Medical Board of SA v Manock - [2008] SADC 62

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
MEDICAL BOARD OF SA v MANOCK
[2008] SADC 62
Reasons for Decision of His Honour Judge Clayton
15 May 2008
PROFESSIONS AND TRADES - MEDICAL AND RELATED PROFESSIONS - MEDICAL PRACTITIONERS
Application by aggrieved person who had complained to the Medical Board to be appointed as a party to consequential proceedings commenced by the Board before the Medical Professional Conduct Tribunal.
Held: Medical Practice Act 2004 does not empower the Medical Professional Conduct Tribunal to join further parties to proceedings commenced by the Medical Board.
Medical Practice Act 2004 ss 51(2)(b); 57(1); 59; 60, referred to.
Keogh v The Medical Board of South Australia and Another [2007] SASC 342, considered.

MEDICAL BOARD OF SA v MANOCK
[2008] SADC 62

These are the reasons for a decision which I made on 28 March 2008 dismissing an application by Mr Henry Keogh to be “appointed” a party to these proceedings.
The Medical Board of South Australia has made a complaint pursuant to ss 51(2)(b) and 57(1) of the Medical Practice Act 2004 alleging that there is proper cause for disciplinary action against Dr Colin Henry Manock.
The grounds are set out in the complaint which asserts that Dr Manock is guilty of incompetence in relation to the provision of medical treatment and/or is guilty of negligence in relation to the provision of medical treatment. The particulars allege first that in or about March 1994 Dr Manock failed to conduct an adequate post mortem examination of Ms Anna Jane Cheney and secondly, that in reaching his opinion as to the cause and manner of death of Ms Cheney, namely accidental drowning, he failed to consider and to exclude (if appropriate) all reasonable and feasible alternative hypotheses in order to disprove his stated conclusion and opinion as to the cause and manner of death.
The complaint has a long history. Mr Henry Keogh was tried and convicted of the murder of Ms Cheney. At the trial the prosecution relied upon the evidence of Dr Manock. Mr Keogh had previously made a complaint to the Medical Board of South Australia. It is that complaint which ultimately led to the complaint which has now been made by the Medical Board of South Australia to this Tribunal.
Mr Keogh has applied for an order that he be “appointed” (the term used in the application) a party to these proceedings. The written application states that the application is made pursuant to the inherent jurisdiction of the Medical Professional Conduct Tribunal and ss 59 and 60 of the Medical Practice Act 2004. It was supported by an affidavit of Mr Keogh.
The affidavit states that in 1995 Mr Keogh was convicted of the murder of Ms Cheney and is currently serving a life sentence. Dr Manock was a prosecution witness at the trials. In his capacity as a forensic pathologist Dr Manock gave evidence of his autopsy procedures and gave expert opinion evidence as to both the cause and manner of death. The affidavit sets out the history of a complaint which Mr Keogh made to the Medical Board in 2002. In reasons for decision dated 22 June 2005, the Board rejected Mr Keogh's complaints and exonerated Dr Manock. Subsequently the Chief Justice set aside the findings of the Board and ordered that the complaint be reheard (Keogh v The Medical Board of South Australia and Another [2007] SASC 342). The re-hearing was commenced before a differently constituted Medical Board and Mr Keogh has been advised that the Board had terminated his complaint and had itself made the complaint against Dr Manock to this Tribunal.
In the affidavit Mr Keogh states that the complaint to the Tribunal deals with his first complaint (that the autopsy was incompetent) but does not appear to specifically deal with his second complaint (that when giving expert evidence Dr Manock misled the jury). The affidavit sets out the way in which Dr Manock's opinion and evidence was relevant at the trials. Mr Keogh seeks to be represented at the Tribunal hearing for the following reasons:
(1)so that I can be fully informed of the conduct of the hearing and its ramifications;
(2)to enable my lawyers to advise the Tribunal of the manner and way in which the first Board hearing was conducted and in particular the time limits imposed by the Board;
(3)to enable my lawyers to present submissions to the Tribunal as to the ambit or scope of the hearing, with particular reference to the context of Dr Manock’s conduct of the autopsy in relation to his opinions as to the cause of death and the manner of death;
(4)to enable my lawyers to advise the Tribunal of the history of and significance of documents generated by Dr Manock, with particular reference to an initial autopsy report, and to two body charts which purport to diagram bruises he said he observed on the body of the deceased and which are relevant to the competence of the histology process;
(5)to enable my lawyers to advise the Tribunal of the significance of the photographic evidence with particular reference to a photograph known as P53;
(6)to enable my lawyers to make submissions with respect to the following facts:
(i)       the criteria Dr Manock used to establish cause of death (differential aortic staining) was accepted by him as not having been published in any forensic pathology text book and had not been subject to any scientific testing or peer review,
(ii)      Dr Manock stated at the Medical Board hearing that this meant that the rest of the world had not caught up to him,
(iii)      at all times Dr Manock failed to accept or acknowledge that the diagnosis of death by drowning is a diagnosis of exclusion;
(7)to enable my lawyers to advise the Tribunal as to the relevance and significance of the report by Dr Oettle;
(8)to enable my lawyers to advise the Tribunal of the circumstances in which they were made aware of the medical history of the deceased during the first Medical Board hearing;
(9)to enable my lawyers to cross-examine a witness or witnesses if the need arises.
Because of the view which I have taken of the application it is unnecessary to descend to an examination of the merit of those reasons. Some of Mr Keogh's requirements could be satisfied without him being appointed a party.
Mr KV Borick QC represented Mr Keogh. He relied upon a written Outline of Argument, a Supplementary Outline of Argument and also made oral submissions. The written outline submitted:
(1)That the Medical Practice Act did not, either expressly or by necessary implication, exclude the right to legal representation.
(2)That the Medical Practice Act did, either expressly or by necessary implication, confer a right to legal representation.
(3)That the Medical Practice Act did, either expressly or by necessary implication, confer upon the Tribunal the right to decide for itself whether or not legal representation should be permitted for disciplinary action.
(4) That legal representation should be permitted in the interests of fairness.
The first three submissions raise the interpretation of the Medical Practice Act. The fourth raises other considerations.
The written Outline of Argument sets out reasons in support of the submissions. They include the desire of Mr Keogh to be kept informed, his ability to provide information as to the manner and way in which the hearing before the Board was conducted, the need for evidence to be explained and the need to respond to the Oettle Report. The outline argues that if Dr Manock gives evidence Mr Keogh should have the right to cross-examine him.
In response to a foreshadowed argument that Dr Manock should not be confronted by two prosecutors, Mr Borick QC argued that the hearing by the Tribunal is not prosecutorial in nature and that both the Board and Mr Keogh are entitled to give as much assistance to the Tribunal as it requires in the exercise of its statutory function.
The Board opposed the application. Mr Griffin QC who appeared for the Board, argued that there is no foundation within the Act for Mr Keogh, or anyone else who has a similar interest, to be made a party. He argued that the Act is quite specific in that it establishes a legislative framework in which an aggrieved person might lay a complainant before the Board but only the Board can lay a complaint before the Tribunal. He argued that the Act does not contemplate that persons such as Mr Keogh could be made a party to the proceedings before the Tribunal and the legislative framework is directly opposed to the application.
Mr Swan, of counsel, who appeared for Dr Manock adopted the submissions of the Board on this issue. He argued that there is simply no power to join a party in the way that is contemplated.
At the outset I reject the submission that the Tribunal has an inherent jurisdiction which enables it to join parties to the proceedings before it. No basis was advanced for that proposition. In any event the statutory scheme must be predominant.
The Medical Professional Conduct Tribunal is the continuation of the Medical Practitioners Professional Conduct Tribunal established under the repealed Medical Practitioners Act 1983. Its composition is prescribed by Part 3 of the Medical Practice Act 2004. Part 5 of the Act deals with disciplinary action against medical practitioners. Section 46 provides that there is proper cause for disciplinary action if a person is guilty of “unprofessional conduct” which it is defined in s 3(1) of the Act.
Section 51(1) of the Act provides for the laying of a complaint before the Board by a person who is aggrieved by the conduct of a medical practitioner. Subsection (2) requires the Board to inquire into the subject matter of a complaint unless the Board considers that the complaint is frivolous or vexatious or itself lays a complaint before the Tribunal relating to matters the subject of, or arising out of, the complaint laid before the Board.
Section 51(5) of the Medical Practice Act 2004 provides that if in the course of conducting an inquiry the Board considers that the allegations or evidence against the respondent are sufficiently serious or that it is otherwise appropriate to do so, it may terminate the proceedings and itself lay a complaint against the respondent before the Tribunal in relation to those allegations or that evidence.
The Board was therefore required to inquire into the subject matter of the complaint laid by Mr Keogh against Dr Manock unless the Board considered the complaint to be frivolous or vexatious or laid a complaint before the Tribunal itself.
Part 5 Division 4 of the Act deals with proceedings before the Tribunal. Section 57 provides:
(a1)A complaint setting out matters that are alleged to constitute grounds for disciplinary action against a person may be laid before the Tribunal by the Board (whether or not a complaint against the person has been laid before the Board under section 51).
(1)If the Board lays before the Tribunal a complaint setting out matters that are alleged to constitute grounds for disciplinary action against a person, the Tribunal must, unless it considers the complaint frivolous or vexatious, inquire into the subject matter of the complaint.
The Act does not contemplate complaints being made before the Tribunal other than by the Board. The Tribunal is not required to hear the complaint of aggrieved persons unless the complaint of the aggrieved person is referred on by the Board.
Section 59 contains provisions as to proceedings before the Tribunal. The Tribunal must give all the parties to the proceedings notice of the hearing "and must afford to the parties a reasonable opportunity to call and give evidence, to examine or cross-examine witnesses, and to make submissions to the Tribunal." A party is entitled to be represented at the proceedings (subs 59(5)). The Tribunal is not bound by the rules of evidence and may inform itself at any matter as it thinks fit and must act according to equity good conscience and the substantial merits of the case without regard to technicalities and legal forms (subs (6)). The procedure at an inquiry will be as determined by the Tribunal (subs (7)).
The Act does not contemplate the joinder or "appointment" of parties to proceedings. The only parties contemplated by the Act are the Board and the medical practitioner who is the respondent to the proceedings. Specifically the Act does not provide for aggrieved persons to be made parties to proceedings before the Tribunal but does specifically provide for them to lay complaints before the Board.
It is difficult to see what role the aggrieved person could play in the proceedings before the Tribunal. It would be inappropriate for the aggrieved person to adopt the role of a second prosecutor. In the same way that the Crown represents the interest of victims in criminal proceedings the Board can represent the interests of the aggrieved person in proceedings before the Tribunal.
I regard the submission on behalf of Mr Keogh that the statute does not exclude the right to legal representation as inconsequential. I reject the submission that the statute either expressly or by implication confers a right to legal representation. I also reject the submission that the statute confers upon the Tribunal the right to decide for itself whether or not legal representation should be permitted. The statute does not deal with that topic.
As to the applicant’s submission that legal representation should be permitted in the interest of fairness, that is not, in my opinion, a relevant test. The test is whether the statute which creates the Tribunal and governs its proceedings permits the joinder of persons as parties. In my opinion it does not.
The scheme of the Medical Practice Act 2004 is that aggrieved persons such as Mr Keogh can lay a complaint before the Board setting out matters that are alleged to constitute grounds for disciplinary action (s 5(1)) and unless the Board considers that the complaint is frivolous or vexatious or lays a complaint before the Tribunal, the Board is required to inquire into the subject matter of that complaint (s 51(2)). In the present case the Board has terminated its own inquiry by laying a complaint before the Tribunal.
I have no difficulty in accepting that Mr Keogh has a genuine interest in the proceedings. He is the person whose complaint to the Board has ultimately resulted in the complaint by the Board to the Tribunal. However the fact that he is interested in the outcome of the proceedings is not sufficient to enable the Tribunal to join him as a party.
Section 59, which deals with the proceedings before the Tribunal, provides that a party to proceedings before the Tribunal is entitled to be represented, but before a person can exercise that right the person must be a party to the proceedings.
Proceedings before the Tribunal are neither civil proceedings nor criminal proceedings. Accordingly the Supreme and District Court Civil Rules 2006, which do permit the joinder of parties in civil proceedings, do not apply. In criminal proceedings there is no provision for interested persons, such as the victims of a crime, to be added as parties. The only parties to criminal proceedings are the prosecutor and the defendant.
In my opinion the present application must be determined by reference to the Act. In my opinion the scheme of the Medical Practice Act 2004 does not contemplate persons other than the Board and the respondent being parties to the proceedings before the Tribunal. In fact the joinder of aggrieved persons as parties to proceedings before the Tribunal would be contrary to the scheme of the Act which is that the body to whom aggrieved persons should make their complaints is the Board and the Board is the only entity that can take the matter to the Tribunal. Aggrieved persons cannot lodge a complaint directly with the Tribunal and it would, in my opinion, be inappropriate if they could achieve that result by riding on the coat tails of the Board.
I have already commented on Mr Keogh's indisputable interest in the proceedings. There is no reason why his advisers cannot be present at the hearing before the Tribunal. If arrangements can be made with the Correctional Services Department there is no reason why Mr Keogh himself should not be present at the hearing, subject to the appropriate security arrangements being made. In this context the practical difficulties associated with the attendance of Mr Keogh would be the same whether he was a party or not. If Mr Keogh’s representatives were to draw relevant material to the attention of the Tribunal the Tribunal might exercise its powers under s 59(6). Obviously I cannot give any undertaking in this regard but the requirement in s 57(1) of the Medical Practice Act 2004 that the Tribunal must inquire into the subject matter of the complaint would require the Tribunal to consider relevant material that is brought to its attention.
I mention in passing that the inquiry by the Tribunal is confined to the subject matter of the Board's complaint. I mention this because the papers suggest that Mr Keogh may wish to agitate matters which go beyond the Board's complaint to the Tribunal. As I have mentioned, Mr Keogh’s affidavit complains that the complaint of the Board does not deal with the second complaint, that is that Dr Manock misled the jury. Matters which are outside of the Board's complaint to the Tribunal are matters which Mr Keogh may wish to take up with the Board. The Act does not empower the Tribunal to conduct a general inquiry which extends beyond the boundaries of the Board's complaint to the Tribunal.
In Keogh v The Medical Board of South Australia and Another (supra) the Chief Justice observed (at para 94) that the Board is not obliged to conduct an inquiry into the subject matter of a complaint in the manner in which a coroner conducts an inquiry. The Chief Justice also observed that the complaint sets the scope of the proceedings that follow. His Honour did not attach any particular significance to the requirement in s 54(2) of the relevant act which required the Board to inquire into the subject matter of the complaint. He regarded that language as neutral in its context. His Honour also said (at para 103) that the Board is not necessarily confined to considering the material presented by the complainant. There is no reason why the observations of the Chief Justice with respect to the provisions relating to the Board should not apply to the similar provision in s 57(1) of the Medical Practice Act 2004 in the case of the Tribunal.
While the Tribunal is not required to go in search of evidence it may wish to take into account material which is drawn to its attention by Mr Keogh.
Mr Borick QC retreated to the position "So while we would be satisfied with the position that, one, we get the transcript; two, we be entitled to the present; and, three, that we take up that offer from the Board to provide it with any material so it can then consider whether that material could be placed before the Tribunal" (12-25). While Mr Keogh may not have the right to be appointed a party, there is no reason why those requirements should not be satisfied.
For the reasons set out above I dismissed the application of Mr Keogh to be appointed a party to the proceedings before the Tribunal.