Medical Board of SA v T, R
[2006] SASC 312
•13 October 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
MEDICAL BOARD OF SA v T, R & ANOR
[2006] SASC 312
Judgment of The Honourable Justice David
13 October 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
Application for judicial review - a complaint against the first respondent alleging two grounds of unprofessional conduct was dismissed by the Medical Practitioners Professional Conduct Tribunal (“the Tribunal”) - the Tribunal’s decision focussed upon the alleged facts rather than the particulars of the complaint - whether the Tribunal gave the evidence tendered real and genuine consideration - whether the Tribunal gave proper and genuine consideration to the second ground of complaint - whether the Tribunal can make errors of law without exceeding its jurisdiction - held, application dismissed - the Tribunal does not have power to make errors of law - the Tribunal properly considered the evidence before it - the Tribunal properly considered the second ground of complaint.
Medical Practitioners Act 1983 (SA) s 20A, s 58, s 62; Medical Practice Act 2004 (SA) Sch 1; Medical Practice (General) Regulations 2005 (SA) reg 14; Supreme Court Rules 1987 r 98, referred to.
Azzopardi v Tasman UEB Industries (1985) NSWLR 139; Bruce v Cole (1998) 45 NSWLR 163; Minister for Aboriginal Affairs v Peko-Wallsend & Others (1986) 162 CLR 24, applied.
Re: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, distinguished.
Craig v The State of South Australia (1995) 184 CLR 163; Medical Board of SA v N, JRP & Anor [2006] SASC 19; The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission and Another [1999] 2 VR 203; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 17, discussed.
Re: Sabrina Khan by her next friend Ashraf Houssain Khan & Ors v The Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987); Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388, considered.
MEDICAL BOARD OF SA v T, R & ANOR
[2006] SASC 312Civil
DAVID J.
Introduction
This decision concerns a claim for judicial review against a decision of the Medical Practitioners Professional Conduct Tribunal (“the Tribunal”) made on 13 September 2005. The claim seeks an order in the nature of certiorari, pursuant to r 98.01 of the Supreme Court Rules 1987, quashing certain orders made by the Tribunal.
The Medical Board of South Australia (“the applicant”) filed a complaint in the Tribunal on 10 September 2002 in relation to the conduct of T (“the first respondent”). The complaint was laid pursuant to s 58 of the Medical Practitioners Act 1983 (SA) (“the 1983 Act”). That Act has been repealed and replaced by the Medical Practice Act 2004 (SA) (“the 2004 Act”), which commenced operation on 21 April 2005. Transitional provisions are set out in para 6 of Sch 1 of the 2004 Act and reg 14 of the Medical Practice (General) Regulations 2005 (SA). These transitional provisions provide that complaints lodged before the 2004 Act came into force are to be heard and determined pursuant to the 1983 Act. The complaint from which this decision arises was filed on 10 September 2002, prior to the introduction of the 2004 Act and therefore, the 1983 Act applies.
The complaint alleged two grounds of unprofessional conduct. The first ground is set out in para 10 of the complaint:
10. The respondent’s conduct was improper, unethical and unprofessional in that:
(a) he sought to pursue an intimate personal and/or sexual relationship with the patient for his own gratification;
(b) he abused his position of trust as the patient’s treating psychiatrist;
(c) he failed to observe and maintain appropriate ethical and professional boundaries in the doctor-patient relationship;
(d) he acted in such a manner as to give rise to an unnecessary and unacceptable risk of harm to the patient;
(e) he acted in such a manner as to inappropriately and unnecessarily put at risk the patient’s trust and confidence in him as her treating psychiatrist;
(f) he acted in such a manner as to inappropriately and unnecessarily increase the patient’s levels of anxiety;
(g) he acted in such a manner as to inappropriately and unnecessarily promote sexualization of therapy;
(h) he acted in such a manner as was likely to confuse the patient as to the nature of the professional relationship and to create uncertainty as to the first respondent’s motives.
The second ground is set out in para 11 of the complaint:
11.Further, or in the alternative, the respondent’s purported treatment of the patient was unprofessional, negligent and incompetent in that:
(a) it was not consistent with any recognised or accepted method of psychiatric treatment;
(b) it was inappropriate and contrary to the best interests of the patient;
(c) it was inconsistent with the observance of appropriate ethical and professional boundaries;
(d) it was such as to cause confusion, uncertainty and anxiety in the mind of the patient as to the nature of the respondent’s relationship with the patient and as to the respondent’s motives in that relationship;
(e) it was such as to give rise to an unnecessary and unacceptable risk of damage to the relationship of trust between the patient and the first respondent;
(f) it was such as to give rise to an unnecessary and unacceptable risk of harm to the patient;
(g) it was such as to inappropriately promote sexualization of therapy.
On hearing the matter, the Tribunal found that the first respondent had not been guilty of unprofessional conduct and dismissed the complaint. In its reasons the Tribunal stated:[1]
It has not been established that there are any grounds on which the Tribunal could find that the respondent’s conduct was improper, unethical and unprofessional. The grounds advanced to support the complaint depend almost entirely on the subjective interpretation of events by [the patient], an interpretation which the Tribunal has rejected.
The Tribunal is not satisfied that the treatment of [the patient] was unprofessional, negligent and incompetent. The further or alternative complaint is based on the same grounds put forward in support of the complaint of improper, unethical and unprofessional behaviour. The particulars in support of the complaint have not been proved.
[1] Medical Board of South Australia v T, R [2005] MPPCT 4 at [169]–[170].
The applicant now argues that the Tribunal erred in its decision in two ways. These are detailed at para 10 of the affidavit of Joseph Neal Hooper, dated 29 November 2005, tendered in this Court:
10.1The Tribunal failed to take into account probative evidence (being the admissions of the first respondent in records of interview tendered as exhibit MB1) on the alternative count of unprofessional conduct set out in paragraph 11;
10.2The Tribunal failed to exercise its jurisdiction by failing to give proper and genuine consideration to the merits in concluding that the alternative count of unprofessional conduct set out in paragraph 11 should be dismissed.
The applicant submits that in so erring the Tribunal failed to properly exercise its jurisdiction and therefore the orders dismissing the second ground of the complaint should be quashed and the matter remitted to be dealt with according to law.
Background
The following exhibits were tendered:
·affidavit of Joseph Neal Hooper sworn on 29 November 2005; and
·affidavit of Nicholas James Iles sworn on 18 July 2006.
From that material I set out the history of the relevant facts, commencing with those facts that are not contested. At all relevant times the first respondent worked as a psychiatrist. In late 1999 the patient was referred to the first respondent by her general practitioner for the purpose of cognitive therapy. At the time, the patient was suffering from anxiety and depression.
Between 28 October 1999 and 30 May 2000 the patient had a total of 14 consultations with the first respondent. The applicant makes no complaint concerning the first ten consultations. Its complaint centres upon the first respondent’s conduct during the three scheduled consultations on 2 May 2000, 23 May 2000 and 30 May 2000, and a second consultation late on 30 May 2000 which was unscheduled. During these consultations, the first respondent focussed upon matters of a sexual nature.
The evidence of the patient and the first respondent differs markedly as to the events of these four consultations, so I set out both accounts separately.
Evidence of the Patient
The patient said that over the course of the first ten consultations she felt her mental health had improved. At the 2 May consultation, the first respondent said to her that if she were to improve further then she needed to address underlying issues to do with her relationship with her husband, and sexual difficulties both in that relationship and in the past. He asked her if she liked him and if she felt comfortable talking to him about her sexual problems. He said that as they talked about these problems they could drop the doctor/patient gap and talk more as friends. He also suggested that they change the duration and frequency of their consultations to 90-minute appointments every two to three weeks. The patient agreed to this course of action.
At the 23 May consultation the patient said that the first respondent again asked if she was comfortable talking about her sexual problems, and she said she was. During the consultation, she felt very anxious and asked to have a break to smoke a cigarette, something she had not done before. While smoking in the courtyard, the first respondent told her that 30 per cent of “shrinks” “cross the line” and get away with it. He asked the patient what she thought about that. She understood this remark to have sexual connotations. He also suggested that in future she smoke cannabis in the courtyard.
After returning to the consultation room the first respondent adjusted the lighting. He said he was trying to create an “out of rooms” atmosphere. The patient gave evidence that the first respondent made a number of sexually suggestive comments. He asked, “Do you like me?”, and suggested that she could fantasise about him. He used words such as “sensuous”, “attractive”, and “friendly”. He asked her what she would do if he were to give her a kiss and a hug. She told him that she would “kick him in the balls”. He then laughed and said that if he gave her a kiss and a hug that she “would not have anything on him”. She interpreted this as meaning that it would be his word against hers. He also asked her if she wanted to go for lunch or a drink after work.
At one point in the consultation the first respondent asked the patient what she thought of his questioning. She replied that he was either giving her therapy or just trying to “get into her pants”. He refused to indicate which option applied. At the conclusion of the consultation, he asked whether she would be coming back for another consultation. She replied that she would do anything to try to fix her problems. He asked, “Anything?” and she replied, “Within reason”.
The patient said that after the consultation on 23 May 2000 she felt very anxious and confused, and that she had discussed the consultation with her “birth” mother and her husband. Following these conversations, she decided that she had to know if the first respondent was making sexual advances to her. She decided that if she confronted him he would deny it and she would never know. As a result, she decided that at her next consultation, on 30 May 2000, she would pretend that she was not anxious and that everything was fine.
The patient stated that at the 30 May consultation the first respondent began by asking how she had held up since the last consultation. She replied that she was fine and okay about it. She asked why he asked this question, and he replied that the last consultation had been very intense. He asked her if she had discussed the consultation with her husband and she said “No”.
The patient said that the first respondent again made a number of sexually suggestive remarks. He asked her if she had been able to fantasise about him. She replied that she had not had time. He suggested that if they had met socially they would have ended up in bed together, and told her that she would be a lot of fun to be with and that she was an attractive and sensuous woman. He also suggested that she have an affair and not tell her husband. She asked the first respondent where he was coming from, and he replied that he was not prepared to show his hand yet.
After this consultation the patient was very stressed. After getting home she discussed the consultation with her husband, and they decided that she should phone the first respondent and make another appointment to see him as soon as possible. She phoned the first respondent and arranged a consultation at around 5.00 pm that afternoon. Prior to attending the second consultation on 30 May, the patient consumed cannabis and wine to settle her nerves, however, she said that by the time she attended the consultation she was not intoxicated or affected by the cannabis.
When the patient arrived at the second consultation, the first respondent again adjusted the lighting. She told him that she was very stressed and mentioned taking the cannabis and wine. He said: “Well, you should have had some more”. She told him that the therapy was making her “worse instead of better” and “more anxious”, and said that he needed to tell her where he was coming from. He responded, asking if she had ever considered that she made him as anxious as he made her feel. For a time he sat with his head in his hands and looked very troubled.
The first respondent told the patient that he felt he was strong enough for a relationship with her, but was not sure if she was strong enough for one with him. He said that he would never leave his wife, and then remarked, “How will we do this? A motel will be a bit sleazy”. He finished by saying that he felt he could be of benefit to her and that “the ball was in your [the patient’s] court”. She said that at this point she just walked out.
Shortly thereafter, the patient spoke to her referring general practitioner, and decided to make a complaint about the first respondent’s conduct. The patient cancelled all future appointments.
Evidence of the First Respondent
The first respondent’s version of events is very different. He says he diagnosed the patient as having a histrionic personality disorder. The definition of this disorder is set out in the Diagnostic and Statistical Manual of Mental Disorders – IV as follows:
A pervasive pattern of excessive emotionality and attention seeking, beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following:
(1)Is uncomfortable in situations in which he or she is not the centre of attention
(2)Interaction with other is often characterised by inappropriate sexually seductive or provocative behaviour
(3)Display rapidly shifting and shallow expression of emotions
(4)Consistently uses physical appearance to draw attention to self
(5)Has a style of speech that is excessively impressionistic and lacking in detail
(6)Shows self-dramatisation, theatricality, and exaggerated expression of emotion
(7)Is suggestible, that is, easily influenced by others or circumstances
(8) Considers relationships to be more intimate than they actually are.
The first respondent gave evidence that upon reviewing the first ten consultations he formed the view that his therapy was only “crisis management”. He determined that further long-term improvement would only be achieved by addressing underlying issues to do with the patient’s current and past sexual relationships. He agrees that during their scheduled consultation on 2 May 2000 he proposed that they focus upon underlying sexual issues. He proposed this change of focus and the patient agreed.
To begin this approach the first respondent asked the patient to list people with whom she had had a physical or sexual relationship in the past or from whom she had had a sexual approach. He made a note of these encounters. Around the middle of the consultation he suggested that it might help her ability to share openly if he turned off the fluorescent overhead lighting. He also opened the window blinds to allow in more daylight. He denies asking her if she liked him. He also denies telling her that they could drop the doctor/patient gap or that they would change the frequency and duration of consultations.
The next consultation on 23 May 2000 again focussed upon the patient’s sexual experiences and difficulties. The first respondent encouraged her to consider previous sexual relationships and to identify the positive and negative attributes in these relationships. They discussed a dichotomy: whether a relationship was “good/different” or “dangerous/abusive”. He encouraged her to fantasise about past relationships and to consider them in the light of this dichotomy. He denied that this fantasising had sexual connotations.
Later on during that consultation the focus shifted from the patient’s past relationships and what she thought of them to whether her relationship with the first respondent was a “good/different” or “dangerous/abusive” one. The patient claimed that the first respondent first initiated this change of emphasis. He, however, claimed that she raised it first. Nevertheless, he agrees that once the question was raised, he left her to ponder it further.
During the cigarette break mentioned above, the first respondent agrees that he referred to 30 per cent of “shrinks” “crossing the line”, however, he denies that this had sexual connotations. He said that the conversation related to psychiatrists inappropriately prescribing drugs and the recent media coverage of this issue. He denies that he suggested that she smoke cannabis.
After the cigarette break the session continued. The first respondent again adjusted the lighting. At the conclusion of the consultation he still did not resolve the dichotomy, but told the patient to consider it as part of her “homework”.
The patient attended the next appointment on 30 May 2000. The first respondent adjusted the lighting when she entered. He agrees that he asked her how she had “held up”, and whether she had discussed the consultation with other people. He gave evidence that she appeared “as cool as a cucumber”.
The first respondent said that towards the conclusion of this consultation the patient made some parting remarks that gave him the impression that she had transferred inappropriate sexual feelings to him. However, he did not decide to change his plan to review the patient and monitor her progress in three weeks. He told her that they would discuss these matters further at their next consultation. He denies making any of the sexually suggestive remarks attributed to him by the patient.
Later that day the patient telephoned the first respondent in a distressed state and arranged a second consultation. She presented at the second consultation in a distressed and agitated state and appeared intoxicated. She made it clear that she was sexually attracted to him, and she made a sexual proposition. The first respondent determined that no constructive therapy could occur. He ensured that she was not a danger to herself or anyone else and then concluded the session. He told the patient to arrange another consultation later. In the event, the patient phoned the next day to cancel all future appointments.
As is clear, the evidence of the first respondent and the patient differs markedly. The Tribunal heard evidence from both witnesses, and found that where the first respondent’s evidence differed from that of the patient, it preferred the evidence of the first respondent. It found that the patient’s evidence was strongly influenced by the construction that she placed upon what happened in the consultations, a construction significantly influenced by her psychiatric condition.[2]
[2] Medical Board of South Australia v T, R [2005] MPPCT 4 at [166]–[167].
Evidence of Dr McMurdo
A key question for the Tribunal was whether the first respondent’s treatment of the patient as described by him in his testimony, in the interviews and in his treatment notes was consistent with that recognised or accepted by his profession. To this end the evidence of Dr McMurdo was of crucial importance. Dr McMurdo is an experienced psychiatrist. His evidence was not challenged.
Dr McMurdo was asked to comment on the appropriateness of the first respondent’s decision to allow the dichotomy of whether the first respondent was good or abusive to persist. Dr McMurdo’s preference was to resolve any uncertainty in the same session in which it was raised. He said:
If she raised it, I don’t think it is reasonable for her to reflect over any period of time whether the therapist is abusive or dangerous. That is very disruptive and could be the end of therapy and damage the patient.
However, he later left open the possibility that “it wouldn’t be entirely inappropriate to leave it for another consultation” depending upon the level of the patient’s anxiety. He agreed that either way it would be important to have “monitors in place” to detect “any agitation” in the patient.
Dr McMurdo was also asked about the meaning of the phrase “sexualisation of transference”. During the second interview conducted by the government investigator, the first respondent said:
Being a male therapist obviously created possibilities of making productive use of the sexualisation of the transference.
In cross-examination before the Tribunal the first respondent denied that this expression meant that he had directly or indirectly encouraged sexual feelings in the patient; rather productive use meant that he could interpret the sexualised transference.
Dr McMurdo defined “transference” as a phenomenon seen in patients towards someone they trust and respect. He stated it:
… can take several forms; it can either be a very positive feeling towards the other individual, or a very negative feeling or a variation of those. The transference is something above and beyond what that person knows of the individual. … With a patient it is predominantly unconscious, they are not fully aware of the reason for it. It’s related to early life experiences … problems with particular people in their life, especially parents but it can be teachers or elder siblings, either of admiration or a situation where they have been treated very badly. So it can lead to unresolved very strong loving feelings or unresolved very strong hateful feelings, so it distorts the relationship.
Dr McMurdo explained “sexualisation of the transference” as where the positive feeling of transference has “sexual components”. He said that faced with a patient exhibiting these signs he would be:
… very guarded in how I relate to that person, not to be seen in any way as reacting to the seduction. I would be very particular not to give any lead-on nor to touch the patient except for a handshake.
He said he would quickly move to interpret and explain the patient’s feelings with reference to her past experiences:
… one tries to help the patient see this is based on issues which have gone on earlier in their life, that their feelings towards the therapist are inappropriate and we look at why. We try to go back and say “Why would you have these inappropriate feelings, what appear to be inappropriate feelings for me when you don’t know me. I am much older, I am a muddy old thing. Why would you have these feelings for me? Where is it going?” By that time you know a lot about the person’s background. You look at issues with siblings, with parental figures, with unresolved love issues earlier in their life. Usually you come up with some solution which helps them see “I’m not in love with you, am I? It is because of something that has happened in my past.”
He described interpreting in this way as “essential”, as “you really cannot move on in therapy” while the sexualised transference persisted.
Dr McMurdo was asked about the appropriate way for a psychiatrist to respond if a patient presented at a consultation in a very distressed state and under the influence of drugs, as was the evidence of the first respondent in relation to the second impromptu consultation on 30 May 2000. Dr McMurdo agreed with the proposition that in those circumstances meaningful therapy would be impossible and it would be appropriate to ensure that the patient was safe and then re‑schedule the appointment.
Application
This application centres upon the reasons given by the Tribunal for its decision. The applicant does not contend that the reasons themselves amount to jurisdictional error. Rather, the applicant submits that the reasons indicate more fundamental failures on the part of the Tribunal. First, the applicant argues that the reasons indicate that the Tribunal failed to properly take into account probative evidence before it, namely evidence of interviews given by the first respondent to a government investigator. Second, the applicant argues that the reasons indicate that the Tribunal failed to give proper and genuine consideration to the merits of the alternative count of unprofessional conduct. The applicant contends that these failures amount to errors of law, and that in so erring the Tribunal exceeded its jurisdiction.
Power of the Tribunal to Decide Questions of Law
An important consideration at this juncture is the status of the Tribunal and its capacity to determine questions of law. Counsel for the applicant and the first respondent both made lengthy submissions as to this point, and in particular, the power of the Tribunal to incorrectly decide the law without exceeding its jurisdiction.
It is clear that a court of law has the power not just to determine questions of law, but also to determine the law incorrectly: Craig v The State of South Australia.[3] These errors may be corrected upon appeal, however, they will not of themselves constitute jurisdictional error giving rise to judicial review. In Craig[4] the High Court said:
Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if appeal is available and pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.
This is not to say that courts have free reign. Some errors of law, such as when the court completely misapprehends it function, will be beyond jurisdiction and subject to judicial review. In Craig[5] the High Court said:
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. …
Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern (footnote omitted).
[3] Craig v The State of South Australia (1995) 184 CLR 163.
[4] Craig (1995) 184 CLR 163 at 179-180.
[5] Craig (1995) 184 CLR 163 at 177.
As pointed out by the applicant, the Tribunal is clearly not an inferior court. The applicant distinguishes the position of an inferior court which has the power to decide questions of law incorrectly with that of an administrative tribunal which, the applicant maintains, does not. In Craig[6] the High Court said:
At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in Re Racal Communications Ltd:
“Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.”
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[6] Craig (1995) 184 CLR 163 at 179.
The applicant argues that no clear words exist in the 1983 Act to rebut the presumption that the Tribunal does not have the power to authoritatively decide questions of law.
The first respondent argues that Craig[7] does not stand for the proposition that all tribunals are presumed to never have jurisdiction to incorrectly decide questions of law. Rather, the court held that a tribunal making an error of law exceeds its authority when that error affects its exercise of power. Whether a mistake affects a Tribunal’s exercise of power depends upon the nature of the tribunal. In support of this interpretation Mr Whittington QC refers to The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission and Another.[8] In that decision Phillip JA stated that the High Court in Craig[9] qualified the circumstances in which an administrative tribunal making an error of law will exceed its authority or powers, namely when “the tribunal’s exercise or purported exercise of power is thereby affected”. Phillips JA said:[10]
One may imagine readily enough a case in which that will be so, but again, there will be many cases – and perhaps more commonly – where it is not so. Ultimately, at all events when what is in question is error in the course of decision-making (as was the case here), the task for the court from which certiorari is sought must be to distinguish between, on the one hand, those matters which the tribunal is given the jurisdiction to decide, and even to decide wrongly (so that error does not go to jurisdiction), and on the other hand those in respect of which, while it may have the power to inquire into them, it does not have the jurisdiction to decide wrongly (so that error does go to jurisdiction).
[7] Craig (1995) 184 CLR 163.
[8] The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission and Another [1999] 2 VR 203.
[9] Craig (1995) 184 CLR 163.
[10] Returned Services League [1999] 2 VR 203 at 210.
The first respondent’s submission is that there is no clear line between an administrative tribunal and a court. In Returned Services League Phillips JA said:[11]
… though their Honours [in Craig] were contrasting the position of a court of law with that of an administrative tribunal, it is becoming increasingly difficult to apply that distinction with any confidence. As counsel for Carlton said, the Liquor Control Commission is established in many ways to resemble a judicial tribunal. But in this area the concern is not so much with the trappings, or indeed the final classification (if that is possible) of the body in question, but with the jurisdiction conferred upon it by the statute, in the sense of the functions committed to it. It was to that end that their Honours were contrasting a court of law with a purely administrative tribunal, pointing out that a court of law will commonly have the jurisdiction to decide questions of law as well as fact, so that if the court goes wrong when deciding a question of law it will be less likely to have fallen into jurisdictional error. But that is not because the body in question is classified as a court of law and not an administrative tribunal, but because being a court of law it probably has had committed to it by the Parliament the task of deciding the question of law, whether it decides it rightly or wrongly - and so in deciding, even if it goes wrong, it does not stray outside its jurisdiction.
It follows from this that there is not a clear line between an inferior court and an administrative tribunal, and that the question of the scope that a decision-making body has to authoritatively determine questions of law is determined by the nature of the tribunal, its enabling legislation and the functions with which it is entrusted.
[11] Returned Services League [1999] 2 VR 203 at 210-211.
Examining the statutory scheme of the 1983 Act, there are a number of indicators that suggest that the Tribunal is a quasi‑judicial body that might be entrusted with the power to authoritatively determine questions of law. The Tribunal is not a court, however, it “exercises a quasi-judicial power”.[12] The Tribunal may summons witnesses, require evidence on oath and inspect materials.[13] The Tribunal may make an order for costs against a party to its proceedings.[14] The Tribunal is not bound by the rules of evidence and may inform itself on matters as it sees fit.[15] It may also make rules regulating its own practice and procedures.[16]
[12] Medical Board of SA v N, JRP & Anor [2006] SASC 19 per Besanko J at [78].
[13] Medical Practitioners Act 1983 (SA), s 62(1).
[14] Medical Practitioners Act 1983 (SA), s 64(2).
[15] Medical Practitioners Act 1983 (SA), s 62.
[16] Medical Practitioners Act 1983 (SA), s 65.
The Tribunal adjudicates over serious allegations such as the present case. Its sanctions range from issuing a reprimand to striking the practitioner from the register and ordering that a fine be paid.[17] The Tribunal is required to accord parties elements of a fair hearing, such as written notice of hearings, the reasonable opportunity to call and receive evidence, examine or cross-examine witnesses and make submissions to the Tribunal.[18]
[17] Medical Practitioners Act 1983 (SA), s 58(3).
[18] Medical Practitioners Act 1983 (SA), s 61(1).
However, other factors suggest that the Tribunal is not of a character that suggests the power to authoritatively determine questions of law. The Tribunal consists of five members, one of whom is the Chief Judge of the District Court or his or her nominee. Of the remaining members two must be medical practitioners, and one must be neither a medical practitioner nor a legal practitioner. Matters before the Tribunal are determined by a majority of members of the Tribunal.[19] I accept the applicant’s submission that it would be strange to find the Tribunal had the power to authoritatively determine questions of law when its decisions might be reached by a majority of persons who are not lawyers.
[19] Medical Practitioners Act 1983 (SA), s 26.
The Tribunal has no power to punish people for contempt.[20] Failure to comply with a direction of the Tribunal may result in a fine or imprisonment, but for this to occur the Tribunal must apply to the Supreme Court to make orders as the court deems fit.[21]
[20] Medical Board of SA v N JRP & Anor [2006] SASC 19 per Besanko J at [56].
[21] Medical Practitioners Act 1983 (SA), s 62(6).
The nature of the Tribunal was recently examined by the Full Court of this Court in the decision of Medical Board of SA v N.[22] There, the Court examined whether the Tribunal had the power to stay proceedings on the grounds that they amounted to an abuse of process. The Medical Practitioners Act 1983 does not expressly give the Tribunal this power, so it was a question of statutory construction of the 1983 Act whether the power arose by implication. The majority held that the statute did not give rise to such an implied power.
[22] Medical Board of SA v N, JRP & Anor [2006] SASC 19.
The balance when determining whether the 1983 Act invests the Tribunal with power to make errors of law is different to the balance that applies to the question of the power to stay proceedings. However, the two matters are likely to involve similar factors. I respectfully agree with the observation of Besanko J in Medical Board of SA v N[23] that although the Tribunal exercises “quasi‑judicial power”, this power is clearly limited and subject to the oversight of the Supreme Court, and that this “is an indicator that Parliament did not consider that the Tribunal would be a body with wide-ranging implied powers”. I find this observation helpful in deciding this matter. I conclude that the Tribunal is not empowered to make errors of law, and that if it did so, it would act beyond jurisdiction.
[23] Medical Board of SA v N, JRP & Anor [2006] SASC 19 per Besanko J at [77].
I turn now to consider the two errors that the Tribunal is alleged to have made.
Failure to Consider the Evidence of the Transcript of Interviews
The applicant tendered to the Tribunal two tape recordings of interviews which were conducted in February and March 2001 between the first respondent and a government investigations officer from the Attorney‑General’s Department. Transcripts of these interviews were also tendered, and these form part of the affidavit of Joseph Neal Hooper tendered upon this application. Both the recordings and the transcript were admitted into evidence by the Tribunal over the objections of the first respondent.
The Tribunal referred to the records of interview and explained its reasons for admitting them into evidence at paras 15 to 20 of its reasons. The Tribunal did not again expressly refer to the interviews in its reasons after this passage. In particular, there was no mention of the interviews in that part of the Tribunal’s reasons where it summarised the evidence given by the first respondent.[24] Because the interviews were not expressly referred to does not necessarily mean that they were not taken into account. In argument the applicant concedes that a lack of reasons with respect to a particular matter would not, of itself, ground a claim for judicial review. Nevertheless, the applicant argues that the reasons might reveal that a relevant consideration was not taken into account. The applicant further argues that the Tribunal’s reasons indicate that the Tribunal did not give genuine and adequate consideration to the evidence of the interviews.
[24] Medical Board of South Australia v T, R [2005] MPPCT 4 at [132]–[135].
A tribunal may exceed its jurisdiction if it fails to take into account a relevant consideration. A tribunal must only consider those considerations of which it is bound to take into account. The question of which considerations a tribunal must take into account is determined by “construction of the statute conferring the discretion”, having regard to its “subject matter, scope and purpose”.[25]
[25] Minister for Aboriginal Affairs v Peko-Wallsend & Others (1986) 162 CLR 24.
The applicant referred to VAAD v Minister for Immigration & Multicultural & Indigenous Affairs[26] as an example of the sort of mistake that a tribunal such as this may not make. There the tribunal failed to take into account a letter that supported the applicant’s case for a visa. The court found that this was a failure to take into account a relevant consideration. The factor was not “so insignificant that failure to take it into account could not have materially affected the decision”; rather the failure “led the Tribunal into error and that error had an adverse effect on the Tribunal’s assessment of the first applicant’s credibility.” The Federal Court found that this error is “properly characterised as jurisdictional error”.[27]
[26] VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77].
[27] VAAD [2005] FCAFC 117 at [82].
In the matter before the Court the applicant relies upon s 58 of the 1983 Act:
58.(1) A complaint alleging unprofessional conduct –
(a)on the part of a medical practitioner; or
(b)on the part of a person who was at the relevant time a medical practitioner;
may be laid before the Tribunal by the Board.
(2) Where a complaint has been laid under this section, the Tribunal shall inquire into the subject matter of the complaint.
(3) If, after the conducting an inquiry under this section, the Tribunal is satisfied –
(a)in the case of a medical practitioner, that he has been guilty of unprofessional conduct, it may, by order, do one or more of the following:
(i)reprimand the medical practitioner;
(ii)order the medical practitioner to pay a fine not exceeding five thousand dollars;
(iii)impose conditions restricting his right to practise medicine;
(iv)suspend the registration of the medical practitioner by removing his name from the general register or the specialist register for a period not exceeding one year;
(v)cancel the registration of the medical practitioner on the general register or on the specialist register; or
(b)in the case of a former medical practitioner, that when he was a medical practitioner he was guilty of unprofessional conduct, it may order him to pay a fine not exceeding five thousand dollars.
The applicant argues that, properly constructed, subs 2 and subs 3 require the Tribunal not just to investigate, but to investigate properly a complaint laid before it. Counsel for the applicant stated:
In short, an inquiry involves the hearing and determination of a complaint, and that is a mandatory obligation. What we say here is that the tribunal has simply failed to exercise the jurisdiction, because although material was presented to it and received on the alternative complaint, it ultimately didn’t inquire in the sense of here determining that complaint and that’s evident from the reasons …
The applicant therefore submits that the Tribunal, having received the evidence of the interviews, is required to give proper regard to it.
The applicant concedes that the Tribunal referred to the interview evidence when discussing the question of its admission, however, the applicant argues that this is not sufficient. In support of this point the applicant refers to Turner v Ministerfor Immigration and Ethnic Affairs[28] where Toohey J stated that the “mere assertion” by the decision maker that he has taken a relevant consideration into account will not conclude the matter:[29]
It may be possible to demonstrate from a consideration of all the reasons leading to the decision or indeed from the decision itself that a consideration has not been taken into account in any real sense. Conversely the omission of an express reference to some consideration will not lead inevitably to a conclusion that it was not taken into account. An examination of the reasons for decision and of the decision itself may justify the inference that it was.
[28] Turner v Ministerfor Immigration and Ethnic Affairs (1981) 35 ALR 388.
[29] Turner (1981) 35 ALR 388 at 392.
The applicant places particular reliance upon Re: Sabrina Khan by her next friend Ashraf Houssain Khan & Ors v The Minister for Immigration & Ethnic Affairs[30] where Gummow J stated that the decision maker is required to give “proper, genuine and realistic consideration to the merits of the case”:[31]
The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense.
The apparently broad reach of these words needs to be read in the context of the limited role that is commonly accorded a court when reviewing the fact‑finding of a decision maker. In Minister for Aboriginal Affairs v Peko-Wallsend & Others, Mason J said:[32]
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.
In Bruce v Cole,[33] Spigelman CJ refers to the approaches in Khan[34] and Turner[35]:
These particular formulations must be treated with care, so that the relevant/irrelevant considerations ground is not expanded to permit review of the merits.
He affirmed the more restrictive approach of Mason J in Peko-Wallsend.[36]
[30] Re: Sabrina Khan by her next friend Ashraf Houssain Khan & Ors v The Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987).
[31] Khan (unreported, Federal Court of Australia, Gummow J, 11 December 1987) at [25].
[32] Minister for Aboriginal Affairs v Peko-Wallsend & Others (1986) 162 CLR 24 at 41.
[33] Bruce v Cole (1998) 45 NSWLR 163 at 186.
[34] Khan (unreported, Federal Court of Australia, Gummow J, 11 December 1987).
[35] Turner (1981) 35 ALR 388.
[36] Minister for Aboriginal Affairs v Peko-Wallsend & Others (1986) 162 CLR 24.
The applicant argues that the Tribunal, having admitted the evidence of the interviews, then disregarded this evidence or did not give it sufficient regard. I do not believe this was the case. The Tribunal heard oral testimony from the first respondent during the trial, and this testimony was subjected to extensive cross‑examination. The interviews which were admitted by the Tribunal formed the basis of much of the cross-examination. There were apparent inconsistencies between the evidence of the first respondent in the records of interview and before the Tribunal, and these inconsistencies were extensively explored in cross‑examination. These were all matters that went to the first respondent’s credit and to which the Tribunal had regard when assessing the evidence. I am satisfied that the Tribunal had regard to the evidence of the records of interview, and the fact that the Tribunal did not refer to them in detail in its reasons does not alter this conclusion. It follows that the Tribunal did not make an error of law in this regard.
Failure to Give Proper and Genuine Consideration to the Alternative Count
The applicant argues that having decided that the first complaint was not made out, the Tribunal then failed to give adequate and genuine consideration to the applicant’s second ground of unprofessional conduct. The Solicitor-General submits that the Tribunal “simply failed to rationally engage with the alternative count …” and that the Tribunal’s reasons do not “engage with the gravamen of the complaint”.
A ground of judicial review exists where a decision is grossly illogical or irrational. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002,[37] the High Court examined the applicant’s claims that a decision of the Refugee Review Tribunal displayed jurisdictional error because it was “irrational, illogical and not based upon findings or inferences of fact supported by logical grounds”. Gleeson CJ, McHugh and Gummow JJ indicated that true illogicality would ground a claim of judicial review, but decided in the event that the decision complained about “was not irrational or illogical as the applicant contends” (McHugh and Gummow JJ at 67). From their judgments it is clear that a high bar is set to demonstrate that a decision is illogical and irrational enough to be in error. Gleeson CJ said:[38]
… to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
He continued:[39]
To describe as irrational a conclusion that a decision-maker is not satisfied of a matter of fact, or a state of affairs, because the decision-maker does not believe the person seeking to create the state of satisfaction, or to describe the process of reasoning leading to such a conclusion as illogical, on judicial review of an administrative decision, might mean no more than that, on the material before the decision-maker, the court would have reached the required state of satisfaction. Ordinarily, however, it will be necessary to go further, as in the respects mentioned by Dixon J. If, in a particular context, it is material to consider whether there has been an error of law, then it will not suffice to establish some faulty inference of fact. On the other hand, where there is a duty to act judicially, a power must be exercised "according to law, and not humour", and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond may involve non‑compliance with the duty. Furthermore, where "the true and only reasonable conclusion contradicts [a] determination" then the determination may be shown to involve legal error. It is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogicality, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged. (Citations omitted)
[37] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59.
[38] S20 (2003) 198 ALR 59 at 61.
[39] S20 (2003) 198 ALR 59 at 62.
It is appropriate at this juncture to reflect upon the complaint itself, and the manner in which the Tribunal dealt with it. The amended complaint consisted of eleven paragraphs. The first nine paragraphs set out the factual basis for the complaint. Without quoting the entire document, I set out the pertinent allegations:
·Paragraph 1 stated that the respondent was a registered psychiatrist.
·Paragraph 2 stated that the patient suffered from an anxiety disorder and was referred to the first respondent for cognitive therapy. He treated her on 14 occasions.
·Paragraph 3 stated that the first respondent was in a “privileged position of trust” and was “obliged to act ethically and properly in the interest and welfare of the patient” and “was not entitled to use the professional relationship … for the purpose of pursuing a personal or sexual relationship with the patient”.
·Paragraph 4 stated that the respondent focussed the conversation upon sexual matters during appointments on 2 May, 23 May and 30 May 2000.
·Paragraph 5 alleged that on 2 May 2000 the first respondent made a number of sexually provocative comments, stated that there would not be a clear doctor/patient line in the therapy and suggested that the consultations be changed in duration and frequency.
·Paragraph 6 stated that on 23 May 2000 the first respondent again focussed on sexual issues. He remarked that 30 per cent of “shrinks” crossed the line sexually and suggested that she smoke cannabis in the future. He dimmed the lights and made sexually provocative remarks including discussing kissing and hugging her and suggesting that she have an affair and not tell her husband.
·Paragraph 7 stated that the first respondent asked the patient what she thought of his questioning, and she replied that either he was trying to help or he was “trying to get into her pants”. He would not say which was the case, causing the patient discomfort and confusion.
·Paragraph 8 stated that on 30 May 2000 the first respondent asked whether the patient had discussed the appointment with her husband. He turned off the lights and asked her if she had been able to fantasise about him. He made a number of sexual comments such as that they would have ended up in bed together if they had met socially, and that they should have an affair. This made her very anxious, and later she telephoned the first respondent to arrange a further appointment.
·Paragraph 9 described the second appointment on 30 May. It says that the first respondent again turned off the main light. The patient asked the first respondent what direction the treatment was heading in. He replied that she made him anxious, that he “didn’t know what to do about it” and “that he might be in the same position as her”. He discussed having a relationship with her and arranging a motel room. He told her that they could continue therapy and that “the ball was in your (the patient’s) court”.
Paragraphs 10 and 11 of the amended complaint are quoted above. They reduced the alleged facts to two grounds of complaint – “improper, unethical and unprofessional” conduct and “unprofessional, negligent and incompetent” treatment – and they particularised these grounds.
Commencing at para 168 of its reasons, the Tribunal turned to the “Grounds of the Complaint”. The way in which the Tribunal did this deserves comment. The Tribunal did not deal with the particulars of the grounds of complaint as listed in paras 10 and 11 of the amended complaint. Rather, it dealt with the alleged facts, devoting a subparagraph of para 168 to each of the first nine paragraphs of the amended complaint. Again, without reproducing the entire paragraph, I will quote pertinent findings:
·At subparas168.1 and 168.2 the Tribunal agreed with the uncontroversial facts of paras 1 and 2 of the complaint.
·At subpara 168.3 the Tribunal agreed with the content of para 3 of the complaint, noting the first respondent’s concession that he would have breached his duties as a psychiatrist were he guilty of the conduct attributed to him.
·At subpara 168.4 the Tribunal found that from 2 May 2000 the first respondent focussed consultations on matters of a sexual nature, but that in light of the patient’s psychiatric conditions and Dr McMurdo’s evidence this did not of itself amount to unprofessional conduct.
·At subpara 168.5 the Tribunal made express findings as to the events of the 2 May 2000 consultation, effectively rejecting the substance of para 5 of the complaint: that the respondent discussed with the patient a shift in approach towards sexual matters and that the patient agreed to this, but that there was no agreement that appointments might change in frequency and duration, and that the first respondent did not state that there would not be a distinct line between doctor and patient over the coming weeks.
·At subpara 168.6 the Tribunal found that during the 23 May 2000 consultation “the first respondent pursued a ‘conscious therapeutic decision’ to focus on the patient’s ‘ambivalent relationships with men in general and her sexual difficulties in particular’.” The first respondent used himself as a “prototypical male” in the therapy. This role was unclear, but not improper. The remark about “30 per cent of shrinks crossing the line” did not have sexual connotations. The first respondent did not suggest that the patient smoke cannabis, and he did not make any comments of a “sexually suggestive nature”.
·At subpara 168.7 the Tribunal found that the good/dangerous dichotomy was applied to the first respondent, but that it was unlikely that the patient directly confronted the first respondent with the possibility that he was seeking a sexual relationship and that he refused to tell her if this was the case. The discussion regarding the dichotomy caused the patient anxiety, discomfort and confusion, but this was because of the “therapeutic nature” of the discussion and the particular interpretation put on it by the patient.
·At subpara 168.8 the Tribunal examined the first consultation on 30 May 2000. The Tribunal found that the first respondent asked the patient how she had “held up since the last appointment” and whether she had discussed the appointment with her husband. He also adjusted the lighting of the room. The first respondent did not make the sexually suggestive comments alleged in para 8. At the end of the consultation, the patient probably asked the first respondent “to show his hand”, but this was the result of “[the patient] following a plan of her own, a plan which depended upon the construction she was placing on the consultations…”. The patient called the first respondent’s practice later in a very distressed state. She claimed that this was to “clarify the motives” of the first respondent, however, the Tribunal found that this again was the product of “her subjective interpretation of events” rather than any “sexually inappropriate comments made by the respondent”.
·At subpara 168.9 the Tribunal reviewed the events of the second consultation on 30 May 2000. The Tribunal found that the patient attended the rooms in a very disturbed state, that the first respondent adjusted the lighting, and the patient asked the first respondent to tell her “what direction his treatment was heading in”. He told her that she might be making him feel uncomfortable, but did not make the other sexual comments attributed to him.
These passages deal with and reject most of the allegations against the first respondent. Having so dealt with the factual basis of the amended complaint, the Tribunal concluded at paras 169 and 170 that the first and second grounds of complaint were not made out.
The Tribunal in its reasons did not expressly deal with the particulars of the grounds of complaint as outlined in paras 10 and 11 of the complaint. For example, the Tribunal did not squarely reject that the first respondent “sought to pursue an intimate personal and/or sexual relationship with the patient for his own gratification” (para 10(a) of the complaint).
The applicant argues that the Tribunal’s failure to properly deal with the particulars was an error, at least with regard to the second ground of complaint. It might have been preferable if the Tribunal had dealt more clearly with these particulars. However, the findings that the Tribunal made at para 168 of its reasons meant that it did not need to do so. Those findings are consistent with the Tribunal’s rejection of the grounds of complaint and their particulars.
The findings at para 168 left no basis for the Tribunal to be satisfied to the requisite degree that the first respondent had sought to pursue a personal or sexual relationship with the patient (para 10(a)). Nor were they consistent with the allegation that he had abused his position of trust as her treating psychiatrist (para 10(b)), that he had acted in a manner to give rise to an unnecessary and unacceptable risk of harm to her (para 10(d)), or that he had acted in a manner as to put at risk her trust and confidence in him as her treating psychiatrist (para 10(e)). That he had failed to observe and maintain appropriate ethical and professional boundaries in the doctor/patient relationship (para 10(c)) was expressly rejected at subpara 168.5. The claim that he had inappropriately and unnecessarily increased her anxiety levels (para 10(f)) was implicitly rejected at subpara 168.7, and this was supported by the finding at para 171 that:
A change of therapy, requiring a specific and different focus, may increase anxiety. That would not necessarily be unexpected nor be inappropriate, provided progress was monitored and the patient was reviewed regularly.
That he had acted in a manner as to inappropriately and unnecessarily promote sexualization of the therapy (para 10(g)) was rejected at subpara 168.6 and earlier at para 164. That he had acted in a manner as to confuse the professional relationship and create uncertainty as to his motives (para 10(h)) was excluded at subpara 168.8.
The particulars of the second ground were excluded in much the same way. This is not surprising given the similarities between the respective particulars of the first and second grounds, something pointed to by counsel for the first respondent. Particular 11(a) stood apart as distinct from the particulars in para 10. However, the rest of the para 11 particulars are identical in substance to the particulars in para 10. Particular 11(b) is broadly stated and adds little of substance to 11(a), but even if it did, it is substantially the same as 10(f) and 10(h). Particular 11(c) is substantially identical to 10(c). Particular 11(e) is substantially identical to 10(b). Particular 11(f) is 10(d) restated. Particular 11(g) is 10(g) restated. This goes some way to explaining the approach taken by the Tribunal in dealing with the two grounds of complaint. Both grounds arose from the same factual basis and had very similar particulars.
Particular 11(a) - that the “respondent’s purported treatment of the patient was unprofessional, negligent and incompetent in that … it was not consistent with any recognised or accepted method of psychiatric treatment” - is the real point of difference between the two grounds. The Tribunal heard extensive evidence on this point from Dr McMurdo and dealt with his evidence at some length in its reasons. Dr McMurdo’s evidence was primarily relevant to the question of whether the first respondent’s treatment was consistent with that recognised or accepted by his profession. It had nothing to do with the patient’s credibility nor anything to do with the first ground of the complaint. The gist of Dr McMurdo’s evidence squarely concerned the second ground, namely whether the first respondent’s purported treatment of the patient was unprofessional, negligent and incompetent with regard to the recognised and accepted practice of his profession.
The Tribunal considered Dr McMurdo’s evidence at length at paras 153 to 168. It then applied this evidence to the question of whether the first respondent’s treatment was incompetent at paras 170 to 175. The Tribunal concluded that while the first respondent’s treatment was “overly ambitious”, “heroic” and “naïve”, it was not incompetent:[40]
There is, however, no evidence to suggest that the style of therapy employed by the respondent fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competency, or that the respondent’s treatment of [the patient] was otherwise incompetent or negligent.
Dr McMurdo’s evidence was in some ways critical of the first respondent’s treatment, and the Tribunal considered this. By considering his evidence the Tribunal was giving very real consideration to the gravamen of the second count. It was certainly open for the Tribunal to conclude as it did. Such a conclusion in no way meets the high standard of illogicality required to make out a claim of jurisdictional error.
[40] Medical Board of South Australia v T, R [2005] MPPCT 4 at [174].
Conclusion
For the reasons above I find that the Tribunal did not fail to take into account probative evidence on the alternative count of unprofessional conduct. I also find that it did not fail to give proper and genuine consideration to the alternative count of unprofessional conduct. Accordingly, the Tribunal did not make an error of law such that it exceeded its jurisdiction. I dismiss the application.
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