MEDICAL BOARD OF WESTERN AUSTRALIA and L
[2011] WASAT 98
•30 JUNE 2011
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and L [2011] WASAT 98
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS M CONNOR (MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
HEARD: 9 AUGUST 2010
SUBMISSIONS 3 SEPTEMBER AND 29 SEPTEMBER 2010
DELIVERED : 30 JUNE 2011
FILE NO/S: VR 150 of 2009
VR 155 of 2009
BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
L
Respondent
Catchwords:
Medical practitioner - Improper conduct - Inappropriate physical contact with a patient - Allegation of impairment - Whether characterological faults constitute mental disability
Words and Phrases - Mental disability
Legislation:
Interpretation Act 1984 (WA), s 18
Medical Act 1894 (WA), s 13(1)(c)
Medical Practitioners Act 2008 (WA), s 4, s 78, s 78(b), s 117
State Administrative Tribunal Act 2004 (WA), s 11(8)
Result:
Findings against the practitioner
Category: B
Representation:
Counsel:
Applicant: Mr P Tottle
Respondent: Mr L Black
Solicitors:
Applicant: Tottle Partners
Respondent: Bradford and Co
Case(s) referred to in decision(s):
Allinson v General Council of Medical Education and Registration [1894] I QB 750
Briginshaw v Briginshaw (1938) 60 CLR 336
Medical Board of Western Australia and L [2010] WASAT 71
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The Tribunal was called upon to decide whether conduct by a medical practitioner, namely attaching a postit note to a patient's shoulder underneath her exposed bra strap, constituted improper conduct. It concluded that, in the absence of invitation or consent, the conduct was improper.
In a second application, the Medical Board of Western Australia alleged that the medical practitioner suffered from an impairment in the form of a mental disability. The evidence was that the practitioner did not suffer from a recognised mental illness, but exhibited long standing 'characterological faults' which presented a risk to patients if unmanaged. The Tribunal concluded that the practitioner's condition did amount to a mental disability for the purposes of the Medical Practitioners Act2008 (WA).
Introduction
The Medical Board of Western Australia (Board) brought two applications in relation to a medical practitioner, L. The first application involved an allegation of improper conduct for the purposes of s 13(1)(c) of the Medical Act 1894 (WA) (1894 Act). The second application alleged that L was suffering from an impairment pursuant to s 78(b) of the Medical Practitioners Act 2008 (WA) (MP Act) in the form of a mental disability or mental disabilities to such an extent that his ability to practise medicine is, or is likely to be, affected adversely (the impairment application). In particular, it was asserted that the respondent's practice of medicine is likely to be affected adversely because, if unmanaged, there is a moderate to high risk that the respondent would engage in sexually inappropriate behaviour, or alternatively that he will have physical contact with female patients for which there is no clinical justification in the course of his work as a medical practitioner.
The matters were heard together on 9 August 2010. Deputy President, Judge Eckert presided over that hearing. At the conclusion of the evidence, directions were made for the filing of written closing submissions. Regrettably, not long after the closing submissions were filed, Judge Eckert became unavailable to deal with the matter through ill health. Her ill health led to her retirement in early May 2011. In the circumstances, the Tribunal was reconstituted pursuant to s 11(8) of the State Administrative Tribunal Act 2004 (WA) so that, in place of Judge Eckert, the President presided over the determination of the matter having regard to the transcript of the hearing and the written submissions of the parties.
VR 150 of 2009 - the improper conduct application
The relevant facts concerning this application were not in issue.
The background to the matter is that on 14 July 2006, L, who had previously been suspended from the register of medical practitioners in August 2002, gave an undertaking to the applicant to the effect that he would be of good behaviour for a period of five years from the date upon which his name was restored to the register. L's name was then restored to the register in July 2006, and L has practised as a medical practitioner since that time.
On 13 February 2008, in the course of practising medicine in the emergency department of a regional hospital, L was consulted by a female patient (the patient) who had concerns in relation to the health of her two week old baby. At the end of the consultation with the patient, L wrote down on a 'post-it note', the reverse side of which was adhesive, the name of a medication that L recommended for the patient to apply to her baby.
L offered the patient the postit note, but she was unable to take it from him because of the way in which she was holding her baby. When L realized that the patient could not take the post-it note, he stuck it to the patient's clothing just in front of and underneath the patient's shoulder. The post-it note started to peel off the patient's clothing and L took it and replaced it under the patient's bra strap which was exposed. At no time did the patient indicate an intention to, or attempt to, accept the post-it note.
Improper conduct
Section 13(1)(a) of the 1894 Act provides for disciplinary action to be taken where a practitioner may be guilty of infamous or improper conduct in a professional respect. The test as to what amounts to infamous conduct was explained in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763 where Lopes LJ said:
If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open … to say that he has been guilty of 'infamous' conduct in a professional respect.
Improper conduct in Allinson's case was said to be misconduct which falls short of infamous conduct in a professional respect but is conduct which could be reasonably regarded as improper by professional colleagues of good repute and competency. The parties were in substantial agreement as to that test. The allegation by the board is an allegation of improper conduct rather than infamous conduct.
The Board's contentions
The Board contends that the tucking of a note into a female patient's bra strap is a gross and unwarranted act of intimacy on the part of a medical practitioner. It submits that it is conduct which would not be tolerated in the circumstances of any other interaction between members of a society. The elements of the conduct said to make it disgraceful and dishonourable were said to include:
(i)the physical intimacy;
(ii)the absence of consent;
(iii)the implicit assertion of dominance, that is the implicit assertion that it is acceptable for a medical practitioner to have such intimate contact with a patient, that no other member of society would contemplate having with another member of society in the course of everyday life;
(iv)the failure to appreciate, alternatively a reckless disregard for, the fact that the patient is in a vulnerable situation and likely to feel humiliated and demeaned by the uninvited act of physical intimacy.
The practitioner's contentions
The practitioner, in the submissions filed on his behalf, notes that there is no allegation of any contact with the patient's breast area or the breast cup area of her bra. The practitioner accepts that tucking a note into a female patient's bra strap or any part of the bra is not appropriate, but contends that it does not constitute improper conduct. He takes issue with the characterisation of the conduct as a 'gross and unwarranted act of intimacy'. He contends that the conduct must be viewed in the context of the limited physical contact which occurred, and the context of the respondent's history (which will be discussed in more detail in relation to the impairment allegation).
Conclusions as to improper conduct
We accept that the conduct of the practitioner must be viewed in the context of the agreed facts, uninfluenced by the practitioner's disciplinary history.
While we accept that the conduct falls at the lower end of the range of improper conduct, we consider that the placing of the post-it note underneath the patient's exposed bra strap without any invitation of, or consent by, the patient, is conduct which would generally be regarded by medical practitioners of good repute and competence as being improper. We accept that the factors identified by the Board, which we have recited above, lead to the characterisation of the conduct as improper. The necessity, on occasions, for a medical practitioner to have intimate physical contact with a patient carries with it obligations to exercise the utmost propriety and care. Conduct which involves physical contact demands a recognition of the vulnerability of patients, and careless disregard of that vulnerability constitutes conduct which warrants a disciplinary sanction.
L himself recognised that his behaviour was unacceptable. In a letter to his superior at the hospital, responding to the complaint made by the patient, L said:
I accept without reservation that I acted badly in both sticking the post-it note to her clothing and subsequently under her exposed bra strap, an act I realized and regretted immediately after I'd done it. It was by then however too late to retrieve the situation without further compromise. It is a moment of gross thoughtlessness.
The allegation of improper conduct is made out.
VR 155 of 2009 - the impairment application
The background facts relied upon by the Board in relation to the impairment application were also not in issue. The issue for determination is whether, having regard to the opinion of experts called by each party, L can be said to suffer from an impairment.
The relevant powers of the Tribunal are found in s 117 of the MP Act and arise where the Tribunal is 'of the opinion that an impairment matter exists'. Impairment matters are defined in s 78 of the MP Act. The Board relies on s 78(b) which provides that an impairment matter exists where 'a person suffers from an impairment to such an extent that the ability of the person to practise medicine is, or is likely to be, affected adversely'.
Section 4 defines impairment to mean, relevantly, 'mental disability'. The words 'mental disability' or 'disability' are not separately defined.
Background facts
At the hearing, the Tribunal was assisted by the evidence, given concurrently, of two psychiatrists, Dr Mark Hall and Dr Oleh Kay. In expressing the opinions which they held, they had regard to the undisputed history of adverse disciplinary conduct findings against L as well as their clinical assessment of him. To understand their evidence it is helpful to set at that background.
L was first registered as a medical practitioner on 14 February 1978. His name was removed from the register in November 1994 following a finding by the Board that he was guilty of infamous conduct in a professional respect because he conducted an improper sexual relationship with a female patient in 1991.
L was re-registered as a medical practitioner in 1996. In August 2002, the Board found L guilty of improper conduct in a professional respect and he was suspended. The factual findings were to the effect that, in July 2001, whist examining a young mother with an unwell baby, the respondent had examined the mother's locket while resting his hand on her chest. At the same time, the respondent enveloped the mother's thighs between his legs and touched the mother's breast about eight times and offered an unsolicited prescription of sleeping tablets.
Also in August 2002, the Board found L guilty of improper conduct in a professional respect, for which suspension was also imposed. The factual findings of the Board were that between July and November 2001, L attended a female patient with back problems. It was found that in the course of one consultation, L insisted that the patient remove her clothing when it was inappropriate to do so and despite the fact that the patient said she was uncomfortable. In the same consultation, he told her to bend over and he examined her from behind at such close proximity that the patient could feel his breath on her buttocks. During another consultation, the respondent lifted the patient's trousers and underpants and looked down the front of them. On another occasion, L made inappropriate comments about the patient's body causing her distress, hurt and embarrassment.
In November 2002, a further finding was made by the Board that L was guilty of infamous conduct in a professional respect and he was removed from the register. The relevant findings were that in March 2000, L had told a young female patient who had consulted him for a pre-employment medical to remove her bra. It was found that the respondent then fondled and squeezed the patient's breasts. It was also found that the respondent had told the patient to urinate in a receptacle and he watched her whist she did so.
In December 2002, the Board found L guilty of infamous conduct in a professional respect. The factual findings were that L had provided a large quantity of drugs to an addicted patient over a period of four months. L was already struck off at the time of that finding.
In 2006, L applied for re-registration, and a meeting was held on 9 March 2006 for the purpose of assisting the Board to determine whether L should be re-registered. In terms of process, the meeting resembled a hearing and L attended with counsel and gave evidence. He was cross-examined by counsel assisting the Board. No formal reasons for decision were published by the Board, but in July 2006, L's name was restored to the register. On 14 July 2006, L gave an undertaking to the Board to the effect that he would be of good behaviour for a period of five years from the date upon which his name was restored to the register. The undertaking was to:
(i)Attend, at his own cost, a psychiatrist approved by the Board for a period of two years from the date on which his name was restored to the Register;
(ii)To ensure that the psychiatrist referred to in paragraph (i) provides a written report to the Board each three months regarding his re-entry into clinical practice and possible emergence of psychiatric problems such as major depression, the first of such report to be provided within three months of re-registration;
(iii)To attend, at his own cost, a named doctor not less than once per month for a period of two years from re-registration;
(iv)To ensure that the named doctor provides a written report to the Board each three months regarding his condition, re-entry into clinical practice and compliance with treatment, the first such report to be provided within three months of re-registration; and
(v)To be of good behaviour for a period of five years from re-registration.
Since July 2006, L has been registered as a medical practitioner. The incident which is described in relation to the improper conduct application occurred on 13 February 2008. That matter will be referred to as the 'post-it note matter'.
Notice of the post-it note matter was given to the Board which referred L to Dr Hall for assessment. Dr Hall saw L on 20 June 2009, when L gave an account of each of the episodes in his professional life that led to disciplinary action. Dr Kay reviewed L and prepared a report in October 2009. L has consulted a psychologist on a regular basis and a number of reports by the psychologist, Dr Jones, and the evidence given by him at the re-registration hearing in 2006, was available for the Tribunal's review.
The expert evidence
Dr Hall prepared an initial report for the Board dated 24 July 2009. In that detailed report, he set out L's past psychiatric history. L had first seen a psychiatrist in 1996 for assessment in relation to reregistration as a medical practitioner. He began seeing Dr Jones, a clinical psychologist, in 1999, and was subsequently referred to a number of psychiatrists for assessment. One of those psychiatrists, and the clinical psychologist, at different times diagnosed L as suffering from clinical depression, but treatment by way of medication and continued psychotherapy appeared to have resolved L's depression by January 2006.
Dr Hall concluded that L does not suffer from a major mental illness, but does inhibit features consistent with a DSMIVTR diagnosis of frotteurism. Dr Hall said, however, that it is unlikely that that diagnosis wholly accounted for L's professional misconduct which may be the result of a number of other factors, including alexithymia (inability to recognise or describe his emotions). Dr Hall concluded that neither L's alexithymia or frotteurism, in or of themselves, have a direct impact on his ability to practise medicine in terms of assessment, diagnosis and treatment. He expressed the opinion, however, that, if unmanaged, there is a moderate to high risk that L would engage in further sexually inappropriate behaviour in the course of his work as a medical practitioner. He recommended that, in order for L to safely practise medicine, he required both ongoing treatment by a clinical psychologist, and periodic assessment by a psychiatrist, and that need would, in his opinion, continue for as long as L remained a registered medical practitioner.
Dr Kay prepared a report dated 2 October 2009, after seeing L on 1 September 2009. He had been provided with a copy of Dr Hall's report in advance of that consultation. He also had before him the reports from a number of other psychiatrists concerning L.
Dr Kay noted that L presented to him in a somewhat different manner to that detailed by Dr Hall. Dr Kay found that L exhibited a full range of normal emotions, displayed insight and expressed concern towards persons he had offended. Dr Kay noted the definition of 'frotteurism' from the Diagnostic and Statistical Manual of the American Psychiatrist Association, (4th ed, year) as involving:
A.Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges or behaviors [sic] involving touching and rubbing against a non-consenting person.
B.The person has acted on these urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty.
Dr Kay noted that, conventionally, frotteurism takes place in crowded places where people are forced together such as buses or trains with the frotteurist rubbing his genitalia on an, initially, unsuspecting subject. Whilst Dr Kay noted that L's previous behaviour with patients was abusive, unethical and distressing to the patients, he did not believe that it warranted a diagnosis of frotteurism. Nevertheless, he agreed with Dr Hall that some form of monitoring L for at least the next few years would be prudent, although he did not consider a chaperone necessary in the context of L's current workplace at the emergency department of a regional hospital.
Dr Hall and Dr Kay prepared a joint report for the purposes of the hearing, and as already noted, gave their evidence concurrently. They were in substantial agreement on most issues. In their joint report, they helpfully set out some significant points of agreement between them following conferral. Those points of agreement were as follows:
•[L] experiences long standing and significant difficulties with emotional understanding, empathy and social judgement.
•[L] does not suffer from any serious mental illness.
•[L] experiences difficulty with impulse control in the sexual realm.
•With respect to the preceding point, a diagnosis (or lack thereof) of Frotteurism is of academic significance only as difficulties with sexual impulse control in the therapeutic context are clearly evident. Whilst [L's] pattern of behaviour could be seen to satisfy the DSM-IV TR diagnostic criteria, it is not typical of the kind of sexual activity which characterises the behaviour of the vast majority of frotteurs. The latter usually involves the frotteurist rubbing (usually his genitalia) up against an unsuspecting person in crowded situations.
•[L] minimises his inappropriate conduct.
•[L] has made some progress around boundary management, emotional recognition (in self and others), and improving interpersonal communication and functioning through his work with Dr Nigel Jones, Clinical Psychologist.
•That the above treatment should continue.
•[L] requires some form of monitoring over a number of years.
•The above monitoring should take the form of annual psychiatric review by 2 independent psychiatrists; one nominated by [L] and one by the Board.
•Dr L's current working conditions within the emergency department at [a] Regional Hospital provide an adequate level of supervision in order for him to safely practice medicine. In that environment, a chaperone is not essential when examining female patients.
•However, should the nature of his medical work change from the current hospital environment (emergency department where there is a degree of informal supervision) to an environment where his practice is more isolated (such as locum general practice), we recommend that [L] be formally reviewed by the Board as to the type of supervision and monitoring he would need including the possible requirement of chaperoning with female patients.
•A stable and satisfying relationship ameliorates the risk of [L] reoffending.
They disagreed as to the diagnosis of frotteurism but did not regard that disagreement as a matter of any particular significance. The only other point of disagreement was as to the length of time for which L should be subject to ongoing monitoring in relation to his practice of medicine.
In his oral evidence, Dr Kay noted the distinction between bad behaviour and mental disability. He considered that L's history of behaviour which he readily accepted was reprehensible and inexcusable, was more aptly characterised as 'characterological faults' rather than any psychiatric illness or mental disability.
Dr Hall acknowledged that many psychiatrists practise psychotherapy which involves helping people to identify and address and improve on aspects of personality and behavioural functioning, which when they occur repeatedly over time, involve a 'characterological disposition or a characterological quality'.
Findings on the expert evidence
The experts agreed, and we accept, that L's history demonstrates long standing and significant difficulties with emotional understanding, empathy and social judgement and difficulty with impulse control in the sexual realm. We do not consider that it is appropriate to attach the label 'frotteurism' to that condition given that L's past behaviour does not match the typical kind of sexual activity which characterises the behaviour of frotteurs. Having regard to the standard of proof applicable in the context of medical disciplinary proceedings, generally referred to as the Briginshaw standard - see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 363 - we are not satisfied that the specific psychiatric label of frotteurism ought be attached to L's behaviour.
The question for determination becomes, therefore, whether the difficulties described above constitute a mental disability, and thus an impairment, for the purposes of the MP Act.
Mental disability
The applicant submits that a 'mental disability' for the purposes of the MP Act need not take the form of a recognised illness or condition. It submits that mental disability as a concept is wider than mental illness, and includes the difficulties described by the expert witnesses. The Board notes that, in the definition of impairment, the MP Act refers to mental disability or injury or physical illness (italics added). The Board argues that the use of the word 'disability' rather than 'illness' contemplates a wider range of disabilities than those caused by 'illness'. It submits that the focus in s 78 on the effect of an impairment, namely the extent to which the ability to practise medicine is adversely affected, suggests that impairment should not be confined by reference to whether the practitioner meets the criteria required to satisfy a particular recognised diagnosis for psychiatric illness or psychological condition.
The respondent, in summary, argued that:
a)There is no definition of an impairment in the form of a mental disability in the relevant legislation;
b)The expression 'mental disability' is used less often in the broader legislative and judicial context than phrases such as 'mental illness' and 'mental impairment';
c)There is no support for the proposition that a mental disability is something broader than or less serious than a mental illness or mental impairment. In any event the applicant must demonstrate that the respondent suffered from an impairment involved in the form of a mental disability;
d)To the extent that expert evidence was received, neither doctor suggested that a mental disability was a slightly broader concept than the other terms referred to;
e)In literal terms, the respondent must be impaired by reason of a disability of the mind or the mental faculties. It is difficult to see how this notion accords with the definition suggested by the applicant;
f)The expression should be construed narrowly given the consequences to a medical practitioner who comes within the provisions and having regard to the words themselves and their construction in other contexts.
The respondent referred to the definition of mental impairment in the Criminal Code1913 (WA) and to the expression 'mental disability' in the Legal Practice Act2003 (WA) which included 'intellectual disability, a psychiatric condition, acquired brain injury and dementia'.
Conclusions
As noted above, the question is whether L's condition, as described by the experts, can fairly be described as a mental disability. In our view, it can.
In the absence of legislative definition, the starting point is to look to the natural and ordinary meaning of the words used. Disability is defined in the Macquarie Dictionary (4th ed, 2008):
1.lack of competent power, strength, or physical or mental ability; incapacity.
2.a particular physical or mental weakness or incapacity.
'Mental' relevantly means relating to the mind.
Impulse control, emotional understanding, empathy and judgment are matters of the mind. The inability to adequately control impulse can, in our view, be properly described as an 'incapacity', and in that sense a disability.
When interpreting a provision of a written law, the construction that promotes the purpose or object underlying the law is to be preferred - Interpretation Act 1984 (WA) s 18. The clear legislative purpose in the regulatory regime of the MP Act is to enable appropriate action to be taken where some health attribute of a medical practitioner interferes with the ability of the practitioner to practise medicine. In our view, it is consistent with that statutory purpose that the expression 'mental disability' be interpreted broadly to include any condition of the mind. If a practitioner possesses a condition of the mind which is likely to adversely affect their ability to practise medicine, then an impairment matter will arise.
In our view, L's difficulty with impulse control within the sexual realm is such a condition of mind. It is instructive to note that L has, over an extended period of time, accepted the need for ongoing psychological counselling through Dr Jones. It is apparent that that treatment has been of benefit to L in that he has, with the exception of the lapse in connection with the post-it note matter, successfully responded to that treatment. It is the view of both of the psychiatrists who gave evidence that L is in need of ongoing monitoring and treatment, albeit they did not agree as to the length of time that that should continue. The fact that L's likelihood of acting inappropriately can, according to the opinion of the experts, be subjected to effective treatment through psychological counselling, suggests that it is appropriate to view the underlying condition as a mental disability for the purposes of the MP Act, and in particular the provisions of that Act relating to impairment.
Accordingly, we are of the opinion that an impairment matter exists in relation to L. We accept that, if unmanaged, there is at least a moderate risk that L will again engage in sexually inappropriate behaviour.
Crossexamination of the experts
In his closing submissions, L, through his counsel, contended that it was not open to the Board to submit that a broader understanding of the expression 'mental disability' should be adopted when that broader understanding had not been put to Dr Kay and Dr Hall in the course of their oral evidence. Having reviewed the evidence of Dr Kay and Dr Hall, we do not accept that submission. The task of determining the proper construction of the expressions contained in the MP Act is a task for the Tribunal. The two psychiatrists were asked as to their diagnoses of L and in particular whether they considered he suffered from a recognised mental illness. Their clear evidence was to the effect that he did not, but they did describe, with a high level of agreement, their conclusions as to what led to L's unacceptable conduct. The expression which the Tribunal has accepted as the reliable description of L's mental functioning is an expression drawn from the joint report of the experts and reaffirmed by them in their oral evidence. It was not necessary for the witnesses to be asked whether they held an opinion that L's 'characterological faults' came within the statutory expression 'mental disability'. The experts having expressed their opinion as to L's psychiatric or psychological attributes, it was open to the parties to make the submissions which they did as to how that evidence should be viewed for the purposes for assessing the proper construction of the MP Act.
Conclusion
Accordingly, we are of the opinion that an impairment matter exists in relation to L. It will be necessary for the Tribunal to hear submissions as to penalty in relation to the improper conduct matter and appropriate orders in relation to the impairment matter. The parties should also make submissions as to whether the order for nonpublication of L's name, which was made in context of an interlocutory decision by a differently constituted Tribunal (see Medical Board of Western Australia and L [2010] WASAT 71), should be maintained.
Orders
The matters are listed for directions in relation to the question of penalty and nonpublication at 10:30 am on 26 July 2011
I certify that this and the preceding [52] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A CHANEY, PRESIDENT
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: VOCATIONAL REGULATION
ACT: MEDICAL PRACTITIONERS ACT 2008 (WA)
CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and L [2011] WASAT 98 (S)
MEMBER: JUSTICE J A CHANEY (PRESIDENT)
HEARD: 9 AUGUST 2010
SUBMISSIONS 3 SEPTEMBER AND 29 SEPTEMBER 2010
DELIVERED : 30 JUNE 2011
SUPPLEMENTARY
DECISION :28 FEBRUARY 2012
FILE NO/S: VR 150 of 2009
VR 155 of 2009
BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
L
Respondent
Catchwords:
Non-publication order - Vocational regulation - Claim of impairment while medical practitioner - Disciplinary proceedings heard with impairment proceedings - Non-publication order made in relation to impairment proceedings - Whether order prohibiting publication of practitioner's name should be continued following publication of reasons
Legislation:
Health Practitioner Regulations National Law Act 2010 (WA)
Medical Practitioners Act 2008 (WA)
State Administrative Tribunal Act 2004 (WA), s 61(4), s 61(4)(g), s 62(3)
Result:
Non-publication order made in disciplinary proceedings and maintained in impairment proceedings
Category: B
Representation:
Counsel:
Applicant: Mr P Tottle
Respondent: Mr K Bradford
Solicitors:
Applicant: Tottle Partners
Respondent: Bradford and Co
Case(s) referred to in decision(s):
Medical Board of Western Australia and L [2011] WASAT 98
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Following publication of the Tribunal's decision in relation to an allegation of improper conduct and an allegation of impairment, against a medical practitioner, the Tribunal was required to determine whether an order for the nonpublication of the practitioner's name, made in the impairment proceedings, should be continued or set aside. Because the proceedings in relation to each allegation had been heard together, and a single set of reasons delivered, the question also arose as to whether, if the nonpublication order in the impairment proceedings was maintained, a similar order should be made in relation to the improper conduct proceedings.
The practitioner adduced evidence of a psychiatrist and a clinical psychologist to the effect that the consequences of publication of the practitioner's name may result in a relapse of his previous psychiatric and psychological conditions. In those circumstances, the Tribunal concluded that the nonpublication order should be maintained in the impairment proceedings, and so as to avoid rendering that order ineffective, a similar order should be made in relation to the improper conduct proceedings.
Background
In proceedings reported as Medical Board of Western Australia and L [2011] WASAT 98, the Tribunal determined two applications brought by the Medical Board of Western Australia (Medical Board) against a medical practitioner. In one set of proceedings, the Medical Board alleged improper conduct (the improper conduct proceedings). In the other, it alleged that the practitioner suffered from an impairment (the impairment proceedings).
On 19 May 2010, an order was made by her Honour Judge Pritchard (as she then was), in the impairment proceedings, that the respondent's identity should not be published. No corresponding order was made in relation to the improper conduct proceedings.
In its published reasons, the Tribunal anonymised the practitioner's identity having regard to the still current nonpublication order in the impairment proceedings. The Tribunal invited the parties to make submissions as to whether the nonpublication order should be maintained following delivery of the reasons for decision.
The respondent's counsel attached to his submissions letters from a psychiatrist and a psychologist. They were in agreement that, were publication of the practitioner's name to lead to his dismissal from his now stable employment, he would be liable to a relapse of the depressive illness from which he has suffered in the past, but which is presently the subject of successful treatment.
Section 62(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), enables the Tribunal to make an order that the identity of a person who has appeared before the Tribunal not be published. In order to make such an order, there must exist one or more of the circumstances described in s 61(4) of the SAT Act. The circumstances set out in s 61(4) include circumstances in which it is necessary for an order to be made to avoid endangering the physical or mental health or safety of any person, or for any other reason in the interests of justice. The respondent submits that those circumstances exist in the present case.
I am satisfied that, on the basis of the letters submitted with the respondent's submissions, that, were publication of the respondent's name to lead to his dismissal of his employment, there is a real or substantial risk that the mental health of the practitioner would be affected.
The Medical Board submits that the practitioner has not adduced any adequate evidence that publication of his name would be likely to have the consequence upon which the medical experts have based their opinion, namely, that he would lose his employment. Since that is said to be the event that might trigger a relapse of his illness, the Medical Board submits that there is no adequate basis for the nonpublication order to be maintained.
It is apparent that, at the time of the delivery of the decision, the practitioner was employed by two separate employers. Publication of the reasons apparently led to his being stood down by one of those employers. His concern is that further publication may similarly jeopardise his remaining employment. I am satisfied that it is reasonable to infer from his experience thus far that the risk he fears is a real risk.
The orders made following the hearing resulted in the imposition of fairly onerous conditions on the practitioner designed to ensure that his psychological impairment continues to be treated and thereby any risks to patients are effectively removed. Conditions also allow for ongoing monitoring of his condition. Through that mechanism, the safety of patients with whom he may come into contact in his existing employment is achieved.
The structure of the Medical Practitioners Act 2008 (WA), and its successor, the Health Practitioner Regulations National Law Act 2010 (WA), so far as they deal with impairment, is designed to assist practitioners who suffer from some impairment in dealing with that impairment effectively so as to ensure the protection of the public and, where possible, the ongoing capacity of the practitioner to pursue his or her career. In my view, that objective can be achieved without publication of the practitioner's name, and indeed, is assisted by the existence of a non-publication order. Proceedings in relation to alleged impairment will commonly involve the disclosure of medical history and records of a confidential nature. One of the bases for making a nonpublication order is where it is necessary to avoid publication of confidential information - s 61(4)(g). It may be that, having regard to the likelihood of disclosure of confidential information, and the fact that physical or mental health are often the focus of impairment proceedings, non-publication orders may generally be more readily made in impairment proceedings than in disciplinary proceedings.
In this case, the impairment proceedings and the disciplinary proceedings have become inextricably linked. To make a nonpublication order in the impairment proceedings, but not in the disciplinary proceedings, would render the nonpublication order ineffective. That is because the two matters had an interrelationship which led to them being dealt with in a single hearing, and to them being the subject of a single published decision. In those circumstances, and in order to avoid endangering the mental health of the practitioner, I consider it appropriate that there be a non-publication order made in relation to the disciplinary proceedings so as to prohibit the publication of the practitioner's name.
It follows that, in my view, the order made by Judge Pritchard in VR 155 of 2009, the impairment proceedings should stand unaffected. In addition, there should be an order in matter VR 150 of 2009, improper conduct proceedings, that the name of the practitioner not be published.
Orders
In VR 150 of 2009
1.Pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA), the name of the respondent shall not be published.
I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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