Myers v Medical Board of Australia
[2014] VSC 3
•28 January 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
SC I 2013 5988
| DR JOHN BARRY MYERS | Plaintiff |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Defendant |
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JUDGE: | DERHAM AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2014 | |
DATE OF JUDGMENT: | 28 January 2014 | |
CASE MAY BE CITED AS: | Myers v Medical Board of Australia | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 3 | |
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ADMINISTRATIVE LAW — Leave sought to appeal VCAT decision — Whether question of law — Challenge to findings of fact — Tribunal an expert panel —Whether findings of fact open on the evidence — Whether cancellation of registration of medical practitioner under Health Professionals Registration Act 2005 and disqualification from applying for registration for one year outside the range reasonably open — Whether manifestly excessive — Whether too much weight given to specific deterrence.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Ravech (to give notice of Solicitor ceasing to act); thereafter the plaintiff in person. | Spigler & Schwarcz |
| For the Defendant | Mr A. Clements, SC with Mr D. Oldfield | Minter Ellison |
HIS HONOUR:
Introduction
By originating motion filed on 19 November 2013, the plaintiff, Dr Myers, seeks the leave under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act1998 (VCAT Act) to appeal to the Court against the order of the Victorian Civil and Administrative Tribunal (the Tribunal) made on 22 October 2013 that Dr Myers’ registration as a medical practitioner is cancelled and he is disqualified from applying for registration before 22 October 2014.
When the matter was called in Court on 22 January 2014, Mr Ravech of counsel informed the Court that the retainer of the solicitors on the record for the plaintiff had been terminated with immediate effect on 20 January 2014 and filed a notice by Spigler & Schwarcz of it ceasing to act for the plaintiff. Thereupon Dr Myers in person made submissions in support of the application.
Background
By Notice of Referral dated 17 July 2012, the defendant referred allegations relating to the professional conduct of the plaintiff to the Tribunal. The allegations are set out in full, with particulars, in an appendix to the Tribunal’s reasons and order made on 31 July 2013.[1]
[1]Medical Board of Australia v Dr John Myers, [2013] VCAT 1315; See exhibit “SS-3” to the affidavit of Saul Spigler sworn 24 November 2013.
The proceeding was heard by the Tribunal from 27 May to 30 May 2013. The Tribunal received final submissions on 5 June 2013 and delivered its findings and reasons on 31 July 2013 (the primary reasons).[2] Orders were made by Presiding Member Wentworth suppressing the identity of the patient (P) pending any further order of the Tribunal. In addition, an order was made that no person other than the parties and their legal representatives may inspect any part of the Tribunal’s file (including the Tribunal Book filed by the parties).
[2]Medical Board of Australia v Dr John Myers, [2013] VCAT 1315.
There is no transcript of the hearing before the Tribunal that proceeded from 27 May to 30 May 2013. The Tribunal Book to which reference has been made was, I was informed by counsel for the defendant, 2,600 pages in length comprising four folders and contained approximately 2,000 pages of medical records of patient P.
The proceeding was listed for further hearing on 2 September 2013 to allow the parties to be heard as to the appropriate disposition. The Tribunal made the order the subject of the application, and gave reasons for it, on 22 October 2013 (the penalty reasons).[3]
[3]Medical Board of Victoria v Myers (Review and Regulation) [2013] VCAT 1806.
The allegations before the Tribunal were, in substance, as follows:
(a)Allegation 1:
On 21 May 1999 Dr Myers engaged in unprofessional conduct as defined in s 3(1)(a), (b) and/or (c) of the Medical Practice Act 1994 (the MP Act) in that he engaged in sexual intercourse with the patient P.
The Tribunal found that allegation was not proven.
(b)Allegation 2:
Between about 1998 and 2000 the plaintiff engaged in unprofessional conduct as defined in s 3(1)(a), (b) and/or (c) of the MP Act in that he transgressed professional boundaries by engaging in an inappropriate personal and/or emotional relationship with patient P.
The Tribunal found the plaintiff had engaged in unprofessional conduct of a serious nature.
(c)Allegation 3:
Between about 1998 and 30 June 2007 the plaintiff engaged in unprofessional conduct as defined in s 3(1)(a), (b) and/or (c) of the MP Act in that he did not terminate and appropriately transition his personal relationship with his patient P in circumstances in which he knew or ought to have known that P was or had become infatuated with him.
The Tribunal found the plaintiff had engaged in unprofessional conduct of a serious nature.
(d)Allegation 4:
Between about 1998 and 30 June 2007 the plaintiff engaged in unprofessional conduct as defined in s 3(1)(a), (b) and/or (c) of the MP Act in that he variously transgressed professional boundaries in his contact with P and/or members of her family.
The Tribunal found the plaintiff had engaged in unprofessional conduct of a serious nature.
(e)allegation 5:
Between about 1998 and 30 June 2006 the plaintiff engaged in unprofessional conduction as defined in s 3(1)(a), (b) and/or (c) of the MP Act in that he regularly and frequently visited P at home, including out of hours and/or late at night, to provide medical care in circumstances in which he had not been requested to attend and/or no acute physical or medical issue existed necessitating the plaintiff to make a housecall or housecalls to P.
The Tribunal found that the plaintiff had engaged in unprofessional conduct of a serious nature.
(f)allegation 6:
Between about 1 July 2007 and about June 2008, the plaintiff engaged in unprofessional conduction as defined in s 3(1)(a), (b) and/or (c) of the definition of unprofessional conduct under the Health Professions Registration Act 2005 (Vic) (the HPR Act) or professional misconduct as defined in paragraphs 3(1)(a) and/or (b) of the definition of professional misconduct, in that he did not terminate or appropriately transition his professional relationship with patient P in circumstances in which he knew, or ought to have known, that P was or had become infatuated with him.
The Tribunal found the plaintiff had engaged in professional misconduct.
(g)allegation 7:
Between about 1 July 2007 and about June 2008, the plaintiff engaged in unprofessional conduct as defined in s 3(1)(a) and/or (b) of the definition of unprofessional conduct under the HPR Act or professional misconduct as defined in paragraphs 3(1)(a) and/or (b) of the definition of professional misconduct, in that he variously transgressed professional boundaries in his contact with P and/or members of her family.
The Tribunal found the plaintiff had engaged in unprofessional conduct.
(h)allegation 8:
Between about 1 July 2007 and about June 2008, the plaintiff engaged in unprofessional conduct as defined in s 3(1)(a) and/or (b) of the definition of unprofessional conduct under the HPR Act in that he regularly and frequently visited P at home, including out of hours and/or late at night to provide medical care in circumstances in which he had not been requested to attend and/or no acute physical or medical issue existed necessitating the plaintiff to make a housecall or housecalls to P.
The Tribunal found the plaintiff had engaged in unprofessional conduct.
By his Summons filed 26 November 2013, and the affidavit of Saul Spigler sworn on 25 November 2013, Dr Myers sought leave to appeal the order and determination of the Tribunal made on 22 October 2013 and a stay of the order pending the hearing and determination of the appeal.
Applicable law
The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. One of the rules that should be noticed is r 4.09(1) which provides:
(1)On the hearing of the summons the Associate Judge may grant or refuse leave to appeal.
(2)Without limiting (1), the Associate Judge may refuse leave to appeal if satisfied –
(a)that the applicant does not have a prima facie case on appeal; or
(b)that to refuse leave would impose no substantial injustice.
The right to appeal granted by s 148(1) of the VCAT Act is confined to appeals on questions of law. That section confers judicial power to examine for legal error what has been done in an administrative tribunal. Despite the description of proceedings under the section as an “appeal”, it confers original not appellate jurisdiction. The proceedings are in the nature of a judicial review: Osland v Secretary, Department of Justice.[4]
[4](2010) 241 CLR 320 at [18].
The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[5] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioner’s Board of Victoria.[6] That summary is as follows:
[5][1999] 3 VR 331.
[6](2007) 18 VR 48 at [28].
(a)whether leave is granted or not must always depend upon the justice of the particular case;
(b)if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal succeeding or failing;
(c)the applicant need not establish an error below – that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
(d)although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
(e)once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
(f)where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
(footnotes omitted)
Warren CJ also pointed out in Myers that the guidelines laid out are not hard and fast rules and set out a part of the following passage from the reasons of J D Phillips JA in Hulls:
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
(emphasis added)
In Hulls, Phillips JA considered an argument that the provision made by r 4.09 in some way provided criteria for the granting of leave to appeal. He somewhat emphatically rejected that this was the proper interpretation of the rule. But it is apparent in my view that the matters identified in r 4.09(2) which may guide an Associate Judge in refusing leave to appeal are consistent with the matters identified by the Court of Appeal in Hulls as circumstances in which leave to appeal may be refused.
It is therefore incumbent upon the plaintiff who seeks leave to appeal to identify a question of law, as distinct from a question of fact, in respect of which there is a real or significant argument that an error has been made and to demonstrate how that question of law is important to the success or failure of the appeal.
In Psychology Board of Australia v Mair,[7] the Psychology Board of Australia sought leave to appeal a decision of the Tribunal imposing, amongst other determinations, a suspension of the health practitioner’s registration. The Board also sought leave to appeal the Tribunal’s failure to find that the psychologist had engaged in infamous conduct. The application for leave to appeal was refused. In the course of giving his reasons, Justice Osborn stated (at [12]):
The Court will be reluctant to overturn the decision of an expert tribunal on questions of fact, in respect of which it has particular expertise. It is plainly the intention of Parliament that the expert tribunal decide the facts and not this Court. In the present case, the Tribunal included two psychologists. Their understanding of the area of professional practice in issue must be given due deference.
[7][2010] VSC 628.
The same reasoning is applicable in this application as the Tribunal was constituted by a senior member of VCAT and two medical practitioners drawn from the expert sessional members.
The Tribunal’s decision in determining what orders should be made was the exercise of its discretion and falls to be examined by reference to the principles in House v R.[8] In consequence, Dr Myers has to overcome a strong presumption that the decision of the Tribunal on penalty was correct and will only succeed if the Court is satisfied that the Tribunal’s decision was clearly wrong: Australian Coal and Shale Employees Federation v The Commonwealth.[9]
[8](1936) 55 CLR 499; Guss v Law Institute of Victoria [2006] VSCA 88 at [28].
[9](1953) 94 CLR 621 at 627.
The proposed grounds of appeal
The affidavit of Mr Spigler included short submissions, in addition to exhibiting the two decisions made by the Tribunal and a proposed Notice of Appeal. It was put that there is a real or significant argument in favour of Dr Myers that the Tribunal erred in law in determining that his registration be cancelled, and that he be disqualified from applying for registration for a period of one year, because the determination of the Tribunal –
(a)was outside the range of determinations that were reasonably open to the Tribunal in respect of the appellant’s impugned conduct; and
(b)further, or alternatively, was excessive and disproportionate to the unprofessional conduct and professional misconduct which the Tribunal found had occurred; and
(c)further, or alternatively, was such that no tribunal acting reasonably could have made; and
(d)gave excessive weight in the circumstances to the need for specific deterrence of the plaintiff.
The defendant submitted that none of the grounds of appeal in the plaintiff’s Proposed Notice of Appeal raise a real or significant argument that an error was made by the Tribunal on a question of law. After hearing argument from Dr Myers, and considering the written outline of submissions of the defendant, I have reached the following conclusions in relation to the grounds of appeal.
Grounds (a) and (c) – cancellation and disqualification not open to Tribunal
Proposed Grounds of Appeal (a) and (c), with part of paragraph (b), express in different ways the same complaint. That complaint amounts to a submission that the penalty imposed was manifestly excessive, meaning that it was obviously outside the range of penalties reasonably open to the Tribunal, so as to demonstrate that the penalty discretion had not been properly exercised: see Guss v Law Institute of Victoria. [10]. It is insufficient in support of this ground of appeal merely to show that the Court might have come to a different determination had it been considering the matter. The plaintiff must go significantly further and persuade the Court that there is a real or significant argument that the determination imposed by the Tribunal is not open to it in the sense that no tribunal acting reasonably could have ever imposed such a determination: S v Crimes Compensation Tribunal;[11] Sabet v Medical Practitioner’s Board of Victoria.[12] This is a heavy burden and even heavier in the present circumstances where there is no transcript of the hearing: City of St. Kilda v Perplat Investments Pty Ltd;[13] Roads Corporation v McCarthy.[14]
[10][2006] VSCA 88 at [28].
[11][1998] 1 VR 83.
[12](2008) 20 VR 414 at [46]-[47].
[13][1990] 4 AATR 358 at 350, cited in Roads Corporation v McCarthy, [2004] VSC 369 at [89].
[14][2004] VSC 369 at [89]-[91].
The fundamental principles governing the capacity of a party to challenge decisions on the facts by way of an appeal on questions of law were summarised by J.D. Phillips JA in S v Crimes Compensation Tribunal.[15] The questions are:
(a)the proper meaning, as a matter of construction, of the statutory description which is relevant to the claimant’s success or failure is a question of law;
(b)once the task of construction is over, the question whether the claimant’s particular circumstances fall within the relevant statutory description is essentially a question of fact; and
(c)nevertheless, if in determining whether the particular circumstances of the claimant are such as to fall within the relevant statutory description, the fact-finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law.
[15][1998] 1 VR 83 at [86]-[90], particularly at [88]-[90].
Although it cannot be said as a matter of legal principle that a determination of fact can never give rise to an error of law, ordinarily it will not be so unless it is shown that the fact finding tribunal arrived at a finding that was simply not open to it.[16]
[16]S v Crimes Compensation Tribunal [1998] 1 VR 83 at [90].
The effect of the third principle identified by J.D. Phillips JA in S v Crimes Compensation Tribunal is that the plaintiff must show the Tribunal was bound to reach the conclusion for which the plaintiff now contends. That is a heavy onus.[17] As Brooking JA said in Ericsson (Australia) Pty Ltd v Popovski:
It is a strong thing to reach such a conclusion in a case where the burden of proof lies on the appellant, who is therefore submitting not that an affirmative finding had no evidence to support it, but the evidence was such as to necessitate an affirmative finding which was not made.[18]
[17]Psychology Board of Australia v Mair [2010] VSC 628 at [13].
[18][2000] 1 VR 260 at 265, [14].
Moreover, it is necessary that an error of the type identified in the third category of cases referred to by J.D. Phillips JA in S v Crimes Compensation Tribunal be a relevant finding of fact critical to the decision ultimately reached; otherwise it will not vitiate the decision.
No issue was raised as to the proper meaning, as a matter of construction, of the statutory descriptions relevant to unprofessional conduct, professional misconduct or any other statutory provision applicable.
The defendant submitted that it is abundantly clear that it was open to the Tribunal to impose a determination of cancellation of the plaintiff’s registration and disqualification from applying for registration for one year, for four reasons. I agree with these submissions. They are set out below.
First, the unprofessional conduct and the professional misconduct found by the Tribunal to have occurred involved sustained serious unprofessional conduct and professional misconduct by Dr Myers in relation to a vulnerable patient who suffered considerable distress as a result of Dr Myers’ deficient conduct: see paragraphs [112], [1133], [149], [152] – [155], [213]-[217], [219], [226]-[228] of the Tribunal’s primary reasons and paragraphs [46]-[59] of the Tribunal’s penalty reasons.
Secondly, the determinations of the Tribunal in this case is the fourth time in approximately 12 years that findings of either unprofessional conduct or of professional misconduct have been made against Dr Myers. The three previous occasions, to which reference was made in extensive oral submissions by Dr Myers, involved findings of unprofessional conduct and/or professional misconduct and were considered appropriately by the Tribunal in its penalty reasons at paragraphs [19]-[38] and [60]-[76];
Thirdly, the Tribunal found that Dr Myers lacked insight into his unprofessional conduct and professional misconduct and that this was serious and continuing. This, in the view of the Tribunal, increased the risk of further instances of unprofessional conduct in the future: paragraphs [46], [47], [54], [55], [75] and [76] of the Tribunal’s penalty reasons. This lack of insight was a matter also the subject of comment and concern in earlier decisions: see Medical Board of Victoria v Myers[19] and Myers v Medical Practitioner’s Board.[20] It was clear from his submissions to me that his lack of insight continued unabated.
[19][2012] VCAT 1470 at [444], [446] and [4456].
[20][2004] VCAT 1358 at [210] and [211].
Fourthly, the cancellation of Dr Myers’ registration, and the disqualification from applying for registration for one year, was open to the Tribunal because of the Tribunal’s express lack of confidence in Dr Myers’ ability to practise safely. The Tribunal concluded, in substance, that anything less than suspension or cancellation would not meet the paramount objective of protection of the public: see Medical Board of Victoria v Myers.[21]
[21][2013] VCAT 1806 at [10], [11], [46], [47], [54], [59], [63], [70], [75], [76], [79], [82] and [88].
There was no suggestion in Mr Spigler’s affidavit, nor in the submissions made by Dr Myers, that the Tribunal was incorrect in applying the two primary objectives of the determination (or penalty), being the protection of the public and the maintenance of professional standards of the relevant health profession in the eyes of the public: Ha v Pharmacy Board of Victoria;[22] and Craig v The Medical Board of South Australia.[23]
[22][2002] VSC 322 at [91] and [97].
[23](2001) 79 SASR 545 at [41].
Grounds (b) – excessive or disproportionate determination
Proposed Appeal Ground (b) complains both of excessive and disproportionate determination imposed by the Tribunal on the plaintiff. The reference to an excessive determination is dealt with under the heading of “Grounds (a) and (c) – cancellation and disqualification not open to Tribunal”.
A disproportionate determination is of a different character. It has been held that a disproportionate determination is not an independent ground of judicial review recognised by Australian law: Sabet v Medical Practitioner’s Board of Victoria.[24] Except where disproportionality gives rise to Wednesbury unreasonableness,[25] it is tolerably clear that any argument that the decision should be set aside on the ground of disproportionality must fail as a matter of law: see Sabet v Medical Practitioner’s Board of Victoria.[26]
[24](2008) 20 VR 414 at [45]-[436] and [52]-[58].
[25]Based in the formulation by Lord Green MR in Associate Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
[26](2008) 20 VR 414 at [58].
Ground (d) – excessive weight given to the need for specific deterrence
The defendant submitted that this proposed ground of appeal must fail as a matter of law because the question of what weight the Tribunal should give to a relevant factor in reaching a conclusion is not a question of law: Psychology Board of Australia v Mair.[27]
[27][20120] VS 628 at [61].
It is clear from the case law, and was accepted by the plaintiff in written submissions to the Tribunal on 2 September 2013,[28] that specific deterrence was a relevant factor for the Tribunal to take into account when considering what determination to impose: see Craig v The Medical Board of South Australia;[29] Ha v Pharmacy Board of Victoria.[30]
[28]These submissions were exhibited to the affidavit of the defendant’s solicitors Rory Emmet Jolley, sworn 15 January 2014.
[29](2001) 79 SASR 545 at [46]-[48].
[30][2002] VSC 322 at [91]-[97].
The question of what weight the Tribunal ought to have given to a relevant factor of specific deterrence is not a question of law. Thus even if the plaintiff could establish the Tribunal placed too much weight on the factor of specific deterrence, that does not result in the applicant being entitled to be granted leave to appeal, because it is not an error on a question of law.
Further grounds advanced
In his oral submissions, Dr Myers expanded the grounds in the proposed Notice of Appeal to include a challenge to the findings of the Tribunal in its primary reasons, and made the following points.
Prior adverse findings
In the Tribunal’s reasons of 22 October 2013 it referred to three prior adverse findings having been made against Dr Myers. The first of those was in November 2001 and was described in the Tribunal’s reasons as an informal hearing of a panel of the former Medical Practitioner’s Board of Victoria which made a finding of unprofessional conduct arising from Dr Myers having pleaded guilty to a charge of indecent assault (the 2001 panel decision).[31]
[31]Medical Practitioner’s Board of Victoria, informal hearing, complaint No 207/2001.
Dr Myers contended that to the extent to which the order of the Tribunal depended upon or was based on the 2001 panel decision it was based on a mistake because, he asserted from the Bar table, there was no finding of unprofessional conduct made and, he was not, as the Tribunal described it, counselled to develop further his understanding of boundary issues through appropriate reading and through discussion with an experienced colleague.[32]
[32][2013] VCAT 1806 at [25].
Counsel for the defendant, Mr A. Clements SC (who appeared with Mr Oldfield), tendered the 2001 panel decision, without objection. The reasons of the panel show that it had found, pursuant to s 43(1)(a) of the Medical Practice Act 1994, that Dr Myers had engaged in unprofessional conduct and determined, in accordance with s 43(2)(a) that he be reprimanded. The panel further determined that pursuant to s 43(2)(b) of that Act that he be cautioned and under s 43(2)(c) that he be counselled as described by the Tribunal in the instant case.
The second adverse prior finding that had been made against Dr Myers considered by the Tribunal was in 2004. The Tribunal had found proven 10 out of 24 allegations of unprofessional conduct and that the unprofessional conduct was of a serious nature (the 2004 Tribunal decision).[33] Dr Myers unsuccessfully appealed the 2004 Tribunal decision to the Supreme Court of Victoria, and unsuccessfully appealed the Supreme Court decision to the Court of Appeal.[34] Dr Myers submitted in relation to the reliance by the Tribunal upon this prior adverse finding that the Tribunal should have taken into account that current medical practice would view the treatment complained of in that case differently now than it did at the time and, had it done so, this would have ameliorated the seriousness of that finding of unprofessional conduct and, further, that the 2004 Tribunal decision, and the subsequent decisions of the Supreme Court of Victoria on appeal, were in fact capable of review in today’s climate.
[33]Myers v Medical Practitioner’s Board [2004] VCAT 1358.
[34]Myers v Medical Practitioner’s Board [2004] VSC 532 and Myers v Medical Practitioner’s Board of Victoria [2007] 18 VR 48.
In my view this submission involved Dr Myers imposing on the Tribunal an obligation to take an impermissible step. That step is to undertake what amounts to a further review of the prior adverse finding, considering them afresh, and assessing them as if they had arisen at the time of the Tribunal’s hearing of the instant allegations. This is an obligation entirely outside the role of the Tribunal and can provide no basis for leave to appeal.
The Tribunal also relied on a prior adverse finding made in 2012, at which time the Tribunal made findings of unprofessional conduct, including unprofessional conduct of a serious nature, against Dr Myers (the 2012 Tribunal decision).[35] Dr Myers complained that the treatment of this decision by the Tribunal in the instant case was wrong. The treatment of the decision can be found in paragraphs [35] to [38] of the reasons of the Tribunal of 22 October 2013.[36]
[35]Medical Board of Australia v Dr John Barry Myers [2012] VCAT 1470.
[36][2013] VCAT 1806.
I was provided with a copy of the 2012 Tribunal decision. I have examined the findings of the Tribunal in that matter against the treatment of it in the reasons of the Tribunal in the instant case and find no disparity of any substance between the two. The assessment by the Tribunal of the effect of the 2012 Tribunal decision is accurate.
Dr Myers made a lot of statements from the Bar table about the breadth of his experience in many fields of medicine and that his mode of practice involved a different approach from that accepted in conventional medical practice. He referred to his mode of practice as being ‘eco-holistic’. He submitted that the Tribunal should have had regard to changes in medical practice since the findings that were made against him in the three earlier adverse findings upon which the Tribunal relied (being the 2001 panel decision, the 2004 Tribunal decision and the 2012 Tribunal decision).
There was no basis established as a matter of fact, nor any admissible expert evidence, to establish that there was any basis for the Tribunal in this case to enter into a reconsideration of the events that gave rise to the prior adverse findings. Even if it were open to the Tribunal, which in my view it clearly is not, to enter into a reconsideration of the prior adverse findings, there is no basis for it to have done so and no basis established before this Court to conclude that the Tribunal was wrong in the approach that it took.
The defendant rightly submitted that in seeking to attack the prior adverse findings against Dr Myers because of changes in medical practice, with the result that they would now be decided differently, Dr Myers was essentially seeking to include in the consideration of the matters to be dealt with in any appeal, an administrative review of the prior adverse findings where in at least one of them (the 2004 Tribunal decision) there had already been an unsuccessful appeal to this Court and to the Court of Appeal. In relation to the other two adverse findings, the approach taken by Dr Myers amounted to an application for administrative review of them in circumstances where no such application has formally been made nor any basis properly laid for a review.
The letter written to the Tribunal
Dr Myers complained that a letter he wrote to the Tribunal on 2 September 2013 (and its attachments), after the conclusion of the hearing on that day, was read by Member Ms E Wentworth but not by the two medical practitioner members, and that the matters set out in the letter were not taken into account in the reasons given on 22 October 2013. Dr Myers tendered the letter and its attachments.
In response, Mr Clements SC tendered an email from Dr Myers’ then solicitors, Spigler & Schwarcz dated 9 September 2013, in which it was said that Spigler & Schwarcz were instructed to request that the documentation (the letter and its attachments) not be forwarded to the members of the Tribunal and not be taken into account. In addition, the request was made to remove the documentation from the file and return them.
An email in response from VCAT on 11 September 2013 advised that as no objection was received until the email of 9 September 2013, Member Wentworth had read the material but the panel members had not. Subsequently, Spigler & Schwarcz were advised that the Board did not object to the material being return to Dr Myers’ solicitors.
Accordingly, there can be no basis upon which Dr Myers can complain that the Board has failed to take into account relevant material in arriving at its decision of 22 October 2013.
Other matters
Dr Myers made a number of further allegations that the Tribunal failed to take into account in its primary decision evidence given by Dr Myers. Dr Myers also complained that in its primary reasons the Tribunal made errors that affect its ultimate findings.
The attendance at Court
In the primary reasons,[37] in dealing with particular events alleged to relate to the inappropriate personal and emotional relationship between Dr Myers and patient P, the Tribunal [at 162] stated that:
It was not in dispute that Dr Myers attended Court to give evidence in support of P’s second husband when P sought an intervention order against him. Although this action is most relevant to allegations 4 and 7, and it was established that it took place in 2006, it highlights the reasons why this doctor should have terminated the relationship with this patient at an early stage and not continued it.
[37]Medical Board of Australia v Dr John Myers [2013] VCAT 1315.
Dr Myers contended that there was no evidence that he had attended the hearing before the Court in question because there was no such hearing and P withdrew her claim against her second husband before any hearing could take place. The defendant submitted that Dr Myers was engaged in splitting hairs in relation to this event. At paragraphs [202] to [206] of the Tribunal’s reasons the Court plainly took into account the fact that Dr Myers had not in fact given evidence in the court proceeding because at paragraph [204] it observed:
In his witness statement, Dr Myers said he believed that the complaint which P ultimately withdrew herself, was unjustified, and that he attended court to support her husband to avoid “an unwarranted conviction which [P] wanted to support her claim for compensation as a victim of crime.
Then at paragraph [205] the Board said:
Counsel for Dr Myers submitted that insofar as the Tribunal might wish to take this incident into account for the purposes of allegation 4 (pre 1 July 2007), Dr Myers’ conduct was appropriate in the circumstances described by him.
The Tribunal did not accept that submission. It said that Dr Myers was, at the time, treating P as a patient. The Tribunal expressed the view that it was entirely inappropriate for him to involve himself in the affairs of P’s family to the extent of supporting her husband in court proceedings P had brought, regardless of whether she had alleged abuse by her husband and regardless of whether Dr Myers believed that a conviction was unwarranted. The Tribunal regarded it as an extraordinary intrusion into a patient’s life.
It seems to me to be clear that the defendant is correct in contending that Dr Myers split hairs in relation to the question whether the evidence before the Tribunal supported this finding. In my view, no question of law can arise out of this matter as it was clearly open to the Tribunal to make the finding that it did on the facts presented, which included the fact that no hearing ultimately eventuated.
The Wedding attendance
Dr Myers contended that the Tribunal was in error in relying upon the view of Dr Whiting, who gave evidence in relation to the attendance by Dr Myers in December 2000 at the wedding celebration of patient P to her second husband. Dr Myers contended that his attendance, and the invitation to him to attend, was a result of a culturally significant event, patient P being a member of the Greek Orthodox community and her second husband the Italian community. This, he submitted, put a different complexion on his attendance.
The Tribunal found, and it was open for the Tribunal to find, that in the context it would have been wiser for Dr Myers not to attend the wedding and that there was no evidence that Dr Myers had carefully and discretely managed the attendance.[38] In reaching this view the Tribunal preferred the evidence of Dr Whiting that given P’s psychological problems, it would seem that the boundaries were crossed if the personal relationship was such that Dr Myers spoke at her wedding, which he did.
[38][2013] VCAT 1315 at [172].
Despite the submission by Dr Myers that Dr Whiting’s view was not justified, there is no reason advanced for concluding that the acceptance of Dr Whiting’s view was not open to the Tribunal.
The motor vehicle accident
Dr Myers complained of the treatment by the Tribunal of the events following a motor vehicle accident that occurred on 30 November 1999 in consequence of which he asked P, in response to receiving a pager message that she had called him, to pick up patient files that had been left in his damaged vehicle. This matter was considered by the Tribunal at some length.[39] The Tribunal considered the incident to be significant in a number of respects. It indicated that the relationship between Dr Myers and P had gone beyond a doctor/patient relationship. It was consistent with an inappropriate personal and emotional relationship with P. It also indicated to the Tribunal that Dr Myers himself did not consider the relationship to be purely a doctor/patient one. The Tribunal took into account that:
(a) Dr Myers had been in a car accident and may not have been thinking straight;
(b) Immediately before the accident Dr Myers had received a call from P on his pager;
(c) Dr Myers said he called P in response to her page and in the knowledge that she lived nearby.
[39][2013] VCAT 1315 at [176]-[186].
The Tribunal observed that Dr Myers asked for her assistance to remove items from his damaged car before it was towed away. It referred to the fact that P wrote a letter to Dr Myers in early December 1999, not long after the accident, which showed that P had a different perspective on the incident and supported a conclusion that an inappropriate personal relationship had developed.
The burden of Dr Myers’ submission in support of his application that the evidence before the Tribunal did not warrant the conclusion it reached from this incident does not persuade me that there is any prospect whatever that this issue of fact was not open to the Tribunal as, I infer, Dr Myers contended. Having regard to the fact that there is no transcript of the evidence given, and that the reasons of the Tribunal show that they had regard to all the relevant facts to which Dr Myers has referred in his oral submissions from the Bar table (none of which are the subject of any evidence before the Court), the Tribunal’s treatment of this incident is entirely within the bounds of its function as the fact finding body.
Miscellaneous
Dr Myers also contended that the Tribunal was affected by actual or ostensible bias. In effect he submitted, without any material to support it, that the medical practitioner members of the Tribunal were representatives of the Medical Board of Australia and lacked impartiality, or apparently so. No such submission was made to the Tribunal, and advisedly so, and it cannot be made here. There is simply no basis for it.
Dr Myers provided to the Court by way of submission annotated copies of the two decisions of the Tribunal. Some of the annotations concern the matters that he specifically raised as referred to above. The other matters primarily canvassed the findings of fact and sought to contest them by reference to matters advanced in the annotations as matters of evidence before the Tribunal, but for which there was no substantiation. Even if taken at face value, to the extent that the annotations refer to the supposed evidence, they do not establish that it was not open to the Tribunal to make the findings that it did.
Stay application
Dr Myers contended that if leave was granted it would be unjust to allow the Tribunal’s determination to stand pending the resolution of the appeal as he is currently deprived of his livelihood and prevented from engaging in practice as a medical practitioner for one year. No evidence was given as to his current means and circumstances. But it was submitted that should no stay be granted the appeal, if leave were granted, would be rendered nugatory because all or a greater part of the period of suspension would have taken place by the time the appeal is heard and determined. Further, it was submitted that there was no evidence that the plaintiff currently poses a serious risk to the public if he is permitted to remain in practice pending resolution of his appeal.[40]
[40]See also the affidavit of Saul Spigler sworn 25 November 2013 at paragraph 15.
As I have determined that there is no prima facie case on appeal, the question of a stay of the determination of the Tribunal does not, strictly speaking, arise. But in the event that it becomes relevant, it was submitted by the defendant that even if leave to appeal were granted there should be no stay of the determination and orders of the Tribunal because the granting of a stay would place the safety of the public at risk, and referred to the observations of the Court in Medical Practitioner’s Board of Victoria v Lal[41] and Nelson v Legal Services Commonwealth.[42]
[41][2008] VSCA 264 at [19]-[20].
[42][2013] VSC 486 at [26], [27] and [31].
In this case there has been a determination by an expert tribunal which included two medical practitioners. The Tribunal as so constituted reached the conclusion that the safety of the public required Dr Myers’ registration to be cancelled as the Tribunal did not have confidence in Dr Myers’ current ability to practise safely: see Medical Board of Victoria v Myers.[43] It would therefore be inappropriate to grant a stay.
[43][2013] VCAT 1806 at [54], [59], [70], [76], [79], [82] and [88].
Conclusion
Neither the grounds identified in the proposed Notice of Appeal, nor the further grounds that were advanced by Dr Myers in his oral submissions, disclose a prima facie case that the Tribunal erred in law in arriving at its determination that Dr Myers’ registration as a medical practitioner should be cancelled and that he should be disqualified from applying for registration for a period of one year.
Accordingly, pursuant to the power given to me by Rule 4.09(2) of the Supreme Court (Miscellaneous) Civil Proceeding Rules 2008, I refuse leave to appeal.
In the circumstances, but subject to any further submission that might be made, I shall order that the plaintiff pay the defendant’s costs of the application.
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