Medical Board Of Western Australia and Mustac
[2006] WASAT 178
•4 JULY 2006
MEDICAL BOARD OF WESTERN AUSTRALIA and MUSTAC [2006] WASAT 178
| Link to Appeal : | [2007] WASCA 128 [2007] WASCA 128(S) |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 178 | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:93/2005 | 15 NOVEMBER 2005 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 4/07/06 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Tribunal not estopped by findings in earlier Supreme Court appeal but would apply findings under comity principle | ||
| A | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA ZELKO MUSTAC |
Catchwords: | Professions Medical practitioners Preliminary issues Whether practitioner estopped from raising issues by reason of earlier decision of Supreme Court on appeal that involved the same practitioner Whether findings of Supreme Court on appeal should apply in proceedings in Tribunal Relevance of findings in earlier Supreme Court appeal to current proceedings in Tribunal |
Legislation: | Medical Act 1894 (WA), s 13 State Administrative Tribunal Act 2004 (WA), s 167, s 47 |
Case References: | Cranley v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia (Ipp J) No 1211 of 1990, Library number 8668, 21 December 1990) Jackson v Goldsmith (1950) 81 CLR 446 McNair v Press Offshore Limited (1997) 17 WAR 191 Mustac v The Medical Board of Western Australia [2004] WASCA 156 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re Mustac (2004) 36 SR(WA) 123 Rippon Pty Ltd v Chilcotin (2001) 53 NSWLR 198 Blair v Curran (1939) 62 CLR 464 Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 Cachia v Isaacs (1985) 3 NSWLR 366 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 Christie v Baker [1996] 2 VR 582 Commonwealth v Sciacca (1988) 78 ALR 279 Henderson v Henderson (1843) 3 Hare 100: 76 ER 313 Hoystead v FCT (1925) 37 CLR 290 Jackson v Goldsmith (1950) 81 CLR 446 Jemielita v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia, 13 November 1992, lib no 920584) Legal Practitioners Conduct Board v Trueman (2003) 225 LSJS 503 Miller v University of NSW (2003) 200 ALR 565 Quidwai v Brown [1984] 1 NSWLR 101 Ramsay v Pigram (1968) 118 CLR 271 Re A Solicitor (No 2) (1924) 93 LJKB 761 Re A Solicitor (No 2) [1956] 1 WLR 1312: [1956] 3 All ER 516 Re B and Medical Board of the ACT 39 ALD 748 Re Hodgekiss (1959) 62 SR (NSW) 340 Re Medical Board of Western Australia; ex parte P (2001) 24 WAR 127 Terry v Permanent Trustee Australia Ltd (1995) 6BPR 14091 The Law Society of South Australia v Murphy (1999) 201 LSJS Thoday v Thoday [1964] P. 181; [1964] 1 All ER 341 Trawl Industries v Effem Foods (1992) 36 FCR 406 Walton v Gardiner (1992) 177 CLR 378 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and MUSTAC [2006] WASAT 178 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 15 NOVEMBER 2005 DELIVERED : 4 JULY 2006 FILE NO/S : VR 93 of 2005
- VR 227 of 2005
- Applicant
AND
ZELKO MUSTAC
Respondent
Catchwords:
Professions - Medical practitioners - Preliminary issues - Whether practitioner estopped from raising issues by reason of earlier decision of Supreme Court on appeal that involved the same practitioner - Whether findings of Supreme Court on appeal should apply in proceedings in Tribunal - Relevance of findings in earlier Supreme Court appeal to current proceedings in Tribunal
Legislation:
Medical Act 1894 (WA), s 13
State Administrative Tribunal Act 2004 (WA), s 167, s 47
(Page 2)
Result:
Tribunal not estopped by findings in earlier Supreme Court appeal but would apply findings under comity principle
Category: A
Representation:
Counsel:
Applicant : Mr CP Shanahan SC and Ms A Liscia
Respondent : Mr JR Ley
Solicitors:
Applicant : Liscia & Tavelli Legal Consultants
Respondent : Minter Ellison
Case(s) referred to in decision(s):
Cranley v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia (Ipp J) No 1211 of 1990, Library number 8668, 21 December 1990)
Jackson v Goldsmith (1950) 81 CLR 446
McNair v Press Offshore Limited (1997) 17 WAR 191
Mustac v The Medical Board of Western Australia [2004] WASCA 156
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Mustac (2004) 36 SR(WA) 123
Rippon Pty Ltd v Chilcotin (2001) 53 NSWLR 198
Case(s) also cited:
Blair v Curran (1939) 62 CLR 464
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Cachia v Isaacs (1985) 3 NSWLR 366
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Christie v Baker [1996] 2 VR 582
Commonwealth v Sciacca (1988) 78 ALR 279
(Page 3)
Henderson v Henderson (1843) 3 Hare 100: 76 ER 313
Hoystead v FCT (1925) 37 CLR 290
Jackson v Goldsmith (1950) 81 CLR 446
Jemielita v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia, 13 November 1992, lib no 920584)
Legal Practitioners Conduct Board v Trueman (2003) 225 LSJS 503
Miller v University of NSW (2003) 200 ALR 565
Quidwai v Brown [1984] 1 NSWLR 101
Ramsay v Pigram (1968) 118 CLR 271
Re A Solicitor (No 2) (1924) 93 LJKB 761
Re A Solicitor (No 2) [1956] 1 WLR 1312: [1956] 3 All ER 516
Re B and Medical Board of the ACT 39 ALD 748
Re Hodgekiss (1959) 62 SR (NSW) 340
Re Medical Board of Western Australia; ex parte P (2001) 24 WAR 127
Terry v Permanent Trustee Australia Ltd (1995) 6BPR 14091
The Law Society of South Australia v Murphy (1999) 201 LSJS
Thoday v Thoday [1964] P. 181; [1964] 1 All ER 341
Trawl Industries v Effem Foods (1992) 36 FCR 406
Walton v Gardiner (1992) 177 CLR 378
(Page 4)
Summary of Tribunal's decision
1 In 2004 the Supreme Court of Western Australia in an appeal by way of rehearing upheld the decision of the Medical Board of Western Australia that Dr Mustac was guilty of improper conduct in a professional respect in relation to his use of a Test of Memory Malingering (TOMM) in respect of two patients.
2 The Board then commenced further proceedings against the practioner in relation to his use of the TOMM in respect of a number of other patients.
3 After 1 January 2005, the Tribunal became responsible for hearing the proceedings. In the Tribunal, the practitioner raised issues which the Board contended were not open for consideration in light of findings made in the earlier Supreme Court appeal.
4 The President of the Tribunal determined that in the current proceedings in the Tribunal the practitioner was not estopped from raising issues decided against him in the Supreme Court appeal, but as a matter of comity the Tribunal would apply key findings made in the Supreme Court appeal to the extent they were relevant.
5 The Tribunal ruled that evidence the practitioner proposed to call from an expert neuropsychologist concerning the uses that could be made of the "modified" use of the TOMM would not be relevant to the determination of the current proceedings.
Issue
6 On 14 October 2004 - prior to the commencement of the State Administrative Tribunal (the Tribunal) - the Medical Board of Western Australia (Medical Board or Board) issued a notice of inquiry under s 13 of the Medical Act 1894 (WA) into certain aspects of the professional conduct of Dr Zelko Mustac (the practitioner). The notice of inquiry alleged that, in the course of conducting psychiatric assessments, the practitioner had engaged in improper conduct in a professional respect in relation to his use of a Test of Memory Malingering (TOMM test) of patients B and A for use in a legal context.
7 The proceedings were later transferred to the State Administrative Tribunal pursuant to s 167 of the State Administrative Tribunal Act 2004 (WA), following the commencement of the Tribunal.
(Page 5)
8 The commencement of this inquiry by the Board was preceded by another inquiry by the Medical Board in which it had made findings in November 2003 against the practitioner concerning the use of the TOMM test in respect of another group of patients. These findings were upheld in part on appeal to the Supreme Court of Western Australia. (The decision of the Medical Board is reported as Re Mustac (2004) 36 SR(WA) 123. The decision of the Supreme Court of Western Australia on appeal is unreported but may be found at Mustac v The Medical Board of Western Australia [2004] WASCA 156).
9 In the current proceedings in the Tribunal, a question has arisen as to the extent to which the decision of Simmonds J in the Supreme Court appeal governs the current proceedings. If the findings made by Simmonds J are properly to be characterised as raising issues of estoppel between the practitioner and the Medical Board, it may not be open to the practitioner to advance certain grounds of defence in the current proceedings.
10 In any event, whether or not issues of estoppel arise between the parties, practical questions concerning the practical significance of findings made in the Supreme Court appeal arise in the current proceedings and may govern the relevance of certain expert evidence the practitioner proposes to call.
11 Put generally, the issue now arises as to the extent to which the decision of Simmonds J defines the nature of current proceedings in the Tribunal and limits the matters that the practitioner can raise by way of defence to the Medical Board's application.
What the Medical Board alleges in the current proceedings in the Tribunal
12 The allegations made against the practitioner in the current proceedings in the Tribunal in respect of patient B and patient A are in substance that the practitioner:
(1) Failed to properly apply the TOMM test in that he only administered Trial 1 and failed to administer Trial 2, as required by the TOMM manual.
(2) Used the TOMM test to determine questions of the overall veracity of the patients, contrary to the specific purpose for which the TOMM test was developed.
(3) Gave each patient a certain score (less than 25 out of 50) on Trial 1 under the TOMM test and using this result as his
- major diagnostic tool, concluded that patient B was clearly exaggerating his memory impairment, and that patient A had an intention to deceive him as her score was below chance and that she was malingering, when such conclusions were not open having regard to the proper application of the TOMM test and interpretation of the TOMM test results, as specified in the TOMM manual.
- (4) By his report in relation to patient B and A respectively, falsely represented that he had performed the TOMM test, when in fact he had only performed part of the TOMM test, namely Trial 1 in the knowledge that each report was being sought for the purpose of assisting in the determination of a patient's legal rights to compensation and would be relied upon in legal proceedings.
(5) The conclusion that patient B was clearly exaggerating his memory impairment and that patient A had an intention to deceive him and was malingering, as expressed in the reports respectively, could not be supported by the findings expressed in the reports.
What the practitioner wishes to put in issue in the current proceedings in the Tribunal
13 Notwithstanding the findings made against him in the Supreme Court appeal, the practitioner desires to argue a number of propositions in the proceedings in the Tribunal:
1) Proper to perform Trial 1 and not perform Trial 2 in certain cases: The practitioner says that although the TOMM manual provides that the TOMM test consists of Trial 1 and Trial 2 and, at the option of the person administering the TOMM test, a retention trial, and that Trial 1 and Trial 2 must be performed, it is proper and reasonable to perform only Trial 1 and not to proceed to perform Trial 2 if:
- (a) the subject's score on Trial 1 is so low as to provide clear evidence that the subject's effort in performing Trial 1 was grossly insufficient;
(b) the subject's score on Trial 1 is so low that, having regard for his or her clinical history and comparison of his or her score with scores achieved by appropriate groups, the subject cannot have made a full effort when performing Trial 1;
- (c) it is possible to conclude on the basis of the subject's score on Trial 1 and other clinical factors that the possibility of the subject malingering is very strong.
• that the score achieved by patient A on Trial 1 being 21 out of 50, was so low that :
(1) it provided clear evidence that patient A's efforts in performing Trial 1 was grossly insufficient;
(2) having regard to her clinical history and the comparison of the patient A scores with scores achieved by appropriate groups, patient A could not have made a full effort when performing Trial 1; and
(3) and it was possible to conclude on the basis of patient A's score and other clinical factors that the possibility of patient A malingering was very strong; and therefore
(4) it was proper and reasonable for the respondent not to proceed to perform Trial 2 on patient A.
• the score achieved by patient B on Trial 1 being 23 out of 50, this was so low that:
(1) it provided clear evidence that the patient B's efforts in performing Trial 1 was grossly insufficient;
(2) having regard to his clinical history and the comparison of the patient B's scores with scores achieved by appropriate groups, patient B could not have made a full effort when performing Trial 1; and
(3) it was possible to conclude on the basis of patient B's score and other clinical factors that the possibility of patient B malingering was very strong; and therefore
(4) it was proper and reasonable for the respondent not to proceed to perform Trial 2 on patient B.
• the score achieved by patient C on Trial 1, being 33 out of 50, was so low that:
(1) it provided clear evidence that patient C's efforts in performing Trial 1 was grossly insufficient;
(2) having regard to his clinical history and the comparison of patient C's score with scores achieved
- by appropriate groups, patient C could not have made a full effort when performing Trial 1; and
- (3) it was possible to conclude on the basis of patient C's score and other clinical factors that the possibility of patient C malingering was very strong; and therefore
(4) it was proper and reasonable for the respondent not to proceed to perform Trial 2 on patient C.
- 2) Trial 1 scores not the sole or even major means of determining overall questions of veracity: The practitioner also wishes to contend that he did not use the scores of patient A, patient B and patient C as the sole means or even the major means of determining questions of the overall veracity of patients A, B and C respectively. That he used the written materials with which he had been provided prior to examining the patients, his findings upon examining the patients and answers given by the patients to his questions during the examination, his observation of the patients during the examination and the patients scores to determine questions of their overall veracity.
3) Use of Trial 1 score only not contrary to purposes of TOMM test: The practitioner also wishes to argue that his use of each patient's Trial 1 score was not contrary to the specific purpose for which the TOMM test was developed.
4) Not contrary to TOMM specific purpose: Alternatively, if the practitioner is found to have used the patients' scores as the major means of determining questions of the overall veracity of each patient, that would not have been contrary to the specific purpose for which the TOMM test was developed.
5) Trial 1 scores not "the major diagnostic tool" used: The practitioner further wishes to argue that he did not use each patients' score as his "major diagnostic tool" in assessing each patient or in concluding that patient A had an intention to deceive him, that patient B was clearly intent on exaggerating his memory impairment and that patient C attempted to deceive him and was intent on exaggerating his complaint.
- In the case of each patient, the practitioner wishes to argue that the relevant conclusions were drawn on the basis of materials provided to him prior to examining each patient, his findings upon examining each patient, the answers given by each patient to questions during examination, his observations of each patient during examination and the patients' score.
- In particular the practitioner wishes to argue that it was open to him to draw the conclusions in each case.
- 6) Conclusions can be drawn without using Trial 2: Further, that the fact that he did not perform Trial 2 on each patient did not prevent him from drawing the conclusions he drew.
7) TOMM manual does not prevent conclusions being drawn: Furthermore, that the parts of the manual which deal with the interpretation of the scores achieved on the TOMM test did not prevent the respondent from drawing the conclusions that he drew.
8) No improper conduct: That as a result, the practitioner is not guilty of improper conduct in a professional respect.
Proposed expert evidence for practitioner
15 Counsel for the practitioner has indicated that the practitioner would propose to call Dr W Paul Green, a PhD level clinical neuropsychologist trained in England and now practising in Edmonton, Alberta, Canada to support some of the matters the practitioner wishes to put in issue. In a substance of expert evidence of Dr Green, dated 29 September 2005, it is stated that Dr Green is the inventor and developer of the Word Memory Test for Windows, a computerised memory test with a built-in effort measure. He is also the author of an effort and memory test designed specifically for use by doctors, called the Medical Symptom Validity Test (MSVT). He has won an award for his research on effort testing and depression from the National Academy of Neuropsychology in 2003, which is said to be an international organisation of 3 500 neuropsychologists based in the USA and is the pre-eminent representative body for clinical neuropsychologists.
16 Dr Green would propose to give evidence about effort testing now required in North America and would make special reference to the TOMM .
17 Dr Green would propose to give evidence concerning the capacity to predict failure on TOMM Trial 2 from scores on TOMM Trial 1. He would purport to give evidence following some research that in a patient with no known brain disease, low Trial 1 scores of the types scored by patients' A, B and C "signifies only one thing: poor effort".
18 Dr Green would also propose to draw conclusions that include these:
(1) Dr Mustac was almost certainly right in his conclusion in each of the three cases that the person was not making a valid effort on Trial 1 of the TOMM;
(Page 10)
- (2) Dr Mustac's conclusions were consistent with the comparative data presented in the manual;
(3) if Dr Mustac had administered Trial 2 of the TOMM to patients A and B, he was very likely indeed, in fact is almost certain, that both of them would have failed Trial 2;
(4) if patient A and patient B had each failed Trial 2, Dr Mustac would have been entitled to draw the same conclusions about them as he drew as the result of examining them and performing Trial 1 only;
(5) in administering Trial 2 to patient A and B would have made no difference to Dr Mustac's conclusions;
(6) it was reasonable for Dr Mustac not to administer Trial 2 to patient A and patient B;
(7) if Dr Mustac had administered Trial 2 of the TOMM to patient C there was a 96% chance that it would have failed Trial 2;
(8) if patient C had failed Trial 2, Dr Mustac would have been entitled to draw the same conclusions about him as he drew as the result of examining him and performing Trial 1 only;
(9) administering Trial 2 to patient C would have made not difference to Dr Mustac's conclusions; and
(10) it was reasonable for Dr Mustac not to have administered Trial 2 to patient C.
19 Dr Green would also propose to give evidence to the effect that it was quite reasonable and proper for Dr Mustac to use the results of an objective test of effort to measure objectively the subjects' tendency to exaggerate symptoms. He would say that if a person fails easy tests of effort, then claimed that he or she has made a full effort, "it is reasonable to question the veracity of the patient's self-reports. In such cases, one self-report is proven to be factually incorrect and biased. Therefore, it is reasonable to assume that some other self-reports in the clinical interview will also be biased".
The Medical Board's estoppel argument
20 The Medical Board in short contends that in Mustac v The Medical Board of Western Australia Simmonds J found:
(Page 11)
- (1) The parties did not dispute that the practitioner engaged in a "modified use" of the TOMM if this was a "use" of the TOMM in any sense.
(2) The Medical Board's findings in relation to the "use particulars" and the "conclusion particulars" were correct and adopted by Simmonds J.
(3) Simmonds J found that the conclusion particulars were made out.
(4) Simmonds J found that the fifth allegation before the Board, concerning what conclusions could be drawn concerning the inability of the practitioner to draw a conclusion that a subject is making a false or exaggerated claim of a memory deficit, based on the TOMM test, was made out.
(5) The Board's answer to the three "important" questions identified by Simmonds J remained undisturbed.
(6) Simmonds J found he was in agreement with the view of the Board as to the practitioner's use of the TOMM as his major diagnostic tool to determine overall veracity, contrary to the specific purpose for which the TOMM was developed, based on his understanding of the TOMM manual.
(7) Simmonds J rejected the attempt to establish a Cranley defence on the evidence in the case.
21 Senior counsel cautioned against a tendency of the practitioner's submissions to "conflate" the finding of Simmonds J regarding (1) the use of Trial 1 to determine questions of overall veracity and (2), he submitted either or both constitute an improper use of the TOMM test.
22 The Board now says that the practitioner's attempt to put the matters identified above in issue in these proceedings, involves a "collateral attack" on the Board's decision in Re Mustacand the decision of Simmonds J in Mustac v The Medical Board of Western Australia and demonstrates that the practitioner is simply seeking to re-argue the earlier matters; and that this raises the estoppel issue.
23 Senior counsel for the Board says that the issue of whether the practitioner was using Trial 1 of the TOMM as his major diagnostic tool, in respect of a patient, is a matter of fact in respect of each patient, albeit the content of his written report in a medico-legal context would be
(Page 12)
- determinative of this issue in respect of such patients, given the practitioner's knowledge that the reports were likely to be used in evidence.
24 Thus it is said on behalf of the Board, that to "conflate" each of the allegations in the earlier decisions with a proposition that the practitioner used Trial 1 of the TOMM test as his major diagnostic tool is merely to seek to avoid the findings in the Supreme Court, binding as between the parties, that:
(1) the proper application of the TOMM test requires the performance of at least Trials 1 and 2 and any application using only Trial 1 of the TOMM test was not a proper use of the TOMM test if it is use of the TOMM test at all;
(2) any reporting by a medical practitioner that suggests that the practitioner's use of only Trial 1 of the TOMM test was a performance of the TOMM test is false;
(3) using only Trial 1 of the TOMM test (in addition to not being a proper use of the TOMM test, if it is a use of the TOMM test at all) cannot be used as a means of determining overall veracity of a patient as such use is contrary to the specific purpose for which the TOMM test was developed;
(4) using only Trial 1 of the TOMM test (in addition to not being a proper use of the TOMM test, if it is a use of the TOMM test at all) cannot be used to support a medical opinion beyond "a conclusion that a subject is making a false or exaggerated claim of memory deficit" and thus cannot be used to support a medical opinion that a patient is "intending to exaggerate or deceive" a practitioner as to their symptoms or is a "malingerer".
25 Thus, senior counsel for the Board contends the practitioner seeks to argue that a use of Trial 1 of the TOMM test is a proper use of the test.
26 The Board therefore desires to rely on Mustac v The Medical Board of Western Australia as creating an estoppel preventing the practitioner re-running the appeal decided against the practitioner. Senior counsel for the Board says that, in this context, the decision of Simmonds J is significant to the extent that His Honour "adopted and accepted the Board's findings in Re Mustac, and in this case Simmonds J adopted the Board's findings without exception".
(Page 13)
27 Accordingly, the Board says that -
• the matters that the practitioner now wants to put in issue regarding patients A, B and C specifically suggest that he can draw a conclusion that patient A was malingering based on only Trial 1 of the TOMM test, a point specifically decided otherwise by Simmonds J in Mustac at [87];
• the practitioner's desire to put in issue his entitlement to rely on Trial 1 without performing Trial 2 on the three patients could not be sustained in the face of the decision of Simmonds J. That to describe a person as a "malingerer" based on the application of a portion of the TOMM test is not a proper use of the test, if it is a use of that test at all;
• the extent to which the practitioner is said to have relied "on other clinical factors" is not set out and the Board would be unable to engage these matters upon any hearing. If reference to such "other clinical factors" did not appear in the practitioner's written reporting in such a medico-legal context, it is to be discounted. Senior counsel asks rhetorically: "What other clinical factors could ever sustain a medical opinion that a plaintiff was a liar?";
• in any event, it is not necessary to prove that the practitioner used Trial 1 of the TOMM test as his major diagnostic tool, when any use of that portion of the TOMM test (only Trial 1) as a basis for conclusions as to overall veracity in a medico-legal setting are not open to a practitioner and are not consistent with the specific purpose for which the test was developed; and
• the issues raised by the practitioner as to whether or not the Trial 1 results were used as a "major diagnostic tool" is simply to conflate that issue with every other issue and thereby to seek to avoid the decision of Simmonds J in Mustac.
The reasons and findings of Simmonds J
28 The Medical Board's decision in Re Mustac: Before turning to the reasons and findings of Simmonds J in the Supreme Court appeal, it is appropriate to have some regard to the findings of the Medical Board in Re Mustac. For present purposes it is sufficient to have regard to the headnote to the report of the Board's decision at (2004) 36 SR(WA) 123. In relation to the TOMM test, the headnote relevantly records as follows:
(Page 14)
- "(10) The practitioner represented in his medico-legal reports that he had performed the test in the manner in which it was developed and designed to be performed, as distinct from some variation or modification. Evidence indicated that he had only partially administered the test. (See paragraphs [90], [98], [102] and [105] of the reported decision of the Board).
(11) The practitioner's interpretation of the manner in which the test could be administered was incorrect; his interpretation was at odds with the clear words of the test manual. The practitioner was obliged to follow the key elements of the test as laid down in the test manual. He did not do this. By failing to administer the second stage of the test, the practitioner did not use the test in accordance with the procedural and administrative guidelines; he did not use the test as it was intended to be used. The practitioner's failure to take an essential step in the administration of the test rendered his findings inaccurate. (See paragraphs [125], [127], [134] - [135], [138] - [139] of the reported decision).
(12) Certain of the allegations of misconduct were proven and when viewed together constituted "improper conduct in a professional respect". There was no intention to deceive on the part of the practitioner, however the misconduct found amounted to a significant departure from the standards of a psychiatrist. To misuse a well known and recognised test, developed for a specific purpose and then engage the reputation of that test in order to support an expressed opinion is a serious breach of professional protocol. (See paragraphs [165] - [166], [188] & [190] of the reported decision).
(13) The practitioner's argument - that the Medical Board was prevented from concluding that any allegations proved constituted "improper conduct in a professional respect" and/or "gross carelessness" because such conduct involved the preference of one medical opinion over another - was not supported by the case of Cranley v The Medical Board of Western Australia. It is clear that a practitioner cannot be found guilty of "improper conduct in a professional respect" and/or "gross carelessness" merely because he or she employs a treatment method that differs from that of
- other practitioners. However, this was not so in the present case. The practitioner had drawn conclusions from the partial performance of a test and those conclusions were not justified. (See paragraphs [173] - [175] of the reported decision)."
29 Preliminary matters in Simmonds J's decision: The practitioner appealed the Board's decision to the Supreme Court of Western Australia, as he was entitled to under s 13(8) of the Medical Act 1894 (WA) as it then stood. The appeal conducted before Simmonds J was an appeal "in the nature of a re-hearing"; as to which see Mustac v The Medical Board of Western Australia [2004] WASCA 156 at [4].
30 At [19] of his reasons, Simmonds J noted that it was agreed at the Inquiry before the Board and on the appeal before him that none of the witnesses called before the Board had used the TOMM test in clinical practice or otherwise. The practitioner was the only witness who had used it. No member of the Board was a consultant psychiatrist or had used the test. The Board's conclusions were based in large part on the manual for the test, and the practitioner's use of the test. That use was determined by the Board not to have been in accordance with the manual, and to have been the major basis on which the practitioner drew conclusions about the overall veracity of patients M & P, who were the subjects of the assessments made by the practitioner.
31 Simmonds J noted at [20] that the appeal against the primary finding of the Board went largely to the use to be made of the evidence of the consultant psychiatrists, particularly the two called on behalf of the practitioner - Professor Goldney and Dr McCarthy. The evidence of these two, as well as Professor Mullen, it was submitted on behalf of the practitioner, showed or at least pointed to a "respectable body of medical opinion" supporting the practitioner's use of the TOMM test in ways of concern to the Board. Its use, so supported, was said to be "a practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopted a different practice", and so should not be characterised as conduct improper in a professional respect for the purposes of s 13(3) of the Act: see Cranley v Medical Board of Western Australia (Unreported, Supreme Court of Western Australia (Ipp J) No 1211 of 1990, Library number 8668, 21 December 1990 at page 8) where this formulation or "defence" is outlined.
32 Simmonds J noted at [22] that it was contended for the Board that it had indeed considered the evidence of the experts, but almost entirely in relation to the proper approach to the manual, where the weight assigned
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- to the expert evidence was no greater than the Board's own view of the manual because of the lack of personal experience of the experts referred to. It was further contended for the Board that it had indeed taken account of evidence from Dr McCarthy of "anecdotal discussions" he had had with psychiatrists in the United States to the effect that they "just used the first test as a screening test" and of the practitioner that his use of the TOMM on the occasions the subject of the Notice of Inquiry was approved by those in the US who had "trained" him in the use of the TOMM. However, it was submitted that the Board had rejected Dr McCarthy's evidence as irrelevant because the practitioner was not contending the test was used as a "screening" one, but rather in a "broader" context, as a, if not the major, diagnostic tool for the practitioner's purposes. This "modified use" of the TOMM assumed some significance at the Inquiry before the Board and before Justice Simmonds.
33 For the Board, it was also argued before Simmonds J, as his Honour noted at [24], that there was no sufficient evidence of a responsible, albeit minority body of opinion within the Cranley formulation to justify the modified use of the TOMM by the practitioner. Rather, at most, apart from the evidence of the practitioner himself, there was evidence from other practitioners who were respectable, of good repute and competence, that they did not believe what the practitioner did warranted disciplinary action. None of the experts called by either side have testified that they knew of other forensic psychiatrists who used the TOMM test as the practitioner did "without ill effect" or that they themselves considered that use "valid". This was apart from Dr McCarthy's reference to his "anecdotal discussions" which the Board characterised as "vague" and falling "very short of the respectable body of opinion approving the approach adopted by the practitioner".
34 Simmonds J further noted at [25] that there was also the matter of the lack of any evidence from any "psychiatrist possessed of the relevant experience and specific expertise" to show "an established body of expert opinion that the use, application and interpretation of the TOMM employed by the practitioner was a valid and acceptable approach to the forensic exercise he undertook".
35 Nor was there evidence from those "involved with the design or development of the TOMM or in instruction in its use and application or the interpretation of results obtained which supports the approach of the practitioner".
(Page 17)
36 In order to re-hear the matter on appeal, Simmonds J had regard to these various submissions and findings by the Board in its reasons for decision and then proceeded to describe the TOMM test and the terms of the manual as to its use. In particular, Simmonds J noted at [29] that the manual indicated that both Trial 1 and Trial 2 "must be" administered.
37 It was common ground that the practitioner had only administered Trial 1.
38 Simmonds J's analysis of the Board's approach: Simmonds J then noted at [41] that the Board had characterised the three important issues of fact in the Inquiry as:
• Did the practitioner represent that he had "performed" the TOMM?
• Can the representations made by the practitioner that he had "performed" "the TOMM" be justified?
• To what extent did the practitioner rely on "the TOMM"?
39 Simmonds J noted at [41] that the practitioner's grounds of appeal before him included that these three questions were irrelevant to the notice of particulars that formed part of the Notice of Inquiry. However, Simmonds J at [42] did not see these grounds as having been made out. He considered the three questions represented the Board's approach to the issues as they emerged from that Inquiry.
40 Simmonds J noted that the Board saw the first question as a "threshold" one, going to whether the practitioner had represented he was performing a recognised scientific test as originally designed, or rather in a modified form involving just one trial rather than two. Simmonds J said it was apparent to him that the question was the Board's "entry point" into the matter that the Board saw as having emerged at the Inquiry concerning the "conclusions" particulars (as Simmonds J called them) at 1.1.4 and 1.3.4 (namely that patient M "had an intention to deceive" when such a conclusion was not open having regard to the proper use of the TOMM test; and that patient P had an intention to deceive when such a conclusion was not open having regard to the proper use of the TOMM test).
41 Simmonds J noted that the Board saw its second question, as to the justifiability of the representation in question, as whether or not the particular form of the TOMM by the practitioner, involving just one trial rather than two, is justified on a proper understanding of the TOMM. Simmonds J concluded at [43] that this covered the matter that the Board saw as having emerged at the Inquiry and covered by the "conclusions"
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- particulars just referred to, as to whether the "modified use" that had been established was a "proper" use of the TOMM.
42 Simmonds J said the Board saw the third of the three questions, as to the extent to which the practitioner relied on the TOMM, as how important that modified use of the TOMM was relative to other matters in reaching the practitioners conclusions. Simmonds J concluded at [44] that the Board treated this question as covering the matter of what he called the "use" particulars, being the "modified use" set of particulars at 1.1.2 and 1.3.2 (namely the use of the TOMM test to conduct a medico-legal assessment of an accident-related compensation claim, contrary to the specific purpose for which the test was developed), and the "overall veracity" set of particulars at 1.1.3 and 1.3.3 (namely that the practitioner applied the TOMM test to questions of overall veracity in circumstances where it was not designed to generate reliable information as to overall veracity), as well as whether the conclusions the practitioner drew from such use were "open" (see the "conclusions" particulars set out in 1.1.4 and 1.3.4).
43 Simmonds J at [45] considered this method of approaching the particulars was one that was indeed open to the Board. However, Simmonds J at [45], chose to follow his own approach, which dealt with the matters raised in the Inquiry in the order of the particulars.
44 Simmonds J's findings on the "use issues": As to the "use issues" set out in 1.1.2 and 1.3.2 of the Notice of Inquiry before him - the fact that the practitioner used the TOMM test to conduct a medico-legal assessment of an accident-related compensation claim contrary to the specific purpose for which the test was developed - Simmonds J at [47] noted that the use issues, as they emerged at the Inquiry before the Board, went to the matter of whether or not the practitioner had used the scores he obtained on patient M's and patient P's Trial 1 tests as his "major diagnostic tool" for the assessments he made of them. By the term "major diagnostic tool" the Board meant one which was the predominant basis for such conclusions, although without precluding the use of other indicators.
45 Simmonds J noted at [47] that there was significant dispute at the hearing and on the appeal as to whether the practitioner did so use the results from Trial 1 of the TOMM, relative to his use of other matters. Simmonds J stated, however, that there was no dispute that the practitioner was thereby engaged in a "modified use" of the TOMM, if this was a "use" of the TOMM in any sense. For this reason, Simmonds J
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- at [47] characterised the particulars in 1.1.2 and 1.3.2 of the Notice of Inquiry before him, as the "modified use" issues.
46 Simmonds J at [52] noted that the use of the TOMM as a "screening test" was not addressed in any of the literature available to him on the appeal. Nor did any of the witnesses provide citations to any such literature. The idea of a "screening test", or the use of the TOMM as one, was referred to by two of the other expert witnesses. One was Professor Burvill, who referred to the use of a test of concentration, where the patient's history and mental state examination indicated there might be some significant impairment of cognition, the test being one to indicate whether or not further testing was appropriate. However, Simmonds J did not consider the witness was referring to the use of the TOMM as such a test. Professor Goldney did refer to the use of the TOMM as a "screening tool" in relation to the "Commonwealth Rehabilitation Service"; however, he indicated that that use was as it was described to him, and he could not say what it meant, although he could "imagine" it was a "test of motivation" to stay in the rehabilitation program.
47 At [53], Simmonds J found that in the end he did not find it necessary to determine whether or not there was screening use of the TOMM for overall veracity purposes among some psychiatrists or psychologists and, if so, whether any such use was established as one that would, within the Cranley formulation, preclude a finding of conduct improper in a professional respect in a case like this.
48 Simmonds J came to this position because, as he explained at [54], the Practitioner's use of the TOMM in relation to overall veracity was not of a screening nature, but rather, on the evidence, as the practitioner's major diagnostic tool. Simmonds J noted this was also the Board's conclusion in Re Mustac at [156]. Simmonds J then stated at [54]:
"Like the Board, I have so concluded because of the form of the Practitioner's reports and the Practitioner's evidence as to the matters on which he relied. I have also borne in mind the Board's view as to the Practitioner's demeanour and manner of giving evidence..."
49 Simmonds J at [55] - [64] had regard to the practitioner's reports for the two patients concerned and other materials and submissions made concerning evidence given before the Board about the practitioner. At [66], Simmonds J noted, as the Board had, the particularly heavy emphasis the practitioner placed on the TOMM score for his assessment
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- in relation to his overall veracity in the practitioner's supplementary letter concerning patient P. While Simmonds J found no corresponding emphasis apparent from the report for patient M, there was, he thought, in the practitioner's own evidence as to the significance he attached to the TOMM which was somewhat at variance with his witness statement, where, in its "Summary", he indicated that he used it as "a small part of my assessment" and with an earlier response in his cross-examination to that previously quoted. At [70], Simmonds J noted, as the Board had, the gaps, in the practitioner's notes, particularly as to non-verbal matters which he later said were of considerable significance. Simmonds J also noted the Board's reliance on the practitioner's "demeanour".
50 As a result, at [73] Simmonds J considered that the TOMM was indeed the practitioner's "major diagnostic tool" used in relation to his assessment of the overall veracity of patients M and P. In so considering, Simmonds J agreed with the Board's view that the practitioner's use of the TOMM as his major diagnostic tool to determine overall veracity was contrary to the specific purpose for which the TOMM was developed.
51 As Simmonds J said at [74], this finding disposed of the bulk of the grounds of appeal.
52 In summary, then, the important findings of Simmonds J in relation to the "use particulars" were that:
• the practitioner has used the TOMM as his major diagnostic tool;
• the use of the TOMM as the practitioner's major diagnostic tool to determine overall veracity was contrary to the specific purpose for which the TOMM was developed;
• as a result of these two findings, it is plain Simmonds J found it is impermissible to use the TOMM in the modified way proposed by the practitioner as to do so was contrary to the specific purpose for which it was developed.
53 Simmonds J's finding on the "conclusion particulars": Simmonds J then dealt with the question of the conclusions drawn by the practitioner that patients M and P intended to deceive him, based in major part on their scores from the administration of only Trial 1 of the TOMM. He found that such a conclusion was in fact so drawn in each case.
54 Simmonds J at [77] emphasised that, as to the "proper" use of the TOMM, he had put aside the matter of its use as a screening device, for
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- the reasons already given - namely, that there was no suggestion it had been used in such a way.
55 Simmonds J noted, at [84], the evidence of the expert witnesses as to proper clinical practice by a forensic psychiatrist in the setting in which the practitioner found himself. Four of those experts indicated that in a medico-legal context involving an assessment that went to "malingering", a forensic psychiatrist employing a test like the TOMM - viewed as a "very simple" one where the manual indicated it was "obligatory" to use Trials 1 and 2 - should, at least in "general terms" as Professor Goldney put it, use the test in accordance with the procedures by which it had been validated.
56 Simmonds J at [85] noted, however, that Professor Goldney did in fact indicate (as he read his evidence) that departure from the manual would be appropriate with scores on Trial 1 like those for patients M and P, for clinicians at least. Simmonds J then noted at [85]:
"This was a matter on which Senior Counsel for the Practitioner put considerable emphasis in his submissions to me. I have anxiously considered this point. I have concluded that it is some distance from an endorsement of the Practitioner proceeding to use Trial 1 only as a basis for drawing conclusions as to the overall veracity of Patients M and P, as opposed to raising questions that needed to be addressed and that were relevant to the matter (what I earlier referred to as a "screening" issue). I note particularly in this regard the exchange … between a member of the Board and Professor Goldney to which I have previously referred, and which I need to reproduce in full …".
57 Simmonds J, at [86], then referred to Dr McCarthy's evidence to the effect that a departure from the manual was appropriate in relation to Trial 1, in connection with the screening test already discussed. He had a different view in connection with the use of the TOMM as a, or the, major diagnostic tool, which was the context in which Simmonds J was required to consider the issue.
58 Simmonds J then concluded at [87]:
"This brings me to what conclusions the Practitioner could draw, or that were 'open', from the Trial 1 scores of Patient M and Patient P in light of what I have identified as the 'proper' use of the TOMM, in the setting in which the Practitioner found
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- himself. As I have indicated, I am satisfied that he did, indeed, draw the conclusion from those scores as his major diagnostic tool that Patients M and P both had the intention to deceive him, not only as to their memory, but also as to their other symptoms. I have also found that the TOMM Manual indicates that the TOMM itself only permits a conclusion to be drawn that a subject is making a false or exaggerated claim of a memory deficit. Whether or not the claimant intended to make a claim that was false or exaggerated, or whether or not such claim was motivated by external incentives, are different matters requiring other factors to be drawn upon, as the extracts from the Manual indicate. The Decision Rules in the Manual are one place where it seems to me this is reinforced. They refer to their respective guidelines as indicating the possibility of malingering only. I have already indicated my reasons for finding that, on the evidence before the Board, using only Trial 1 scores is not a 'proper' use of the TOMM as the major diagnostic tool. From this, it follows that conclusions of false or exaggerated claims resting for their major support on such scores are not 'open', nor would any conclusions that went beyond those to cover intentionality and motivation be 'open'."
59 As a result, at [88], Simmonds J concluded that the practitioner had indeed drawn the conclusions that patients M and P had intended to deceive him based in major part on their scores on an administration of Trial 1 only, when such uses were not open to him, having regard to the proper use of the TOMM.
60 Simmonds J at [89] - [90] rejected submissions that the Board had failed to have regard to what the expert witnesses had to say on these topics and had simply judged this by virtue of their own inexperienced opinions. At [91], Simmonds J added that he thought it was appropriate for him and the Board to have focussed particular attention on the manual for the TOMM because it "represents the best evidence before the Board as to what the TOMM was designed to test and what its designers believe were the appropriate procedures and interpretations that the test and its results allowed for".
61 In summary then Simmonds J found:
• conclusions of false or exaggerated claims resting for their major support on Trial 1 scores only from the TOMM test are not open;
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- • conclusions going to intentionality and motivation of a patient that rest on their major support on Trial 1 scores only of the TOMM test are also not open.
62 Simmonds J's findings in the characterisation of practitioner's conduct so found: Simmonds J found, as had the Board, that the practitioner was guilty of improper conduct in a professional respect because it was intentional and deliberate conduct on his part. Simmonds J found this was so, at [109], because of the practitioner's commitment to its modified use and his judgment that it was an appropriate one on which he could make presentations to professional colleagues.
Whether the findings of Simmonds J create any estoppel or otherwise should be considered to bind the Tribunal in the disposition of the current proceedings.
63 The Tribunal considers that the findings of Simmonds J should be applied in the current proceedings in the Tribunal. This is because the Tribunal, when constituted so as to include the President, who is also a judge of the Supreme Court, should endeavour to follow a decision of a single judge of the Supreme Court unless it is plainly wrong. This is in accord with the well-known comity principle.
64 Simmonds J made findings that sanction the use of the TOMM test, essentially because it is only that which has been validated when used in accordance with its designers instructions. The manual must be followed. If it is not, it is not the TOMM test that is applied. The TOMM test has not been validated for use in some modified way to support conclusions for which it was not specifically designed. Whether or not other recognised psychometric tests are available to support medical opinions is not an issue currently before the Tribunal. The practitioner has not purported to use some validated test other than the TOMM.
65 In ruling in this way, I do not do so on the basis of the practitioner being estopped from raising issues in the current proceedings, but as a result of the Tribunal applying the relevant findings of Simmonds J in conformity with the comity principle. The result is that some issues the practitioner wishes to raise are not open and the expert evidence the practitioner would propose to call would be irrelevant.
66 Senior counsel for the Board has put before the Tribunal extensive submissions about various forms of estoppel, including cause of action estoppel (or res judicata) and issue estoppel as well as the so called
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- Anshun estoppel principle. I will now explain why I do not accept those submissions.
67 Senior counsel describes these types of estoppel in the following ways:
(1) Cause of action estoppel precludes a litigant seeking to bring the same cause of action a second time against the same party or that party's privies.
(2) Issue estoppel precludes a party seeking to bring proceedings against the same party, or that party's privies where the proceedings rest on an issue of fact or law previously determined in earlier litigation between the parties.
(3) The Anshun principle precludes a party seeking to raise a claim or a defence in current proceedings where that party could and should have raised the claim or defence in earlier proceedings between the parties or there privies.
68 So far as cause of action estoppel is concerned, its elements have been summarised in Spencer-Bower, Turner, and Handley, The Doctrine of Res Judicata (3rd edition, Butterworths, London, 1996) par 19 as follows:
• The first decision must have been judicial, pronounced and the court must have had jurisdiction over the subject matter and the parties.
• The decision must have been final and on the merits.
• The decision must have determined the same question as that raised in the later litigation.
• The parties to the later litigation must have been parties to the earlier litigation or their privies were.
69 There is no difficulty here with finding that the decision of Simmonds J was a judicial pronouncement: see McNair v Press Offshore Limited (1997) 17 WAR 191 at 196 and 197. Nor is there any difficulty in finding the decision finalised the matters it dealt with. A difficulty does arise however, when one considers whether Simmonds J's decision determined the same question that is raised in later litigation. To put it more precisely, the issue is whether there is a cause of action now before the Tribunal which cause of action has already been determined by Simmonds J.
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70 In my opinion, there is no relevant cause of action and certainly no cause of action currently before the Tribunal in these proceedings that has been determined by Simmonds J. The proceedings currently before the Tribunal concern the conduct of the practitioner in relation to patients A, B and C. What Simmonds J was called upon to deal with on appeal from the Medical Board, was the practitioner's conduct in relation to patients P and M. While the factual matters in issue before Simmonds J were not dissimilar to those before the Tribunal, they remain in fact different. There has been no determination of the responsibility of the practitioner in professional conduct terms in relation to the three patients now concerned. While Simmonds J has made a number of findings which I consider to be relevant to the determination of the current proceedings, he has not in any respect purported to determine the particular matters concerning the conduct of the practitioner in respect to patients A, B and C that arises in these proceedings.
71 Just as there will always be considerable doubt whether a decision of an administrative tribunal like the State Administrative Tribunal - at least in review proceedings - can ever bind a subsequent tribunal on a matter of estoppel - because each decision it reviews will usually be a fresh decision where there has been no prior determination of the particular issues it raises - so too vocational proceedings brought in the Tribunal by a vocational regulatory body will just about always involve fresh, particular issues of conduct. Even where new proceedings involve conduct issues that are similar to those complained of in other earlier, decided proceedings concerning the same affected person, or some other person, the particular conduct in each case will just about always be different.
72 The most that can be said in a Tribunal context is that the decision of an earlier Tribunal in a very similar fact situation will be strongly persuasive when the Tribunal later comes to decide a similar matter. But it would be wrong to speak of the Tribunal in such a case being estopped from deciding something different: see Hall, Res Judicata and the Administrative Appeals Tribunal (1994) 2 Australian Journal of Administrative Law 11; McEvoy Res Judicata, Issue Estoppel and the Commonwealth Administrative Review Tribunal: A Square Peg in a Round Hole (1996) 4 Australian Journal of Administrative Law 37.
73 For similar reasons, the findings of the Medical Board reviewed by Simmonds J on appeal in the Supreme Court concerning the practitioner's conduct in relation to patients P and M, cannot constitute a "cause of action" estoppel in separate vocational proceedings in this Tribunal
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- concerning patients A, B and C, albeit the same practitioner is involved and the allegations made are similar in nature.
74 The question really is whether the findings of Simmonds J will be highly persuasive in the resolution of the current proceedings in the Tribunal. Given that the same question concerning the application of the TOMM test is raised - and the decision of Simmonds J is relatively recent, and there is nothing that has been raised on behalf of the practitioner in the current proceedings, so far as my judgment is concerned, that is capable of raising any newly validated psychometric test - the Tribunal would expect to apply as a matter of comity the findings that Simmonds J made in Mustac v The Medical Board of Western Australia.
75 Even so, the findings of Simmonds J in the main have a particular factual context that the Tribunal finally needs to determine, (if it is called upon to do so), in relation to the factual circumstances of the practitioner's conduct in relation to patients A, B and C.
76 For these reasons I do not accept the submission made by senior counsel for the Board that cause of action estoppel can be said to arise here because one can characterise a "cause of action" against the practitioner as being "based upon the specie of conduct rather than the identity of the patient". There is too much factual context for that submission to be accepted.
77 I should add that, for all the reasons given, I find it difficult to characterise the current proceedings as a "cause of action".
78 Similarly, I do not accept the principle of issue estoppel arises here. In Jackson v Goldsmith (1950) 81 CLR 446 at 466, Fullagar J described the difference between the application of the doctrine of res judicata (or cause of action estoppel), and issue estoppel, as the difference between litigating the same cause of action from a previous proceeding and seeking to rely upon an issue of law or fact that has been determined between the parties in previous litigation.
79 There is no question of law or fact that has been determined so far as the conduct of the practitioner in respect of patients A, B and C has been concerned. While as I have said there is an apparent similarity between the conduct complained of and found to be improper conduct in a professional respect, so far as the practitioner's conduct in respect of patients M and P were concerned in the Supreme Court appeal, that is not sufficient to raise an issue estoppel.
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80 In the end the fundamental difficulty here is that the proceedings in the Tribunal are vocational proceedings that arise in particular factual contexts different from those dealt with by Simmonds J.
81 Again, for all these reasons, I also struggle with the submission that these vocational proceedings can be characterised as a "cause of action".
82 As to the Anshun principle, this is really is an illustration of the power of a court, in its statutory or inherent jurisdiction, to prevent its processes from being abused. As far as possible, litigation should be final. If a party to earlier litigation should have raised a particular issue amongst others at the time of earlier litigation, the party may, in the interests of justice - to avoid an abuse of process of the court - be prevented from raising it later: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. The Anshun principle applies to both causes of action and to issues. It further extends to claims and assumptions fundamental to the judgment: Rippon Pty Ltd v Chilcotin (2001) 53 NSWLR 198 at 203.
83 The Medical Board seeks to raise the Anshun principle here in relation to the proposal of the practitioner to call further expert evidence from Dr Green to agitate - or re-agitate - the question whether the "modified use" of the TOMM has any proper medical application. I have already ruled against the relevance of any further proposed evidence to this effect.
84 Senior counsel for the Board's proposition in essence is that if the practitioner had wanted to develop a so-called Cranleydefence - and the possibility of the modified use of the TOMM having some relevant "screening" or other use as canvassed before Simmonds J - then evidence such as that proposed from Dr Green should have been called at the time of the appeal by way of re-hearing before Simmonds J at the very latest. Indeed, it is argued, it should have been called before the Board.
85 The response of counsel for the practitioner is that the hearing before the Board saw a development of issues and the question of the validity of the modified use of the TOMM developed over time and it is not inappropriate now for the practitioner to have the opportunity to go to that issue.
86 If I had thought it was open to argument that the use of the TOMM test in a "modified use" manner had been validated - something, properly understood, Dr Green does not assert - then, on balance, I would not have been prepared to rule against the practitioner calling further expert
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- evidence because of the Anshun principle; assuming that this Tribunal has the power effectively to so rule by virtue of its statutory power to prevent an abuse of process under s 47 of the State Administrative Tribunal Act 2004 (WA).
87 If in any case there truly is a Cranley defence point open, then I think the Tribunal should be slow to exclude the entitlement of a practitioner to raise that defence. Normally, only if a Cranley type issue has unequivocally been raised and rejected in an authoritative recent decision involving the same practitioner might a different view apply.
88 In this case, as explained further below, I do not consider that any proposed evidence from Dr Green would raise a so-called Cranley defence. Until some other relevant psychometric effort and memory test of a different, but relevant kind is developed and validated within the Cranley formulation, the position will remain the same.
89 In substance, all that the practitioner seeks to do in the current proceedings in the Tribunal is contradict the findings of Simmonds J as to the use that properly can be made of the validated TOMM test. This is not open to him, not because of some estoppel principles, but because the Tribunal is bound by principles of comity. Good decision-making requires consistency of approach unless an earlier authoritative decision is plainly wrong.
Relevance of Simmonds J’s findings to current proceedings in Tribunal
90 In summary, what Simmonds J found in each of the cases the subject of the Supreme Court appeal can be set out as follows:
• the practitioner has used the TOMM as his major diagnostic tool;
• the use of the validated TOMM test as the practitioner's major diagnostic tool to determine overall veracity was contrary to the specific purpose for which the TOMM was developed;
• as a result of these two findings on the evidence before the Court, the practitioner's use of the TOMM in the modified way proposed by the practitioner was impermissible as it was contrary to the specific purpose for which it was developed;
• conclusions of false or exaggerated claims resting for their major support on Trial 1 scores only from the TOMM test were not open;
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- • conclusions going to intentionality and motivation of a patient that rest on their major support on Trial 1 scores only of the TOMM test were also not open.
It now remains to be seen what the relevance of these findings is to the determination of the particular allegations made against the practitioner in the current proceedings in the Tribunal and whether the proposed evidence of Dr Green may possibly be relevant to their determination. I will now deal with each allegation in turn.
92 I am satisfied that, if the facts in respect of patients A, B and C show that the practitioner purported to apply the TOMM test on the basis that he was entitled to administer only Trial 1 without administering Trial 2, then he would have failed to properly apply the validated TOMM test as required by the TOMM test manual. This was found by Simmonds J to be the case and I would apply his finding.
93 Nothing in Dr Green's proposed evidence goes to the proper application and use of the validated TOMM test as its designers intended it should be used.
94 However, there is a question whether or not the bare administration of Trial 1 of the TOMM of itself constitutes improper conduct in a professional respect - that is, if no further use is made of Trial 1 data, is the simple application of Trial 1 without more capable of constituting improper conduct?
95 Second allegation: That the practitioner used Trial 1 of the TOMM test to determine questions of the overall veracity of each patient, contrary to the specific purpose for which the TOMM test was developed, namely to provide a "systematic method to assist neuro-psychologists in discriminating between bona fide memory impaired patients and malingerers", as that latter term is defined in the TOMM test manual (paragraphs 1.2, 2.2 and 3.2 of the allegations concerning the three patients).
96 Simmonds J found that the scores from Trial 1 of the TOMM test cannot be used to determine questions of overall veracity of patients,
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- contrary to the specific purpose of the TOMM test. This finding remains relevant in the current proceedings in this Tribunal. There is no reason to think it is wrong. It is based on the understanding of the TOMM test and its validated application and use having regard to the manual.
97 While some other memory and effort testing mechanisms may be capable of development and validation to permit relevant medical opinions to be expressed, having regard to the sort of evidence that Dr Green might give if he were to be called in these proceedings, it not a proposition that assists in answering the question upon which Simmonds J has made a finding (and is in issue in these proceedings) namely, whether a practitioner can use Trial 1 of the TOMM test as validated to determine questions of the overall veracity of a patient. The finding made, which should be applied, is that to so use the TOMM test is contrary to the specific purpose for which the TOMM test was developed. In other words, if a practitioner purports to apply the TOMM test he or should must do so according to the manual. If the designers of the TOMM test were now to validate the partial or modified use of the TOMM test for a particular purpose, the position might be different. However, Dr Green's proposed evidence does not seek to do this. He would only say in his opinion, that some use can be made of information obtained from Trial 1 of the TOMM test. This is not the same as saying that such a partial or modified use of the TOMM test is currently validated.
98 As to the use of the TOMM test, I consider this has been authoritatively determined by Simmonds J and it is clear that the results of Trial 1 of the TOMM test cannot be used to determine questions of the overall veracity of a patient, as this is contrary to the specific for which the TOMM test as validated was developed.
99 Third allegation: That the practitioner gave each patient a score out of 50 on Trial 1 of the TOMM test, and using that result as his major diagnostic tool, concluded that each patient had an intention to deceive or to exaggerate his or her symptoms, when such conclusions were not open having regard to the proper application of the TOMM test and interpretation of the TOMM test results, as specified in the TOMM test manual (paragraphs 1.3, 2.3 and 3.3 of the allegations made in respect of the three patients).
100 It is a question of fact whether the practitioner used the Trial 1 scores as his "major diagnostic tool" to make the conclusions of a similar type to those set out in the reports considered by Simmonds J in Mustac v The Medical Board of Western Australia.
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101 The evidence Dr Green would propose to give does not bear on this allegation. It is a matter of fact whether the scores from the Trial 1 of the TOMM test were used as a "major diagnostic tool" to enable a practitioner to form an opinion as to the intention of a patient to deceive or exaggerate his or her symptoms. If they were so used, that is not a proper application of the TOMM test as specified in the TOMM test manual. No amount of expert evidence as to how such scores might have some bearing of the reasonableness of a practitioner's opinion concerning the overall veracity of a patient can change the fact that the partial use of the TOMM test has not been validated to this end.
102 As noted earlier, the evidence Dr Green would propose to give might suggest that new forms of psychometric testing are in the course of being developed, which might in due course be validated and enable an appropriately qualified medical practitioner to express valid medical opinions about a patient. However, no such currently validated position is contended for in the proposed evidence of Dr Green.
103 Simmonds J entertained the possibility that on the basis of the expert opinion he had before him that there may have been some suggestion that the scores from Trial 1 of the TOMM test enabled some "screening" process. As Simmonds J explained at [50], when Dr McCarthy referred to "screening" he appeared to mean the use of the TOMM test as a basis for making or not making further inquiries. This was to distinguish the use of the test as a basis for diagnosis of a lack of overall veracity.
104 If Dr Green were to give evidence consistently with the substance of evidence provided to the Tribunal, then he would indeed be suggesting that the TOMM test can be used not merely as a basis for making or not making further inquiries, but rather as a basis for diagnosis of a lack of overall veracity. I do not consider this is open to debate in light of the findings of Simmonds J concerning the proper use of the validated TOMM test, which I would apply.
105 While I note that Simmonds J at [52] mentioned that the use of the TOMM test as a "screening test" was not addressed in any of the literature available to him on the appeal and that none of the witnesses provide citations to any such literature, what is currently proposed by way of expert evidence does not involve the adducing of evidence concerning the appropriate "screening" use of the Trial 1 scores from Trial 1 only of the TOMM test, but a different test altogether, namely, an attempt through further expert evidence to use the scores as the basis for a diagnosis of
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- lack of overall veracity. I am not prepared to accept that that can be done in light of the findings made by Simmonds J.
106 In short, in my view, Simmonds J has made findings that I consider to be authoritative, that have the effect of requiring an appropriately qualified medical practitioner who wishes to use the TOMM test as validated to administer the TOMM test according to the manual and not to rely upon the results it might suggest from its partial or "modified use", in the sense that Simmonds J has used that term, where such a partial or modified use of the TOMM test has not been validated and Dr Green's proposed evidence does not constitute such validation. At best, Dr Green's proposed evidence would suggest that, in his opinion, some use can be made of Trial 1 TOMM test information. That opinion is irrelevant to the allegations made against the practitioner. It does not and cannot constitute validation of the TOMM test so modified.
107 If in the future an appropriately recognised and validated form of psychometric testing is developed that is not the TOMM test (or the TOMM test as originally validated is further validated in some modified way), then it may be available to assist psychologists and psychiatrists to express opinions along the lines of those which the practitioner purported to express based on his modified use of the TOMM test in the cases of the patients the subject of medico-legal reports considered in Mustac v The Medical Board of Western Australia. However, the questions that arise in the current proceedings are restricted to the proper use of the TOMM test as validated and I consider the findings of Simmonds J guide the disposition of the current proceedings.
108 Whether or not the factual positions in relation to patients A, B and C in the current proceedings must necessarily produce the same results as in the Supreme Court appeal is unclear at this point. While there is force in the submissions made by senior counsel for the Board that primary consideration will be given to the medico-legal reports produced by the practitioner in determining this question - as in the Supreme Court appeal - and it might be thought that the position in each of the three cases now before the Tribunal is unlikely to be materially different from those found by the Medical Board and Simmonds J in the cases of patients M and P, it cannot finally be said at this stage that the factual findings made by Simmonds J determine the factual outcome of the current allegations before the Tribunal.
109 What can be said, however, is that if it is demonstrated as a matter of fact that the practitioner relied on the Trial 1 TOMM test scores as his
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- major diagnostic tool in relation to patients A, B and C, then the findings made by Justice Simmonds as to the conclusions concerning the intention of patients to deceive or exaggerate their symptoms based on such scores not being open, will apply here.
110 Fourth allegation: That the practitioner falsely represented in his various written reports that he had performed the TOMM test, when in fact he had only performed part of the TOMM test and only Trial 1 in the knowledge that his report was being sought for the purpose of assisting in the determination of each patient's legal rights to compensation and would be relied upon in legal proceedings (paragraphs 1.4, 2.4 and 3.4 of the allegations concerning the three patients).
111 Again, it is a question of fact whether the particular medico-legal reports here were based on a partial application of the TOMM test. If they were, then as Simmonds J found, if they represented that the reports were based on the performance of the TOMM test, that is to say the complete TOMM test, then they would indeed involve a false representation as to the use of the TOMM test.
112 While the practitioner desires to call expert evidence to show that there is ample research evidence to support the use of information gained from the TOMM test Trial 1 without having to go to Trial 2 in order to draw conclusions as to whether the subject is malingering or not, what is alleged by the Board is that the practitioner failed properly to apply the TOMM test by only administering Trial 1 and falsely represented in his written reports that he had performed the TOMM test. The proposed evidence of Dr Green is not relevant to that issue.
Conclusion
113 In these circumstances -
• The relevant findings of Simmonds J set out earlier should apply in respect of each of the allegations made in these proceedings in the manner I have outlined.
• The proposed expert evidence of the neuropsychologist Dr Green would be irrelevant to the proceedings.
• There is a question whether allegation 1, without any factual context, can constitute (without more) improper conduct.
• Questions of fact remain to be determined in relation to the other allegations.
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114 I will now re-list the application for a further directions hearing so that appropriate programming orders can be made to permit the proceedings to be finalised on this basis.
I certify that this and the preceding [114] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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