Medical Board Of Western Australia and A Practitioner
[2008] WASAT 95
•12 MAY 2008
MEDICAL BOARD OF WESTERN AUSTRALIA and A PRACTITIONER [2008] WASAT 95
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 95 | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:54/2008 | 28 APRIL 2008 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MS D DEAN (MEMBER) DR E ISAACHSEN (SENIOR SESSIONAL MEMBER) DR P QUATERMASS (SENIOR SESSIONAL MEMBER) | 12/05/08 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Interim injunction limiting medical practice issued under s 90 of the State Administrative Tribunal Act 2004 (WA) | ||
| A | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA A PRACTITIONER |
Catchwords: | Vocational regulation Medical practitioner Interim constraint on practice pending determination of criminal proceedings Interim injunction restraining practice pending determination of criminal proceedings State Administrative Tribunal Act 2004 (WA), s 90 |
Legislation: | Legal Practice Act 2004 (WA) Medical Act 1894 (WA), s 12BA, s 12BB State Administrative Tribunal Act 2004 (WA), s 62, s 90 |
Case References: | Craig v Medical Board of South Australia [2001] 79 SASR 545 Edelsten v Richmond (1987) 11 NSWLR 51 Hammond v Commonwealth (1982) 152 CLR 188 Herron v McGregor (1986) 6 NSWLR 246 Legal Practitioners Complaints Committee and A Practitioner [2007] WASAT 277 Martins v Racing Penalties Appeal Tribunal of Western Australia (unreported, WASC, No 1190 of 1997, 10 October 1997, Library No 970519) Nurses and Midwives Board of Western Australian and A Nurse [2007] WASAT 289 Walter v Gardner (1993) 177 CLR 378 |
Orders | 1. The respondent practitioner is restrained from practising as a medical practitioner save in the following circumstances and on the following conditions:,(a) [Private] Medical Centre: the practitioner may continue to work at the Centre until 30 June 2008, when he will retire from this practice, on the condition that he will not see any female patients without a female chaperone being present.,(b) [Hospital] Emergency Department: the practitioner may continue to work at the Emergency Department for two shifts per week on the condition that he will not conduct any intimate examinations on female patients without ensuring the presence of a female chaperone. "Intimate" in this context means any internal examinations on female patients or examinations involving the genital area or breasts, without the presence of a female chaperone.,(c) [Private] Skin Cancer Clinic: the practitioner may continue to work at the Clinic one day per week on the condition that he will not see any female patients without a female chaperone being present.,(d) The practitioner is to return to the Board his Doctors Bag, and is not to obtain another.,(e) Save in respect of practice in the [Hospital] Emergency Department for the purpose of paragraph (b), the practitioner is not to administer or possess any Schedule 8 or stupefying drugs. Should any of his patients require such drugs he must arrange for another doctor to administer them.,(f) The practitioner is not to see any patients other than at the [Hospital] Emergency Department, [Private] Medical Centre or the [Private] Skin Cancer Clinic, and he is not to undertake any home visits to patients. |
Summary | Following the institution of criminal proceedings against the medical practitioner alleging aggravated indecent assault of a female patient, the Medical Board of Western Australia placed an interim constraint on the practice of medicine by the medical practitioner.,The Board then made two applications to the State Administrative Tribunal: one seeking a final order removing the practitioner’s name from the register of medical practitioners in Western Australia; and another seeking that pending the final determination of the first application, that the order of the Board be affirmed and that the practitioner be constrained from practising medicine until further order, or alternatively that the Tribunal issue an injunction under s 90 of the State Administrative Tribunal Act 2004 (WA) restraining the practitioner from practising as a medical practitioner until the determination of the substantive disciplinary proceeding.,The Tribunal held that, on the facts of the case, the appropriate interim order was one that limited the right of the practitioner to practise medicine and not one that wholly constrained or restrained him from practising medicine. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and A PRACTITIONER [2008] WASAT 95 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MS D DEAN (MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
- Applicant
AND
A PRACTITIONER
Respondent
Catchwords:
Vocational regulation - Medical practitioner - Interim constraint on practice pending determination of criminal proceedings - Interim injunction restraining practice pending determination of criminal proceedings - State Administrative Tribunal Act 2004 (WA), s 90
(Page 2)
Legislation:
Legal Practice Act 2004 (WA)
Medical Act 1894 (WA), s 12BA, s 12BB
State Administrative Tribunal Act 2004 (WA), s 62, s 90
Result:
Interim injunction limiting medical practice issued under s 90 of the State Administrative Tribunal Act 2004 (WA)
Category: A
Representation:
Counsel:
Applicant : Mr P Quinlan
Respondent : Mr D Bourke
Solicitors:
Applicant : Liscia & Tavelli Legal Consultants
Respondent : Clayton Utz
Case(s) referred to in decision(s):
Craig v Medical Board of South Australia [2001] 79 SASR 545
Edelsten v Richmond (1987) 11 NSWLR 51
Hammond v Commonwealth (1982) 152 CLR 188
Herron v McGregor (1986) 6 NSWLR 246
Legal Practitioners Complaints Committee and A Practitioner [2007] WASAT 277
Martins v Racing Penalties Appeal Tribunal of Western Australia (unreported, WASC, No 1190 of 1997, 10 October 1997, Library No 970519)
Nurses and Midwives Board of Western Australian and A Nurse [2007] WASAT 289
Walter v Gardner (1993) 177 CLR 378
(Page 3)
Summary of Tribunal's decision
1 Following the institution of criminal proceedings against the medical practitioner alleging aggravated indecent assault of a female patient, the Medical Board of Western Australia placed an interim constraint on the practice of medicine by the medical practitioner.
2 The Board then made two applications to the State Administrative Tribunal: one seeking a final order removing the practitioner’s name from the register of medical practitioners in Western Australia; and another seeking that pending the final determination of the first application, that the order of the Board be affirmed and that the practitioner be constrained from practising medicine until further order, or alternatively that the Tribunal issue an injunction under s 90 of the State Administrative Tribunal Act 2004 (WA) restraining the practitioner from practising as a medical practitioner until the determination of the substantive disciplinary proceeding.
3 The Tribunal held that, on the facts of the case, the appropriate interim order was one that limited the right of the practitioner to practise medicine and not one that wholly constrained or restrained him from practising medicine.
Issue
4 The issue the subject of this decision is whether, pending the final determination of vocational regulation proceedings brought by the Medical Board of Western Australia (Board) against the practitioner, having regard to the public interest, the practitioner:
• Should be completely constrained or restrained from practising as a medical practitioner; or alternatively
• Should be partly constrained or restrained so that he should be able to practise on a limited basis.
Interim order made 28 April 2008
5 On 28 April 2008, the President and the Tribunal, after considering written and oral submissions made by counsel for the Board and the practitioner, decided that it was appropriate to partly restrain the practitioner from the practice of medicine so that he could continue to practise on a limited basis.
(Page 4)
6 The Tribunal then ordered as follows:
1. The respondent practitioner is restrained from practising as a medical practitioner save in the following circumstances and on the following conditions:
(a) [Private] Medical Centre: the practitioner may continue to work at the Centre until 30 June 2008, when he will retire from this practice, on the condition that he will not see any female patients without a female chaperone being present.
(b) [Hospital] Emergency Department: the practitioner may continue to work at the Emergency Department for two shifts per week on the condition that he will not conduct any intimate examinations on female patients without ensuring the presence of a female chaperone. "Intimate" in this context means any internal examinations on female patients or examinations involving the genital area or breasts, without the presence of a female chaperone.
(c) [Private] Skin Cancer Clinic: the practitioner may continue to work at the Clinic one day per week on the condition that he will not see any female patients without a female chaperone being present.
(d) The practitioner is to return to the Board his Doctors Bag, and is not to obtain another.
(e) Save in respect of practice in the [Hospital] Emergency Department for the purpose of paragraph (b), the practitioner is not to administer or possess any Schedule 8 or stupefying drugs. Should any of his patients require such drugs he must arrange for another doctor to administer them.
(f) The practitioner is not to see any patients other than at the [Hospital] Emergency Department, [Private] Medical Centre or the [Private] Skin
- Cancer Clinic, and he is not to undertake any home visits to patients.
7 The Tribunal on 28 April 2008 briefly provided reasons for this decision and indicated that further written reasons would be given in due course. These are those further reasons.
Facts
8 On 11 February 2008, the practitioner was charged by police with aggravated indecent assault of a woman. It is alleged that on 20 January 2008, the practitioner unlawfully and indecently assaulted the woman without consent, in circumstances of aggravation, namely that he did her bodily harm.
9 On 5 March 2008, the Board ordered pursuant to s 12BA of the Medical Act 1894 (WA) (Medical Act) that the practitioner be constrained from the practice of medicine for a period of 30 days from service of the order on the practitioner.
10 The practitioner was served with that order on 5 March 2008.
11 Then, in conformity with the requirements of the Medical Act, the Board applied to the State Administrative Tribunal (Tribunal) in two respects:
1. For a final order that the practitioner's name be removed from the register of Medical Practitioners in Western Australia;
2. Pending the determination of the proceedings, for an order that the interim constraint imposed by the Board on the practitioner on 5 March 2008 be affirmed and that the practitioner be constrained from the practice of medicine until further order of the Tribunal; and
3. In the alternative, that the Tribunal, pursuant to s 90 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), restrain the practitioner from carrying on the practice of a medical practitioner pending the determination of the disciplinary proceedings commenced against him.
12 In brief, the Board alleged in the proceedings commenced in the Tribunal that:
(Page 6)
- • On or about Sunday 20 January 2008, the practitioner attended the residence of the woman the subject of the charge, who was one of his patients, without medical cause and without her requesting a visit;
• Without the consent of his patient, the practitioner administered the patient with schedule 8 drugs, namely morphine and midazolam;
• The effect of the drugs was to lessen the ability of the patient to recall events and to make the patient compliant to his demands; and
• Whilst under the influence of the drugs the practitioner;
(a) Requested the patient to remove her clothing; and
(b) Whilst the patient was naked, the practitioner kissed her breasts, rubbed her genitals and kissed her on the mouth.
13 The applications of the Board for final and interim orders were filed in the Tribunal on 13 March 2008 and listed for a first directions hearing on 31 March 2008.
14 At the first directions hearing counsel for the practitioner, who only recently had been instructed in the matter, sought an adjournment of the application, but on the understanding that pending the further hearing of the interim constraint application, the practitioner would not treat a female patient without a chaperone being present. On that basis the hearing of the interim restraint application was adjourned for hearing on 28 April 2008.
15 On 28 April 2008, the parties, by counsel, addressed written submissions and made oral submissions concerning the appropriate orders that the Tribunal should make on the interim constraint application.
Contentions of the parties
16 Section 12BA of the Medical Act is headed "Interim constraint on practice" and provides:
"(1) If the Board is of the opinion that an activity of a medical practitioner, not being a body corporate, involves or will
- involve a risk of imminent injury or harm to the physical or mental health of any person, the Board may, without further inquiry, order that for a period of not more than 30 days specified in the order -
- (a) either generally or in relation to particular circumstances or services as specified in the order, the medical practitioner is not to practise medicine;
(b) the medical practitioner is not to practise medicine except on any conditions and restrictions specified in the order;
(c) the medical practitioner is prohibited from carrying on an activity; or
(d) the medical practitioner is subject to any combination of the restrictions that could be imposed under paragraphs (a), (b), or (c).
- (2) An order under subsection (1) has no effect until it is given personally to the medical practitioner.
(3) The order has to -
(a) state the Board's opinion that is the basis for the order;
(b) specify the activity that in the Board's opinion involves or will involve the risk and the matters that give or will give rise to the risk; and
(c) advise the medical practitioner against whom the order is made of the right given by subsection (5) to apply to the State Administrative Tribunal for a review of the order.
(4) The Board may, by a further order given to the medical practitioner, revoke or vary an order under subsection (1) at any time before making an allegation to the State Administrative Tribunal under section 12BB.
(Page 8)
- (5) The person against whom an order is made under subsection (1) may apply to the State Administrative Tribunal for a review of the order."
17 Section 12BB of the Medical Act is headed "Allegation to be made" and provides:
"(1) Within a period of 14 days after the day on which the Board makes an order under section 12BA(1), the Board is required to -
(a) make an allegation to the State Administrative Tribunal of the matter because of which the order was made; or
(b) revoke the order under section 12BA(4).
(2) Upon an allegation made under subsection (1) the State Administrative Tribunal may -
(a) make any order that it could make if an application had been for a review of the order under section 12BA(1); and
(b) make an order under section 13(3a)."
19 In the alternative, the applicant seeks an interim injunction pursuant to s 90 of the SAT Act restraining the practitioner from the practice of medicine until the determination of the substantive application in these proceedings.
20 Section 90(1) of the SAT Act provides:
"The Tribunal may by order grant an interim injunction in any proceeding if it is just and convenient to do so."
21 In this regard, it is also worth noting that s 90(9) of the SAT Act provides:
(Page 9)
- "The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under the enabling Act to make an order in the nature of an injunction."
22 Counsel for the Board accepts that the Tribunal in the present case should not finally determine the main proceedings against the practitioner by which it seeks an order removing his name from the register - effectively stopping him from practising medicine again - while the existing criminal proceedings against the practitioner remain outstanding. In this regard, the Board recognises the well established proposition that the final hearing or determination of disciplinary proceedings, as indeed a range of other proceedings in the Tribunal, may give rise to prejudice to an affected person in relation to related criminal proceedings, and in such a case the disciplinary proceedings should properly be stayed pending the determination of those other proceedings: see Hammond v Commonwealth (1982) 152 CLR 188 per Deane J at 206; Edelsten v Richmond (1987) 11 NSWLR 51.
23 Similarly, the Board, in accordance with well established practice in relation to interim applications of this nature, does not seek to have any disputed issues of fact finally determined.
24 The Board nonetheless contends that the fact that criminal proceedings are pending in relation to the matter does not prevent the disciplinary proceedings from being commenced, as they have been, nor interim measures necessary for the safety of the public being put into place. In this regard the counsel for the Board refers to what McHugh JA (as his Honour then was) said in Herron v McGregor (1986) 6 NSWLR 246 at 266:
"No doubt it is only proper that, while criminal proceedings are pending, disciplinary proceedings should not be brought on for hearing. But this does not dispense with the obligation of the complainant, in the interests of a fair hearing and the public interest, to lodge his complaint. In a proper case it may also be desirable to lodge a complaint with the Board so as to initiate a fitness inquiry under s 30. I see nothing to prevent the Medical Board in an appropriate case from temporarily suspending a practitioner while criminal proceedings are pending if, after hearing him, it thinks that he is not fit to practise. The hearing need not be a full hearing. The rules of natural justice are flexible enough to deal with this situation ..."
(Page 10)
25 Counsel for the Board point out that these general principles have been endorsed by the Full Court of the Supreme Court of Western Australia in Martins v Racing Penalties Appeal Tribunal of Western Australia (unreported, WASC, No 1190 of 1997, 10 October 1997, Library No 970519), Steytler J at 10 - 12 (Kennedy J agreeing) and Wallwork J at 14 - 19.
26 Counsel for the Board says that the assessment of the materials for the purpose of making interim orders in no way involves a final determination of any disputed matter and could not prejudice the criminal proceedings. Counsel says the assessment to be made is similar to that to be made in relation to decisions concerning the bail of an accused person, or for an interim injunction generally, which will be based on the issues to be tried and not a final determination. In this regard counsel for the Board says that this is the approach already adopted by the Tribunal in like cases, such as Nurses and Midwives Board of Western Australian and A Nurse [2007] WASAT 289, where the Tribunal restrained a nurse from carrying on the practice of nursing pending the resolution of outstanding criminal and disciplinary proceedings.
27 Counsel for the Board also recognise that to the extent that publication of the respondent's name or any particular details on an interim application are considered to give rise to prejudice to the respondent in criminal proceedings, that those matters may be addressed by orders pursuant to s 62 of the SAT Act, as occurred in Nurses and Midwives Board of Western Australia and A Nurse. For example, the name of the practitioner could be the subject of a nonpublication order, as the Tribunal had in fact ordered in this matter at the first directions hearing on 31 March 2008.
28 Counsel for the Board properly contends that the purpose of proceedings under the Medical Act is the protection of the public from incompetence and professional misconduct, and not punishment of a relevant practitioner: Walter v Gardner (1993) 177 CLR 378 at 396.
29 In this case, counsel submits that all these requirements are reinforced by s 12BA of the Medical Act which gives the Board the power to order the interim constraint of the practitioner without an inquiry if the activities of the practitioner are such that the Board forms the opinion that they give rise to a risk of imminent injury or harm to the physical or mental health of any person.
(Page 11)
30 Counsel for the Board submits that ultimately the exercise of the Tribunal's jurisdiction, either under s 12BB of the Medical Act to, in effect, extend the interim constraint on the practitioner, or under s 90 of the SAT Act, to issue an interim injunction to restrain the practitioner from practising medicine, is a matter of discretion having regard to all relevant factors.
31 Counsel for the Board submits that all of the preconditions for the issuing of an effective order by the Board under s 12BA of the Medical Act have been met.
32 Counsel for the Board submits the relevant factors the Tribunal should consider in deciding whether to confirm the constraining order or to grant an interim injunction are (in summary) as follows:
• The complaint is extremely serious, being one of sexual impropriety achieved by the use of a stupefying drug by a medical practitioner on a young, vulnerable patient;
• The complaint is not yet proven;
• The complaint involves a single event and is not part of a course of conduct over a period of time;
• The activity did not occur at the practitioner's place of work during normal hours but at the patient's home on a Sunday;
• The practitioner had known the patient since she was a young girl and she had developed a deep level of trust in him;
• If the practitioner is suspended from practice, whether for a short period of time or indefinitely, he will lose his ability to earn income;
• The criminal proceedings will take time to resolve;
• The practitioner has access to restricted drugs and has knowledge of how to administer them and what their effects will be;
• There is evidence in the materials currently available to the Tribunal to confirm the seriousness of the allegations made in the criminal proceedings and in the Tribunal.
(Page 12)
33 Counsel for the Board submits that the matters listed in favour of the practitioner are greatly outweighed by the risks; in particular, the activities alleged to have occurred on 20 January 2008 are so outside the bounds of appropriate conduct of a medical practitioner, and demonstrative of a lack of judgment such that there is a real risk of repetition of such conduct which cannot be discounted. Counsel for the Board submits that having regard to the facts in this case, it can be said that the conduct alleged against the practitioner gives rise to an imminent risk of injury or harm to patients.
34 Counsel further submits that this is not a case where it would be appropriate to impose conditions, because there are no conditions that could be imposed that would adequately address the identified risks.
35 Counsel for the Board submits to the Tribunal that, even if the Tribunal is not satisfied on the question of an imminent risk, it should nonetheless be prepared to grant an interim injunction under s 90 of the SAT Act. In that regard counsel relies on the decision of the Tribunal in Nurses and Midwives Board of Western Australia v A Nurse, referred to above, especially at [112] where the Tribunal said, of a nurse in respect of whom a charge of stealing had been laid and who appeared to have made admissions in respect of the alleged conduct, as follows:
"In saying this, the President repeats what the Tribunal stated above to the effect that it does not consider that it can reasonably be inferred, on the material currently before the Tribunal, that the nurse herself has a substance abuse problem or that there are proper grounds for believing she has deprived patients of their medication. However, the fact that the nurse is alleged to have unlawfully taken prescribed drugs, in the circumstances described, in our view seriously undermines any claim the nurse may put that she can properly continue in practice while the allegations remain unresolved without putting at real risk the confidence colleagues and patients are entitled to place on her having the capacity to exercise good judgment. For example, any patient who were to be advised that the nurse caring for him or her is currently charged with the offence of stealing or is suspected by the hospital or the Board of having unlawfully taken a prescribed drug from the hospital and had it in her private possession outside the premises of the hospital in the circumstances described, would feel alarmed at the prospect that the nurse would be rostered on to care for him or her. Any person would be similarly concerned if his or her family
(Page 13)
- member were to be put in the charge of such a nurse. Any nurse would also find himself or herself in an uncertain professional working relationship with his or her colleague if that colleague had these unresolved allegations made against him or her. The basic relationship of trust and confidence that must exist between a patient and a nurse, and a nurse and his or her colleagues, would be put at serious risk while the allegations remained unresolved."
36 Counsel for the practitioner did not dispute the primary submissions of law made by counsel for the Board. In particular, counsel for the practitioner accepted that it was open to the Tribunal either to extend the interim constraint on practice pursuant to s 12BB of the Medical Act or, as in the case of Nurses and Midwives Board of Western Australia v A Nurse, to grant an interim injunction in terms that restrain the practitioner from the practice of medicine or limiting the basis upon which the practitioner could practise.
37 Counsel for the practitioner was at pains to emphasise, as accepted by counsel for the Board, that it is no part of the function of the Tribunal to punish a practitioner, but rather to protect the public interest.
38 Counsel for the practitioner particularly emphasised that the public may be protected by preventing a person from practising a profession, by limiting a right of practice or by making it clear that certain conduct is not acceptable: for example, as in Craig v Medical Board of South Australia [2001] 79 SASR 545 at 554 - 557, Doyle CJ.
39 Consequently, counsel for the practitioner at the hearing before the Tribunal on 28 April 2008, submitted that the public would be properly protected, pending the determination of the substantive proceedings, if the practitioner were constrained in the following ways:
• Give up his current general practice as of 30 June 2008, and in the meantime not be permitted to see a female patient without a chaperone being present;
• Work in the emergency department of a hospital for two days each week;
• Work in a skin cancer clinic for two days per week but not be permitted to see a female patient without a chaperone;
(Page 14)
- • Hand in his Doctor's Bag to the Board, so that he would not have available to him any schedule 8 drugs; and
• Not be able to administer any schedule 8 or stupefying drugs.
40 Counsel for the practitioner provided the Tribunal with a detailed written proposed order that would limit the right of the practitioner to practise and would provide, in the practitioner's submission, appropriate safeguards to ensure that the public, particularly female patients, would not be at risk of a repetition of the matters currently alleged against the practitioner and the subject of criminal proceedings and the substantive disciplinary proceedings in the Tribunal.
41 In response to this proposal, counsel for the Board reiterated that, in the submission of the Board, the matters alleged against the practitioner are so serious that no patient, no colleague or the like could have any confidence in dealing with or working with the practitioner and that, as in the case of Nurses and Midwives Board of Western Australia v A Nurse, it was appropriate wholly to constrain or restrain the practitioner from carrying on the practice of medicine.
Findings of the Tribunal
42 As noted above, the Tribunal considered that the appropriate order was one that limited the right of the practitioner to practise medicine and not one that wholly constrained or restrained him from practising medicine.
43 In the case of Nurses and Midwives Board of Western Australia v A Nurse, it is true that the Tribunal took the view that, pending the resolution of the main disciplinary proceedings in the Tribunal, it was appropriate for an interim injunction to go to restrain the nurse from acting as a nurse in any form. In that case, on the bare materials available to the Tribunal, there was a serious allegation of stealing a drug or drugs from a hospital at which the nurse worked and which the nurse appeared to have admitted. For the reasons set out in detail in these reasons earlier, the Tribunal granted the interim injunction wholly preventing the nurse from practising as a nurse because it considered, in all of the circumstances of the case, that no patient, their immediate family, or other health professional colleagues of the nurse could have any confidence in their dealings with her in the interim period.
(Page 15)
44 To similar effect, in Legal Practitioners Complaints Committee and A Practitioner [2007] WASAT 277, the Tribunal determined that an interim suspension order under the Legal Practice Act 2004 (WA), earlier made by the Tribunal, should remain in force in respect of a practitioner who had been charged with stealing from his trust account and other relevant accounts, a sum totalling in excess of $700,000, which allegations were also made in the substantive disciplinary proceedings in the Tribunal.
45 In that case, at [45], the Tribunal observed as follows:
"The Tribunal can generally imagine hypothetical circumstances that might arise under which interim suspension of a practitioner from practice might not be necessary and an order limiting the practice of a practitioner may be sufficient to protect the public interest. For example a practitioner may be said to be lacking competence in a particular area of practice which suggests that conditions ought to be imposed on his or her practice pending the completion of an inquiry into his or her conduct."
46 However, the Tribunal, at [46], went on to observe that in the case before it the cause of concern was that a number of stealing charges of a most serious nature had been brought against the practitioner. The transactions arose in the course of the practitioner's practise as a lawyer. The Tribunal observed, at [47], that utterly fundamental to the relationship between a legal practitioner and his or her client is trust and confidence; and that honesty and integrity are essential prerequisites to the right to practise law.
47 In all of those circumstances the Tribunal considered, at [49], that the public generally would have a diminished confidence in the legal profession if a practitioner who had been charged with serious stealing offences arising out of his or her legal practice were to be permitted, even on an interim basis, to continue to practise law pending the determination of disciplinary proceedings into the conduct alleged against them.
48 However, the Tribunal confirmed, at [50], that:
"The Tribunal does not mean to suggest that every time a legal practitioner is charged with some criminal offence it will necessarily follow that they should be suspended pending the determination of the disciplinary proceedings. However, in this case, the Tribunal considers that the confidence the public
(Page 16)
- expects to maintain in the profession's adherence to high standards of conduct would be undermined if the practitioner were to remain unsuspended pending the finalisation of the inquiry into the serious matters alleged against him."
49 It is perhaps a question of fact and degree in every case, and no doubt it is correct to state that the circumstances of each and every case in which an interim constraint or an interim injunction is sought, pending the final determination of disciplinary proceedings, to restrain a person from practising their chosen vocation, must be considered carefully before any order is made.
50 In this case, while the allegations made against the practitioner are most serious indeed, and if made out would have serious consequences for him, there are a number of factors which lead the Tribunal to consider that, on balance, it is appropriate to allow the practitioner to keep practising medicine, but on conditions that should give the public confidence that he will not be a risk in the interim period.
51 The practitioner, on the material currently given to the Tribunal, is not alleged to have engaged in any conduct like the conduct which he is alleged to have engaged in here on any other occasion during 30 years of medical practice.
52 The conduct complained of does not go to his primary competence as a practitioner. It appears to be isolated, or at least related to a particular patient.
53 In this case, the Tribunal considers that if the practitioner here is limited to practising in the emergency department of a hospital and to practising two days a week in a skin cancer clinic and is, soon enough, not involved in any general practice at all, he will be engaged in the practice of medicine in ways which considerably diminish the likelihood of him developing the sort of relationship alleged against him in these proceedings with a female patient.
54 Further, to the extent that the conduct alleged against the practitioner involves the use of schedule 8 or stupefying drugs, if the practitioner simply does not have any access to such drugs and is not permitted to administer them, then another potential risk to the public, and particularly to female patients, is removed.
(Page 17)
55 Moreover, if the practitioner cannot deal with female patients save with a chaperone present, that issue is also significantly diminished as a risk.
56 However, the Tribunal accepts that if the practitioner is to work in an emergency department of a hospital he would need, in order to properly utilise his skills for the benefit of the public, to be able to treat both male and female members of the public, and administer schedule 8 and stupefying drugs. The risk in such a setting to female members is quite limited, in the view of the Tribunal.
57 Therefore, the particular facts and circumstances of this case, and the limitations proposed by counsel for the practitioner on the medical practice of the practitioner, are such as to lead the Tribunal to consider, on balance, that it is not necessary, in the interests of protection of the public, to wholly constrain or restrain the practitioner from practising medicine pending the determination of the substantive disciplinary proceedings. Rather, the limitations proposed by counsel for the practitioner appear to the Tribunal in all the circumstances to be adequate to this end.
58 In short, the forms of practice of medicine that may be undertaken by the practitioner in the period while the proceedings in the Tribunal are pending, effectively remove him from general practice, effectively do not involve him in situations where he can develop a relationship with a female patient, and prevent him from administering schedule 8 and stupefying drugs.
59 For these reasons the Tribunal finds it is appropriate, in these circumstances, pending the final determination of the preliminary proceedings in the Tribunal, to partly restrain the practitioner from practising medicine. In the circumstances, the President and the Tribunal considers that the appropriate order should be in the form of an interim injunction granted under s 90 of the SAT Act.
Order
60 For the reasons given above, the President and the Tribunal on 28 April 2008 ordered as follows:
1. The respondent practitioner is restrained from practising as a medical practitioner save in the following circumstances and on the following conditions:
- (a) [Private] Medical Centre: the practitioner may continue to work at the Centre until 30 June 2008, when he will retire from this practice, on the condition that he will not see any female patients without a female chaperone being present.
(b) [Hospital] Emergency Department: the practitioner may continue to work at the Emergency Department for two shifts per week on the condition that he will not conduct any intimate examinations on female patients without ensuring the presence of a female chaperone. "Intimate" in this context means any internal examinations on female patients or examinations involving the genital area or breasts, without the presence of a female chaperone.
(c) [Private] Skin Cancer Clinic: the practitioner may continue to work at the Clinic one day per week on the condition that he will not see any female patients without a female chaperone being present.
(d) The practitioner is to return to the Board his Doctors Bag, and is not to obtain another.
(e) Save in respect of practice in the [Hospital] Emergency Department for the purpose of paragraph (b), the practitioner is not to administer or possess any Schedule 8 or stupefying drugs. Should any of his patients require such drugs he must arrange for another doctor to administer them.
(f) The practitioner is not to see any patients other than at the [Hospital] Emergency Department, [Private] Medical Centre or the [Private] Skin Cancer Clinic, and he is not to undertake any home visits to patients.
61 On 28 April 2008, the Tribunal also confirmed the non-publication order it first made on 31 March 2008, that the name of the practitioner not be published pending the determination of the criminal proceedings
(Page 19)
- against him, so as not to prejudice the administration of the criminal justice system.
I certify that this and the preceding [61] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT
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