MEDICAL BOARD OF WESTERN AUSTRALIA and ADAMS
[2011] WASAT 75
•5 MAY 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and ADAMS [2011] WASAT 75
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
HEARD: 10 MARCH 2011
DELIVERED : 5 MAY 2011
FILE NO/S: VR 123 of 2010
BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
STEPHEN ADAMS
Respondent
Catchwords:
Medical practitioner - Application to strike out proceedings - Disciplinary matters - Offences
Legislation:
Medical Act 1894 (WA), s 13(1)(a),
Medical Practitioners Act 2008 (WA), s 4, s 76(1), s 76(1)(a), s 76(1)(c), s 115(2), s 116(1), s 116(1)(j), s 122, s 124, Pt 6, Pt 7, s 155, s 155(2), s 160, cl 9, Sch 2
State Administrative Tribunal Act 2004 (WA), s 47(1), s 47(2), s 87(1)
Result:
The applicant's application is dismissed
Category: B
Representation:
Counsel:
Applicant: Ms L Black
Respondent: Mr J Ley
Solicitors:
Applicant: Tottle Partners
Respondent: Pynt & Partners
Case(s) referred to in decision(s):
Medical Board of Western Australia and Graziotti [2009] WASAT 19
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Medical Board of Western Australia alleged that a disciplinary matter existed in relation to the respondent, namely that the respondent practised medicine during a period while he was suspended from practice. The respondent applied to the Tribunal for the Medical Board's application to be dismissed on the grounds that, even if the respondent did in fact practise medicine while he was suspended, this is not a disciplinary matter under Pt 6 of the Medical Practitioners Act 2008 (WA), but an offence under Pt 7, and therefore the Tribunal has no jurisdiction to hear this matter.
The Tribunal agreed with the respondent and dismissed the Medical Board's application.
Introduction
The Tribunal on 7 November 2008 ordered that, as a consequence of a finding of infamous conduct in a professional respect, within the meaning of s 13(1)(a) of the Medical Act 1894 (WA) (the repealed Act) the respondent (Practitioner) be suspended from the practise of medicine for eight months with effect from 26 November 2008.
On 1 December 2008, the Medical Practitioners Act 2008 (WA) (MP Act) commenced. By s 160 of the MP Act, the repealed Act was repealed. Clause 9 of Sch 2 to the MP Act provides:
If immediately before the commencement day a natural person was suspended under the repealed Act, section 122 applies to the suspension as if the person had been suspended under section 116(1)(j).
Section 122(1) of the MP Act relevantly provides:
If, under … s 116(1)(j) … a person is suspended from the practice of medicine, the person is to be regarded as not being registered during the period of the suspension.
The applicant (Medical Board) has by an application dated 9 July 2010 made an allegation to the Tribunal under the MP Act that a disciplinary matter exists in relation to the Practitioner. The Medical Board alleges that the Practitioner practised medicine during a period while he was suspended from practice.
The Practitioner in turn has applied to the Tribunal for the application mentioned in the preceding paragraph to be dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the basis that the proceeding is misconceived for the purpose of s 47(1) of the SAT Act and ought to be dismissed.
At the hearing in respect of both of these applications on 10 March 2011, the Tribunal gave its decision. The Tribunal indicated at the hearing that it would give written reasons for its decision and these are those reasons.
The application for dismissal
The Practitioner submits that, if the Practitioner practised medicine during his period of suspension, which the Practitioner denies, then this is not a disciplinary matter under Pt 6 of the MP Act but constitutes an offence under Pt 7 of the MP Act.
Section 4 of the MP Act defines a 'medical practitioner' to mean a person who is registered.
As has already been stated at [5], s 122 of the MP Act, which is in Pt 6, provides that if a person is suspended from the practice of medicine, then the person is to be regarded as not being registered during the period of suspension.
Section 116(1) of the MP Act, which is in Pt 6 and which provides the Tribunal with its powers when a disciplinary matter exists, refers to 'a proceeding commenced … against a medical practitioner', (emphasis added).
Section 124 of the MP Act, which is in Pt 7, provides:
A person must not practise medicine unless that person is a medical practitioner.
Finally, s 155(2) of the MP Act, which is in Pt 7, provides:
All proceedings for offences against this Act are to be heard by a court of summary jurisdiction constituted by a magistrate.
Accordingly, in the Practitioner's submission, the Tribunal has no jurisdiction to hear the Medical Board's application.
The Medical Board's submissions
The Medical Board submits that s 76(1) of the MP Act enables the Medical Board to bring disciplinary proceedings in the Tribunal where a person who is suspended from practising medicine does in fact practise medicine. In the Medical Board's submission, the alleged conduct of the Practitioner, namely practising medicine during a period when he was suspended from practice, constitutes a contravention of a condition upon the practice of medicine as described in s 76(1)(a) of the MP Act and therefore the Tribunal has the power to make an order against the Practitioner under s 116 of the MP Act.
The Medical Board concedes that it could have commenced proceedings against the Practitioner under s 155 of the MP Act. However, in the Medical Board's submission, it is also open to the Medical Board to bring disciplinary proceedings in the Tribunal against the Practitioner. The Medical Board says that because s 122 of the MP Act provides that, during a period of suspension, the person concerned is to be 'regarded as not being registered during the period of suspension', that means that, when the period of suspension expires, the person is then to be regarded as being registered. That in turn suggests that a person who was a registered medical practitioner but is under suspension should not be regarded in the same way as a person who is not and has never been a medical practitioner at all. The Medical Board argues that under s 122 of the MP Act, a person under suspension is still deemed to be a medical practitioner and s 124 of the MP Act only applies to a person who is not and has never been a medical practitioner.
Turning to s 76(1)(a) of the MP Act, the Medical Board first points out that the word 'person' is used rather than the words 'medical practitioner'. This is in contrast to the reference to 'medical practitioner' in s 116(1) of the MP Act. The Medical Board says that therefore the 'person' referred to in s 76(1)(a), is not necessarily a person who is registered.
Second, the Medical Board points out that the word 'condition' in the MP Act is defined to include a restriction. Thus, s 76(1)(a) can be read to say that a disciplinary matter includes one where a person has contravened a restriction applying to the practice of medicine by that person.
Thus, the Medical Board says that a person who was registered but is under suspension should more appropriately be regarded as being subject to a restriction on his or her right to practice medicine (that is, he or she cannot practice medicine during that period of suspension) rather than being regarded as not being registered at all during the period of suspension.
It follows in the contention of the Medical Board that the disciplinary matter under s 76(1) of the MP Act which the Medical Board wishes the Tribunal to consider is in the nature of a breach by the Practitioner of a restriction on him, namely that he is alleged to have practised medicine during the period when he was suspended.
The Medical Board submits that if the MP Act is construed in any other way, it would have the consequence that there are no means by which a practitioner can be disciplined if he or she practised medicine while suspended, unlike a practitioner who is allowed to practice subject to conditions.
Finally, the Medical Board reminds the Tribunal that, even if the Tribunal disagrees with what it has said, at the date of the Medical Board's application the Practitioner's period of suspension had ended and that the Practitioner was at that point a person who is registered. On that basis, in the Medical Board's submission, the Medical Board's application can proceed.
The Tribunal's findings
The Tribunal disagrees with the Medical Board's interpretation of s 122 of the MP Act. If a person has been suspended under s 116(1)(j) of the MP Act then that person is to be regarded as not being registered during the period of suspension. He or she is not deemed to be registered, he or she is in fact not registered during the period of suspension. If that person is not registered, then he or she is not a medical practitioner within the meaning of the MP Act. The Tribunal's powers under s 116(1) of the MP Act only arise following a proceeding commenced by an allegation under the MP Act 'against a medical practitioner'.
With regard to the Medical Board's argument about the significance of the use of the word 'person' in s 76(1)(a) of the MP Act, the words which follow, namely 'that person's registration' and 'the practice of medicine by that person' make it clear that 'person' in that context is a person who is registered.
The Medical Board's argument that a suspension is merely a restriction on the right to practice medicine for the period of suspension cannot be correct. The MP Act clearly states that a person who is suspended from the practice of medicine is to be regarded as being unregistered.
The Tribunal also disagrees with the Medical Board's contention that this interpretation of the MP Act means that a practitioner under these circumstances cannot be disciplined under the MP Act. A practitioner whose period of suspension expires apparently does not automatically become registered at the end of the period of suspension. As both parties conceded at the hearing, the Practitioner was required at the end of his period of suspension to apply to the Medical Board for registration. If a person during a period of suspension practises medicine and is convicted of an offence under Pt 7 of the MP Act, then presumably that offence would be taken into account when the Medical Board considers the person's application for registration following suspension.
If the practitioner is convicted of the offence in question, then that may of itself become a disciplinary matter under s 76(1)(c) of the MP Act, assuming that, as in this case, the Practitioner has already been reregistered following his period of suspension.
As to the argument that the Practitioner at the time of the Medical Board's application was a person who is registered and that therefore this matter can proceed as a disciplinary matter, at first sight this has some appeal. However, this would mean that a practitioner under suspension for, say, two years who practices medicine at the very beginning of his or her period of suspension could not be the subject of disciplinary proceedings for almost two years. The Tribunal does not accept this. It is the time when the disciplinary matter is alleged to have occurred which is relevant, not the time of the application to the Tribunal.
For the reasons set out above, the Tribunal finds that the Medical Board's application should be dismissed under s 47(2) of the SAT Act on the basis that the application is misconceived, in the sense that the Tribunal has no jurisdiction to hear the matter.
Costs
The Practitioner seeks an order that the Medical Board pay the Practitioner's costs of the proceeding, on the basis that the Practitioner has been successful in his application to have the Medical Board's application dismissed. The Medical Board opposes any order for costs on the basis that s 87(1) of the SAT Act provides that the parties bear their own costs in a proceeding before the Tribunal in the absence of an order of the Tribunal to the contrary.
In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman), Judge Chaney as he then was, made the following observations:
Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case: Roberman at [30]
In the decision in Medical Board of Western Australia and Graziotti [2009] WASAT 19 (Graziotti) Judge Chaney as he then was, quoting the President of the Tribunal in Motor Vehicle Industry Board and Dawson [2006] WASAT 8, (Dawson) said that the decision in Roberman does not support the view that a person is entitled to an award of costs in the proceedings in which they were successful. The Tribunal took the view in both Dawson and Graziotti that unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against a vocational regulatory body simply because the application was not successful.
In this case, the Medical Board has been unsuccessful in its application. However, the Medical Board did not become aware of the Practitioner's application for dismissal and the basis of that application until it received a letter from the Practitioner's solicitors dated 2 March 2011. This, as counsel for the Practitioner conceded in his opening submissions at the hearing, was 'late in the piece'. Although the Medical Board's application was unsuccessful, it could not be regarded in any way as lacking any reasonable basis or not being made in good faith. The underlying issue within the Medical Board's application is still to be heard, albeit not in this Tribunal, and in the Tribunal's view it was perfectly appropriate for the Medical Board to make the application. The fact that the Medical Board had been given notice of the Practitioner's application for dismissal does not affect the Tribunal's decision. The short period of time between the giving of notice and the hearing of the Tribunal would not have given the Medical Board a sufficient opportunity to consider the Practitioner's application and, if it thought appropriate, withdraw its own application.
Accordingly, the Tribunal makes no order with regard to costs.
Order
On 10 March 2011, the Tribunal ordered that the Medical Board's application dated 9 July 2010 is dismissed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE T SHARP, DEPUTY PRESIDENT
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