MEDICAL BOARD OF WESTERN AUSTRALIA and KYI - [2009] WASAT 22

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL ACT 1894 (WA)

CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and KYI [2009] WASAT 22

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: 20 JANUARY 2009

DELIVERED : 4 FEBRUARY 2009

FILE NO/S: VR 150 of 2007

BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
AUNG TIN KYI
Respondent

Catchwords:

Vocational Regulation - Costs - Withdrawal of proceedings prior to hearing - Whether reasonable basis for bringing application - Whether conduct of Board was unreasonable

Legislation:

Health Insurance Act 1973 (WA), s 3GA
Medical Act1894 (WA), s 13(3)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Practitioner's application for costs dismissed

Category: B

Representation:

Counsel:

Applicant: Ms F Vernon
Respondent: Mr PJ Mugliston

Solicitors:

Applicant: Tottle Partners
Respondent: Shahid Shakur

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

Medical Board of Western Australia and Roberman [2006] WASAT 152
Medical Board of Western Australia and Van Dort [2006] WASAT 214 (S)
Motor Vehicle Industry Board and Dawson [2006] WASAT 8
Summerville and Department of Education and Training [2006] WASAT 368 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Following withdrawal by the Medical Board of Western Australia of disciplinary proceedings against a practitioner, Aung Tin Kyi, the practitioner applied for an order that the Medical Board of Western Australia pay his costs.
The Tribunal, after considering the history of the proceeding and the conduct of the Medical Board of Western Australia, dismissed the application.

Issue

The issue in this matter is whether the practitioner is entitled to a costs order against the Medical Board of Western Australia (Board) following the Board's withdrawal of disciplinary proceedings against the practitioner.

Background to the costs application

The practitioner received his medical training in Burma. He became a permanent resident of Australia in 1989 and successfully undertook an occupational English test in 1991, the Australian Medical Council 'MCQ' examination in 1993, a bridging course for overseas trained doctors in 1994 and the Australian Medical Council Clinical examination in 1996. In June 1996, he was granted conditional registration and was employed at a public hospital. After that time he practised as a general practitioner (GP) in a number of locations pursuant to s 3GA of the Health Insurance Act 1973 (WA).
The practitioner came to the attention of the Board in May 2005 as a result of a letter written to them from another doctor, Dr W. When the practitioner's provider number came up for renewal in 2004, Dr W sat in with the practitioner for one morning session in her capacity as a medical adviser for the purpose of finding out whether his provider number should be extended further and whether he had attained the standard required to pass the Fellowship of the Royal College of General Practitioners (FRACGP) examinations. In her letter to the Board, Dr W stated that she took extensive notes and rated his GP skills as 'somewhat less than those of our basic term GP registrars'. Dr W stated that the practitioner's provider number was extended on the condition that he pass the FRACGP examination on the next attempt and his supervision be increased. The practitioner failed the FRACGP examination and it was arranged for an experienced GP, Dr B, to sit in with the practitioner for most of the week and assess his basic skills. Dr W further said in her letter that Dr B reported that the practitioner's skills were significantly below the expected Australian Standard, that his examination of patients was almost nonexistent, that he had difficulty communicating with patients and other doctors, and that he was struggling with English. The practitioner's provider number was withdrawn in late 2004, and the practitioner continued to practise but without billing Medicare. Dr W said she had major concerns about the practitioner's ability to treat and diagnose patients in independent practice.
As a result of the complaint, the Board wrote to the practitioner in August 2005 informing him that a complaint had been made and requesting him to provide a list of former employers and sponsors, and a consent form, to facilitate the Board's investigations of the matter.
In August 2005, the practitioner responded indicating he was shocked and distressed by the Board's letter and provided the relevant information.
It is unclear what action the Board took between August 2005 and November 2006, or why there was a 15-month delay between receiving the practitioner's response and commencing an investigation. A letter from the Board dated 4 July 2006 states that the complaint was considered by the Board at a meeting on 27 July 2006 and the Board resolved to take disciplinary action by commencing an action in the Tribunal. Clearly there is some error in the dates referred to in this letter. However, assuming the dates relate to June and July 2006, this still constitutes a significant period of delay between receiving the complaint and it being put before the Board, and then again a significant period of delay before an investigator was appointed.
In November 2006, an investigator was appointed and the investigator required the practitioner to produce patient files. After correspondence, patient files from January to July 2004 were provided in December 2006.
In February 2007, the Board received from Dr W a detailed analysis of the practitioner's conduct as she observed it. Also in February 2007, the Board engaged an expert, Dr P, to review 150 randomly selected patient files, plus the five files in respect of which Dr W had made observations.
In April 2007, the Board received the expert report from Dr P which set out several concerns he had in relation to the practitioner's practice and which concluded that, in his view, the practitioner had not been practising at a level of competence required of a GP in Australia.
On 3 August 2007, the Board initiated proceedings in the Tribunal.
The Board alleged that the respondent may be guilty of gross carelessness or incompetency by reason of his treatment of 17 patients. In summary the Board alleged that the practitioner in relation to these patients:
•failed to maintain any, or any proper, notes and records of his consultations with the patients;
•failed to properly examine patients;
•failed to properly diagnose and manage the care of patients;
•prescribed drugs that were inappropriate for the treatment of patient's symptoms;
•failed to provide any, or adequate, information to the patients about the drugs he prescribed to them;
•failed to do appropriate tests;
•failed to properly review tests results or act on abnormal test results; and/or
•referred patients for inappropriate pathology tests.
The Board sought pursuant to s 13(3) of the Medical Act1894 (WA) (Medical Act) that the practitioner's name be removed from the register. The Board also sought an order that the practitioner pay its costs of the application.
At the first directions hearing on 21 August 2007 before President Justice Barker, the Tribunal made standard programming orders for the provision by both parties of a statement of issues, facts and contentions as well as documents on which they intended to rely. The matter was adjourned to a further directions hearing on 23 October 2007.
The Board duly filed and served its statement of issues, facts and contentions and bundle of documents.
In early October, the solicitor for the practitioner requested an urgent directions hearing in order to apply for an extension of time for the purpose of obtaining expert advice and to discuss the admissibility of Dr W's evidence. It was indicated that three to four months would be required to obtain an expert report.
The Tribunal convened an urgent directions hearing on 16 October 2007 and granted a short extension of 15 days for the respondent to file the relevant documents. The Tribunal also referred the matter to mediation on 23 November 2007 for a full day.
The practitioner filed the documents and the parties attended the mediation, which was conducted by Senior Sessional Member Dr Mendelawitz, who is a medical practitioner.
The matter came back for directions on 7 December 2007. The Tribunal was informed that at the mediation the parties had agreed, given the lapse of time since the consultations which were the subject of complaint, to a GP being appointed to sit in on the practitioner's consultations, review his practice and report on his current level of competence to the Board. The directions hearing was adjourned until 11 March 2008 to permit the parties to conclude a scheme of supervision.
At the directions hearing on 11 March 2008, the proceeding was further adjourned to 1 April 2008.
Dr T provided reports on 11 March 2008 and 19 March 2008. However, the Board considered that Dr T's observation of the practitioner was infrequent and therefore inadequate, and resolved that they required another practitioner to be appointed to undertake the review.
At the directions hearing on 1 April 2008, the matter was further adjourned to 15 April 2008. The directions held on 15 April 2008 resulted in a further adjournment to 10 June 2008 to permit the parties to consider their position.
On 16 April 2008, the practitioner nominated Dr L to conduct the review, and this was approved by the Board in late April.
At the directions hearing on 10 June 2008, the parties informed the Tribunal that Dr L had conducted one period of supervision, and that two more were still to be carried out. Dr L was also to review the notes from the previous periods of supervision, and to provide a written report and perhaps address the Board. The proceedings were adjourned to 22 July 2008 to permit this to occur.
On 7 July 2008, the Board received Dr L's report. The report, inter alia:
•noted some deficiency in communication skills but that the practitioner was a good listener and he was surprisingly well received by patients;
•noted appropriate physical and clinical assessments with no evidence of over-investigation;
•noted the practitioner's room was untidy and suggested it be tidied;
•noted the practitioner was aware of his limitations and happy to ask questions and seek expert help;
•recommended the practitioner attend regular educational meetings and engage in ongoing CPE, as well as taking extra efforts with expressive English and less medical jargon; and
•had as the overall assessment 'borderline pass (met basic requirements for unsupervised competent general practice)'.
At the directions hearing on 22 July 2008, the Board requested that the matter be referred to a further mediation. The Board indicated it still had concerns and wanted to seek from the practitioner a voluntary undertaking or conditions as to practise, including a further program of supervision. The solicitor for the practitioner was agreeable to a further mediation. The Tribunal referred the matter to a further mediation before Senior Sessional Member Dr Mendelawitz.
The parties attended mediation on 18 August 2008.
At the directions hearing on 19 August 2008, the parties informed the Tribunal that the matter had not been resolved at mediation and the Board indicated it wished to proceed to hearing. The Tribunal questioned the Board on what outcome it was now seeking. The Board clarified that it would be seeking to impose conditions on the practitioner, in particular a period of supervision. In relation to the period of supervision, it appeared the Board sought a period of one year, beginning with one session (of half a day) per week, with the frequency gradually reducing. The solicitor for the Board elaborated on the Board's position, stating that the previous periods of supervision were for the purpose of evaluating his current competence, whereas the further period of supervision was to provide ongoing support and advance the matter beyond an evaluation of his current competence.
The practitioner opposed a further period of supervision. Counsel for the practitioner noted that the matter had advanced, in that the Board no longer contended that the practitioner should not be practising at all. Counsel for the practitioner explained that the practitioner, when he agreed to the original period of supervision, had the understanding that following this he would be able to practise unsupervised. The practitioner suggested that the Board was at fault for not being clear enough as to what was required from the first supervisor, which had resulted in him having to undergo a further period of supervision under Dr L. It was made clear that the practitioner did not want to undergo a further period of supervision.
The issue of what was meant by Dr L in stating that the practitioner was a 'borderline pass' was raised.
The Tribunal discussed with the parties what a hearing in the Tribunal would entail, and it was made clear that it would have two aspects. First, whether the allegations regarding the 2004 conduct were made out, and secondly, if the first is established, what disciplinary orders are required in light of the purpose to protect the community. To determine the latter question, the Tribunal would require evidence as to the practitioner's current ability. The Tribunal suggested that parties should take a practical approach and explore less onerous supervision requirements involving shorter periods of a lower frequency.
The Tribunal also raised the issue of increasing costs with counsel for the practitioner. The Tribunal indicated that, from a common sense point of view, a low level supervision regime seemed to be a good way forward and highlighted the fact that agreement at this point would save the practitioner a significant amount in costs. The Tribunal offered suggestions on what might be a practical level of supervision. Further, the Tribunal indicated it anticipated that if agreement to a further period of supervision was reached, this would bring an end to the Tribunal proceedings and the issue of his conduct in 2004. If the Board was not satisfied with the practitioner's abilities after a further period of supervision, then new proceedings would need to be instituted with fresh allegations. Counsel for the practitioner did not seem to have appreciated this until it was discussed by the Tribunal. In response to a query from counsel for the practitioner as to the position on costs if the matter was settled, counsel for the Board indicated she did not have instructions on this issue. The directions hearing was adjourned to 2 September 2008 to allow the parties to continue discussions and for counsel for the Board to obtain further instructions.
At the directions hearing on 2 September 2008, counsel for the Board indicated that the Board would be seeking some contribution to its costs. A minute of proposed consent orders was provided. The solicitor for the practitioner had not previously seen the minute or been informed of the Board's position on costs, and therefore did not have instructions. The Tribunal nevertheless considered the issues and indicated that it was of the view that in the circumstances it might be considered reasonable for the practitioner to contribute to costs if the matter was to be resolved. The Tribunal made some amendments to the proposed costs order, emphasised that it would be in everyone's interest to get the agreement sorted out as soon as possible, and further adjourned the matter to 23 September 2008 to allow the solicitor for the practitioner to obtain instructions.
The directions hearing on 23 September 2008 was conducted by Acting President Judge Chaney. At this directions hearing, the parties appeared to be at an impasse, with the practitioner not willing to accept any further period of supervision and the Board insisting on a further period of supervision. Counsel for the Board suggested the Tribunal program the matter to hearing. The issue of what Dr L meant by the phrase 'borderline pass' was again identified as an important issue. Judge Chaney suggested the parties consider another mediation with Dr L invited to clarify his position. Counsel for the practitioner requested that the mediation be made subject to the practitioner having an option to indicate he was not willing to participate in the mediation. The matter was programmed for a mediation on 4 November 2008 and through to a hearing to commence on 20 January 2009 for three days. Counsel for the practitioner indicated that although he had no problem with Justice Barker sitting on the matter, he was concerned about his client's perceptions given Justice Barker's clear statements on what he viewed as a sensible resolution of the proceedings.
On 10 October 2008, the solicitor for the practitioner wrote to the Tribunal indicating the practitioner had elected not to proceed with the mediation. The solicitor also requested an extension of time from 27 October 2008 to 10 November 2008 for the filing of witness statements.
The Board says it wrote to Dr L on 22 October 2008 seeking clarification of his opinion of the practitioner's ability to practise unsupervised. Dr L did not provide the Board with a response.
On 12 November 2008, the solicitor for the practitioner lodged unsigned witness statements, including a witness statement of Dr L. In the witness statement, Dr L stated that following the completion of his assessment for the Board, he had been working with the practitioner at the practitioner's surgery as a colleague and supervisor. Dr L stated that it was his 'considered opinion and observation that Dr Kyi is safe and competent to practise medicine as a General Practitioner without supervision'. A signed version of that witness statement was lodged on 3 December 2008. Thus, the earlier reference to the 'borderline pass' assessment was abandoned by Dr L.
The Board met on 23 December 2008 and elected to withdraw the Tribunal proceedings based on Dr L's statement. The solicitors for the Board wrote by email to the solicitor for the practitioner on 24 December 2008 requesting consent to the Board withdrawing its application. The solicitor for the practitioner was overseas but indicated he would seek instructions.
On 30 December 2008, the solicitors for the Board wrote to the Tribunal seeking leave to withdraw the proceedings. Counsel for the Board says that in light of Dr L's unequivocal statement which was contained in his signed witness statement filed 3 December 2008, the Board considered that, presuming it was successful in its application, it was likely the Tribunal would not consider it necessary to impose conditions on the respondent's practice, but instead might impose a reprimand or fine. The Board resolved in these circumstances that it could not justify in the public interest the expense associated with a three-day hearing and resolved to apply to withdraw the proceedings with no orders as to costs.
On 31 December 2008, the solicitor for the practitioner wrote to the Tribunal indicating that he would do his best to attend to the matters and obtain his client's instructions, but given the time of year he submitted that in case his client did not consent to the withdrawal of the application the hearing should proceed.
After some communication between the Tribunal and the parties, the matter was listed for directions on 20 January 2009. The respondent lodged submissions in support of an order for costs on 19 January 2009.
At the commencement of the directions hearing, counsel for the Board handed up written submissions opposing the costs application. Counsel for the practitioner indicated that withdrawal of the proceeding was not itself opposed, but they sought an order for costs. Counsel for the practitioner made an application for an adjournment of the hearing of oral submissions on costs, which was refused. Oral submissions were made by both parties. Further written submissions were filed on behalf of the practitioner on 23 January 2009, and a letter in response was filed on behalf of the Board on 27 January 2009.

Practitioner's submissions as to costs

Counsel for the practitioner points to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which provides the Tribunal a broad discretion to grant costs. Counsel for the practitioner says the discretion to order costs should be exercised in the practitioner's favour.
Counsel for the practitioner submits that the practitioner was put to considerable unnecessary expense by the Board, leaving it to the last moment to inform him that it was not proceeding with its application. Further, counsel says that the Board has throughout the matter acted in such a way as to put the respondent to immense legal cost in circumstances where this might have been avoided had the applicant dealt with the matter more even-handedly.
It is submitted on behalf of the practitioner that as the Board did not receive a complaint from a patient, and further since there has never been any complaint against him on record, the Board should have investigated the concerns which were raised in the letter dated 18 May 2005 fairly and objectively. It is said that the Board should have given due regard to the practitioner's letter dated 25 August 2005 in which he detailed his position. Counsel submits that on closer examination the contents of Dr W's letter could not been seen necessarily to fully constitute a complaint as envisaged under the Medical Act. Further, counsel says that the matters in the letter were not, without sound investigation, a sufficient basis to allege that the practitioner be found guilty of gross carelessness or incompetency. Counsel says a thorough examination of the complaints in Dr W's letter would have show they were without basis.
Counsel submits that the Board took nearly a year to resolve the concern raised in the letter, which did not specify any day, month or year of the visits or details of the concern. Counsel says the Board, without ascertaining the exact basis and the dates on which the alleged events took place, resolved to make allegations of gross carelessness and incompetency. Particularly, the Board did not receive a detailed report from Dr W until 28 February 2007 and has given no explanation as to why it did not consider it necessary to obtain this report prior to resolving to take disciplinary action, or why there was such delay. Counsel says there is a real question as to how Dr W's concern referred to in the letter, in the absence of the report, was of such a serious nature that it could appear to the Board to be a complaint, particularly in the absence of a complaint from a patient. Further, counsel alleges that the only explanation for the Board's delay is that it did not regard the matter to be of primary concern.
Counsel for the practitioner says that, considering the gaps in time of 18 months between the complaint and the follow-up, the Board cannot justify that the way it pursued the matter in the Tribunal was 'reasonable and fair'. The appointment of a GP to assess the practitioner's current competence could have been carried out much earlier in the public interest.
Counsel for the practitioner points to the Board's policy issued in August 2003, which contains provisions for the Board to impose an order following an inquiry of competence, and consider the appointment of a mentor to assist the practitioner to overcome identified deficiencies and address problems that may have placed the public at risk. Such an approach would have been more appropriate and timely in protecting the public interest. Counsel says that there was no need for a 'hearing into the matter' before the mentoring was available.
Further, counsel for the practitioner says that the Board required the practitioner to produce 1886 patient files at a substantial cost to the practitioner, and that the Board made insignificant reference to these records in its application. Counsel notes that the brief sent by the Board to its expert, Dr P, included only a small selection of the files (150), and that Dr P's report refers only to a very small number of patient records. Counsel submits that this process was part of the Tribunal proceedings. Further, counsel questions why an expert report was sought simply relying in a doctor's patient files, and asks if the Board requires a medical practitioner to make and keep medical records.
Counsel submits that the Board should have narrowed the issues down to the question of the practitioner's ability to practise medicine currently, and that the answer to that issue could have been cheaply and effectively supplied without the cost and anguish of Tribunal proceedings. Counsel says that the Board must have been aware of the need to assess the practitioner's current ability to practise medicine to protect public interest rather than to go through a historical exercise of reviewing past patient files.
Counsel for the practitioner says that the practitioner's agreement to periods of supervision was on a 'without admission and prejudice' basis. Counsel for the practitioner says that when Dr L's report assessed the practitioner as a 'borderline pass', the Board proposed 12 months of intensive supervision including random visits on three days out of 10. Counsel says it was incumbent on the Board to make inquiries of Dr L as to the meaning of 'borderline pass'.
Counsel for the practitioner says that at no time between 18 August 2008 to 24 December 2008 was the practitioner informed that the Board was seeking further clarification from Dr L about the practitioner's ability to practise unsupervised. In this period, substantial time and cost was spent in preparation of the case for trial, including the preparation and filing of three witness statements and an expert report, research and perusal of evidence. Counsel says that these costs could have been avoided if the Board had informed the practitioner that it was seeking clarification from Dr L, and that given the trial date of 20 January 2008, reasonableness required that the Board should have informed the practitioner about its communication seeking clarification from Dr L.
Further, counsel says there is no explanation why the Board could not have contacted Dr L by phone. In fact, it is submitted that the Board could have considered taking this approach in August 2008 or September 2008 which would have saved costs. Counsel claims that neither the practitioner nor his solicitor was advised that it was intended that Dr L be present to explain his report at the final scheduled mediation.
Counsel submits that the Board's application lacked reasonable basis and was misconceived because:
•The Board failed to obtain available evidence in a timely and effective manner to deal with the matter fairly, objectively and effectively;
•Its failure to obtain relevant information promptly has not only delayed the making and the resolution of the concern and/or the complaint in a timely and effective manner in the public interest; it has also caused profound inconvenience, cost and stress to the practitioner;
•The allegations of gross carelessness or incompetency are serious allegations made by the Board against a medical practitioner as such it should have fully considered the merits of its application before commencing this application; and
•Likewise the orders sought by the Board in the application were profoundly serious, and if made, could have devastating consequences.
Counsel submits that, looking at the totality of the case and the quality of the evidence that was looked at by their expert, there was no substance to the complaint. If the Board had properly considered matters, it would have been embarrassing for them to proceed. Counsel for the practitioner was concerned that it is at the end of a trial that the Tribunal can reach a view as to the evidence and evaluate the case of each party. Counsel says their case was that one doctor was concerned regarding the practitioner's manner, but the patients themselves like his manner and seek him out for his holistic approach. Counsel says he advised that the practitioner's case was a strong one, and considers this supported by the Board's withdrawal of the proceeding. Counsel says if the matter had gone ahead, the Tribunal would have made findings exculpating the practitioner and that the practitioner would be in a better position to make a costs application. Counsel submits that it was the considered view of the practitioner's advisors that the action against him was destined to fail. Counsel points to the expert report obtained by the practitioner which rejects the opinions of the Board's expert.

Board's submissions

Counsel for the Board, in relation to the repeated complaints in the practitioner's submissions about the length of time taken to investigate the complaint before filing the application, says that this is irrelevant to the questions of costs in these proceedings, and that the critical question is whether the Board had sufficient basis to commence the application.
In response to the submission of the practitioner, counsel for the Board says that it was not necessary for the Board to have received a 'complaint', let alone a complaint from a patient, before undertaking an inquiry into a medical practitioner pursuant to s 13 of the Medical Act. Further, the Board was obliged to inquire into a complaint made by a GP who had expressed major concerns about the practitioner's ability to adequately treat and diagnose patients in independent practice. Counsel says that the Board took steps to ensure that the complaint had merit by appointing an investigator and by obtaining an expert opinion. The expert confirmed Dr W's concerns.
Counsel for the Board says that by seeking reports of Dr T and Dr L the Board sought to reduce the costs to the parties by avoiding a hearing into matters which, although the Board considered were likely to be successful, concerned the respondent's practice over four years earlier.
In regard to the submissions of counsel for the practitioner in relation to the Board's policy and the availability of mentoring, counsel for the Board says that the practitioner has misunderstood the basis upon which a mentoring option could be offered, and that it was available only after an inquiry, that is, a hearing into the matter. Counsel submits that when the Board proposed the further period of supervision it was offering a similar opportunity to that of mentoring but without the need for a hearing.
In response to the submissions regarding the requirement of the production of patient files, counsel for the Board says that was in compliance with a notice from an investigator and not part of these proceedings and cannot be claimed as costs. Further, these files were appropriately requested as part of the investigation into whether the respondent's diagnosis and treatment of patients was serious enough to warrant allegations being made to the Tribunal.
In relation to Dr L's report, counsel submits the meaning of the phrase 'borderline pass' was not clear. The Board says that given it was intended that Dr L be present at the mediation to explain his report and his use of the term 'borderline pass', when the practitioner elected not to participate in that mediation, the solicitors for the Board wrote to Dr L requesting him to elaborate. Further, regarding the fact that the practitioner was not informed that the Board was seeking clarification from Dr L, counsel for the Board says the Board was not in any way obliged to provide the letter to the respondent, but in any case the Board's solicitors were under the impression that as Dr L worked closely with the practitioner, that the practitioner would have been aware of the request. In any event, this issue was discussed at length in the directions hearing of 19 August 2008 and 2 September 2008 before Justice Barker and on 23 September 2008 before Acting President Judge Chaney when orders were made for a further mediation with Dr L to be invited to attend to clarify what was meant by that term. Counsel for the Board submits that it would have been in the interests of the practitioner to ask Dr L himself at the earliest opportunity to clarify what he meant and provide that information to the Board.
Counsel says that when the unsigned witness statement of Dr L was received by the solicitors for the Board, they sought instructions. In response to the practitioner's claim that he was not informed that the Board wanted Dr L to be at the final mediation, counsel for the Board says that given the matter was discussed at the directions hearing on 23 September 2008 and the order specifically provided that Dr L was invited to attend to elaborate on his report, any failure of the practitioner to know was not the responsibility of the Board.
In response to the practitioner's submission that the expert report obtained by him no doubt formed part of the Board's decision to withdraw the proceeding, counsel for the Board says there is no basis on which to infer this. Further, in relation to the practitioner's submission that his expert evidence would show the applicant's expert evidence to be unsustainable, counsel for the Board says at best it could be said that there was a difference of opinion between the experts. In addition, counsel for the Board says that the evidence of the practitioner's expert was based on the practitioner's response, which was not included in the practitioner's statement of evidence (which was a general denial of the allegations).
Counsel for the Board accepts the general principles of costs in vocational proceedings, but submits that there is no evidence before the Tribunal that there was no reasonable basis for commencing or maintaining the application in the circumstances. Additionally, there is no evidence of a lack of good faith in the commencement and maintenance of the proceedings. Further, counsel says that making a costs order against the Board in these circumstances would in fact represent a disincentive to the Board to reassess the merits of a proceeding up to the time of the hearing.
Counsel for the Board says the Board, both in initially pursuing the proceedings and ultimately in discontinuing them, was acting in accordance with its statutory duties and the public interest.
Counsel submits that the Board believed it had good prospects of succeeding on the allegations. They dispute the practitioner's classification of the complaint as regarding the manner of the practitioner. In relation to Dr L's report, counsel says this was not relevant to the application, but whether he was fit to practise now, and their withdrawal of the proceedings does not indicate the 2004 allegations were without substance.

Discretion as to costs

The principles governing the award of costs in the Tribunal, and in particular in vocational regulation proceedings, have been set out in previous cases.
The starting point is that parties bear their own costs in a proceeding of the Tribunal: s 87(1) of the SAT Act. However, the Tribunal has a broad discretion to make an order as to costs: s 87(2) of the SAT Act.
In vocational regulation proceedings, if a regulatory authority successfully brings a complaint of misconduct, this will usually provide a strong case for an exercise of a costs discretion in favour of the regulatory body: Medical Board of Western Australia and Roberman [2006] WASAT 152.
However, as indicated in Motor Vehicle Industry Board and Dawson [2006] WASAT 8, if the vocational regulatory body is unsuccessful, this does not necessarily provide a case for the exercise of a costs discretion in favour of the practitioner (at [47]):
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.
In Medical Board of Western Australia and Van Dort [2006] WASAT 214 (S), the Tribunal further said at [16] - [17]:
Having come to this conclusion, however, the Tribunal feels that it is timely to remind the Board that in cases of undue and/or lengthy delay in the making of complaint, it should very carefully scrutinise the available evidence, looking for, if possible, some independent corroboration of the complaint.
Finally, the Tribunal reminds the Board that generally, in making a decision whether to proceed against a practitioner by filing an application in the Tribunal, the merits of such application must be very carefully considered up to and including the time of the hearing, it not being an appropriate basis to file an application on its face value and leave the matter for the Tribunal to decide.
General principles regarding costs were also discussed in Summerville and Department of Education and Training [2006] WASAT 368 (S) at [23] - [44]. If a party has conducted itself in such a way as to unnecessarily prolong the hearing, has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious, or the proceedings in some other way constitute an abuse of process, then this may give rise to an exercise of the discretion to award costs. This encompasses a situation where proceedings should not have been maintained against a party because it is clearly untenable and no reasonable person would have believed they could be successful. These principles are also generally applicable to vocational regulation proceedings.
Thus the Tribunal's discretion to award costs extends to ordering the payment of costs incurred unnecessarily by a failure of a party to act appropriately in a particular circumstance in the conduct of the proceedings. Considering the primary position of the Tribunal as a no costs jurisdiction, it is not sufficient merely to identify that a party may have conducted itself in a different manner and thereby reduced costs incurred; it will usually be necessary to show that the conduct of the party was unreasonable and unfairly caused the increased costs.

Exercise of discretion in this case

The issues relating to costs in this matter can be divided into two categories: those which deal with whether the Board had a reasonable basis for commencing proceedings and those which deal with the Board's general manner of conduct during the life of the proceedings, including its maintenance of the proceeding following the 'borderline pass' assessment of Dr L.
Commencement of disciplinary proceedings: The Board received, from another GP, a letter in 2005 which questioned the competence of the practitioner based on his performance in 2004. The Board is concerned to maintain appropriate standards in the practise of medicine, and another doctor, who was aware of the appropriate standards, expressed concern. Whether this letter should be classified as a 'complaint' is of no relevance, as the Medical Act does not limit the Board's powers to acting on 'complaints'. Three months after receiving the letter, the Board wrote to the practitioner and received a response. Precisely what counsel for the practitioner considers would have constituted 'due regard' to that letter is unclear, and the Tribunal considers that in the circumstances the Board was obliged to take the concerns in the letter seriously and to investigate.
The subsequent delay of the Board is regrettable. From a public interest perspective, it is concerning that the Board was seemingly content to leave a practitioner, whose ability had been questioned, practising for 15 months without at least commencing an investigation. The letter from the Board dated 4 July 2006 is an oddity, and clearly there is some error in the dates stated. Although the letter states that the Board had resolved to take disciplinary action by commencing action in the Tribunal, it is clear from the Board's subsequent conduct that such a resolution was either not in fact reached, or was subsequently reviewed, as the Board subsequently commenced an investigation, not disciplinary proceedings. It may be that the Board was influenced by two decisions of the Tribunal handed down at around that time, particularly the comments made at [39] of Medical Board of Western Australia and Roberman, to defer instituting Tribunal proceedings until an expert report had been obtained.

The Board commenced an investigation, both to gain more information from the doctor who bought the practitioner's conduct to the Board's attention and to get a more general overview of the practitioner's ability by requesting all patient files. It was as a result of correspondence from the solicitor for the practitioner objecting to the onerous nature of the request for all patient files that only a limited number of files were obtained for a period in 2004. The investigation included sending a selection of files to an expert to review. Although counsel for the respondent appears to object to this process, it reflects what the Tribunal has previously indicated is the proper way for the Board to conduct itself. In Medical Board of Western Australia and Van Dort, the Tribunal at [16] stated:
... in cases of undue and/or lengthy delay in the making of complaint, [the Board] should very carefully scrutinise the available evidence, looking for, if possible, some independent corroboration of the complaint.
In sending not only the files of patients in relation to which the original complaint was made, but also a random selection of other patient files from the same period, the Board sought independent corroboration that there was deficiency in the practitioner's standard of practice. This was particularly appropriate considering the length of time which had elapsed between the observations made by Dr W and her writing to the Board. The Tribunal does not see anything unreasonable about the Board requesting all files for a certain period, and providing its expert with a random selection of those for consideration.
Following the receipt of the expert report which provided corroboration of the concerns expressed by Dr W, the Board commenced disciplinary proceedings. The Board used the Tribunal proceedings a mechanism through which to formally put the allegations to the practitioner and seek a response, and then seek to investigate the current competence of the practitioner by seeking a period of supervision.
One could speculate that the Board could have attempted to investigate the current competence of the practitioner without instituting the Tribunal proceedings by also reviewing a selection of current files. However, viewing of patient files would not address all of the concerns raised by Dr W (such as the practitioner's communication skills and examination of patients). Further, the Board (and its appointed investigator) are not granted by the Medical Act an express power to seek from the practitioner an agreement to a period of supervision. Even if the Board has the power to do so, it cannot be said that such was incumbent on the Board. The Board appeared to appreciate at all relevant times that the current competence of the practitioner was a relevant factor to the penalty to be imposed on the practitioner should the allegations relating to 2004 be made out.
Counsel for the practitioner pointed to the Board's mentoring program as a more suitable avenue for the Board to have undertaken, and disputed that there needed to have been a hearing before the Tribunal before the program was available. The relevant policy was issued by the Board prior to the commencement of the Tribunal, and when it was the role of the Board to hold an 'inquiry' to determine if, and what, disciplinary action should be taken. Interpreting the policy in light of the legislative changes, the words 'following an inquiry' are equivalent to 'following a hearing in the Tribunal'. In any event, the availability of another possible avenue for the Board to have taken does not render its application without reasonable basis.
The delay between the conduct which was in issue and the instituting of the proceedings, although unfortunate, is not determinative of the costs application, but only relevant to the extent that it may be indicative of a lack of good faith or alter whether the Board had reasonable grounds for bringing the application when it did. There is no evidence that the Board lacked good faith in bringing the application. It may be that in some circumstances, despite there being a real suggestion that at some point in time a practitioner was guilty of gross carelessness or incompetency, that due to the lapse of time since the alleged conduct that there is no utility, keeping in mind the purpose of disciplinary proceedings being to protect the public, in proceedings being commenced. This, however, is not the case in this instance. Although the lapse of approximately three years between the conduct alleged and the instituting of the proceedings raised the current competence of the practitioner as an additional issue to be considered in terms of penalty, the nature of the allegations and the length of time elapsed were not such that it can be said there could be no utility in commencing the proceedings.
The fact that counsel for the practitioner believes there was a strong possibility that if the matter had gone to hearing, the Tribunal would not have made any finding against the practitioner does not mean that the Board lacked a reasonable basis for commencing the proceeding.
In these circumstances, where the Board was in receipt of an independent expert report which corroborated concerns as to the competence of the practitioner, it cannot be said that there was no reasonable basis for the Board to institute proceedings.
Board's general conduct of the proceedings: I have already dealt with the issue of whether the Board lacked a reasonable basis for commencing the Tribunal proceedings in 2007 which made allegations regarding the practitioner's conduct in 2004. In the context of Tribunal proceedings commenced on the basis of allegations of conduct in 2004, the Board could not have in these proceedings 'narrowed the issue' down solely to the question of the practitioner's ability to practise medicine currently.
I have also dealt specifically with aspects of the Board's conduct prior to commencing the Tribunal proceedings which the practitioner has objected to. Although the periods of delay were regrettable, there is nothing in the Board's conduct in this period which unreasonably and unfairly increased the costs incurred by the practitioner. In particular, as already noted above, the Board's requirement for a number of files to be produced, and subsequent decision to only send a random selection of those to its expert, was not unreasonable. In fact, the Board accepted the practitioner's proposal to send a smaller number of files when the onerous nature of the initial request for all files was drawn to its attention. As there was no unreasonable conduct which caused increased costs, it is unnecessary for me to determine whether conduct prior to the lodgement of an application is relevant to a costs determination.
The practitioner also complains that the Board did not give sufficient guidance to his first supervisor, which resulted in the Board requiring a further period of supervision. Although it is unfortunate that the Board did not explain to the supervisor with sufficient clarity what was expected, and the Board should in the future be careful in its instructions to a practitioner who is requested to supervise another, it cannot be said the Board behaved in an unreasonable manner.
The primary aspect of the Board's actual conduct of the proceedings (leaving aside the submission that they never should have been instituted in the first place) relates to Dr L's report and the meaning of 'borderline pass'. It was clear from the first directions hearing following the Board's receipt of Dr L's report that the term 'borderline pass' was of concern to the Board, as it considered that phrase still left doubt as to the practitioner's standard of practice. Although counsel for the practitioner says that the practitioner and his advisors considered this terminology to be unambiguous, an objective view does leave one in doubt as to what 'borderline pass' might mean in relation to competence to practise. This in fact was discussed by the parties and Justice Barker at the directions hearings. It cannot be said that in light of the report of Dr L evaluating the practitioner as a 'borderline pass', the state of evidence was such that the Board should have at that point discontinued the proceedings. Certainly one way forward, and perhaps with hindsight the preferable way forward, would have been for the Board to have immediately sought clarification from Dr L. Undoubtedly, if the Board had the second, unequivocal statement of Dr L earlier then the proceedings, it seems, would not have gone as far as they did, and this would have saved the practitioner costs. However, it cannot be said that it was incumbent on the Board at that point to seek clarification. At that point the matter was able to be sent back to mediation, and there was the possibility that the matter could be resolved in that manner. There was, at that point, a real possibility that the practitioner was not regarded as practising at a sufficient standard, or as barely practising at an acceptable standard. The Board's desire to seek through mediation a further period of supervision to assist the practitioner to improve his skills was not unreasonable. Although the Board's original suggested supervision scheme may have been considered onerous, given its intent to be a form of mentoring this was a matter to be negotiated. When that mediation failed to result in agreement, with the assistance of the Tribunal an alternative scheme of supervision was drafted. When agreement still was not reached, at the directions hearing on 23 September 2008 the utility of one final mediation was discussed by Acting President Judge Chaney with the parties.
At this directions hearing, the utility of having Dr L attend the mediation was clearly and unambiguously discussed. This was reflected in the mediation order made, which clearly stated 'Dr [L] is invited to attend the mediation to elaborate on his report'. Although it can be said with hindsight that it would have been preferable for the Board to have sought clarification from Dr L at this point (prior to the mediation), given the likely clarification of Dr L's position at the scheduled mediation, it was not unreasonable for the Board not to do so. Any failure of the practitioner to appreciate that it was intended that Dr L attend the mediation and clarify his position is the fault of his solicitor and counsel. Any failure of his solicitor or counsel to appreciate this intention is inexplicable.
Only upon the election of the practitioner not to proceed with this mediation did it become essential for the Board to seek clarification from Dr L. The Board took this action. In the circumstances, where it was abundantly clear that clarification from Dr L was required, and intended, it was not incumbent on the Board to inform the practitioner that they had sought clarification. Further, given that Dr L did not provide the Board with a response, it is unclear how informing the practitioner of this attempt would have reduced his costs in any event. It may be that the Board could, and perhaps should, have done more in an attempt to get this clarification from Dr L, such as phoning him. However, its failure to do so was not so unreasonable as to justify, in the circumstances, an award of costs (or a partial award of costs).
The Board's actions thereafter were entirely appropriate. Upon receiving the signed witness statement of Dr L which stated clearly that the practitioner was fit to practise without supervision, the Board re-evaluated the merits of the application, taking into consideration the limiting effect Dr L's statement would have on the available penalties and its primary objective to serve the public interest, and determined to withdraw the application. As said by the Tribunal in Medical Board of Western Australia and Van Dort, the Tribunal expects the Board to evaluate its case up until the time of hearing. The Board should not be penalised by a costs order for doing so, when its evaluation was on the basis of newly available information and where the Board had not acted unreasonably in not having this information available to it at an earlier time.
Even if, had the hearing gone ahead and the Tribunal had considered that on the evidence the complaint was not upheld and made findings exculpating the practitioner, this does not mean that the Board was unreasonable in bringing the proceedings and maintaining them. Inevitably, the Tribunal will not always agree with the Board's assessments of evidence and the strength of the parties' relative cases. However, it cannot be said that the Board acted unreasonably. In essence, while it can be said that the Board might have agitated Dr L to clarify what was meant by 'borderline pass' earlier than it did, no particular conduct on the part of the Board is demonstrated such as to attract an order of costs in favour of the practitioner.

Conclusion and orders

For the reasons given above, this is not an appropriate case for the Tribunal to make an order that the Board pay the practitioner's costs.
The Tribunal therefore orders as follows:
(1)The application of the practitioner for an order for costs is dismissed.
(2)There is no order as to costs.

I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT