MEDICAL BOARD OF WESTERN AUSTRALIA and A MEDICAL PRACTITIONER

[2005] WASAT 313

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: MEDICAL ACT 1894 (WA)

CITATION:   MEDICAL BOARD OF WESTERN AUSTRALIA and A MEDICAL PRACTITIONER [2005] WASAT 313

MEMBER:   JUSTICE M L BARKER (PRESIDENT)

MR M ALLEN (SENIOR MEMBER)
DR J PENMAN (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)

HEARD:   ON THE PAPERS

DELIVERED          :   30 NOVEMBER 2005

FILE NO/S:   VR 361 of 2005

BETWEEN:  

MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant

AND

A MEDICAL PRACTITIONER
Respondent

Catchwords:

Professions – Medical practitioner – Disciplinary proceedings – Practitioner’s ability to practise affected by mental illness – Practitioner currently suspended from registration for two years – Whether registration should be further suspended or practitioner’s name removed from register

Legislation:

Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 5

Medical Act 1894 (WA), s 9, s 11AA(a), s 12BA, s 13, s 13(1), s 13(1)(e), s 13(3a), s 13(9a), s 13(9b), s 13(9)(ba)
Mental Health Act 1996 (WA), s 43, s 49
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal Act 2004 (WA), s 11(3), s 11(4)

Result:

The practitioner's name be removed from the register maintained under the Medical Act 1894 (WA) immediately upon the expiration of his current suspension on 1 November 2005.

Category:    B

Representation:

Counsel:

Applicant:     N/A

Respondent:     N/A

Solicitors:

Applicant:     Tottle Partners

Respondent:     Clayton Utz

Case(s) referred to in decision(s):

Craig v Medical Board of South Australia (2001) 79 SASR 545

Jemielita v The Medical Board of Western Australia, unreported; Supreme Court of WA; Library No 920584, 13 November 1992

New South Wales Bar Association v Evatt (1968) 117 CLR 177

Ziderman v General Dental Council [1976] 1 WLR 330

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. On 27 September 2005 the Medical Board of Western Australia, acting under s 13(9b) and s 13(9ba) of the Medical Act 1894 (WA) made an order that the suspension of the practitioner's registration as a medical practitioner be extended for a period of 30 days from 2 October 2005 and referred the making of that order to the State Administrative Tribunal.

2. The issue to be determined by the Tribunal was whether the period of the practitioner's suspension from registration should be extended for a further period not exceeding 12 months or whether his name should be removed from the register upon the expiration of the period of suspension.

3. The practitioner's registration as a medical practitioner had twice previously been suspended pursuant to s 13 of the Act because the Board was satisfied that he suffered from a mental illness to such an extent that his ability to practise as a medical practitioner was or was likely to be affected.

4. The Tribunal determined that, having regard to the history of the matter, the nature and circumstances of the practitioner's mental illness, and the need to protect the public interest, it was appropriate that the practitioner's name should be removed from the register of medical practitioners immediately upon the expiration of the period of suspension. The full terms of the Tribunal’s orders are set out at [12] below.

The Issue

1. The practitioner was born in 1954.  He graduated and became registered as a medical practitioner in 1978 and practised in the area of general practice until 2003.

2. In about 1986 the practitioner was diagnosed as suffering from a mental illness, namely bipolar affective disorder, and in April 2003 he wrote to the Medical Board (the Board) advising that he wished to retire from the practice of medicine because of his illness.  The Board took the view that it had no power to remove the practitioner's name from the register of medical practitioners without holding an inquiry and making decisions under the provisions of the Medical Act 1894 (WA) (the Act). It held such an inquiry and found that the practitioner suffered from a mental illness to such an extent that his ability to practise as a medical practitioner was or was likely to be affected. By orders dated 13 October 2003 the Board ordered, amongst other things, that the practitioner's registration be suspended for a period of 12 months and that the inquiry be otherwise adjourned.

3. On 26 July 2004 the Board reconvened its inquiry and ordered that the practitioner’s registration be further suspended until 2 October 2005.

4. In September 2005 the Board again considered the state of the practitioner's mental health.  On 27 September 2005 the Board ordered that his suspension from registration be extended for a further period of 30 days from 2 October 2005 and the making of that order be referred to the State Administrative Tribunal (the Tribunal).

5. When the matter came before the Tribunal on 25 October 2005 orders were made that the Board should file a statement of agreed facts and documents relevant to the matter after consultation with the practitioner's solicitors and that the parties were to file written submissions on the most appropriate order to be made under the Act.  By consent the Tribunal also ordered that the proceeding should then be determined by the Tribunal on the documents.

6. Each party filed written submissions and the applicant filed a statement of agreed facts and a bundle of agreed documents. 

7. The agreed issue to be determined by the Tribunal was whether the practitioner should be suspended for a further period not exceeding 12 months or have his name removed from the Register under the Act. 

8. On 28 October 2005, the Tribunal gave its decision on the matter and made the following orders:

   (a)The name of […] the practitioner be removed from the Register maintained under the Medical Act 1894 (WA) immediately upon the expiration of his current period of suspension on 1 November 2005.

   (b)There be no order as to costs.

   (c)The name of the practitioner shall not be published.  However, the Registrar of the Medical Board may communicate the full terms of this Order to competent medical registration authorities, hospitals, clinics or medical practices on a confidential basis.

   (d)Reasons for decision will be published by the Tribunal.

The decision-making context

1. The Act has been amended in material ways since the Board first suspended the practitioner's registration. Section 13 of the Act was amended by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) to confer jurisdiction upon the Tribunal to deal with allegations against medical practitioners (the 2004 amendments). Section 13(1) relevantly provides that the Board may allege to the Tribunal “…that disciplinary action should be taken against…” a medical practitioner where it appears to the Board that the practitioner may be:

   "(a)guilty of infamous or improper conduct in a professional respect;

   (b)affected by a dependence on alcohol or addition to any deleterious drug;

   (c)guilty of gross carelessness or incompetency;

   (d)guilty of not complying with or contravening a condition or restriction imposed by the Board with respect to  practise of medicine by that medical practitioner; or

   (e)suffering from physical or mental illness to such an extent that his or her ability to practise as a medical practitioner is or is likely to be affected".

2. We observe at the outset that it is unfortunate that action that might be taken in respect of a medical practitioner suffering from physical or mental illness should be characterised as disciplinary action.  We emphasise that in these proceedings no allegation has been made that the practitioner has been guilty of any form of professional misconduct.  Rather, the matter is concerned only with the impact of the practitioner’s acknowledged mental illness upon his ability to practise medicine.

3. Section 13(3a) of the Act relevantly provides that when the Tribunal is dealing with an allegation about a medical practitioner under s 13(1)(e) the Tribunal may:

   "(a)order the removal of the name of the medical practitioner from the register;

   (b)order that the registration of the medical practitioner be suspended; or

   (c) impose restrictions or conditions or both on the practice of medicine by the medical practitioner."

4. Prior to the 2004 amendments to the Act the power to suspend the registration of a medical practitioner or to remove the name of a practitioner from the register resided with the Board pursuant to s 13. Since the 2004 amendments s 13(9b) relevantly provides that if a person's registration has been suspended and the Board, "… having regard to the conduct or state of health of that person during the period of suspension …", is of the opinion that the person ought not to be permitted to resume practice upon the expiration of the period of suspension, then the Board may make what the Act refers to as an "interim order" that the period of suspension be extended for a period of not more than 30 days. If the Board makes such an interim order then it is required by s 13(9ba) to refer the making of the order to the Tribunal within 14 days after the order is made, and the Tribunal may:

   " … affirm or revoke the interim order or order that -

   (a)the period of suspension be extended for such further period not exceeding 12 months, as the Tribunal thinks fit; or

   (b)the name of that person be removed from the register immediately upon the expiration of the period of suspension."

5. The Board's order of 27 September 2005 referred to earlier was made pursuant to s 13(9b) and the matter now comes before the Tribunal in accordance with s 13(9ba). The Tribunal was constituted in accordance with s 11(3) and s 11(4) of the State Administrative Tribunal Act 2004 (WA) for the proceedings.

Relevant decision-making principles

1. It is not in dispute between the parties that the practitioner suffers from a mental illness and that, by reason of that illness, he is not presently fit to practise as a medical practitioner.  The issue between the Board and the practitioner is whether his suspension should be extended for a further period of 12 months, to 1 November 2006, or whether his name should be removed from the register immediately upon the expiration of the present period of suspension on 1 November 2005. 

2. It is clear from the authorities that when considering imposition of the sanctions provided for in s 13 of the Act a body such as the Tribunal must have as the primary consideration the protection of the public interest and not the punishment of the practitioner:  New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183 – 184; Jemielita v The Medical Board of Western Australia, unreported; Supreme Court of WA; Library No 920584, 13 November 1992 at 144 – 146 per Owen J.  In addition, there is a need to maintain the high standards and good reputation generally of the profession concerned in the eyes of the community: Ziderman v General Dental Council [1976] 1 WLR 330 at 333. The need to protect the public will sometimes require the imposition of a sanction that has a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration: Craig v Medical Board of South Australia (2001) 79 SASR 545 at 554 per Doyle CJ. The exercise of the discretion to impose sanctions requires the consideration of all the circumstances surrounding the events in question giving rise to the allegations against the practitioner.

Consideration of the issue

1. The reports made by various medical practitioners about the history and nature of the practitioner's mental illness contained within the bundle of agreed documents (the Bundle) make it clear that he has suffered from his mental illness since at least the mid 1980s, that he has been treated in both the public and private health systems, and that he has had many admissions to psychiatric hospitals since that time, the first occurring in 1986.  Some of the admissions to hospital were as an involuntary patient under the provisions of the Mental Health Act 1996 (WA) (the Mental Health Act) and its predecessor legislation. The practitioner has experienced both manic and depressive episodes to a significant extent as part of his illness.

2. A report by the practitioner's private treating psychiatrist (Dr De Felice) of August 2004 (pages 53 and 54 of the Bundle) records that Dr De Felice had treated the practitioner since late 1998, at which time he remained in full‑time general practice, but by mid 1999 the practitioner was sufficiently affected by depressive symptoms of his illness that he was certified fit for work only on a half‑time basis.  By early 2001 the practitioner was thought to be sufficiently stable to work full‑time, but by mid 2002 he had become unwell again with a manic episode.  By November 2002 Dr De Felice certified that the practitioner was unfit to work at all and the practitioner of his own volition has not worked as a medical practitioner since that time.

3. In a report to the Board in September 2003 (which was referred to in the Board's Reasons for Decision dated 8 October 2003) Dr De Felice expressed the view that the practitioner remained unfit to work as a medical practitioner and that he agreed with the practitioner's own conclusion that the stressors and demands of general practice may in the past have contributed to the lack of stability in the practitioner's mental health.

4. In July 2004 a consultant psychiatrist, Dr Burvill, saw the practitioner on referral from the Board's solicitors.  Dr Burvill reported (pages 47 – 51 of the Bundle) that he considered that the hypomanic aspect of the practitioner's illness was not under full control at that time and he suspected that the psychiatric symptoms had not been fully under control for a considerable time – not due to inadequate treatment but due to the nature and severity of the practitioner's condition.  On the information available to him Dr Burvill considered that the practitioner was not ready to recommence clinical practice.

5. Paragraph 8 of the statement of agreed facts before the Tribunal describes events that occurred on 12 July 2005 as follows:

   "On 12 July 2005 the [practitioner] was arrested outside [a suburban medical centre] (the Centre).  The [practitioner] is alleged to have smashed the front window of the Centre, thrown fuel into the Centre and to have set the fuel alight.  When the police arrived at the Centre the [practitioner] is alleged to have been sitting on the roof of his car, with a rope tied around his neck and shouting obscenities.  The [practitioner] is then alleged to have smashed his car with dumbbells.  The police took the [practitioner] to Alma Street Clinic, in Fremantle."

6. A police statement of material facts (pages 38 and 39 of the Bundle) refers to the estimated cost of damage to the Centre as approximately $150 000, that the premises were completely affected by the fire, and all equipment and patient records destroyed.  The practitioner was charged with the offence of wilfully and unlawfully destroying property by fire.

7. After an assessment at the Alma Street Clinic, on 18 July 2005 the practitioner was taken to the Frankland Centre at Graylands Hospital pursuant to a hospital order made under s 5 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) for further examination. On 25 July 2005 a psychiatrist made an order pursuant to s 43 of the Mental Health Act that the practitioner was to be detained as an involuntary patient at Graylands Hospital. On 22 August 2005 a further order was made under s 49 of the Mental Health Act that the detention as an involuntary patient at Graylands Hospital continue, with that order to operate until 22 February 2006. The practitioner remains a patient at Graylands and has recently been transferred to an open ward due to an improvement in his mental state.

8. The Bundle (at pages 63 – 69) contains reports made in September 2005 to the Court of Petty Sessions, the Mental Health Review Board and the practitioner's solicitors by Dr Pascu, the psychiatrist at Graylands who ordered the detention as an involuntary patient.  Dr Pascu described in those reports the stressors on the practitioner arising from difficult family circumstances in recent times and expressed the opinion that the recent deterioration in the practitioner's psychiatric condition, which culminated in him committing the offence referred to above, was most likely related to these stressors combined with poor compliance with medication which affected his judgment and his actions.  Dr Pascu referred to the chronic and fluctuating nature of the practitioner's illness and expressed the opinion that he could see no reason why the practitioner would not be able to work while his mental state is stable and he has treatment.  Dr Pascu considered that with regular treatment and appropriate follow‑up in the community the practitioner's mental illness could be controlled sufficiently to enable him to return to some form of medical practice.

9. On the evidence outlined above, the Tribunal is satisfied, and the practitioner does not dispute, that the conduct and state of health of the practitioner during the period of his suspension has been such that he should not be permitted to resume practice at the present time.  As noted earlier the issue between the parties is whether the practitioner should be suspended for a further period or his name removed from the Register.

10. For the Board it is contended that the removal of the practitioner's name from the Register is the appropriate course to take because, in that event, there would be no need for either the Board or the practitioner to take any action until the practitioner considers that he is ready to reapply for registration. Section 13(9)(a) of the Act permits a person whose name has been erased from the register to apply to the Board at 12 monthly intervals to have his or her name restored to the register. By virtue of s 11AA(a) of the Act the Board would not be able to re-register the practitioner unless satisfied that he was competent to practise medicine, including that he has sufficient mental capacity to do so. The practitioner would therefore be required to satisfy the Board that he was at the time of his new application sufficiently recovered from his mental illness to practise medicine.

11. The Board contends that a further suspension for 12 months would result in the practitioner's name being automatically restored to the register at the end of that period unless, prior to the expiration of the period, the Board again acted under s 13(9b) or exercised its powers under s 12BA of the Act to order that the practitioner not practise medicine for a period of 30 days. In either case it would be necessary for the Board to refer such orders to the Tribunal.

12. The Board further contends that although it appears that the practitioner's condition has improved since July 2005 he remains far from well and there is no knowing when, or if, he will be fit to practise medicine again.  In those circumstances the onus should be on the practitioner to apply for registration when he determines, with his medical advisors, when he is ready to return to practice.

13. On the other hand, it is contended on behalf of the practitioner that a further suspension is appropriate for the following reasons:

    •The practitioner has suffered from his illness for many years but was, nevertheless, able to continue to practise as a general practitioner at a high level until he self‑reported to the Board in 2003.

    •The recent deterioration was due to the combined effect of his psychiatric condition and a particularly stressful period in his life.  His social circumstances are now improving as he addresses some of the family matters that have concerned him and he is optimistic about his prospects of recovering to his pre‑suspension level of functioning.

    •The practitioner considers he is unlikely to return to practise medicine as a full‑time general practitioner but believes he can still make a contribution, particularly in relation to the counselling and treatment of people who suffer from mental illnesses.

    •De‑registration would have a negative effect on his present optimism for the future and remove an important sense of identification with his profession.

    •This is a case of a practitioner who, through no fault of his own, is suffering from a medical condition and the Tribunal should exercise its power by imposing the minimum penalty available ‑ and de‑registration would go beyond what is required in the circumstances.

    •Any administrative burden on the Board that might result from a further suspension should not be seen as an onerous task because that is one of the Board's roles.

    •The Board should encourage self‑reporting by practitioners and a penalty that goes beyond what is necessary to protect the public interest, in the name of administrative expedience, may discourage self‑reporting and run the risk of alienating and marginalizing practitioners who might otherwise approach the Board in the belief that the Board will take action that is proportional to the circumstances of the case, and no more.

    •If a further suspension were imposed it would be open to the Board to make an application to the Tribunal under s 13(1)(e), in which case the Tribunal would have the power to order, under s 13(3a), a suspension for a period longer than 12 months.

1. We consider that administrative convenience alone would not be a sufficient reason to prefer de‑registration of the practitioner over a further period of suspension. It is true that at the end of a period of suspension the name of the suspended person is "deemed automatically to be restored to the register, and his rights and privileges as a medical practitioner shall thereupon be revived": s 13(9)(b). However, the Board would retain the ability, pursuant to s 13(9a) to impose any conditions that it thinks necessary in the public interest limiting or otherwise qualifying or affecting the manner in or places at which the person may practise at that time.

2. The submissions made on behalf of the practitioner, in particular those concerning the desirability of encouraging self‑reporting by medical practitioners who suffer from a physical or mental illness and the need to impose sanctions that do not go beyond what is necessary to protect the public interest, have considerable merit.  We consider that if this were the first consideration of the practitioner’s position, then it may be appropriate to favour suspension over de‑registration.  However, that is not the present case.  The practitioner has not practised medicine in any form for almost three years due to a chronic and difficult to treat mental illness, and it is apparent that he suffered a major and debilitating relapse of his condition in mid‑2005.  As a consequence his judgment and behaviour were adversely affected to a very substantial degree such that he apparently engaged in the conduct described above.  He remains an involuntary patient and there is no indication as to when his condition will stabilise to such an extent that he can be discharged from that status.

3. Bearing in mind that the primary consideration to which we must have regard is the protection of the public interest, as well as the need to maintain the high standards and good reputation of the medical profession, we consider that a further period of suspension in the present circumstances would not be appropriate. We consider that the practitioner should, prior to any re‑instatement of his registration as a medical practitioner, be required to demonstrate to the Board's satisfaction that his chronic and severe mental illness has stabilised and is under control. This would involve a demonstration of a consistent and lengthy period of euthymic mood over an extended period, satisfactory self‑monitoring of his mental state, appropriate follow up by his psychiatrist (whether by way of a community treatment order under the Mental Health Act or otherwise), and a continuation of psychotherapy, if that is considered necessary, to cope with the ongoing stresses from the practitioner's social circumstances.

4. The demonstration of those matters to the Board's satisfaction and the protection of the public interest can best be achieved by way of an application to the Board for re‑registration at the appropriate time - and the appropriate way to achieve that outcome is by a removal of the practitioner's name from the register. 

Conclusion

1. For these reasons the Tribunal made the orders set out earlier.

   I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

   ___________________________________

   JUSTICE M L BARKER, PRESIDENT