Medical Board of Australia v Speldewinde

[2014] ACAT 27

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD OF AUSTRALIA v SPELDEWINDE
(Occupational Discipline) [2014] ACAT 27

OR 13/49

Catchwords:             OCCUPATIONAL DISCIPLINE – Health Practitioner – disciplinary matter relating to medical practitioner – Health Practitioner Regulation National Law (ACT) (National Law) – inappropriate conversation and physical conduct with the female patients - application for consent orders pursuant to s 55 of the ACT Civil and Administrative Tribunal Act 2008 – referral from panel to the ACT Civil and Administrative Tribunal under s 190 of National Law- whether the draft statement of particulars before the Tribunal is limited by the scope of notice given by the panel to the practitioner under s 184 of the National Law – whether allegations originally before the panel could be amended in the tribunal - Human Rights Act 2004 (ACT) - ‘free’ consent before medical treatment - whether undermined by inappropriate conversation and physical conduct - making of consent order.

Legislation:ACT Civil and Administrative Tribunal Act 2008 (ACT)

Health Practitioner Regulation National Law (ACT)

Health Practitioner Regulation National Law Act 2010 (ACT) Human Rights Act 2004 (ACT)

Charter of Human Rights and Responsibilities Act 2006 (Vic)

StandardsGood Medical Practice: A Code of Conduct for Doctors in Australia

Cases:Veness v Medical Board of Australia [2011] ACAT 55

Psychology Board of Australia v Fox [2013] ACAT 75

In the Matter of an Application for Bail by Isa Islam [2010] ACTSR 147

R v Momcilovic (2010) 265 ALR 751

R v Fearnside (2009) 165 ACTR 22; 228 FLR 77

Tribunal:                  Professor T. Faunce – Senior Member

Date of Orders:  28 April 2014
Date of Reasons for Decision:         2 May 2014

AUSTRALIAN CAPITAL TERRITORY            
CIVIL AND ADMINISTRATIVE TRIBUNAL     OR 13/49

RE:THE MEDICAL BOARD OF AUSTRALIA

Applicant

AND:DR GEOFFREY SPELDEWINDE

Respondent

ORDERS

Tribunal:                  Professor T. Faunce – Senior Member

Date of Order:          28 April 2014

The Tribunal orders that:

1. Pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008,  I make the following orders consented to by the respondent practitioner and the Medical Board:

   i.An order that the practitioner has behaved in a way that constitutes unsatisfactory professional performance (pursuant to section 196(1)(b)(i) of the National Law);

   ii.A reprimand of the practitioner in relation to his performance during consultations on 22 July 2010 and 10 February 2011 (pursuant to section 196(2)(a) of the National Law); and

   iii.The names of the patients in this matter be suppressed.

………………………………..

Ms L. Crebbin – General President

for and on behalf of

Professor T. Faunce – Senior Member

REASONS FOR DECISION

1. The Tribunal notes that this is an application for orders to be made pursuant to section 55 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) with the consent of the parties. The application asks the Tribunal to find that the respondent practitioner has behaved in a way that constitutes unsatisfactory professional performance and to make an order reprimanding him. The application contains the following details:

   Medical Practitioner Background

   1.       Dr Geoffrey Charles Speldewinde (the respondent) was born on 20 July 1953 in Colombo, Sri Lanka and graduated with Bachelor of Medicine and Bachelor of Surgery degrees from the University of Sydney in 1981.

   2.       Dr Speldewinde became a Fellow of the Royal Australasian College of Physicians and a Fellow of the Australasian Faculty of Rehabilitation Medicine in 1990. He is also a Fellow of the Australian and New Zealand College of Anaesthetists (Faculty of Pain Medicine).

   3.       Dr Speldewinde first registered as a medical practitioner on 4 March 1982 and is currently registered from 1 October 2013 to 30 September 2014 as a general practitioner as well as a specialist in pain medicine and rehabilitation medicine.

   Patient Background

   1.       The two complainants were female patients of Dr Speldewinde. Both patients were being treated for pain management and attended the consultation rooms of Dr Speldewinde, being where the conduct occurred.

Allegations

1.       The application before the Tribunal consists of the following two allegations:

(i)On 22 July 2010 the practitioner failed to comply with section 8.2.1 of the standard Good Medical Practice: A Code of Conduct for Doctors in Australia by engaging in an inappropriate conversation and physical conduct with the first female patient.

(ii)On 10 February 2011 the practitioner failed to comply with 8.2.1 of the standard Good Medical Practice: A Code of Conduct for Doctors in Australia by engaging in an inappropriate conversation and physical contact with the second female patient.

2.       Section 40 of the National Law provides, in summary, that a code or guideline approved by a National Board is admissible in proceedings under the National Law against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession. Good Medical Practice: A Code of Conduct for Doctors in Australia.

Agreed Statement of Facts

1.       The practitioner admits and the Applicant accepts that the facts are as follows:

A.During his consultation with the second female patient on 10 February 2011 the practitioner was:

i.too familiar with his language at times, including initiating unwelcome conversation;

B.In his consultation with the first female patient on 22 July 2010 the practitioner was:

i.too familiar with his language at times, including initiating unwelcome conversation; and

ii.touched her in a manner that was not sufficiently careful (but was not deliberately inappropriate);

C.That the conduct at ‘A’ and ‘B’ above amounts to unsatisfactory professional performance (as defined in section 5 of the National Law); and

D.Since early 2011, a period of over (3) three years the practitioner has practiced without restriction and without further allegations of unsatisfactory professional performance.

1. The ACT Health Services Commissioner received a complaint about the practitioner from the first female patient in August 2010. The Australian Health Practitioner Regulation Agency (AHPRA) received a complaint in February 2011 from the second female patient. After appropriate investigations these complaints were referred to a performance and professional standards panel under section 182 of the Health Practitioner Regulation National Law (ACT) (the National Law). The Panel hearing commenced on 21 December 2012. Following the commencement of the hearing, the practitioner asked that the matter be referred to the ACT Civil and Administrative Tribunal under section 193 of the National Law. The Panel stopped hearing the matter and required the applicant to refer the matter under consideration of section 190 of the National Law. The referral was received by the Tribunal on 20 December 2013.

2. Section 190 of the National Law provides:

   Referral to responsible tribunal

   A panel must stop hearing a matter and require the National Board that established the panel to refer the matter to a responsible tribunal under section 193 if, at any time—

(a)     the practitioner or student the subject of the hearing asks the panel for the matter to be referred to a responsible tribunal under section 193; or

(b)     if the subject of the hearing is a registered health practitioner—

(i)the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct; or

(ii)the panel reasonably believes the evidence demonstrates the practitioner’s registration may have been improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular.

1. Section 193 of the National Law provides:

   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

(ii)    the practitioner’s registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular; or

(c)for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.

(2)The National Board must—

(a)refer the matter to—

(i)   the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or

(ii)    if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; and

(b)give written notice of the referral to the registered health practitioner or student whom the matter relates.

1. Section 3 of the National Law which sets up a national registration and accreditation scheme, makes it clear that the objectives of the scheme are “to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered” (s.3(2)(a)). The guiding principles of this scheme require that it “operate in a transparent, accountable, efficient, effective and fair way” (s.3(3)(a)) and that “restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality” (s.3(3)(c)).

2. The ACT Civil and Administrative Tribunal is declared to be a responsible tribunal for the purposes of the National Law by section 8 of the Health Practitioner Regulation National Law Act 2010 (ACT).

3. Section 190 of the National Law has not been the subject of much interpretation or commentary. It seems appropriate to express an opinion on its appropriate operation. When a matter is referred to a ‘responsible tribunal’ under section 190 then the relevant legislation requires that tribunal conduct its hearing de novo. The tribunal is not bound to restrict its operations to the terms of the notice that was given by the Panel to the registered health practitioner under section 184 of the National Law. Such interpretation is consistent with the emphasis in the National Law on providing that the scheme operate to protect the public according to principles of transparency, accountability, efficiency, effectiveness and fairness.

4. This interpretation is also consistent with the fact that at the early Panel stages of investigation of these matters, the detailed facts and their appropriate legal and ethical characterisation are not always clearly apparent. This is one of the main reasons, in my view, section 185(3)(b) of the National Law allows the Panel to have regard not just to the matters in the section 184 notice but to “any other information the panel considers relevant to the hearing of the matter.”

5. It is made clear this flexibility in the capacity of the Panel to consider other matters than those in the section 184 notice must be constrained by principles of natural justice (section 185(2) of the National Law). If, for example, a Panel does seek to have regard to matters other than those mentioned in the initial section 184 notification, notice should be given in advance to the registered health practitioner and his or her legal representatives and an appropriate adjournment granted if required. If, however, the registered health professional avails himself or herself of section 190 to refer the matter to a responsible tribunal, that Tribunal will be bound by the relevant statement of particulars of that referral, not by the original section 184 notification to the Panel.

6. I must respectfully disagree with the interpretation of section 190 referrals expressed in Psychology Board of Australia v Fox [2013] ACAT 75. In my view, natural justice is satisfied by the provision of the statement of particulars to the registered health professional and his or her legal representatives at the time of the referral from the Panel to the tribunal.

7. To reiterate, the nature of these cases is that the issues sometimes only slowly come to light and the overriding requirement for public protection according to principles of natural justice cannot most efficiently be assured if the tribunal is constrained to consider the matter at what will occasionally (but not necessarily or frequently) be an inchoate and formative Panel stage.

8. An additional consideration is that the principles and rules of tribunals such as this must evolve to fill in the interstices of the professional regulatory scheme; they should not facilitate ‘gaming’ of the system by legal representatives. If this Tribunal was locked into a characterisation of matters as they initially appeared to a Panel at the time of its section 184 notice to the registered health professional, this may significantly hamper the Tribunal’s capacity to protect the public by thoroughly investigating and responding to all the appropriate issues. If the health professional’s legal representatives, for example, became aware that other issues were, as it were “in the wind”, they might precipitately initiate a section 190 referral in order to ensure more limited terms of reference to the benefit of their client, rather than the public.

ACT Human Rights Act 2004

1. The corpus of international human rights law specifically applies to matters such as this by virtue of the Human Rights Act 2004 (ACT).

2. Section 30 of the Human Rights Act 2004 (ACT) provides:

   So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

   This provision is similar to section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Victorian Charter of Human Rights and Responsibilities).

3. Section 10 of the Human Rights Act 2004 (ACT) provides:

   10Protection from torture and cruel, inhuman or degrading treatment etc

   (1)No-one may be—

   (a)tortured; or

   (b)treated or punished in a cruel, inhuman or degrading way.

   (2)No-one may be subjected to medical or scientific experimentation or treatment without his or her free consent.

1. In R v Fearnside (2009) 165 ACTR 22; 228 FLR 77, Besanko J (with whom the other members of the Full Court agreed) held that there was a three stage process to be followed when considering the application of the Human Rights Act 2004 (ACT). A similar approach was taken under the Victorian Charter of Human Rights and Responsibilities in R v Momcilovic (2010) 265 ALR 751. It requires ascertaining (1) the meaning of a provision, (2) whether it breaches a protected human right, and (3) whether any limit on the right is justified.

2. In my view section 30 of the Human Rights Act 2004 (ACT) does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question. This approach was endorsed by Penfold J in In the Matter of an Application for Bail by Isa Islam [2010] ACTSR 147.

3. As I stated in Veness v Medical Board of Australia [2011] ACAT 55, in my view, section 30 of the Human Rights Act 2004 (ACT) does not require an ambiguity in ACT legislation to be located before it is activated. It operates to require that all legislation in this jurisdiction be interpreted for human rights compatibility as part of every judicial and administrative decision. If the ACT human rights legislation comes to include a human right to health, then the ACAT Act and the National Law would also have to be interpreted as compatible with that.

4. In this case I would note that “too familiar” and “unwelcome” conversation and “insufficiently careful” touching of a patient can undermine the “free consent” required as a legal prerequisite to medical treatment in the Australian Capital Territory by virtue of section 10 of the Human Rights Act 2004 (ACT).

Making of consent order

1. In making a consent order of this kind the Tribunal should usually have the opportunity to review the consent order and the agreed statement of facts with the registered health professional in order to confirm their understanding of the import of the matter and their determination to ensure public welfare in the future. Such interpretation is consistent with the emphasis in the National Law on providing the scheme operate to protect the public according to principles of transparency, accountability, efficiency, effectiveness and fairness.

2. I make today these consent orders being satisfied, having spoken to the registered health professional and reviewed relevant supporting documentation, that as a result of this regulatory experience he will be, in his words, ‘more diligent’ and ‘more insightful’ about the needs of patients and the consequences of his action on their welfare.

3. I note particularly the support he has received and will receive from the multidisciplinary team with which he works; the long years prior to and after these events, in which he has practised without apparent fault; and the good estimation and satisfaction of his patients. I fully expect that he has many valuable years ahead of medical service to this community.

………………………………..

Ms L. Crebbin – General President

for and on behalf of

Professor T. Faunce – Senior Member