Medical Board Of Western Australia and A Practitioner
[2009] WASAT 39
•6 MARCH 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL ACT 1894 (WA)
CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and A PRACTITIONER [2009] WASAT 39
MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
DR A PASSMORE (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR G LIPTON (SENIOR SESSIONAL MEMBER)
HEARD: 15 DECEMBER 2008
DELIVERED : 6 MARCH 2009
FILE NO/S: VR 51 of 2008
BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
A PRACTITIONER
Respondent
Catchwords:
Vocational regulation Medical practitioner Cancellation of registration Misleading conduct Misleading foreign registration authorities Failure to disclose disciplinary proceedings Failure to disclose disability by reason of depressive illness Infamous conduct Protection of the public
Legislation:
Interpretation Act 1984 (WA), s 36, s 37, s 37(1)(f)
Medical Act 1894 (WA), s 12BA(1)(a), s 12BB(1)(a), s 13, s 13(1)(a)
Medical Practitioners Act 2008 (WA), s 76, s 76(1)(d), s 160, Sch 2 cl 2
Mental Capacity Act 2005 (UK)
Result:
The Practitioner's name removed from the register
Category: B
Representation:
Counsel:
Applicant: Mr J Urquhart and Ms F A Stanton
Respondent: Mr M L Bennett and Ms J Crawford
Solicitors:
Applicant: McCallum Donovan Sweeney
Respondent: Lavan Legal
Case(s) referred to in decision(s):
Allinson v General Council of Medical Education and Registration [1894] I QB 750
Medical Board of Western Australia and Bham [2006] WASAT 190
Mijatovic re Legal Practitioners Complaints Committee [2008] WASCA 115
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
In these proceedings, the Medical Board of Western Australia sought the cancellation of the registration of a medical practitioner. The application was based upon allegations that the practitioner had sought to practise medicine in South Africa without disclosing to the appropriate authorities in that country that he was subject to a number of disciplinary actions in Western Australia, and in some cases actively misleading those authorities as to his standing as a medical practitioner in Western Australia.
In his response to the application, the practitioner denied that he had, or had intended to, mislead anyone in South Africa as to his standing in Western Australia, or that he had sought employment as a medical practitioner in South Africa. The practitioner's wife is also a doctor, and the practitioner asserted that the discussions with the various people concerned in South Africa were principally in relation to his wife's potential employment there.
At an earlier stage of the proceedings, the Tribunal made orders prohibiting publication of the practitioner's name. Those orders were made on the basis of medical evidence that publication might be seriously detrimental to the practitioner's mental and physical health. The question of continuation of those non-publication orders is to be further argued following delivery of these reasons.
The matter was listed for a hearing over four days. At the commencement of the hearing, the practitioner, through his counsel, advised the Tribunal that, on the basis of psychiatric advice, the practitioner did not intend to participate in the hearing and that the practitioner was prepared, without admitting any of the allegations against him, and on the basis that there were no findings against him, to consent to an order that his registration be cancelled and his name be removed from the register of medical practitioners. The Board indicated, however, that it wished the Tribunal to proceed to consider the evidence it had produced and make findings on that evidence. The Tribunal agreed to the course suggested by the Board and proceeded to receive the written statements of the Board's witnesses, and other documents tendered in evidence, and determined that it would deal with the matter on the basis of those papers.
The Tribunal reviewed the allegations against the practitioner, and the evidence provided by the Board in support of those allegations, and concluded that the allegations were supported by the evidence. The seriousness of the allegations was, in the Tribunal's view, such as to warrant the cancellation of the practitioner's registration and the removal of his name from the register, and made orders accordingly.
Overview of the proceedings
The respondent, (the practitioner), is a medical practitioner registered in Western Australia. He is qualified as a specialist obstetrician and gynaecologist. Between late 2005, and July 2007, 13 applications to the Tribunal were made by the Medical Board of Western Australia for disciplinary action against the practitioner. None of those proceedings have yet been finalised, principally because, according to psychiatric advice submitted by the practitioner and the Board, the practitioner has been unable for substantial periods to adequately instruct his lawyers to defend the proceedings. The allegations made in the various proceedings against the practitioner are of a relatively serious nature.
The Board alleges that from around late November 2006, the practitioner took certain steps with a view to obtaining employment as a doctor in South Africa. Those steps included:
•making a declaration relating to registration with the Health Professions Council of South Africa (HPCSA) that no proceedings likely to involve debarring him from medical practice were pending against him in any country;
•meeting with a recruitment consultant, Ms Tracey Hudson, in South Africa and providing misleading information to her concerning his practice in Perth and failing to advise her of pending proceedings;
•submitting an inaccurate curriculum vitae to the employment consultant with an intention to deceive South African authorities as to his standing and practice as an obstetrician and gynaecologist;
•providing a certificate of good standing purportedly from the Medical Board of Western Australia which was false;
•submitting an application for employment that was false in a material particular, namely that the practitioner did not have any disability when in fact he had been certified unfit to practise by reason of an illness in January 2007;
•participating in a telephone interview with a senior medical officer of a hospital in Pietermaritzburg and failing to disclose several matters material to the practitioner's suitability to work as a medical practitioner at that hospital; and
•in September 2007, submitting a further certificate of good standing purportedly issued by the Medical Board of Western Australia to a medical employment authority in South Africa with an intention to deceive that authority and the HPCSA as to the practitioner's standing as a medical practitioner in Western Australia.
In January 2008, the second of two certificates of good standing that had come into the possession of Ms Hudson was brought to the attention of an officer of the Board, Mr Fiorillo. That led to enquiries being made by the Board which resulted in the allegations set out above.
The Board contends in these proceedings that the practitioner's nondisclosure, and active deception concerning the proceedings he faced in Western Australia, constitutes infamous conduct for the purposes of s 13(1)(a) of the Medical Act 1894 (WA) (the 1894 Act). The 1894 Act has now been repealed and replaced by the Medical Practitioners Act 2008 (WA) (MP Act). The MP Act came into force on 1 December 2008. The hearing of the matter commenced on 15 December 2008. The parties assumed that the disciplinary powers to be exercised by the Tribunal were found under the MP Act. We do not consider that assumption correct.
The proceedings were commenced pursuant to s 13 of the 1894 Act. Specifically, the allegation to the Tribunal was an allegation that the practitioner was guilty of infamous conduct. The expression 'infamous conduct' does not appear in the MP Act, and is not separately identified as a 'disciplinary matter' in s 76 of the MP Act. It may well be that conduct which constitutes infamous conduct would fall within the definition of conduct referred to in s 76(1)(d) of the MP Act; namely, conduct which falls short of the standard that a member of the public is entitled to expect of a medical practitioner or that a member of the medical profession would reasonably expect of a medical practitioner.
Schedule 2 of the MP Act deals with savings and transitional provisions. The schedule makes no specific reference to proceedings, such as these, which have been commenced in the Tribunal under the 1894 Act, but had not been concluded at the time of the repeal of the 1894 Act. Clause 2 of Sch 2 provides, however, that:
The provisions of this Schedule do not prejudice or affect the application of the Interpretation Act 1984 to and in relation to the repeal effected by section 160.
Section 160 of the MP Act repeals the 1894 Act.
Section 37 of the Interpretation Act 1984 (WA) (Interpretation Act) deals with the savings on repeal of legislation. That section reads as follows:
37. General savings on repeal
(1)Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears -
(a)revive anything not in force or existing at the time at which the repeal takes effect;
(b)affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c)affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d)affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
(e)subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;
(f)affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
(2)The inclusion in the repealing provisions of an enactment of any express saving with respect to the repeals effected thereby shall not be taken to prejudice the operation of this section with respect to the effect of those repeals.
Section 37 applies 'unless the contrary intention appears' in the repealing Act. Section 76 of the MP Act defines disciplinary matters as including various forms of misconduct. Clearly, disciplinary action can be taken against a medical practitioner under the MP Act for conduct of the type identified in s 76 of the MP Act, regardless of whether the conduct occurred before or after the coming into operation of the MP Act. An allegation of such misconduct made to the Tribunal after 1 December 2008 should be brought and conducted in accordance with the provisions of the MP Act, subject to the Tribunal acting consistently with the presumption against interpreting statutes as retrospectively altering substantive rights and obligations - see the analysis by Beech AJA in Mijatovic re Legal Practitioners Complaints Committee [2008] WASCA 115 at [139] - [141]. In this case, however, the proceedings were commenced and prosecuted under the 1894 Act, with the MP Act coming into force only shortly prior to the scheduled hearing. Nothing in the MP Act is inconsistent with the application of s 37(1)(f) of the Interpretation Act. The express saving of the application of the Interpretation Act found in cl 2 of Sch 2 of the MP Act in my view reaffirms that s 37 applies in relation to proceedings commenced prior to the coming into operation of the MP Act. Accordingly, the present matter falls to be determined in accordance with the provisions of s 13 of the 1894 Act.
The hearing
Counsel for the practitioner advised that his client did not intend to participate in the hearing, and that he was therefore not instructed in a way which would enable him to present any positive defence to the allegations, and therefore to cross-examine the Board's witnesses on the basis of any positive defence. Counsel provided a report dated 14 December 2008 by Professor Christine Dean, a consultant psychiatrist to the Priory Hospital, Roehampton in the United Kingdom, and a medical member of the Mental Health Review Tribunal in England. Professor Deane appears to have extensive experience as a consultant psychiatrist.
Professor Dean had been consulted by the practitioner, and had three consultations with him on 6, 11 and 13 December 2008. She assessed his mental capacity according to the British Mental Capacity Act 2005 (UK) as follows:
1.He understands the charges against him that will be considered by the forthcoming Tribunal and understands the decision he needs to make and why he needs to make them.
2.He understands the consequences of making or not making the decisions he needs to make.
3.He understands the information relevant to the decisions he has to make.
4.He is able to weigh up the relative importance of the information with which he is provided to enable him to make decisions.
5.He is able to retain the information as part of the decision‑making process.
6.He is able to communicate any decisions he makes verbally.
She concluded that he had the mental capacity to understand the proceedings of the Tribunal and the charges against him and has the capacity to instruct his solicitor and barrister. She continued, however, that his psychiatric state is such that to submit himself to cross‑examination would put him at high risk of further deterioration of his mental health, self-harm and suicide. It is apparent that Professor Dean was misinformed as to the capacity for the practitioner to be accompanied by appropriate support person while giving evidence, but the extent to which that misinformation might affect her conclusion as to the effect of the proposed hearing on the practitioner, is difficult to assess. She did, however, express the view that he was suffering from impaired concentration and his general depressive state would impact on the fairness of the proceedings against him.
Professor Dean reported that the practitioner had told her that he had no intention of again practising as a doctor, either in Western Australia or elsewhere. That intention was also conveyed to the Tribunal by the practitioner's counsel. It was against that background that counsel advised the Tribunal that he had no instructions to participate in the hearing.
The Tribunal proceeded to receive documents and witness statements provided by the Board as evidence in the proceedings. Counsel for the practitioner advised that, consistent with his instructions, he did not invite the Tribunal to have regard to the witness statement that had been filed by the practitioner in advance of the hearing, nor other documents lodged by the practitioner. Accordingly, it falls for the Tribunal to determine the proceedings on the basis of the admitted factual allegations, and the unchallenged evidence of the Board's witnesses through their witness statements and attached to documents.
Most of the facts upon which the Board relies, which are set out fully in its amended application, were admitted by the practitioner in his further amended response filed on 10 October 2008. For the most part the matters not admitted by the practitioner were matters of inference. In respect of those matters disputed in the practitioner's response, it is necessary to look to the evidence provided through the Board's witness statements and attached documents.
The history of proceedings against the practitioner
VR 384 of 2005
On 15 November 2005, the Board commenced proceedings against the practitioner in the Tribunal, being matter VR 384 of 2005, in respect of a patient, PM. That application was served on the practitioner on 21 November 2005. The practitioner is, and has been, represented by a firm of solicitors, Lavan Legal, in respect to VR 384 of 2005. Lavan Legal acted for the practitioner in the present proceedings. The Board alleges that it should be inferred by reason of service of the application on the practitioner, and by reason of his legal representation that, from about 21 November 2005, the practitioner was aware of that application and the orders sought in it. Those orders include, amongst others, suspension of the respondent's registration.
The practitioner did not admit that that inference should be drawn. In our view, in the absence of any suggestion to the contrary, the inference is compelling and should be drawn. The practitioner is represented by a competent and respected legal firm. There is no basis to consider that that firm would have remained on the record as the practitioner's solicitors in those proceedings if it did not have instructions to do so, and there is nothing to suggest that the practitioner has not, at all times, had the capacity to understand the proceedings brought against him.
VR 81 of 2006
On 10 May 2006, the Board made an order pursuant to s 12BA(1)(a) of the 1894 Act prohibiting the respondent for a period of 30 days from performing any surgical procedure involving the removal of a fimbrial cyst from any person. On 11 May 2006, that order was served on the practitioner.
On 17 May 2006, the Board commenced proceedings in the Tribunal against the practitioner pursuant to s 12BB(1)(a) of the 1894 Act, being matter VR 81 of 2006 in respect to the s 12BA(1)(a) order. On 18 May 2006, that application was served on the practitioner.
On 6 June 2006, an order was made in VR 81 of 2006 preventing the practitioner from removing a fimbrial cyst from any person until further order of the Tribunal.
As at 6 June 2006, the practitioner was represented by Lavan Legal. The Board alleges that it is to be inferred by reason of that legal representation that, or about that date, the practitioner became aware of the order made that day. That inference is not admitted by the practitioner, but, again, we consider it is the only reasonable inference open in the absence of any suggestion to the contrary.
VR 131 of 2007
On 20 July 2007, the Board commenced proceedings in the Tribunal against the practitioner, being matter VR 131 of 2007, in respect of the removal of fimbrial cyst during caesarean section procedures. That application was served on the practitioner on 20 July 2007. Again, Lavan Legal represented the practitioner in relation to those proceedings which, amongst other orders, sought cancellation of his registration. Again, we conclude that the practitioner knew of the proceedings against him by reason of service of the application on him, and his representation by solicitors throughout the proceedings.
VR 97 of 2006
On 30 May 2006, the Board made an order pursuant to s 12BA(1)(a) of the 1894 Act prohibiting the respondent for a period of 90 days from performing any medical practice. That order was served on the practitioner on 30 May 2006.
On 9 June 2006, the Board commenced proceedings in the Tribunal against the practitioner pursuant to s 12BB(1)(a) of the 1894 Act, being matter VR 97 of 2006, in respect to the order of 30 May 2006. In those proceedings, the Board sought an order prohibiting the practitioner from performing any medical practice.
On 9 June 2006, the application in VR 97 of 2006 was served on the practitioner.
On 27 June 2006, an order was made in VR 97 of 2006 prohibiting the practitioner from performing any medical practice until further order of the Tribunal (the interim constraint).
The practitioner is, and at all times has been, represented by Lavan Legal in respect to VR 97 of 2006 and was represented by that firm in that matter on 27 June 2006. Again, we accept the inference relied upon by the Board, drawn from service of the application and the legal representation in relation to the proceedings that, on or about 9 June 2006, the practitioner became aware of the orders sought in VR 97 of 2006, and on or about 27 June 2006, he became aware of the interim restraint.
VR 170 of 2006
On 9 October 2006, the Board commenced proceedings in the Tribunal against the practitioner, being matter VR 170 of 2006, in respect of a patient, AS.
On 13 October 2006, that application was served on Lavan Legal. That firm accepted service of the application on behalf of the practitioner and proceeded to represent him in those proceedings. In the circumstances, we again accept the Board's assertion that it should be inferred by reason of service of the application and representation that, on or about 13 October 2006, the practitioner became aware of that application and the fact that the Board sought deregistration of the practitioner in those proceedings.
VR 17 of 2007 and VR 18 of 2007
On 7 February 2007, the Board commenced two applications in the Tribunal against the practitioner, being matters VR 17 and VR 18 of 2007 in respect of a patient, JR. On the same day, the applications were served on Lavan Legal which accepted service on behalf of the practitioner. Laval Legal then proceeded to represent the practitioner in those proceedings. Again, we accept that it should be inferred by reason of that service and that legal representation, that on or about 7 February 2007, the practitioner became aware of those applications, and the orders sought in them, including, in each case, an order seeking cancellation of his registration.
VR 71, VR 72, VR 73 and VR 74 of 2007
On 2 May 2007, the Board commenced four applications against the practitioner, being matters VR 71, VR 72, VR 73 and VR 74 of 2007. Each of those applications concerned a different patient.
On the same day, the applications in all four matters were served on Laval Legal, which accepted service on his behalf, and proceeded to represent him in those proceedings. In each of the matters, the Board sought cancellation of the respondent's registration.
Again, we conclude that, by reason of the service of the applications, and legal representation in relation to them, the practitioner was aware of the existence of the application and the orders sought by the Board in them.
VR 130 of 2007
A further application was made to the Tribunal by the Board on 20 July 2007 in respect of a patient, JS. That application was served on Lavan Legal the same day. The solicitors accepted service and proceeded to represent the practitioner. The application, being VR 130 of 2007, sought, amongst other orders, cancellation of the respondent's registration. We accept that, by reason of service, and ongoing representation in relation to the proceedings, the practitioner was aware of the proceedings, and the orders sought in them.
VR 132 of 2007
In proceedings VR 132 of 2007, commenced on 20 July 2007, concerning a patient, KD, the Board again sought cancellation of the respondent's registration. As with the earlier applications, the application in VR 132 of 2007 was served on Lavan Legal which accepted service and represented the practitioner in the proceedings. Again, we find that the practitioner became aware of the application and the orders sought on or about 20 July 2007.
None of the disciplinary proceedings have been finally heard or determined.
Infamous conduct
As already noted, the Board characterises its allegations as infamous conduct. The accepted test of infamous conduct is articulated by Lopes LJ in Allinson v General Council of Medical Education and Registration [1894] I QB 750 at 763 where he said:
If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect.
It is that test that falls to be considered in this case.
First allegation - declaration made 29 November 2006
Ms Tracey Hudson resides in South Africa. She works as a recruitment consultant with a joint venture between the Rural Health Initiative (RHI) and the Placement Project, which are non‑governmental organisations assisting medical professionals wishing to obtain employment in South Africa, and hospitals and health departments in South Africa in relation to employment of foreign medical professionals. Her services include identifying suitable positions for professionals who seek the assistance of RHI and facilitating their registration as medical practitioners in South Africa, including fulfilment by them of the requirement for registration with HPSCA. According to Ms Hudson's unchallenged evidence, she had email correspondence with the practitioner's wife, who is also a medical practitioner, seeking assistance for her to obtain employment and registration in South Africa.
On 3 January 2007, she met the practitioner's wife and the practitioner at a café in Durban. The practitioner's wife told Ms Hudson that she was interested in becoming employed as a radiologist in South Africa. The practitioner told her that he was an obstetrician/gynaecologist working in his own practice in Perth, and that he wanted to obtain registration as a medical practitioner in South Africa, but that he did not intend to work in South Africa immediately as he intended to stay at home and look after their children.
Ms Hudson was supplied with a number of documents at that meeting. They included a number of certificates of qualification in relation to the practitioner which had been certified as true copies by a Justice of the Peace in Western Australia. The certifications were dated 29 November 2006. Also amongst the papers was a HPSCA form 12 application for registration as a specialist. The HPCSA form 12 contained a declaration signed by the practitioner verifying that he was the person referred to in attached certificates of qualification. One of the declarations made reads:
I have never been convicted in any country of any offence against the law or been debarred from practice by reason of misconduct and, to the best of my knowledge and belief, no proceedings involving or likely to involve a charge of any such nature are pending against me in any country at present.
The declaration was witnessed by the Justice of the Peace and was said to be sworn at Fremantle on 29 November 2006.
The Board asserts that, by reason of it having commenced, as at 29 November 2006, VR 384 of 2005, VR 81 of 2006, VR 97 of 2006 and VR 170 of 2006, the declaration was false, and the practitioner made the declaration knowing it to be false.
The practitioner admits that he signed the declaration, but denies that it was false or that he knew it to be false. He also denies the Board's assertion that signing the declaration constitutes infamous conduct for the purposes of s 13(1)(a) of the 1894 Act.
As we have earlier found, the practitioner was aware of the proceedings that had been brought against him by the Board prior to 29 November 2006, and of the fact that in proceedings VR 384 of 2005, the Board sought the practitioner's suspension; in VR 81 of 2006, an order had been made preventing the practitioner from performing a particular procedure; in VR 97 of 2006, the Board sought an order prohibiting the practitioner from practising medicine, and in VR 170 of 2006, the Board sought deregistration of the practitioner. We find that the declaration made was false.
In his response, the practitioner asserts that he recalls reading the form 12, but does not recall reading or understanding that part of the declaration which asserted that no proceedings involving a charge of misconduct were pending against him.
In the absence of any evidence proffered by the practitioner to support his response to the allegations against him, we are satisfied that the practitioner must have known of the falsity of his declaration. A number of blank segments of the declaration are completed in handwriting. It is reasonable to assume that those portions of the declaration were completed by the practitioner. The document is witnessed by a Justice of the Peace, who can be expected to have sought the practitioner's confirmation as to the truth of the matters dealt with in the declaration. The words of the declaration are clear and unequivocal.
In our view, the making of a false declaration as to the existence of disciplinary proceedings by a medical practitioner, in the context of a document the purpose of which is to seek registration as a medical practitioner in another jurisdiction, amounts to infamous conduct for the purpose of the 1894 Act. We reach that conclusion having regard to the fact that four different sets of proceedings had been commenced, each involving serious allegations of misconduct. The provision of false information for the purposes of registration as a medical practitioner was held to amount to infamous conduct, Medical Board of Western Australia and Bham [2006] WASAT 190, on the basis that, in failing to make proper disclosure about his earlier conduct, the practitioner had conducted himself in a manner that practitioners of good repute and competency would reasonably regard as disgraceful or dishonourable. We agree with that conclusion.
Second allegation - misleading information at Durban meeting
According to Ms Hudson's witness statement, the practitioner told her at the meeting on 3 January 2007 in Durban that he was an obstetrician/gynaecologist working in his own practice in Perth. The Board asserts, and it was the case, that that statement was false in that:
(1)since February 2006 the practitioner had been certified to be unfit for work as an obstetrician and gynaecologist by reason of an illness, and that certification had continued to be given to the practitioner's insurer on a regular basis up until the date of the Durban meeting;
(2)the practitioner had not practised as an obstetrician and gynaecologist since about May 2006; and
(3)as at 3 January 2007, the practitioner was prohibited from performing any medical practice by reason of the interim constraint imposed on 27 June 2006 in VR 97 of 2006.
We have no reason not to accept Ms Hudson's evidence as to what was said by the practitioner. Attached to Ms Hudson's supplementary witness statement is a series of email exchanges between the practitioner's wife and Ms Hudson between 27 November 2006 and 20 December 2006. An email of 27 November 2006 outlines their respective qualifications, and enquires whether there might be positions 'for us available'.
The email of 20 December 2006 commences 'We would ideally like to work in Cape Town …'. The whole exchange of those emails contemplates that both the practitioner and his wife were seeking employment.
While we acknowledge that the emails appear to have been sent by the practitioner's wife, and not the practitioner himself, the flavour of the communications is consistent with Ms Hudson's evidence as to what she was told by the practitioner at the Durban meeting.
For those reasons, we accept the contention of the Board that the statement was made by the practitioner, that it was false, and that it was intended to mislead Ms Hudson as to the practitioner's suitability for registration or employment as a medical practitioner within South Africa.
The Board also contends that the practitioner misled Ms Hudson by failing, at the Durban meeting, or at any time thereafter, to inform her that:
(1)the Board had commenced any of the disciplinary proceedings against the practitioner;
(2) the interim restraint prevented the practitioner from practising medicine in Western Australia;
(3)since February 2006, the practitioner had been certified to be unfit for work as an obstetrician and gynaecologist by reason of an illness and this certification had continued to be given to his insurer on a regular basis; and that
(4)the practitioner had not practised as an obstetrician and gynaecologist since about May 2006.
It is contended that the practitioner's failure to advise Ms Hudson of those matters was intended to deceive her by causing her to believe that there were no matters which would adversely affect his suitability for registration or employment as a medical practitioner in South Africa.
The practitioner asserts, in his response, that he informed Ms Hudson at the Durban meeting that he was not working and could not currently work, and that his intention was that he was going to be looking after his children. He asserts that he did not talk about obtaining a job for himself, but rather his wife did all the talking, and the purpose of the meeting was for the practitioner's wife to obtain work.
As previously mentioned, Ms Hudson's evidence was that the practitioner did tell her that he did not intend to work in South Africa immediately, but that he did want to obtain registration. The fact that the practitioner provided Ms Hudson with documents necessary to obtain registration is consistent with Ms Hudson's version of events. We therefore accept her evidence as to what she was told by the practitioner, and as to the fact that the practitioner did not disclose to her the matters identified by the Board which may have prevented his registration.
In our view, the statement by the practitioner that he was in practice as an obstetrician/gynaecologist in Perth and his failure to disclose the true position to Ms Hudson in the context of endeavours to obtain registration in another jurisdiction, does amount to infamous conduct.
Third allegation - inaccurate curriculum vitae
At the meeting on 3 January 2007, Ms Hudson provided the practitioner with the RHI's standard form of application. She later received the practitioner's completed application with his curriculum vitae and a certificate of good standing dated 25 March 2006, which was apparently issued by the Medical Board of Western Australia. The application is dated 4 January 2007, and is signed by the practitioner. In the section which requires details of previous postgraduate experience, the words 'see CV' appear. The curriculum vitae, which apparently accompanied the application, details the practitioner's career, and under the heading 'January 2000 - current', it specifies that his professional activity in that period was 'solo private practice specialising in laparoscopic gynaecologic surgery and IVFs'.
The Board contends that that statement in the CV was false in a material particular in that the practitioner had not practised as an obstetrician and gynaecologist since about May 2006. We accept that the document was false in that respect.
The Board also asserts that the CV was submitted by the practitioner to Ms Hudson for the purpose of having the RHI submit that document to perspective employers in South Africa. From the text of the document, that would appear to be the purpose of the document, and we accept that it was.
As with the other misleading information, in the context in which it was created, we consider that the assertion in the CV that the practitioner was currently engaged in private practice to be a misstatement as to an important material fact, and did, as the Board alleges, amount to infamous conduct.
Fourth allegation false certificate of good standing
Ms Hudson identified as an attachment to her witness statement the certificate of good standing relating to the practitioner and dated 25 March 2006 which she said was given to her shortly after the meeting on 3 January 2007. Ms Hudson was not precise as to the circumstances of her receipt of that document, but thought she may have been given the documents on 3 January 2007, when she met with the practitioner and his wife at her home office after their meeting at the café in Durban.
The certificate of good standing certifies that no disciplinary proceedings under the 1894 Act are in progress against the practitioner and that he is not the subject of an inquiry by the Medical Board of Western Australia. In fact, by 25 March 2006, the proceedings in VR 384 of 2005 had been instituted. The certification was, therefore, incorrect as at the date it bore. By the time it was provided to Ms Hudson, other proceedings were on foot and the certificate seriously misrepresented the position as at January 2007.
Ms Melanie Faure provided a witness statement on behalf of the applicant. She has worked for the Medical Board since March 2002. From 2004 until August 2007, Ms Faure was the registration officer for the Board, and was given the title registration manager in about August 2007. She explained the Board's procedure for issuing certificates of good standing up until 11 May 2007. She produced a copy of the practitioner's complaints screen from the Board's database, and said that had a registration assistant (whose task it was to deal with applications for certificates) consulted the screen on 25 March 2006, there would have been complaints noted, and that matter would have been brought to the attention of the complaints coordinator.
Ms Faure carried out a review of the hard copy file held by the Board in relation to the practitioner. The file contained an application for a certificate of good standing dated 16 October 2006, and a letter from the Board declining that application. The file also contained correspondence between a medical practice in Perth, and the Board, in April and early May 2006 concerning the practitioner's standing with the Board. There is no other record on the Board's file of any application or request for a certificate of good standing, nor was there any record of payment of the normal fee for the issue of any certificate of good standing in the relevant financial records of the Board. In particular, there was no record of the certificate of good standing dated 25 March 2006, nor of a later certificate of good standing, which will be discussed below, dated 5 July 2007, in the Board's records.
Ms Faure also noted that the name appearing on the 25 March 2006 certificate contained the practitioner's middle name. The Board's records do not show the practitioner's middle name, and Ms Faure said that the name on any certificate issued by the Board would be the same as the name on the register. Furthermore, the particular qualifications recited on the certificate did not match the qualifications recorded on the Board's database.
Ms Faure produced a template of certificates of good standing issued by the Board, which carry the words 'an original certificate carries the seal (imprint) of the Medical Board of Western Australia'. Those words did not appear on the certificate dated 25 March 2006.
It is apparent from Ms Faure's evidence that the certificate of good standing dated 25 March 2006 was not issued by the Medical Board of Western Australia. How it came into existence is not revealed by the evidence before the Tribunal. Ms Hudson's evidence, which we accept, was that the certificate was provided to her with the practitioner's application and his curriculum vitae. A document providing 'proof of foreign professional registration status' is one of the additional documents cited in the application as being one of the additional documents required to obtain registration. The application bears the practitioner's signature. We are satisfied, therefore, that however the practitioner may have come into possession of the document, he submitted it to Ms Hudson with his application for registration in South Africa. He must have known that the certification was false. The provision of the false certificate in the context of an application for registration was, in our view, infamous conduct on the practitioner's part.
Fifth allegation - false application for employment
According to Ms Hudson, she received by mail an application signed by the practitioner for employment, being a standard form known as Z83. It is not clear from Ms Hudson's evidence precisely when that form was received. It is dated 26 January 2007. Nothing turns on the precise date of receipt, but we are satisfied that the document was signed by the practitioner and provided to Ms Hudson for the purpose of pursuing his application for registration, and at some point employment, within South Africa.
The application required an answer to the question 'Do you have a disability?' The word 'No' is encircled. A footnote in relation to the question reads:
This information is required to enable the department to comply with the Employment Equity Act 1998.
In fact, the practitioner had, as at 26 January 2007, been certified unfit to practise medicine by reason of an illness, and since February 2006 had claimed payments from an insurer as a result of being certified unfit to practise medicine by reason of his illness.
The progress claim forms completed by the practitioner throughout 2006 in relation to his disability insurance pose the question 'What disability prevents you from returning to your usual work duties?' The practitioner appears to have answered that question in each case with the words 'Major depression'. It is apparent, therefore, that the practitioner recognised that his depressive illness amounted to a disability. We are satisfied, therefore, that the form Z83 application for employment contained a false response in relation to the practitioner's disability, and the practitioner must have known it to be false.
When seen in the context of the other misleading documents submitted by the practitioner in relation to his attempts to obtain registration and employment in South Africa, the false answer in the application for employment can be seen as one of a series of falsehoods designed to achieve that purpose. The completion of the false statement in the document, in the context in which it occurred, is, in our view, infamous conduct for the purposes of the 1894 Act.
Sixth allegation - telephone interview with Grey's Hospital
On 16 October 2007, the practitioner participated in a telephone interview with Dr Titus in respect of a position as a specialist obstetrician and gynaecologist at Grey's Hospital in Pietermaritzburg in KwaZuluNatal Province in South Africa. The Board alleges, as was the fact, that at the date of the telephone interview:
•the practitioner was certified to be unfit to work as a medical practitioner by reason of an illness;
•the practitioner was not working as a medical practitioner in Western Australia;
•the Board had commenced all of the disciplinary proceedings referred to above; and
•the practitioner was prohibited from practising medicine in Western Australia by reason of the interim constraint.
The Board alleges that the practitioner failed to inform Dr Titus of any of those matters, with the intention of deceiving Dr Titus as to the practitioner's suitability to work at Grey's Hospital, and that that conduct constitutes infamous conduct for the purposes of the 1894 Act.
Dr Titus said that, at the meeting, he was impressed by the practitioner and, having reviewed his curriculum vitae and the other documents that had been provided in support of his application, he formed the view that the practitioner was well qualified to take up a position as an obstetrician and gynaecologist at Grey's Hospital. Accordingly, he sent a message to the medical manager at the hospital seeking approval to engage the practitioner at the hospital.
A note of the telephone interview on 16 October 2007 was taken by Ms Vanessa Meiring, the secretary to Dr Titus and his colleague, Dr GreenThompson, who also sat in on the telephone interview. The note records no mention of the issues that had arisen in relation to the practitioner's practice in Perth, and his health. Although in their statements neither Dr Titus nor Ms Meiring expressly confirm that no mention was made of the matters identified by the Board, it is reasonable to assume, given the outcome of the meeting and the absence of any apparent concern by Dr Titus, that those matters were not mentioned.
The account of the meeting is consistent with the various documents which had been submitted to Ms Hudson by the practitioner in relation to his registration and employment in South Africa. In our view, his failure to mention to a prospective employer the very serious issues confronting his capacity to practise medicine amounts, as the Board alleges, to infamous conduct.
Seventh allegation - further certificate of good standing
In May 2007, Ms Hudson had received by email from the HPCSA a letter for the practitioner which advised that the HPCSA had resolved to approve the practitioner working as a specialist in South Africa subject to certain requirements. One of those requirements was the receipt of a recent certificate of good standing. Ms Hudson forwarded that letter to the practitioner by email.
On 15 May 2007, the practitioner's wife sent an email to Ms Hudson enquiring whether the certificate of good standing that had already been provided in respect to the practitioner would suffice for registration purposes. According to Ms Hudson, she responded indicating that the earlier certificate was not recent enough, and a new certificate would be required.
After some further email correspondence between Ms Hudson and the practitioner, a further certificate of good standing for the practitioner dated 25 July 2007 was received by post at the RHI in early September 2007.
On 5 September 2007, Ms Hudson sent an email to the practitioner acknowledging that she had received the further certificate of good standing and asking him whether he wished to proceed with working at Grey's Hospital. She received two email responses from the practitioner, indicating that he would like to apply for a post at Grey's Hospital. Both replies were dated 6 September 2006, and the second was sent apparently because of a fear that the first email may not have been successfully received.
Miss Hudson delivered the certificate of good standing to the HPCSA at a meeting which she attended on 7 September 2007.
The certificate of good standing, purportedly issued by the Medical Board of Western Australia, and dated 25 July 2007 is drawn in identical terms to the earlier certificate dated 25 March 2006. The aspects of the 25 March 2006 certificate which demonstrate that it was not issued by the Board apply equally to the 25 July 2007 certificate. Furthermore, by 25 July 2007, the Board had ceased to operate from the address which is shown on the certificate. In addition, according to Ms Faure, from 11 May 2007 the Board adopted a new policy in relation to the issue of 'certificates of registration status', instead of certificates of good standing. Accordingly, by July 2007, the Board had ceased to issue certificates of good standing in the form of the certificate of 25 July 2007.
It is therefore clear that the certificate of 25 July 2007 was not a certificate issued by the Medical Board of Western Australia, and to the extent that it certified that no disciplinary proceedings were in progress against the practitioner, it was patently false. How the document came to be created is not disclosed on the evidence before the Tribunal. We are, however, satisfied that the document was provided to Ms Hudson with the practitioner's knowledge. The email exchange between the practitioner and Ms Hudson in which the latter confirms receipt of the document establishes that fact.
We are satisfied that the practitioner's conduct in supplying, or at least concurring in the supply of, that document for the purposes for which it was intended to be used, amounts to infamous conduct.
The appropriate penalty
The practitioner was prepared to consent to an order for the removal of his name from the register without the need for the Tribunal to make findings against him. The Board's position is that, in view of the course of infamous conduct in a professional respect by the practitioner, his name should be removed from the register.
The practitioner engaged in a course of misleading conduct designed to prevent a medical registration authority from becoming aware of very important matters as to the practitioner's suitability for registration. The system of registration of medical practitioners exists for the protection of the public. Regardless of a particular practitioner's own view as to his or her suitability to practise medicine, decisions on registration must be made by the appropriate authorities possessed of all relevant information. It is for that reason that the various documents required to be submitted for the purposes of registration are prerequisites to registration. As we have already indicated, creating misleading documents for use in assessing suitability for registration amounts to infamous conduct. Where, as here, the conduct occurred over a relatively extended period, and involved numerous nondisclosures or misleading disclosures, the conduct warrants removal of the practitioner's name from the register. There will be orders accordingly.
Orders
1.The Tribunal finds the practitioner guilty of infamous conduct in a professional respect.
2.The practitioner's name is to be removed from the register.
I certify that this and the preceding [94] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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