions, the first under Dr Murraya Straus, a social scientist who does research on corporal punishment and the second under Dr Gerald Patterson, who in the view of Professor Larzelere is most famous for coercive theory which he says is directly relevant to this case. He is a member of the American Psychological Association, the Association for Psychological Science, the Society for Research in Child Development, the National Council on Family Relations and the Society for Research in Human Development.
65 Professor Larzelere was one of seven experts invited to make presentations in 1996 at the Scientific Consensus Conference, 'The Short and LongTerm Consequences of Corporal Punishment', organised by the American Academy of Pediatrics and a leading paediatric department in the USA, at the Albert Einstein College of Medicine. He was also one of three social scientific expert witnesses used by the Department of Justice of the Canadian government to testify in a constitutional challenge against the portion of their criminal law that permits parents to use 'reasonable force' to correct children's behaviour.
The Board's further amendment to its application
66 On the first day of the hearing, the Board through counsel informed the Tribunal that it no longer intended to 'press [the allegation about the cane]' (T:9; 26.03.14). Counsel for the Board said this:
The Board has taken the view in light of the fact that we have been provided with witness statements of [the Practitioner's] receptionist and two ladies who have said they were present in the waiting room at the time, in the light of the receipt of those statements, the Board has taken the view that it would not be proper to press that allegation and, essentially, on the basis that we are a regulatory body.
(T:9; 26.03.14).
67 The Board did not go so far as to say that it no longer alleged that the caning incident occurred and the caning incident remained part of the evidence of, respectively, J, R and K.
68 On the second day of the hearing, the Board through counsel informed the Tribunal that the Board intended to prepare an amended application:
… that strikes out the consequential paragraphs. We didn't deal with this in that formal way yesterday, but, obviously, in striking out 15 and 16, then consequential references to those paragraphs go.
(T:263; 27.03.14).
69 The Board did not submit a further amended application in written form. There was an exchange between counsel for the Practitioner and the Board respectively about whether the alleged caning incident still formed part of the Board's application. The parties were then content to proceed.
Standard of proof
70 The civil standard of proof applies in disciplinary proceedings. However, because of the serious nature of the allegations to be determined and the potential consequences of such proceedings on the Practitioner's lawful capacity to pursue his vocation, cogent evidence is required and the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts; Briginshaw v Briginshaw (1938) 60 CLR 336.
The Board's allegations in detail and the evidence
71 The allegations which the Board makes against the Practitioner, which it says constitutes professional misconduct on the part of the Practitioner, can be broadly divided as follows:
1. Giving the 2009 advice to J in the presence of the Patients.
2. Reading to the Patients and to J the Burning Platform story and providing to J a written copy of the Burning Platform story.
3. Providing to J the first consultation note.
4. Providing to J the second consultation note and the accompanying words at the relevant consultation.
72 We will deal with each of these allegations in turn, along with the evidence which the Board says supports each of those allegations.
The 2009 advice
73 The Board alleges that at a consultation in early 2009 with the Patients, attended by J, the Practitioner advised J that she should, in relation to disciplining her sons 'find anything in arm's reach … the cord of the electric frying pan would do well'.
74 The words in quotation marks are drawn from a statement which J made to AHPRA on 25 July 2012. That statement was an attachment to J's witness statement filed in connection with these proceedings (CBWS at page 12, paragraph 16).
75 The Board says that the 2009 advice should not have been given to J because:
a) it amounted to a recommendation to J that she should use corporal punishment to discipline the Patients; and
b) it constituted or was capable of being perceived by the Patients as a threat directed towards the Patients.
76 The Board says that the 2009 advice to the knowledge of the practitioner had the potential to cause J or her husband to use corporal punishment in an effort to discipline the patients.
77 The Board also says that the 2009 advice was not capable of leading or contributing to any improvement in or resolution of the Patients' behaviour. It says that the 2009 advice gave rise to risks of worsening the Patients' behaviour, causing further antisocial behaviour of the Patients and causing or contributing to the development of psychological problems or psychiatric ill health in both or either of the Patients.
78 The Practitioner denies saying these words or anything to that effect (CBWS at page 31, paragraphs 20 and 21). The Practitioner explains that he occasionally reassures parents who have relied upon smacking to discipline their children that 80% of Australian parents smack their children. He tells them that his own mother used to smack him and his brother with the cord from an electric frying pan in the late 1950s and early 1960s (CBWS at page 31, paragraph 21).
79 This explanation presupposes that the Practitioner knew that J and her husband were in fact parents who had relied upon smacking to discipline their children. It is not apparent from J's witness statement that she and her husband fell into that category. In her witness statement, J said:
I did not say to [the Practitioner] during [the first consultation] that either my husband or I had begun corporal punishment.
(CBWS at page 6, paragraph 27).
80 Further, in J's original statement to AHPRA, J did not mention that either J or her husband had smacked their children. In that statement to AHPRA, J said:
As I left [the consultation when the 2009 advice was given], I remember walking out in tears because he was telling me to smack the Twins, and immediately phoned my mum to tell her what happened.
(CBWS at page 12, paragraph 17).
81 It was only when she was crossexamined that J told the Tribunal that she may in fact have told the Practitioner at the first consultation that she and her husband had been disciplining their children by smacking them. She said that she had:
… smacked [the Patients] since they were a toddler [sic], off and on, not regularly. But, yes, I did resort to smacking.
(T:34; 26.03.14).
82 J said that her husband also smacked the children and she believed that she and her husband had been smacking the Patients since they were 'six or seven, perhaps older' (T:34; 26.03.14).
83 The Practitioner said during his crossexamination (T:281; 27.03.14) that he did not recall J telling him, at the first consultation, that she had smacked her children.
84 He said (T:290; 27.03.14) that it was not until the consultation on 15 April 2010 that J told him that she was using corporal punishment 'in association with this deterioration in [R's] behaviour'.
85 The Patients both confirmed under crossexamination that their parents had smacked them to discipline them.
86 K was asked:
Counsel: … [W]hat did your mum do when you were naughty, when you did something wrong?
87 The following exchange then took place:
K: Well, most of the time she did what Dr Roberts said and sent me to my room.
…
K: And sometimes she hit me. And when I was really, really, really, really naughty, and like I was really naughty, she would hit me with the wooden spoon, but she would hardly ever do that.
Counsel: Okay. Do you remember how old you were when she first hit you with the wooden spoon?
K: No. I was eight when I think she first threatened me with the wooden spoon, but she didn't hit me until I was probably nine.
…
Counsel: Okay. And what about your dad? What would he do if you were naughty?
K: He would hit me as well. Just hit me yes, he would just hit me. He would just hit harder than my mum, because he is stronger.
…
K: It's something I just always remember. I'm always prepared to get hit if I'm naughty.
(T:78-79; 26.03.14).
88 R was asked:
Counsel: Okay. And when you were growing up, when you were a kid, what did your mum do if you were naughty?
89 The following exchange then took place:
R: When growing up as a kid, she would hit me with a wooden spoon.
Counsel: Okay. How old …
R: She smacked …
Counsel: Sorry. You keep going.
R: She would smack me and put me in my room like Dr Roberts because she was trying to, obviously, get help so she listened and did that. But that didn't really work because I was really stupid and I wasn't I didn't really listen back then and I didn't really I wasn't really good at understanding why she was doing things like that.
Counsel: Okay. And do you remember how old you were when she first hit you with a wooden spoon, or is it something that has always happened as far as you can remember?
R: I can't remember but she does it on very rare occasions. Like, when she gets very frustrated, she has no idea what to do she will just get really upset and that's the first thing that will come to her head because she's usually cooking in the kitchen and that's the first thing that's near her. But she does it on very rare occasions.
Counsel: And what about just the smacking? So no wooden spoon, just a little smack. When did she start doing that, or is that something that has happened as long as you can remember?
R: I can't remember when she started doing it. I really can't remember when she started smacking me. But she does it more often than the wooden spoon but she is rarely doing that now because I haven't learned from that so she is trying to use other ways to help me …
Counsel: Okay.
R: … [A]s she has found out smacking hasn't really helped but made me upset.
Counsel: All right. Okay. And what about your dad? What did he do when you were a kid if you were naughty?
R: My dad would smack me. I don't recall my dad would threaten me with a wooden spoon but he has never hit me with it from what I can remember.
(T:94-95; 26.03.14).
90 K's evidence is that, at a consultation which we consider is likely to be the consultation under consideration, the Practitioner told them that 'when he was a little kid and he was naughty, he got hit with the cord of an electric frying pan and he said it taught him a lesson' (CBWS at page 76, paragraph 8). K then said that the Practitioner told J 'something like ''hit them with the cord of an electric frying pan and then send them to their room'''.
91 R's evidence contained the statement:
He was telling Mum to smack us with a belt and send us to our room.
92 (CBWS at page 74, paragraph 11).
93 Both parties agree that the first consultation between the Practitioner, the Patients and J was on 2 September 2008. The parties also accept that at that consultation the Practitioner provided to J a consultation note (CBD at page 1). That consultation note says that the Practitioner does not consider smacking to be morally objectionable, but that it is ineffective. The note contains a recommendation for the introduction of HSTO.
94 The experts in their joint statement consider that this note and the advice contained within it is appropriate (CBWS at page 232, paragraph 20).
95 The terms of the Practitioner's written advice following the first consultation are consistent with J's recollection that she may have told the Practitioner at the first consultation that she and her husband had resorted to smacking the Patients. However, it is not entirely clear when J disclosed that information to the Practitioner. It is not in dispute that the 2009 advice was given early in 2009, a few months after the first consultation and quite shortly after the Practitioner referred the Patients to a clinical psychologist. It is possible that J made that disclosure to the Practitioner at the consultation when the 2009 advice was given. If that is the case, then this would be consistent with the Practitioner's explanation that the 2009 advice was given in the context of reassuring J and her husband about their past efforts to discipline the Patients. It would also be consistent with the Practitioner's explanation that what he said to them was the Practitioner's own mother used to smack the Practitioner and his brother with an electric frying pan cord in the late 1950s and early 1960s.
96 The Practitioner's progress notes in early 2009 suggest that the Practitioner was at that time continuing to recommend HSTO. In his progress note on 3 February 2009 (CBD at pages 14 to 15) he notes 'get tougher in HSTO'. We do not consider that this is consistent with a recommendation to resort to corporal punishment. There is no reference in any of the progress notes during the earlier part of 2009 to the Practitioner considering another approach such as corporal punishment.
97 K and R's evidence on the point is inconclusive.
98 The Tribunal accordingly considers that it has not been established to the requisite standard, nor does the Tribunal feel an actual persuasion, that the Practitioner told J at the relevant consultation in early 2009 to strike or beat her children with the cord of an electric frying pan or at all. This allegation is therefore not established.
The Burning Platform story
99 This allegation is that at another consultation between the Practitioner, the Patients and J, also in 2009, the Practitioner has read to the Patients and to J the contents of a document headed 'The Burning Platform' (CBD at page 2) and then gave a copy of the Burning Platform story to J.
100 The Burning Platform story exactly as set out in that document is this:
The explosion of the Nth Sea oil platform PiperAlpha in the [sic] early 1988 has given rise to a theory of behavioural change.
The Story.
Of the 266 men on the platform, only 60 survived. All of these 60 survived as a direct result of ignoring or disobeying the standard procedures used in cases of emergency on oil platforms. Most of the 60 were 'subcontract workers', flown onto the platform to perform 'service tasks'; they were not trained extensively in oil platform work. The 206 who perished were highly trained and experienced. They remained in the accommodation block mustering points (the mess hall), whilst the oil platform 'melted' around them. They were adhering to standard procedures in the case of an emergency, in not leaving the mustering point without instruction. They were overcome by smoke. Survivors report that many of them were arguing that they should 'run for their lives'; but in the end they stayed put, and perished as a result.
Those who survived gave an aweful [sic] description of the conditions in the oil rig during the incident. Psychologists who debriefed the survivors were perplexed that experienced workers did not act with initiative in those extreme conditions, when the 'standard operating protocols' were failing and clearly so, over a period of more than an hour.
Moral of the Story
When you want to change behaviour that is highly entrenched, you must put the subject in an extreme environment.
101 The Board says that reading the Burning Platform story to the Patients and giving a copy of the Burning Platform story to J constitutes, or is capable of being perceived by the Patients as a threat directed towards the Patients.
102 The Board says that the reading and provision of the Burning Platform story was not capable of leading or contributing to any improvement in or resolution of the Patients' behaviour and carried a risk of worsening the Patients' behaviour.
103 The Practitioner says that he did not read the story to the Patients or to J. He said that his usual practice is to 'speak to' the story and then provide a copy of the story to the Patients' parent or parents (CBWS at page 32, paragraph 27).
104 When asked to do so at the hearing of this matter, the Practitioner 'spoke to' the story in the same way in which he says he does for his patients. The Practitioner said this:
I describe the story as Piper Alpha, explosions, very highly trained and intelligent people who, in spite of being highly trained and intelligent, still did not use their initiative in changing their behaviour. It's a story about entrenchment of behaviour.
…
If [behaviour is] highly entrenched you've got to change you've got not only got to change the environment, and when I use the term environment I include psychological environment, but if the behaviour is entrenched, the way you do it really does need to be consistent and sometimes quite harsh, such as, every time that you break the rule, you go to the room.
(T:293; 27.03.14).
105 His description of the story and its 'moral' left the Tribunal quite confused but we did not regard either the written story or the Practitioner's description of it as being in any way as threatening.
106 The purpose of the story is, according to the expert witnesses, to encourage change in mindset and behaviour, in this case of the parents. The expert witnesses agree that, if the story were presented to the Patients, it is complex and it is unlikely to have been understood by them (CBWS at page 231).
107 Dr McDowell considered that if the story was read to the Patients, it was an 'unwise professional intervention'. He also said that the story could be interpreted by the Patients as a threat to their safety and wellbeing and, for that reason, be considered potentially harmful (CBWS at page 232).
108 Neither of the Patients in their witness statements made any reference to the Burning Platform story and under crossexamination expressed little or no recollection of any stories told to them by the Practitioner during the various consultations with the Practitioner.
109 In particular, K made no reference whatsoever in his witness statement to any stories.
110 R said:
He read us a story of some sort. I can't remember what it was about.
(CBWS at page 74, paragraph 10)
111 It is not in dispute that the Practitioner gave a copy of the Burning Platform story to J. However, the Tribunal is not satisfied on the evidence that the Practitioner read the Burning Platform story to J or to the Patients. We consider that it is more likely that the Practitioner did not read the story to J and to the Patients, but instead handed J a copy of the story with some explanatory words.
112 Even if the Practitioner's attempt to 'speak to' the story can be regarded as reading the story to the Patients and to J, we do not consider that the story constitutes or could be perceived to be a threat against the Patients. Both Patients, at the relevant time, were around 9 years of age and had been diagnosed with ADHD. They may have been perplexed by the story, but there was nothing in the story or the Practitioner's summary of it which in our view could have been regarded as threatening in any way.
113 J herself considers that the Practitioner's explanation of the story left her 'thinking that it was complex and convoluted and that the boys probably wouldn't understand what he was saying' (CBWS at page 4, paragraph 20). She does not mention the Burning Platform story at all in her original statement to AHPRA.
114 We do not consider that this allegation has been established.
The first consultation note
115 The first consultation note reads as follows:
[K]
• Beware unrealistic expectations
• He is a 10 year old boy … .
• Women culture … !!!!
• You [sic] predisposition .. to 'women culture' reinforced by the 'culture of the school' .. which is very emasculating ..
[K] .. get real
- • Psychomanipulative … complete rubbish
Prompt bound behaviour .. learned helplessness
Otherwise .. great ..
[R] ..
Same deal
Colosseum and the lions ..
Catapres ¼ in am
The problem here is …
• It[']s not they [sic] they want to be men, they don't
• They don't want to have testes ..
• They just don't want anyone to either
117 The first consultation note is undated. However, it is likely that the first consultation note was given to J at a consultation with the Practitioner which took place on 28 August 2009. We arrive at this view for two reasons. First, there is a reference in the first consultation note under R's name to 'Catapres ¼ in am'. This is consistent with the progress note made on 28 August 2009 for R.
118 Second, under K's name, the first consultation note contains the words:
… learned helplessness.
- This is the same expression which appears in the progress note for K, also made on 28 August 2009.
119 The Practitioner does not dispute that the first consultation note was given to J or that this is when the first consultation note was given.
120 All that J says about the first consultation note is that a letter would sometimes be given to her by the Practitioner at the conclusion of a consultation and that the first consultation note was one such letter (CBWS at page 4, paragraph 21). She does not say whether or not the first consultation note was read to her and to the Patients at the relevant consultation.
121 Dr McDowell says that if the first consultation note was handed over as a summary of a conversation which took place at the consultation then he considers that the tone of what was said was 'overtly accusatory and unacceptably derogatory towards the [Patients]'. He says that this represents a form of harm in itself and that nothing in the note is likely to lead to a resolution of the Patients' behaviour (CBWS at pages 115 to 116, paragraphs 33 and 34).
122 Dr McDowell does not expand on these statements by explaining why he comes to these conclusions and it is unclear what aspects of the first consultation note trouble him. He told the Tribunal (T:182; 27.03.14) that the expression 'complete rubbish' could have been framed as 'unacceptable behaviour'. He did however concede that the Practitioner might have been trying to use a term which would be easier for the child in question to understand.
123 Also, he accepted that the expression 'learned helplessness' was a well known concept in psychology (T:182; 27.03.14).
124 We accordingly conclude that his concerns centred around the words which appeared at the bottom of the first consultation note, commencing with the words:
The problem here is …
125 The Practitioner says that these words were included in error (CBWS at page 34, paragraph 35). Under crossexamination, he said that it was not 'a reference to those boys. It's from a previous thing on the page a previous set of typing on the page' (T:296; 27.03.14).
126 Whether or not those words were intended to be included in the first consultation note, the fact is that they were included. The Tribunal's conclusion is that the first consultation note is derogatory of both of the Patients (in the sense of being disrespectful or disparaging of both of the Patients). This is the case whether or not the first consultation note was read out at the relevant consultation.
127 On the other hand, we do not accept that the first consultation note was accusatory towards one of the Patients. It might be regarded as accusatory towards the education system, but this was not one of the Board's allegations.
128 While we find that the first consultation note was given to J and that the first consultation note contains statements which are derogatory of one of the Patients, we do not consider that the remainder of this allegation has been established to the necessary standard.
The second consultation note
129 The second consultation note reads as follows:
[R & K]
There is the continuing relentless and merciless teasing between these two twin boys .. it will stop .. as of now
[R] is indulging in self pity .. self indulgent thinking .. 'oh woe is me' .. what a sooky la la .. toughen up Princess
Swearing .. vulgar .. is so .. not on .. I can't even begin to describe it .. I recommend to your husband that he beat (physically) each and any of you our sons [sic] who swear and offend his wife (that is Mother) .. to within in [sic] an inch of his life
There has been a lot effort invested into sorting out the problems of these boy .. I'm sick and tired of it .. its boring .. I've over it .. I recommend that you should be too ..
You must .. look after your own mental well being .. exercise ..
130 The Board's allegation is that at a consultation between the Practitioner, the Patients and J on 15 April 2010, the Practitioner spoke aloud the words of the second consultation note as he typed it, caused the second consultation note to be printed and then handed it to J.
131 The Board also alleges that the Practitioner then said to the Patients:
Enough is enough I am sick of this this is the last time I will be speaking to you about this.
132 According to the Board, the Practitioner finally concluded the consultation by saying to the Patients words to the effect that their father should be dealing with their behaviour.
133 The Board says that the second consultation note was derogatory of one of the Patients, was accusatory towards one of the Patients and contained a recommendation that the Patients' father should use corporal punishment to discipline the Patients. The Board also says that the words spoken by the Practitioner at the consultation constitute a threat directed at the Patients, or were capable of being perceived by the Patients as a threat directed towards them.
134 The Board says the provision of the second consultation note was not capable of leading or contributing to any improvement in or resolution of the Patients' behaviour. The Board considers that the reading and provision of the second consultation note and the words spoken at the relevant consultation had the potential to cause J or her husband or both of them to use corporal punishment in an effort to discipline the Patients.
135 This, the Board says, gives rise to risks of:
a) worsening the Patients' behaviour;
b) causing further antisocial behaviour of the Patients; and
c) causing or contributing to the development of psychological problems or psychiatric ill health in the Patients or either of the Patients.
Was the second consultation note derogatory of and accusatory towards one of the Patients, namely R?
136 Dr McDowell's evidence is that the second consultation note is unacceptably accusatory towards and derogatory of one of the Patients, namely R, and was likely to undermine his confidence (CBWS at page 116, paragraph 38). He does not expand upon the basis upon which he reaches that conclusion, however, nor does he qualify his evidence as he did about the first consultation note when he said that his concerns were based on the assumption that the note had been handed over as a summary of the conversation at the relevant consultation or that the note was read out.
137 As we mentioned earlier in these reasons, the Practitioner denies that he spoke out loud the contents of the second consultation note as he typed it.
138 In her original statement to AHPRA (CBWS at page 12, paragraph 14), J said that she 'was quite shocked to read the content of the [second consultation note]', which would suggest that the second consultation note was not read out at the relevant consultation. In her later statement (CBWS at page 6, paragraph 25), she says that 'it is my recollection that [the Practitioner] typed that note during the consultation, and that, as he typed, he said out loud what it was that he was typing'.
139 The Tribunal does not consider that it has been established to the necessary standard that the Practitioner spoke aloud the contents of the second consultation note as he typed it. However, whether or not the second consultation note was read out at the relevant consultation, it is not in dispute that the Practitioner gave to J the second consultation note. The Tribunal's conclusion is that the second consultation note contains statements which are derogatory of one of the Patients. Those statements are that R was a 'princess' and a 'sooky la la'. Accordingly, that allegation by the Board has been established.
140 In respect of the allegation that the second consultation note was accusatory towards one of the Patients, the Board has not specified what those accusations were or to whom they were made. The Tribunal does not consider that the second consultation note was accusatory towards either of the Patients and we do not consider that this allegation has been established.
When was the second consultation note given to J?
141 As mentioned previously, the second consultation note is undated. Because of the inclusion of certain words in the Practitioner's progress note for R on 15 April 2010, it is first necessary to consider to which consultation the second consultation note relates. The Board says that the second consultation note was given to J following the consultation on 15 April 2010. The relevance of this date, as far as the Board is concerned, is that the progress note for R on 15 April 2010 (there was no progress note for K on that date) includes the words 'begin corporal punishement [sic] …' which the Board says is consistent with the Board's allegation that the second consultation note comprises a threat and a recommendation that the Patient's father should use corporal punishment to discipline the Patients.
142 In her original statement to AHPRA, J said that the second consultation note was given to her at a consultation which occurred on 29 November 2010. However, in her witness statement she says that she has reflected on the sequence of events and now considers that the relevant consultation took place on 15 April 2010 (CBWS at page 5, paragraph 23).
143 J bases this statement on the fact that she recalls that the Patients were in the consulting room at the time when the second consultation note was given. She says that the Patients were not in the consulting room during the consultation of 29 November 2010 and that therefore the second consultation note was given to her at the earlier consultation, 15 April 2010.
144 The Practitioner does not specifically recall when that consultation took place, merely stating that it was some time in 2010. He believes that it was given following the consultation on 29 November 2010. The progress notes for both K and for R for the consultation of 29 November 2010 make no reference to corporal punishment.
145 He said that when he was preparing his response to the Board's allegations he saw no reason to question J's original position which was that the second consultation note was given to her at the consultation on 29 November 2010 (CBWS at page 36, paragraph 48).
146 Under crossexamination, J accepted that despite what she said in her witness statement, it was unlikely that the second consultation note was given to her on 15 April 2010 (T:39; 26.03.14). She said that it was possible that her reasons for changing her mind about the date were incorrect (T:29; 26.03.14).
147 J attached no particular significance to the date when the second consultation note was provided (T:26; 26.03.14). She said that she had not seen any of the progress notes (T:24; 26.03.14), in particular the progress note for R in respect of the consultation on 15 April 2010 (CBD at page 27). This is the progress note which includes the notation 'begin corporal punishement [sic]'. However, the significance of the date, according to the Board, is that, if the second consultation note was provided on 15 April 2010 and is read with the progress note for the same consultation, then in the Board's view the progress note reinforces the Board's allegation that the second consultation note contained a recommendation that the Patients' father should use corporal punishment to discipline his sons.
148 It was put to the Practitioner in crossexamination (T:309; 27.03.14) that there was a correlation between the progress note of 15 April 2010 and the second consultation note. However, the Practitioner maintains that the words in the progress note of 15 April 2010 'begin corporal punishment' are not related to any of the contents of the second consultation note. He says that the words 'begin corporal punishment' in the progress note of 15 April 2010 should read 'begun corporal punishment'. He says that this was a note recording that J on 15 April 2010 had told him that she had resorted to corporal punishment to discipline her sons. He said that it was not a recording of any recommendation made by him (T:268; 27.03.14).
149 We note that the Practitioner also said J had begun corporal punishment earlier, as he said he was reassuring J about this when he gave the 2009 advice.150 The Tribunal considers that in the light of J's testimony at the hearing, it is more likely than not that J's original statement that the second consultation note was given to J at the end of the consultation on 29 November 2010 was correct. It is therefore unnecessary to consider whether or not the words in the progress note for the consultation on 15 April 2010 were mistyped and should have read 'begun corporal punishment'.
Did the second consultation note contain a recommendation that the Patients' father use corporal punishment to discipline the Patients?
151 It is not the Board's case that the second consultation note was intended to be taken literally.
152 We accept the evidence of Professor Burridge that the sentence:
I recommend to your husband that he beat (physically) each and any of your our [sic] sons who swear and offend his wife (that is Mother) … to within in [sic] an inch of his life.
- illustrates a number of emotive devices that are commonly used in ordinary language to reinforce the significance of words (CBWS at page 119). She says that it is difficult to conceive how any reasonable reader of those words might interpret them literally (CBWS at page 123). The Tribunal agrees, but nonetheless considers that a reasonable reader would construe those words as a recommendation to effect corporal punishment to a degree beyond what Dr McDowell agreed could be referred to as 'nonabusive smacking'. Nonabusive smacking, as it was put to Dr McDowell, constitutes one or two smacks to the buttocks of a child between the ages of two and six, with an open hand, which does not cause physical injury, for the limited purpose of supporting the use of behaviour modification techniques such as HSTO (T:163; 27.03.14).
153 The Practitioner says (SBD at page 35A and CBWS at page 36) that the relevant sentence in the second consultation note was written metaphorically. He says that he did not intend it to convey a recommendation that the Patients' father beat the Patients to within an inch of their lives. He says that he was recommending that the Patients' father take an active and vigorous role in defending his wife's honour on the next occasion that the Patients swore in a vulgar fashion at their mother, in particular calling her 'a fucking cunt'. He says that these notes were prepared to assist J and her husband, and not to be given to the Patients. The Practitioner expresses deep regret over the wording of the second consultation note and says that he was feeling a sense of frustration in his treatment of R and K. He now concedes it showed an appalling lack of judgment (T:350351; 28.03.14).
154 It could be argued that the second consultation note was given to J in the context of the consultation itself and that therefore J would understand that the Practitioner was not intending that his words should be taken literally. However, the second consultation note was clearly intended to be shown to the Patients' father, whom the Practitioner had not met or assessed but whom the Practitioner knew was under a great deal of stress. The Practitioner confirmed that, from J's description, he understood that the father was depressed (T:291; 27.03.14). We consider that the Practitioner should have realised that there was a risk that the father might not have recognised the metaphoric or hyperbolic nature of the Practitioner's recommendation. The Practitioner knew that some form of corporal punishment had been used by J and likely by both parents on the Patients. It is likely that the Practitioner's recommendation could have been interpreted as a suggestion to increase the severity of that punishment. It follows that the Practitioner knew or should have known that his recommendation was therefore putting the Patients' health, safety and welfare at risk.
Did the words spoken at the time when the second consultation note was given to J constitute a threat directed at the Patients or were they capable of being perceived by the Patients as a threat directed towards them?
155 The Board's allegation is that the words spoken by the Practitioner beginning '[E]nough is enough …' at the time when he gave the second consultation note to J, in the context of the Practitioner speaking aloud the contents of the second consultation note, constituted a threat directed at the Patients or were capable of being perceived by the Patients as a threat directed towards them.
156 The Practitioner denies saying those words and the Board did not adduce any further evidence to support the allegation. Further, the Board did not present any argument as to how these words, in the context of reading out to J and to the Patients the second consultation note, constituted a threat directed at the Patients or could be capable of being perceived by the Patients as a threat.
157 The Tribunal does not consider that this allegation has been established.
Conclusion on the Board's allegations
158 The Tribunal has concluded that the first consultation note was derogatory of both of the Patients.
159 The Tribunal has also concluded that the second consultation note was derogatory of one of the Patients, namely R.
160 Finally, the Tribunal has also concluded that the second consultation note contained what the Practitioner knew or should have known could have been taken as a recommendation that the Patients' parents should use corporal punishment to discipline the Patients. This put the Patients' health, safety and welfare at risk.
161 The Tribunal does not consider that any of the other allegations have been established to the requisite standard.
The legislative scheme
162 Part 8 of the National Law (s 138 to s 207 inclusive) is entitled 'Health, performance and conduct'.
163 Under the relevant provisions of Pt 8, a person may notify AHPRA if, relevantly:
a) a practitioner's professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers; or
b) the knowledge, skill or judgment possessed, or care exercised by, a practitioner in the practice of the practitioner's health profession is, or may be, below the standard reasonably expected.
164 AHPRA must then refer the notification to the Board, which makes a preliminary assessment of the matter. The Board can then either dismiss it or further investigate it.
165 Once the Board has investigated the matter, it is then open to the Board to take no further action. If, however, the Board reasonably believes the way a practitioner practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory then, subject to s 193, the Board can either deal with the matter itself or constitute a performance and professional standards panel to which the matter is to be referred.
166 Section 193(1) of the National Law relevantly provides as follows:
Matters to be referred to responsible tribunal
(1) A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if
(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason
(i) the practitioner has behaved in a way that constitutes professional misconduct; or
…
professional misconduct, of a registered health practitioner, includes
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes
(a) a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
(b) a contravention by the practitioner of
(i) a condition to which the practitioner's registration was subject; or
(ii) an undertaking given by the practitioner to the National Board that registers the practitioner;
- and
(c) the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner's suitability to continue to practise the profession; and
(d) providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's wellbeing; and
(e) influencing, or attempting to influence, the conduct of another registered health practitioner in a way that may compromise patient care; and
(f) accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider; and
(g) offering or giving a person a benefit, consideration or reward in return for the person referring another person to the practitioner or recommending to another person that the person use a health service provided by the practitioner; and
(h) referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience;
170 Section 196 of the National Law provides as follows:
Decision by responsible tribunal about registered health practitioner
(1) After hearing a matter about a registered health practitioner, a responsible tribunal may decide
(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) one or more of the following
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the practitioner has behaved in a way that constitutes professional misconduct;
(iv) the practitioner has an impairment;
(v) the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board that registered the practitioner information or a document that was false or misleading in a material particular.
(a) caution or reprimand the practitioner;
(b) impose a condition on the practitioner's registration, including, for example
(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d) suspend the practitioner's registration for a specified period;
(e) cancel the practitioner's registration.
(3) If the responsible tribunal decides to impose a condition on the practitioner's registration, the tribunal must also decide a review period for the condition.
(4) If the tribunal decides to cancel a person's registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to
(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b) prohibit the person from using a specified title or providing a specified health service.
171 In all disciplinary matters where the Board reasonably believes that the Practitioner has behaved in a way that constitutes professional misconduct, it must refer the matter to the Tribunal. Otherwise, the Board deals with the matter either itself or through a panel constituted for that purpose.
172 In this case, the Board in its application to the Tribunal alleges that the Practitioner's conduct constitutes professional misconduct under the National Law in that his behaviour was substantially below the standard reasonably expected of an experienced specialist in paediatrics and child health. The Board then alleges that, alternatively, the Practitioner behaved in a way that constitutes unprofessional conduct or unsatisfactory professional performance for the purposes of the National Law.
173 We take the Board's application to be that the Board reasonably believes that the Practitioner has behaved in a way that constitutes professional misconduct, but it is reminding the Tribunal that it is open to the Tribunal under s 196 of the National Law to decide instead that the Practitioner has behaved in a way that constitutes unsatisfactory professional performance or that constitutes unprofessional conduct.
174 The term professional misconduct is defined to include unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience. The definition is inclusory and is not an exhaustive statement of that term. Thus, 'professional misconduct' under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example conduct which is characterised as professional misconduct or its equivalent under earlier vocational disciplinary legislation.
175 It follows from this that the test of whether professional misconduct has occurred still includes the test of 'infamous conduct in a professional respect' which was adopted in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750:
If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect.
176 The adjective 'infamous' is a term 'denoting conduct deserving of the strongest reprobation, and indeed so heinous as to merit, when proved, the extreme professional penalty of striking off'; Felix v General Dental Council [1960] AC 704 at 720.
177 The term unprofessional conduct is defined to mean professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers. The definition then includes examples of 'unprofessional conduct'. Unlike the definition of 'professional misconduct', the definition of 'unprofessional conduct' is an exhaustive statement of that term.
178 Unprofessional conduct is clearly conduct of a less serious nature than professional misconduct. Whether or not a practitioner is guilty of unprofessional conduct must be judged in accordance with the standards of his or her profession.
179 The definition of the term 'unsatisfactory professional performance' is also an exhaustive statement of that term. It refers to a medical practitioner's performance as a practitioner rather than his or her conduct.
180 As McLure P noted in Bernadt v Medical Board of Australia [2013] WASCA 259 at 23, professional misconduct has both a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience) and a conduct component (conduct whether occurring in connection with the practice of the practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession).
181 The definition of unprofessional conduct also has both a performance component and a conduct component. The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.
182 Unsatisfactory professional performance, on the other hand, has only a performance component (the knowledge, skill or judgment possessed, or care exercised by a medical practitioner is below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience). It is suggestive of a generalised deficiency in the way in which a practitioner handles his or her professional affairs; Jemielita v Medical Board of Australia (Unreported, WASC, Library No 920584, 13 November 1992 at 19) (Jemielita). In Jemielita Owen J was considering the meaning of 'incompetency' under the now repealed Medical Act 1894 (WA). It is likely that a finding of unsatisfactory professional performance will occur where the performance of the practitioner concerned has consistently fallen below the expected standard as a medical practitioner, or where the practitioner has never attained that standard.
183 In this case, there is no evidence to suggest that there is a question about the performance of the Practitioner generally. The Board's allegations concern the Practitioner's treatment of the Patients specifically.
184 The issue for the Tribunal is therefore whether the Practitioner's conduct amounts to professional misconduct or, alternatively, unprofessional conduct.
185 We have found that the first consultation note was derogatory of both Patients and that the second consultation note was derogatory of one of the Patients, namely R. We consider that it was poor practice on the part of the Practitioner to immediately write, print and hand to J what are in fact important letters of recommendation and advice without properly considering the terms of the letters concerned to ensure their accuracy, completeness and that any intemperate language is removed. The Practitioner should have, at the very least, proofread the consultation notes, perhaps including in them the date of the relevant consultation and signing the note before forwarding the relevant note to J. If the Practitioner had done this, then he would have noticed the final words of the first consultation note and not have put himself into the position of having to argue that they were included in error.
186 We consider in this regard that the conduct of the Practitioner is of a lesser standard than that which might be reasonably expected by the public or by the Practitioner's peers. We conclude that giving the first consultation note and the second consultation note to J when they contained derogatory references to one or both of the Patients, as the case may be, constitutes unprofessional conduct on the part of the Practitioner.
187 The Tribunal has also determined that when the Practitioner gave the second consultation note to J, he knew or ought to have known that J's husband would read the note and that J and her husband would more likely than not regard it as a recommendation that they physically punish the Patients. Thus the Practitioner put the Patients' health, safety and welfare at risk.
188 In his witness statement, Dr McDowell said that '[o]ur profession does not endorse … any professional recommendations that include psychological threats of violence or physical violence' (CBWS at page 112, paragraph 17). However, under crossexamination, Dr McDowell said that he does not consider there to be a clear position amongst paediatricians about the use of physical force or punishment to implement behaviour modification in children. He says that, other than a document issued by the Paediatrics and Child Health Division of the Royal Australasian College of Physicians to which we refer again shortly, there are no written guidelines on the subject and that he considers that there is a range of opinions on the matter (T:168; 27.03.14).
189 The document referred to in the preceding paragraph (CBD at page 122 144) is a document entitled 'Protecting Children is Everybody's Business: Paediatricians Responding to the Challenge of Child Abuse'. This document contains the following statement:
The Paediatrics and Child Health Division believes that the use of physical force (in any form and including psychological threats) is an ineffective and unhelpful method of punishment and discipline of children.
(CBD at page 139).
190 Dr McDowell says that this document is an 'advocacy document' and does not constitute practice guidelines (T:171; 27.03.14).
191 Dr McDowell says that many paediatricians would accept that to enforce HSTO and 'also getting kids into time out' would sometimes require physically holding a child in a time out location (T:166; 27.03.14). He says, however, that he is unaware of a paediatrician who recommends smacking a child (T:167; 27.03.14).
192 This is consistent with the views of Professor Larzelere. However, Professor Larzelere arrives at this conclusion from a different perspective. He agrees that no paediatrician would recommend corporal punishment to parents because he says that a paediatrician might risk being sued if such a recommendation were made. He says that he personally does not recommend smacking other than the limited nonabusive smacking referred to earlier in these reasons.
193 The Practitioner himself says that, other than in a particular circumstance which is of no relevance in this case, it is never appropriate for a paediatrician to recommend smacking to a parent as a form of behavioural management (T:286; 27.03.14).
194 The Tribunal's conclusion on this evidence is that a paediatrician of an equivalent level of training or experience as the Practitioner would not recommend smacking as a method of modifying behaviour in a child.
195 We accept that the Practitioner had experienced a great deal of frustration about the failure of R to respond to treatment, and we have already mentioned the Practitioner's unfortunate practice of failing to consider carefully the terms of his consultation notes before he hands them to a parent. However, we must nonetheless conclude that the Practitioner's conduct in that regard is of a lesser standard than that which might reasonably be expected of the Practitioner by the public or the Practitioner's professional peers.
196 In the light, however, of the equivocal nature of the experts' evidence on the subject, and in the absence of any clear accepted standard, we do not consider that the Practitioner's performance was substantially below the standard reasonably expected of a Practitioner of an equivalent level of training or experience.
197 Accordingly, on this allegation, the Tribunal finds the Practitioner guilty of unprofessional conduct.
198 The other remaining allegations are dismissed.
Orders
1. The Tribunal finds the following disciplinary matters exist:
(a) The respondent is guilty of unprofessional conduct by providing two written notes to the mother of two of his patients, both of which were derisory of one or both of those patients, as the case may be.
(b) The respondent is guilty of unprofessional conduct by providing a written note to the mother of two of his patients recommending that the mother and also the father of those patients (whom the practitioner had not met and whom the practitioner knew may have been suffering from stress or depression) use corporal punishment to bring about behavioural modification in those patients.
(c) The other remaining allegations of professional misconduct, unprofessional conduct and unsatisfactory professional performance are dismissed.
2. The applicant is to file and serve submissions on penalty within 14 days of the date of these orders.
3. The respondent is to file and serve submissions in response on the question of penalty within 28 days of the date of these orders.
4. Subject to any further order of the Tribunal, the question of penalty is to be dealt with on the documents.
- I certify that this and the preceding [198] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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