MEDICAL BOARD OF WESTERN AUSTRALIA and VUJCICH
[2008] WASAT 113
•20 MAY 2008
MEDICAL BOARD OF WESTERN AUSTRALIA and VUJCICH [2008] WASAT 113
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 113 | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:176/2007 | 8 MAY 2008 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) | 20/05/08 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA JOHN VUJCICH |
Catchwords: | Parties to a proceeding Parties as of right Discretion of Tribunal to join as party State Administrative Tribunal Act 2004 (WA), s 36(3) and s 38(1) |
Legislation: | Medical Act 1894 (WA) State Administrative Tribunal Act 2004 (WA), s 9, s 36, s 38 |
Case References: | Mustac v Medical Board of Western Australia [2007] WASCA 128 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 |
Orders | The application that three former patients of the practitioner represented by Mr Julian Johnson, legal practitioner, be treated as parties to the current proceedings, or joined as parties to the current proceedings, is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and VUJCICH [2008] WASAT 113 MEMBER : JUSTICE M L BARKER (PRESIDENT) HEARD : 8 MAY 2008 DELIVERED : 20 MAY 2008 FILE NO/S : VR 176 of 2007 BETWEEN : MEDICAL BOARD OF WESTERN AUSTRALIA
- Applicant
AND
JOHN VUJCICH
Respondent
Catchwords:
Parties to a proceeding - Parties as of right - Discretion of Tribunal to join as party - State Administrative Tribunal Act 2004 (WA), s 36(3) and s 38(1)
Legislation:
Medical Act 1894 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 36, s 38
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant third party : Mr J Johnson
Solicitors:
Applicant third party : Julian Johnson Lawyers
Case(s) referred to in decision(s):
Mustac v Medical Board of Western Australia [2007] WASCA 128
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
(Page 3)
Summary of Tribunal's decision
1 The Medical Board of Western Australia commenced disciplinary proceedings against the practitioner in the State Administrative Tribunal. An application was made on behalf of three former patients of the practitioner who had commenced, or intended to commence, civil claims for damages in a court of law, for those patients to be treated as or made parties to the disciplinary proceeding in the Tribunal between the Board and the practitioner.
2 The Tribunal found that the three former patients were not parties as of right pursuant to s 36(3) of the State Administrative Tribunal Act 2004 (WA). The Tribunal also found there was no proper basis for the Tribunal to order the joining of the former patients as parties under s 38(1) of the State Administrative Tribunal Act 2004 (WA). Accordingly, the Tribunal dismissed the application.
Issue
3 The issue the subject of this decision is whether certain patients of the practitioner the subject of these proceedings, each of whom is represented by Mr Julian Johnson, legal practitioner, and have commenced or propose to commence civil proceedings for damages in a court of law against the practitioner are, by virtue of s 36(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), parties to the proceedings commenced by the Medical Board of Western Australia (Board) against the practitioner, or should pursuant to s 38(1) of the SAT Act be joined as parties to the proceeding.
Facts
4 On 7 September 2007, the Board commenced proceedings under the Medical Act 1894 (WA) and the SAT Act in the State Administrative Tribunal (Tribunal) against the practitioner.
5 These proceedings, which are in the Tribunal's original jurisdiction, are what are generally or colloquially known as "disciplinary proceedings". In these proceedings, without going into detail, the Board alleges against the practitioner that he is guilty of improper conduct in a professional respect or gross carelessness or incompetence, in that:
• he performed various gynaecological procedures including hysterectomy, when performance of those procedures was not demonstrated to be necessary or appropriate;
- • he failed to appropriately treat patients or provide patients with more conservative treatment options;
• he undertook procedures without an appropriately trained assistant;
• surgical procedures performed on and care provided to patients was deficient and resulted in adverse outcomes for patients;
• he delayed the diagnosis of patients;
• he failed to maintain adequate notes of consultations and operations; and
• he performed surgical procedures on patients without first obtaining the consent of the patients for those procedures.
6 These disciplinary proceedings between the Board and the practitioner are at an advanced stage of preparation for final hearing and determination. The final hearing is currently listed for a five day hearing to commence on Monday 19 May 2008.
7 The allegations made by the Board against the practitioner in the disciplinary proceedings include issues concerning the practitioner's treatment of a number of former patients, including the three former patients who have retained the services of Mr Johnson.
8 Mr Johnson has been retained by the three former patients of the practitioner for advice and representation in relation to prospective civil claims for damages in a court of law against the practitioner in respect of conduct which is currently the subject of the disciplinary proceedings in the Tribunal.
9 The issue is whether Mr Johnson's clients are entitled, either as of right or in the discretion of the Tribunal, to be treated as or to be made parties to the disciplinary proceedings between the Board and the practitioner.
(Page 5)
Finding by Tribunal
10 On 8 May 2008, Mr Johnson having earlier written to the Tribunal effectively making application for his clients to be joined as parties to the disciplinary proceedings, the President heard oral submissions from Mr Johnson. The President ruled that Mr Johnson's three clients were not parties by virtue of s 36(3) of the SAT Act. The President further ruled that he would not make an order joining Mr Johnson's clients as parties under s 38(1) of the SAT Act. The President indicated that he would publish written reasons for this decision later. These are those written reasons.
11 Section 36(3) of the SAT Act provides:
"In a proceeding dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act, a person affected by or the subject of the decision or matter is also party."
12 Mr Johnson submitted to the Tribunal that a finding by the Tribunal in a vocational proceeding may have consequences for the civil rights of a person, such as a former patient of a medical practitioner, in a claim for damages against that practitioner in a court of law, and so a former patient should be considered "a person affected by or the subject of the decision or matter" which has been brought before the Tribunal by the vocational regulatory body - in this case the Medical Board.
13 Section 36(3) is one provision in s 36 dealing with parties. Section 36(1) of the SAT Act should first be noted. It is in these terms:
"A person is a party to a proceeding before the Tribunal if the person is -
(a) the applicant;
(b) a person joined under section 38 as a party to the proceeding;
(c) a person intervening in the proceeding; or
(d) specified by this Act or the enabling Act to be a party to the proceeding."
(Page 6)
14 This makes it clear that in a disciplinary proceeding brought by a body such as the Medical Board, the Board, as the applicant, is a party to the proceedings. So is any person joined under s 38, any person intervening in the proceedings (under other relevant SAT Act provisions) or a person specified by the SAT Act or the enabling Act - in this case the Medical Act - to be a party to the proceeding.
15 This subsection does not however, by its express terms, make a person such as the practitioner in these disciplinary proceedings automatically a party. However, s 36(2) makes it clear that if the proceeding is in the Tribunal's original jurisdiction, "anyone else in respect of whom a decision of the Tribunal is sought is also a party". Thus s 36(2) ensures that a person such as the practitioner against whom a disciplinary penalty is sought is a party.
16 In this context, s 36(3) further provides that:
"In a proceeding dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act, a person affected by or the subject of the decision or matter is also party".
17 Section 36(4) further provides that in a review jurisdiction proceeding, the decisionmaker, whose decision is under review, is also a party.
18 Section 36(3) in these circumstances is designed to ensure that in a vocational proceeding whether in the Tribunal's original jurisdiction or review jurisdiction, a person affected by, or the subject of, a decision or the matter is also a party.
19 While s 36(3) might possibly in some circumstances (not immediately apparent to the Tribunal) entitle certain persons who are not an applicant for a vocational licence or the holder of a vocational licence to be parties to an original or review proceeding in the Tribunal, a person who is a patient or former patient of a medical practitioner against whom the vocational body has commenced disciplinary proceedings in the Tribunal's original jurisdiction, is not, in the Tribunal's view, "a person affected by or the subject of the decision or matter". Hence, such a person is not a "party" to the proceedings under s 36(3).
20 While it may be conceded that, in general terms, a person such as a patient or former patient of a medical practitioner the subject of disciplinary proceedings in the Tribunal's original jurisdiction brought by the Board may
(Page 7)
- have a real interest in those proceedings - because the practitioner's conduct in relation to them is the subject of complaint and evaluation - they are not in a relevant sense "affected by" those proceedings; nor are they "the subject of the decision".
21 In the view of the Tribunal, a person will only be relevantly "affected by" a disciplinary proceeding brought by a vocational body such as the Board where their legal rights are capable of being affected by a decision of the Tribunal in some direct way. Disciplinary proceedings, which may result in findings being made against a medical practitioner and penalty orders being imposed on a practitioner, do not directly affect the legal interests of a patient or former patient. They do not bestow any rights or entitlements on a patient or former patient and they do not alter their existing rights vis-à-vis the practitioner.
22 Disciplinary proceedings are brought to ensure that the public are protected against incompetent or unprofessional practitioners. They are not brought to "punish" an errant practitioner. The exercise of the jurisdiction is all about consumer protection. See Paridis v Settlement Agents Supervisory Board [2007] WASCA 97.
23 The fact that a person who has had dealings with a licensed person may be called as a witness in the vocational body's proceedings does not transform the general interest such a person may have in those proceedings to that of a "person affected by … the matter".
24 A patient or former patient of a person such as a medical practitioner, who for example, complains they have suffered loss or damage at the hands of the practitioner, may recover damages in respect of loss or damage if they can establish liability in civil proceedings for damages in a court of competent jurisdiction, such as the District Court of Western Australia. The Tribunal has no role to play, no jurisdiction to exercise, in relation to that civil claim for damages.
25 While it might be said in a general way that a decision of the Tribunal in disciplinary proceedings between the Board and the medical practitioner may be of interest to parties to a civil proceeding for damages in a court of law, it is not correct to characterise any determination of the Tribunal in which those parties might be interested as having "consequences" for such civil proceedings for damages.
26 A decision of the Tribunal, in civil proceedings of a disciplinary nature between a vocational regulatory body and a practitioner, do not bind parties to other civil proceedings for damages in a court of law. There is, in legal parlance,
(Page 8)
- no issue estoppel: see Mustac v Medical Board of Western Australia [2007] WASCA 128.
27 Nor is there any legal principle that a court of law in determining civil proceedings for damages is obliged to consider findings made by a tribunal, such as the State Administrative Tribunal, in disciplinary proceedings concerning a person's conduct. Indeed, it might be said that if a court of law were simply to adopt, without more, the findings of a disciplinary tribunal in that respect, the court will have abdicated its function and failed to hear and determine the civil action for damages according to law.
28 At a practical level, there is no doubt that a disciplinary proceeding such as that currently before the Tribunal is of interest and may influence parties to proceedings in a court of law to carefully consider their positions. However, to say that is a long way from saying that a determination of the Tribunal in disciplinary proceedings has legal consequences or, indeed, any direct consequences for the rights of parties in those other proceedings. The parties to those other proceedings are not bound by the Tribunal's decision and may prosecute or defend any civil claim for damages according to their own rights.
29 A determination of the Tribunal in a disciplinary proceeding does not trigger any other legal process whereby a civil liability to pay damages is established or the practitioner is absolved from doing so.
30 In those circumstances, the Tribunal considers that a person in the position of one of Mr Johnson's clients, who has an interest in a civil proceeding for damages against the practitioner the subject of these disciplinary proceedings in the Tribunal, is not "a person affected by ... the matter" brought in the Tribunal's original jurisdiction by the Board.
31 Similarly, the Tribunal is of the view that a person in the position of one of Mr Johnson's clients is not "a person ... the subject of the decision or matter" brought in the Tribunal's original jurisdiction by the Board.
32 Indeed, if it were the case that such persons were automatically parties to proceedings in the Tribunal, a most unusual and impractical situation would develop, which would potentially work against the parliamentary intention that the disciplinary proceedings be, in essence, an exercise in consumer protection. If such persons were automatically parties to disciplinary proceedings in the Tribunal, able to pursue their own civil liability objectives, able to appeal the Tribunal's decision and the like, the proceedings in the Tribunal would be difficult to manage and in all likelihood
(Page 9)
- would go off the rails. On one hand, the vocational body would be exploring issues in terms of maintaining professional standards free from punitive considerations, and on the other, patients or former patients might be seeking to make out a case designed to enhance (usually) their desire to hold a practitioner to account for the loss and damage which they claim. These ends are not likely always to be in perfect harmony. Most certainly the Tribunal's main objectives, set out in s 9 of the SAT Act, to achieve the resolution of questions or make review decisions fairly in accordance with the substantial merits of the case, to act as speedily and with as little formality and technicality as practicable, and to minimise the costs to the parties, would in all probability be prejudiced in many cases if such a situation were allowed to exist.
33 Rather, the public policy evident in the terms of the Medical Act (and other vocational acts) and the SAT Act is clear enough. The Board, as other vocational regulatory bodies, has been charged by Parliament with the responsibility of determining what matters should be the subject of disciplinary complaint in the Tribunal. It is not open to aggrieved persons to bring applications directly to the Tribunal complaining about the conduct of licensed persons, such as medical practitioners. Vocational regulatory bodies in this sense act as something of a filter to ensure that appropriate cases that require official overview and censure come to the Tribunal. The proposition that, once a vocational regulatory body such as the Board has commenced disciplinary proceedings against a practitioner, all persons who dealt with that practitioner and who are likely to become witnesses thereby become parties to that proceeding as of right, would defeat that public policy.
34 For all these reasons, the Tribunal is of the opinion that persons in the position of Mr Johnson's clients, as former patients of the medical practitioner the subject of these disciplinary proceedings, are not parties pursuant to s 36(3) of the SAT Act.
35 Mr Johnson made a further application on behalf of his clients to be joined as parties under s 38 of the SAT Act. Section 38(1) is in the following terms:
"The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that -
(a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding;
(Page 10)
- (b) the person’s interests are affected by the proceeding; or
(c) for any other reason it is desirable that the person be joined as a party."
36 Mr Johnson acknowledged that the Tribunal has discretion whether or not to join a person as a party to a proceeding. That is rightfully acknowledged. The Tribunal "may order" that a person be joined if it considers that (a) or (b) or (c) are satisfied.
37 As to (a), there is no particular reason why any of Mr Johnson's clients ought to be bound by or have benefit of a decision of the Tribunal in disciplinary proceedings such as these. Disciplinary proceedings are about ensuring the public is protected. Where findings are made against a licensed person, disciplinary orders are usually made affecting their capacity to practise their chosen vocation. A person in the position of one of Mr Johnson's clients is not thereby bound by or given the benefit of some decision of the Tribunal. Accordingly, there is no basis for joining any of them pursuant to s 38(1)(a).
38 So far as (b) is concerned, it may be acknowledged that persons in the position of Mr Johnson's clients have "interests" that may be "affected" by the proceeding, in the sense described earlier, that in a general way findings of the Tribunal in respect of a practitioner may be regarded by parties to civil proceedings for damages in a court of law. However, as discussed above, the direct legal interests of these clients of Mr Johnson are not affected by the current proceedings. Nothing the Tribunal determines has the effect of giving or taking away the civil right of action for damages that Mr Johnson's clients may have against the practitioner.
39 At a more general level, the joining of persons such as Mr Johnson's clients to the current disciplinary proceedings in the Tribunal is not capable of adding anything useful to the proceedings. There is no need for their particular interests to be represented in the proceedings. The Board represents all the appropriate interests so far as the disciplinary complaints against the practitioner are concerned. To join persons such as Mr Johnson's clients in disciplinary proceedings such as these is only likely, as explained above, to lead to a multiplicity of agendas being pursued by the "parties" and frustration of the Tribunal's main objectives set out in s 9 of the SAT Act.
(Page 11)
40 In these circumstances there is no proper basis for the Tribunal to order the joining of Mr Johnson's clients as parties to the current disciplinary proceedings under s 38(1)(b).
41 No other reason why it is desirable for Mr Johnson's clients to be joined as parties has otherwise been advanced or appears to the Tribunal. There is therefore no basis for them to be joined under s 38(1)(c) of the SAT Act.
Order
42 On 8 May 2008, the Tribunal made the following order:
The application that three former patients of the practitioner represented by Mr Julian Johnson, legal practitioner, be treated as parties to the current proceedings, or joined as parties to the current proceedings, is dismissed.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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