Medical Board of Western Australia and Graziotti

[2009] WASAT 19

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: MEDICAL ACT 1894 (WA)

CITATION:   MEDICAL BOARD OF WESTERN AUSTRALIA and GRAZIOTTI [2009] WASAT 19

MEMBER:   JUDGE J CHANEY (ACTING PRESIDENT)

DR B DE VILLIERS (MEMBER)
DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)

HEARD:   30 OCTOBER 2008

DELIVERED          :   2 FEBRUARY 2009

FILE NO/S:   VR 47 of 2008

BETWEEN:   MEDICAL BOARD OF WESTERN AUSTRALIA

Applicant

AND

PAUL GRAZIOTTI
Respondent

Catchwords:

Costs ­ Disciplinary proceedings against medical practitioner ­ Whether reasonable basis to bring and maintain proceedings ­ Expert evidence not supporting applicant's case ­ Applicant on notice prior to commencing proceedings that costs would be sought

Legislation:

Medical Act 1894 (WA), s 13(1)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Applicant ordered to pay respondent's costs

Category:    B

Representation:

Counsel:

Applicant:     Mr P Tottle

Respondent:     Mr J Ley

Solicitors:

Applicant:     Tottle Partners

Respondent:     Clayton Utz

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

Motor Vehicle Industry Board and Dawson [2006] WASAT 8

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Medical Board of Western Australia brought proceedings in the Tribunal against Dr Paul Graziotti alleging infamous or improper conduct in a professional respect in relation to his treatment of a patient in December 1998.  The application to the Tribunal was made on 5 March 2008.

2. The conduct complained of concerned an alleged absence of certain clinical notes following Dr Graziotti's treatment of Mr Davis, an alleged failure to attend to review the patient within a few hours of the treatment, and a failure to write to the patient's referring general practitioner.

3. The Medical Board of Western Australia first received a complaint about Dr Graziotti's treatment of the patient in July 2003, almost five years after the procedure.  There was then a long period before commencement of proceedings in the Tribunal, during which time the precise allegations against Dr Graziotti changed.  By late 2007, both the Board and Dr Graziotti had obtained independent expert opinion concerning Dr Graziotti's treatment and care of Mr Davis.  Both experts expressed a view that criticisms of Dr Graziotti's post­operative care were of a minor nature and did not influence the quality of his care.  In light of those opinions, Dr Graziotti's solicitors wrote to the Board in October 2007 putting the Board on notice that if it pursued the matter, Dr Graziotti would seek costs in the event that he successfully defended the Board's allegations.  Notwithstanding that warning and the views of the two independent experts, the Board issued the application to the Tribunal.

4. Once the proceedings were commenced, the Tribunal ordered that the parties attend a mediation.  Mediation did not resolve the matter and further steps were taken to prepare the matter for hearing.  The Board proceeded with some of those steps, but then withdrew the application prior to hearing.  Dr Graziotti then applied for an order that the Board pay his costs of the proceedings.

5. The Tribunal reviewed the history of the matter, and the principles which have been adopted in the Tribunal in relation to an award of costs in vocational matters.  It concluded that, on the facts of this case, it was appropriate that the Medical Board be ordered to pay Dr Graziotti's costs of the proceedings in the Tribunal.

The issue

1. The substantive application in these proceedings was withdrawn by leave on 5 August 2008.  The matter had been listed for final hearing for two days commencing 16 October 2008.  Upon withdrawal of the application, Dr Graziotti, the respondent, applied for an order that the Medical Board of Western Australia (Board) pay his costs of the proceedings.  It is that application which falls for determination.

2. The application for costs is based on the proposition that the Board had no reasonable basis to maintain the proceedings against Dr Graziotti.  In order to understand that contention, it is necessary to review the history of the Board's investigations leading to the commencement and completion of these proceedings.

The background facts

1. The proceedings before the Tribunal concern the post­operative treatment by Dr Graziotti of a patient, Mr Davis, in late December 1998.  There is no substantial dispute between the parties as to the chronology of events which were helpfully set out in affidavits of Dr Graziotti and the Board's solicitor, Ms Melanie Jane Naylor, the respondent's statement of contentions, and a chronology provided by the applicant.  Those documents reveal the following history.

2. The events the subject of the proceeding took place in December 1998 and January 1999.  They related to the respondent's treatment of Mr John Davis.

3. On 1 July 2003, the Board received a complaint from Mr Davis' widow.  The first the applicant knew of a complaint in relation to his treatment was when it's the Board's Registrar wrote to him on 8 July 2003, almost five years after the treatment.

4. Dr Graziotti responded promptly to the applicant's letter in a frank and comprehensive reply dated 11 July 2003.

5. On 23 July 2003, the applicant wrote to the respondent again, requesting clarification of various matters contained in his letter dated 11 July 2003.  The respondent clarified those matters in a letter dated 24 July 2003. 

6. The applicant next wrote to the Dr Graziotti on 18 September 2003, seeking still further clarification of various matters.  The respondent provided that clarification in a letter dated 19 September 2003. 

7. The applicant did not write substantively to the respondent again until 17 February 2004, some five months later, when it asked the respondent why he had administered both epidural and paravertebral injections to Mr Davis on 21 December 1998.  The respondent explained the rationale for his treatment in a letter dated 18 February 2004.

8. On 25 May 2004, over three months later, the applicant resolved 'to take disciplinary action by way of an inquiry' against the respondent, and the following day it instructed its solicitors, Mullins Handcock to progress the matter to a formal inquiry.

9. On 26 May 2004, the applicant notified the respondent that it had resolved, pursuant to s 13(1) of the Medical Act 1894 (WA) (Medical Act), 'to consider this matter in the forum of a formal inquiry'. However, the Board did not inform the respondent in what respect or respects it considered his treatment of Mr Davis might be objectionable or of what category of misconduct it considered the respondent might be guilty.

10. On 12 August 2004, Mullins Handcock provided a draft notice of inquiry to the Board.  Between then and November 2004, the Board settled the notice of inquiry and issued it on 18 November 2004.

11. It was not until 1 December 2004, after a further delay of over six months after the inquiry was foreshadowed, that Mullins Handcock served the respondent with a notice of inquiry, in which the applicant alleged that the respondent might be guilty of gross carelessness or incompetence in his treatment of Mr Davis because his records of his pre-operative consultation with Mr Davis, his intraoperative notes and his post-operative notes were inadequate.

12. On 1 January 2005, the State Administrative Tribunal Act 2004 (WA) (SAT Act) came into operation and the Tribunal came into existence. In addition, the Medical Act was amended to, inter alia, create the Professional Standards Committee (PSC).

13. On 4 February 2005, Mullins Handcock wrote to the Dr Graziotti's solicitors, advising that the applicant wanted to 'enter this matter for hearing' in either the Tribunal or the PSC, and requesting the respondent's written response to the notice of inquiry. 

14. On 11 February 2005, the respondent's solicitors wrote to Mullins Handcock, enquiring whether the applicant intended to refer the allegations in the notice of inquiry to the Tribunal or, alternatively, commence proceedings in the PSC.

15. Mullins Handcock did not provide a substantive response to that inquiry, and took no step to progress the matter one way or the other in the ensuing 11 months. 

16. On 12 January 2006, approximately 14 months after the notice of inquiry had been issued, another firm of solicitors, Tottle Partners, acting for the applicant in lieu of Mullins Handcock, wrote to the respondent's solicitors, saying nothing about whether the applicant's allegations would be referred to the Tribunal or whether proceedings would be commenced in the PSC, but requesting the respondent's file in respect of Mr Davis, and the consent form signed by Mr Davis for the treatment performed by the respondent.  After some communications concerning the appropriate authority to release the patient records, Dr Graziotti's solicitors provided Tottle Partners with copies of the file and the consent form on 3 March 2006.

17. On 22 March 2006, the applicant effectively abandoned the notice of inquiry and instituted proceedings against the respondent in the PSC, when Tottle Partners served the respondent's solicitors with a 'Notice to Practitioner the Subject of Referral to Professional Standards Committee' and a 'Statement of Allegations' dated 22 March 2006 (statement of allegations).  The statement of allegations essentially reproduced the allegations of misconduct made in the notice of inquiry, but also contained, for the first time, an allegation that the respondent had failed to communicate with Mr Davis' general practitioner after treating Mr Davis on 21 and 22 December 1998.  In addition, in the statement of allegations, it was alleged that the respondent's misconduct constituted improper conduct in a professional respect or, alternatively, gross carelessness, rather than gross carelessness or incompetence, as had been alleged in the notice of inquiry.

18. On 10 April 2006, the respondent completed and signed a 'Practitioner's Response', for the purpose of a hearing in the PSC, in which he denied all the allegations made in the statement of allegations.  That document was lodged with the PSC on 13 April 2006.

19. On 13 June 2006, there was a compulsory conference between the applicant and the respondent and their respective solicitors, but the matter was not resolved.  At the conclusion of the conference, the applicant's representative said that she would consider reformulating the statement of allegations and would seek instructions from the applicant in respect of that reformulation.  In a letter dated 14 June 2006, Tottle Partners requested from the respondent's solicitors a copy of any expert evidence which the respondent's solicitors had obtained. 

20. In a letter dated 26 June 2006, the respondent's solicitors advised Tottle Partners that the respondent would prefer to wait until the applicant had reformulated the statement of allegations before providing the applicant with a copy of any expert evidence which the respondent had obtained.  The respondent's solicitors also requested from Tottle Partners a copy of any expert evidence which the applicant had obtained.

21. In a letter dated 4 July 2006, Tottle Partners advised the respondent's solicitors that the applicant had not obtained any expert evidence, that they were considering seeking further information from other doctors who had been involved in Mr Davis' treatment and that, after they had obtained that information, they would 'consider the possibility of making amendments to the Statement of Allegations'. 

22. At its meeting on 22 July 2006, the Board sought a recommendation for an expert suitable to provide an opinion in relation to Dr Graziotti's treatment of Mr Davis.  In a letter dated 9 August 2006, Tottle Partners informed the respondent's solicitors that the applicant had authorised them to brief an expert pain management specialist and that they (Tottle Partners) would attend to that 'in the very near future'.

23. On 30 August 2006, Tottle Partners wrote to Professor Stephan Schug, a consultant in pain medicine, enclosing a brief, and seeking his opinion as to whether the respondent's notes of his pre-operative consultation with Mr Davis, his intraoperative notes and his post-operative notes were adequate and as to whether the respondent should have contacted Mr Davis' general practitioner after treating Mr Davis.

24. Tottle Partners next wrote to the respondent's solicitors on 6 November 2006, when they said that they were 'considering the prospects of revising the allegations' against the respondent.  They also said that, in August 2006, they had briefed Professor Schug, to obtain his opinion in respect of the matters the subject of the statement of allegations, but had not received his report.  It is apparent that Tottle Partners followed up Professor Shug on numerous occasions seeking his report.

25. On 8 February 2007, Tottle Partners received Professor Schug's report dated 5 February 2007.  On page 8 of his report, Professor Schug said:

    In conclusion, I do not think that the practitioner, Dr Graziotti, maintained insufficient clinical records of his pre-operative consultation, of his operative notes and of the post-operative period.

    However, there were possibly some minor omissions of entries into the clinical notes in the post-operative period, specifically on 22 December 1998 and there was clearly an omission to communicate with the referring general practitioner after the event.  However, all of these were minor omissions, do not look in any way deliberate and did not influence the patient care in any way.

26. Notwithstanding that, in their letter dated 26 June 2006, the respondent's solicitors had requested a copy of the expert evidence which the applicant had obtained, Tottle Partners did not send the respondent's solicitors a copy of Professor Schug's report immediately after they had received it.  Nor did they respond to the letter from the respondent's solicitors dated 26 April 2007, inquiring whether they had obtained any expert evidence.

27. According to the Board's chronology, between February and June 2007, the Board considered draft amended allegations prepared by Tottle Partners at meetings in February, April and June 2007.

28. Tottle Partners did not write to the respondent's solicitors again until 10 July 2007, when they advised the respondent's solicitors that the applicant had resolved to proceed with the hearing in the PSC and provided them with an undated substituted statement of allegations.  The substituted statement of allegations was effectively identical with the statement of allegations, except that the allegations that the respondent's records of his pre-operative consultation with Mr Davis and his intraoperative notes were inadequate were deleted, leaving only the allegations that his post-operative notes in relation to Mr Davis were inadequate and that he had failed to contact Mr Davis' general practitioner following the treatment.  Those alleged omissions were still alleged to constitute improper conduct in a professional respect or, alternatively, gross carelessness.  However, in their letter dated 10 July 2007, Tottle Partners did not inform the respondent's solicitors that they had received Professor Schug's report dated 5 February 2007, and did not provide the respondent's solicitors with a copy of Professor Schug's report.

29. On 8 August 2007, Tottle Partners wrote to the respondent's solicitors suggesting that the matter be listed for a compulsory conference.

30. On 14 August 2007, Tottle Partners wrote to Professor Schug, requesting that he issue a revised report, dealing only with the issues of whether the respondent's post­operative notes were adequate and whether the respondent should have communicated with Mr Davis' general practitioner following the treatment which the respondent administered to Mr Davis.  In response, Professor Schug issued a revised report dated 19 August 2007 which Tottle Partners received on that date.  The conclusion which had appeared on page 8 of Professor Schug's report dated 5 February 2007, also appeared on page 6 of his report dated 19 August 2007.  Tottle Partners did not send the respondent's solicitors a copy of Professor Schug's report dated 19 August 2007 immediately upon its receipt.

31. On 31 August 2007, the respondent's solicitors responded to the letter from Tottle Partners dated 8 August 2007, providing their unavailable dates for a compulsory conference, and asking, for the third time since 26 June 2006, whether the applicant had obtained any expert evidence.

32. On 14 September 2007, Tottle Partners wrote to the respondent's solicitors, seeking Dr Grazioti's response to the substituted statement of allegations and enclosing a copy of 'Counsel Assisting's Bundle of Documents' in which was included a copy of Professor Schug's report dated 19 August 2007, but not a copy of his report dated 5 February 2007.

33. Shortly after the respondent's solicitors had been served with a copy of Professor Schug's report dated 19 August 2007, and had provided a copy to the respondent, they retained Dr Roger Goucke, a consultant in pain medicine, and obtained a report from him dated 3 October 2007.  In his report, Dr Goucke:

    •expressed the view that personal documentation by the respondent of all the various post­operative matters had not been absolutely essential for the ongoing care of Mr Davis and would not have been standard practice in 1998;

    •said that, on his instructions, the respondent had telephoned Mr Davis' general practitioner following the treatment and that he regarded that as sufficient communication; and

    •expressed the view that the respondent had not been guilty of improper conduct in a professional respect or gross carelessness.

34. On 22 October 2007, the respondent's solicitors wrote to Tottle Partners providing the respondent's detailed response to the substituted statement of allegations and a copy of Dr Goucke's report, and pointing out that the respondent's denial that he was guilty of improper conduct or gross carelessness for his failure to keep post­operative records was supported by the opinions expressed by Professor Schug and Dr Goucke.  The respondent's solicitors also said that the respondent had communicated with Mr Davis' general practitioner following the treatment, by telephone on 11 January 1999, and that that had also been considered by Dr Goucke to have been sufficient communication.  The respondent's solicitors concluded by expressing the firm view that any application by the applicant against the respondent on the basis of the substituted statement of allegations was doomed to failure.  They then said:

    We put you on notice that if the Medical Board wishes to pursue this matter further, Dr Graziotti proposes to transfer the matter to the SAT.  In the event that he is ultimately successful in defending the Board's allegations at the SAT, he will bring this letter to the attention of the SAT on the question of costs.

35. Notwithstanding the views expressed by Professor Schug and Dr Goucke in their reports, and the terms of the letter from the respondent's solicitors to Tottle Partners dated 22 October 2007, the applicant did not withdraw its allegations against the respondent.

36. On 5 November 2007, Tottle Partners wrote to Professor Schug, informing him that the respondent claimed that he had telephoned Mr Davis' general practitioner following the treatment and asking him whether, even if that telephone call had been made, the respondent should also have written a letter to the general practitioner.

37. At a meeting held on 27 November 2007, the members of the applicant disagreed with the view of Professor Schug and Dr Goucke that the respondent's notes in relation to Mr Davis were adequate and his view that, while better notes may have been desirable for medico-legal purposes, any criticism of Dr Graziotti's notes did not impact on the clinical care of the patient in this case.

38. On 28 November 2007, Tottle Partners wrote to Professor Schug again, asking him, for the first time, and without the allegation having ever been previously put to the respondent, whether the respondent should have assessed Mr Davis between 5.15 pm on 21 December 1998 and 5 am on 22 December 1998.

1. On 11 January 2008, Professor Schug sent a report to Tottle Partners responding to their letters dated 5 and 28 November 2007.  In his report, Professor Schug said that the fact that the respondent had telephoned the general practitioner following the treatment meant that there was 'less of an omission of contact'.  However, he said that, in his view, a letter should still have been written.

2. In relation to the questions of whether the respondent should have attended and assessed Mr Davis earlier than 5 am on 22 December 1998, Professor Schug said that telephone calls made to the respondent by the attending nurses 'should have triggered an urgent assessment' by the respondent.  However, then he said:

   However, these discussions are in this specific case purely of a theoretical nature.  None of the MRI scans revealed a cause for the neurological deficit of this specific patient.  Therefore, the MRI scan at 0500 on 22 December 1998 had no therapeutic consequences, as the only cause correctable and to be expected at that time, an epidural haematoma compressing the spinal cord, was excluded.

   An earlier assessment by Dr Graziotti and a subsequent earlier MRI scan would have had no therapeutic consequences in this specific case …

3. On 22 January 2008, and notwithstanding the firmly expressed views of Professor Schug and Dr Goucke regarding the adequacy of the respondent's notes, the proposed evidence of the respondent that he had contacted Mr Davis' general practitioner following the treatment and Dr Goucke's opinion that that was sufficient communication, Professor Schug's comments in his report dated 11 January 2008 regarding the respondent not having attended and assessed Mr Davis between 5.15 pm on 21 December 1998, and 5 am on 22 December 1998 and the letter from the respondent's solicitors dated 22 October 2007, the applicant resolved to issue an application against the respondent in the Tribunal.

4. On 5 March 2008, the applicant issued the application to the Tribunal, in which it alleged that the respondent may be guilty of infamous or improper conduct in a professional respect in that:

   •the respondent's post-operative notes in respect of Mr Davis were inadequate;

   •the respondent had failed to write to Mr Davis' general practitioner following the treatment; and

   •the respondent had failed to attend to assess Mr Davis between 5.15 pm on 21 December 1998 and 5 am on 22 December 1998.

5. On 28 March 2008, Tottle Partners provided the respondent's solicitors with a copy of Professor Schug's report dated 11 January 2008. 

6. A mediation was held at the Tribunal on 9 May 2008, but the matter was not resolved. 

7. On 17 June 2008, pursuant to a direction from the Tribunal, the applicant filed and served its statement of issues, facts and contentions (applicant's SIFC).  The applicant's SIFC was, in one important respect, inconsistent with the application.  Accordingly, on 4 July 2008, the respondent's solicitors wrote to Tottle Partners, asking them to explain or correct the inconsistency.

8. Tottle Partners purported to correct the inconsistency between the application and the applicant's SIFC by filing and serving, on 7 July 2008, a substituted statement of issues, facts and contentions (substituted SIFC).  However, the respondent's solicitors maintained that there remained major inconsistencies between the application and the substituted SIFC, and that the applicant's allegations against the respondent were inadequately particularised.  The respondent's solicitors wrote to Tottle Partners on 7 and 8 July 2008, making those submissions and identifying the inconsistencies and the particulars which were required.

9. Tottle Partners did not respond to the letters from the respondent's solicitors dated 7 and 8 July 2008.  The applicant met on 22 July 2008 and resolved to discontinue this proceeding.  The only reason given by the applicant for that resolution appears in para 100 of the Naylor affidavit.  It is said there that 'the mediation process had put a different complexion on the matter' from the perspective of the member of the applicant who had represented the applicant at the mediation on 9 May 2008.

10. On 5 August 2008, by consent, the Tribunal granted the applicant leave to withdraw these proceedings and ordered that the application be otherwise dismissed.

The principles to be applied

1. The general position in relation to costs of proceedings in the Tribunal is the parties to proceedings to bear their own costs unless the Tribunal makes an order to the contrary - s 87(1) of the SAT Act. There is, however, a broad discretion to order one party to pay the costs of the other in proceedings in the Tribunal - s 87(2) of the SAT Act.

2. The Tribunal's approach to awards of costs in the context of vocational regulation matters is now relatively well established.  That general approach was explained by the President of the Tribunal in Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [44] - [48] where he said:

   Where proceedings are commenced by a vocational regulatory body (such as the Board) against a person affected by a vocational Act (such as Mr Dawson), the Tribunal will usually make an order for costs in favour of the vocational regulatory body where it is successful in obtaining an order in the proceedings.  In Medical Board of Western Australia and Roberman [2005] WASAT 81(S) at [30] the Tribunal (Judge John A Chaney SC, Deputy President, presiding member) observed in relation to s 87(2) that:

   '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.'

   With those observations the Tribunal concurs.

   In the Roberman case, however, the Medical Board of Western Australia was unsuccessful in relation to some of the allegations made against the medical practitioner.  For that reason the Tribunal in its discretion considered it was appropriate that the practitioner only pay one-third of the costs of the Medical Board.  In so doing the Tribunal implicitly recognised that a person affected by proceedings instituted by a vocational regulatory body should not have to bear the costs of the proceedings or contribute to the costs of those part of the proceedings which were not successfully maintained.

   The decision in the Roberman case does not support the view, however, that an affected person in such proceedings is entitled to an award of costs for the portion of the proceedings in which they were successful.  If this approach were to be adopted, vocational regulatory bodies may well feel inhibited in commencing proceedings that should be commenced and maintained in the public interest even though 'success' cannot be guaranteed.  Consequently, the Tribunal considers that, ordinarily, 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.

   Of course, in every case the Tribunal retains the discretion under s 87(2) of the SAT Act to order costs in the circumstances of the case.

The respondent's submissions

1. The respondent submits that there was no reasonable basis for the applicant to make the application to the Tribunal on 5 March 2008, and in particular, there was no basis for the applicant to allege, as it did in the application, that the respondent was guilty of infamous or improper conduct in a professional respect.

2. Dr Graziotti relies upon the following factors to support the proposition that the proceedings lacked any reasonable basis:

   (a)It was almost 10 years since the occurrence of the events the subject of the Application;

   (b)It was over 5 years since Mr Davis' widow had made a complaint about the respondent to the Medical Complaints Board of Victoria, which had referred it to the applicant;

   (c)The applicant had never previously put to the respondent that he should have attended and assessed Mr Davis between 1715 hours on 21 December 1998 and 0500 hours on 22 December 1998;

   (d)The applicant had written to the respondent on numerous occasions, seeking his explanation for the treatment which he had given Mr Davis, and he had at all times responded promptly and frankly;

   (e)There had been significant delays by the applicant in bringing the matter to finality;

   (f)the applicant had resolved, on 25 May 2004, 'to take disciplinary action by way of an inquiry' against the respondent (although it is not clear whether the applicant had first formed one of the opinions which it was required to form before it could hold an inquiry) and had issued a notice of inquiry on 18 November 2004;

   (g)The applicant had apparently resolved, at some time prior to 22 March 2006, that, in lieu of referring the allegations in the notice of inquiry to the Tribunal, it would institute proceedings against the respondent in the PSC;

   (h)The applicant had resolved, on 22 January 2008, that in lieu of the PSC proceedings, it would issue the Application;

   (i)The applicant had obtained three reports from its chosen expert witness, Professor Schug, in which Professor Schug had expressed the clear view that the respondent's records were adequate, that the respondent should have attended Mr Davis between 1715 hours on 21 December 1998 and 0500 hours on 22 December 1998, but to do so would have had no therapeutic relevance and that, by telephoning Mr Davis' general practitioner on 11 January 1999, the respondent had made a 'lesser omission of contact', but should also have written a letter;

   (j)The applicant was aware that Dr Goucke was also firmly of the view that the respondent's records were adequate, that his telephone call to the general practitioner was sufficient communication and that the respondent was not guilty of improper conduct or gross carelessness; and

   (k)The respondent's solicitors had written to Tottle Partners on 22 October 2007, saying that any application by the applicant based on the Substituted Statement of Allegations was doomed to fail and putting the applicant on notice that the respondent would seek the costs of the proceeding if the applicant filed the Application and it failed.

The applicant's submissions

1. The Board submits that the history of the proceedings demonstrates that it kept reassessing the allegations against the respondent over time, and made amendments to the allegations in light of the expert evidence that it had received.  In one respect, the Board did not accept the views of its expert, namely Professor Schug's view that the respondent's failures in clinical note taking were matters of medico­legal significance only.

2. The Board submits that, being a specialist body comprised of senior members of the medical profession experienced in the conduct of disciplinary matters, it was entitled to conclude that Professor Schug's view is contrary to the combined clinical experience of the Board members.

3. The Board submits that it ultimately decided to withdraw the allegations against Dr Graziotti after mediation where a medical member of the Board had the opportunity of hearing for the first time the respondent speak about his clinical experience, and give a verbal explanation of his clinical decision­making in the circumstances of the case.  The Board submits that it is appropriate to have regard to what had been said at the mediation, and that the making of a costs order in the present circumstances would represent a powerful disincentive to discontinuing proceedings after mediation.

Should costs be awarded?

1. As the respondent submits, and the Board accepts, these proceedings have involved substantial periods of delay.  Ten years have passed since the events the subject of complaint took place.  Dr Graziotti has had allegations hanging over his head for the latter five years of that period.  Allegations of professional misconduct are almost invariably a source of concern and stress to a professional person.  It is incumbent upon regulatory authorities to progress the investigation and resolution of complaints as quickly as is reasonably possible.  Dr Graziotti is entitled to be justifiably concerned at the delays which he encountered in bringing the complaint against him to a conclusion.  That is particularly so where his responses to the Board were at all times prompt, comprehensive and open.

2. There are, however, some explanations for the delay on the Board's part.  The Board did not, itself, become aware of any complaint about Dr Graziotti's conduct until some five years after the conduct was said to have occurred.  There were then delays which resulted from the change in legislation when this Tribunal assumed the role previously undertaken by the Board, and the Professional Standards Committee was established.  The Board understandably took some time in determining how to progress the matter in the light of the transitional position.  The Board also encountered some delay in obtaining an expert report, which it can be accepted, was outside of the Board's control.  In view of those factors and notwithstanding that clearly some responsibility for substantial delay must fall at the feet of either the Board, or the Board's previous solicitors, we do not consider that the act of delay, by itself, should constitute a reason to order the Board to pay Dr Graziotti's costs.  Having received a complaint, it was appropriate for the Board to fully investigate that complaint, and to review the particular allegations that might be made in the light of information as it became available to the Board.

3. Having said that, it is apparent, that, by March 2008, when expert evidence had been provided by both sides, and Dr Graziotti had provided full and frank responses to the allegations against him, the Board was in a position to assess the strength of the case which might be mounted in support of the allegations.  It should, in our view, have then assessed that, in order to prove the case against Dr Graziotti, it would require expert evidence to negate the opinion of Dr Goucke, who Dr Graziotti would inevitably call in support of his case.  The Board's own expert evidence tended, in substantial part, to support Dr Goucke's opinion.  In the course of oral submissions, counsel for the Board suggested that the Board's case would have proceeded on the basis of cross­examination of Dr Goucke based upon the opinions of the Board members themselves.  The Board, without having adduced any expert evidence to support propositions put in cross­examination, would then have invited the Tribunal not to accept Dr Goucke's evidence but, presumably, to rely upon the expertise of the professional members of the Tribunal, to form its own view as to the character of Dr Graziotti's conduct.  While that approach might theoretically be open, the forensic challenge in that course is readily apparent.  In our view, in practical terms, the Board's case was, at best, highly unlikely to succeed.

4. The Board's position is made worse by the warning contained in the respondent's solicitors' letter to the Board's solicitors of 22 October 2007.  That letter drew attention to the fact that the Board's own expert evidence did not support its case, and neither did Dr Graziotti's independent expert evidence.  The Board was put on notice that, if it were to pursue the case, an application for costs would be made.  That warning should have caused the Board to have close regard to whether it could establish its case against Dr Graziotti, notwithstanding what appears to be the personal views of some Board members.  On the materials that we have reviewed, it appears to us that review would have revealed the very poor prospects that the application could succeed.

5. While the history in the delay of the matter does not, by itself, provide a basis to award costs, it provides a context in which the decision to proceed by way of application to the Tribunal took place.  Against that prolonged history, the decision to make the serious allegations of infamous or improper conduct against Dr Graziotti, in the absence of expert evidence supporting those allegations, was quite oppressive.  It must be borne in mind that the original complaint levelled against Dr Graziotti by Mrs Davis concerned matters of clinical treatment and care.  Those concerns, which no doubt arose from the unexplained complications suffered by Mr Davis, were shown to be without substance.  The allegations that ultimately emerged from the Board's exhaustive analysis of Dr Graziotti's notes and the hospital records involved no suggestion that the patient's outcome may have differed if Dr Graziotti acted differently.  In those circumstances the pursuit of allegations of that nature so long after the events in question took place, and in the face of the contrary expert evidence, is difficult to understand.

6. For those reasons, we consider the facts of this case to be in that unusual class which warrants an order that the Board pay the costs of the proceedings before the Tribunal.  The costs which we contemplate should be encompassed in the order are only those costs incurred after 5 March 2008.  The costs incurred by Dr Graziotti leading up to that time were a result of what we consider to be the reasonable investigation of the complaint's against Dr Graziotti, albeit investigations subject to delay.

7. In reaching this view, we are particularly mindful of the concern expressed by counsel for the Board as to the potential disincentive to participation in mediation that the making of a costs order might have.  There is a clear advantage of mediation in vocational matters, as in all other matters, in that it enables parties to better communicate their respective positions with a view to resolution of disputes.  It is not uncommon that, in light of information obtained through mediation, an applicant might discontinue its proceedings, or a respondent might consent to orders sought.  It would be quite inappropriate, if, as a general rule, discontinuance of an application following mediation were to result in the costs order in favour of a respondent.

8. In this case, it is submitted that the decision to withdraw the allegation occurred where a medical member of the Board had the opportunity of hearing a respondent speak about his approach to this particular patient.  We note, however, the decision to withdraw the application occurred some two and a half months after the mediation was completed, and after further directions hearings in the Tribunal, with steps being taken by the Board to reformulate allegations and proceed to hearing.  We anticipate that a significant part of Dr Graziotti's costs of these proceedings will have been incurred in the period between the mediation and the order for leave to withdraw being made.

9. This case should not be seen as a disincentive to discontinuing proceedings after mediation.  The special circumstances of this case are that, prior to institution of the application, the state of the Board's expert evidence did not substantially support its case.  We accept that Dr Graziotti had provided quite full and frank responses to the allegations against him from as early as 2003.  His position in response to the complaint against him never changed.  While the information exchange available at mediation might have more persuasively conveyed his ideas, it is not apparent to us that much more could have been said at mediation than was said in Dr Graziotti's responses to the Board during the period of its investigation, and in the expert reports that have been obtained by each party.  It is not the fact of withdrawing the application following mediation which supports an order for costs, it is the state of the information available to the Board prior to the institution of the proceedings, which in our view, supports a conclusion that it was not reasonable for the Board to commence proceedings in March 2008.

Order

1. The applicant pay the respondent's costs incurred after commencement of the application to the Tribunal in an amount to be agreed between the parties, or if not agreed to be fixed by the Tribunal.

I certify that this and the preceding [72] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, ACTING PRESIDENT