Myers v Medical Practitioners' Board

[2007] HCATrans 816

[2007] HCATrans 816

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M106 of 2007

B e t w e e n -

JOHN BARRY MYERS

Applicant

and

MEDICAL PRACTITIONERS’ BOARD OF VICTORIA

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 DECEMBER 2007, AT 3.31 PM

Copyright in the High Court of Australia

MR J.J. ISLES:   If the Court pleases, I appear on behalf of the applicant.  (instructed by Issac Brott & Co.)

MR J.L. BOURKE:   If the Court pleases, I appear on behalf of the respondent.  (instructed by Minter Ellison)

HAYNE J:   Yes.  Mr Isles, just before you begin, more importantly before your time begins, does your side or perhaps yours, Mr Bourke, identify any reason which might have delayed the progress of the matter in the Court of Appeal as long as it appears to have been delayed?

MR ISLES:   The difficulty, I think, was in the stage from the decision of Justice Kaye to the two listings in the Court of Appeal ‑ ‑ ‑

HAYNE J:   I simply notice that it was heard in the Court of Appeal in September 2006 and ‑ ‑ ‑

MR ISLES:   They reserved their judgment for over a year.

HAYNE J:   Yes.  Anyway, go ahead, Mr Isles.

MR ISLES:   Your Honour, the matter of general importance which we wish to bring to this Court is the question of whether the primary duty of a doctor to his or her patient in all the circumstances so that the rights of patients can make their own choices which will then be upheld and respected and will be a protection from prosecution in respect of conduct which was said to constitute unprofessional conduct, we say that doctors who do so, namely, who act in the interests of their patients, should be protected so that the rights of the patients to receive the highest standards of medical treatment and care will be protected.

The issues in this case concern the definition of “unprofessional conduct” in section 3 of the Act.  The definition provides that there will be unprofessional conduct if the medical practitioner is guilty of:

(a)professional conduct which is of a lesser standard than that which the public might reasonably expect of a registered medical practitioner; or

(b)professional conduct which is of a lesser standard than that which might be reasonably expected of a medical practitioner by her or his peers ‑ ‑ ‑

HAYNE J:   Now, that was the issue most immediately that fell for consideration by the Medical Practitioners Board and was an issue, I assume, in VCAT.  What is the issue that arises in the Supreme Court on the application then for leave to appeal from, relevantly, VCAT?

MR ISLES:   Under section 148 of the VCAT Act, we must identify a question of law and we must satisfy the test which has been laid down in S v Crimes Compensation Tribunal which has been correctly identified by both the decision in Justice Kaye and the decision in the Court of Appeal. 

HAYNE J:   Am I right in thinking that the master, the primary judge and the Court of Appeal have all held that no question of law has been identified warranting a grant of leave?

MR ISLES:   The decision of those three courts are to the effect that insofar as there are errors alleged by the applicant, they are errors of fact, not errors of law.  We say that the decision of Justice Kaye and the decision of the Court of Appeal has erred in the construction of what is a question of law and, in particular, we descend to the decision of Justice Kaye where he, in his judgment, referred to the issue of the error, really nailed the problem that the applicant faced, and it is really identified at application book page 100 at paragraph 15.  He said:

In this case the assessment whether the plaintiff was guilty of unprofessional conduct as defined by the Act, was in my view such a determination.  Such a question does involve an element of judgment on which different minds might reasonably differ.  It is also a question of mixed fact and law.  Indeed a decision on such an issue may be, and in this case was, informed by expert evidence as to the standard of conduct reasonably expected of a medical practitioner by his or her peers.  Thus in order to establish that the Tribunal erred, the plaintiff must establish that on the facts found by the Tribunal, it reached a conclusion which no reasonable tribunal might come to.

The applicant advanced reasons both before Justice Kaye and the Court of Appeal to submit that there were substantive questions of law and those questions of law really descended to the area of procedural unfairness in terms of being informed of the nature of the charges that we had to answer, natural justice as to whether we knew what conduct was said to constitute prescribed conduct in question because one of the matters of considerable importance in this case was the very unusual nature of the allegations. 

It was not one of sexual misconduct.  It was not one of failure to diagnose, failure to treat.  It was not one of those recognisable categories.  It was what may be called in modern speak, professional boundary issues and, really, it was the dilemma that the doctor had in his dealings with both the patient and the other family members in what may be said to be a dysfunctional family.  My client came into the situation where there was a longstanding – in fact for more than 20 years – animosity between both the patient, Mrs A, and the daughter-in-law, Mrs B.  In fact, it was probably ‑ ‑ ‑

HAYNE J:   Can we clear some of the decks?  I have no doubt that your side of the record has it firmly in view that the doctor acted from high and proper motives.  Let us assume that.  The question that we have to confront is, this is an application for leave to appeal to the Supreme Court of Victoria, why should this Court get into that area of whether leave to appeal should be given in the circumstances of this case where so far your side of the record has failed at every level?  What is the question of law that should have been identified, but was not, and that should have founded a grant of leave?  That is the real killing ground of the debate, I would have thought.

MR ISLES:   We submit that in respect of what is said to constitute an error of law – we have identified this on page 160 – and that is that the meaning of “unprofessional conduct” and:

“The effect or construction of a term whose meaning or interpretation is established is a question of law” –

We refer to Collector of Customs v Agfa-Gevaert and Collector of Customs v Pozzolanic.  We say that the interpretation of section 3 is not just simply an exercise in looking at the factual evidence as to the lesser standard expected of the doctor and the lesser standard expected of the doctor by the public and his peers.  We say that the question is qualified by an important common law rider and that is the fact that – the difficulty about the section is that it does not speak of positive indicia in terms of what the doctor does.  The doctor comes to treat his patient and the doctor comes armed with one important oath which he administers as a doctor and that is his Hippocratic Oath and he comes armed to the task with those principles which he has sworn to uphold ‑ ‑ ‑

HAYNE J:   The standard that is there applied by the Board is the standard of professional colleagues in good standing and good repute and the usual formula.

MR ISLES:   We say that the issue in relation to that is dependent upon two issues.  One is the Hippocratic Oath to act in the interest of his patient.  The second, and we say is an ornament or a footnote to the argument that has always been advanced, that in fact we were not permitted to put in the Court of Appeal, and that was under the terms of the Medical Treatment Act, the Medical Treatment Act in its preamble, because we have two statements from Parliament.  We have the statement of Parliament saying a doctor is guilty of unprofessional conduct if he acts in that lesser standard.  We do not have anything more in that Act from Parliament to assist us in determining that, but in cognate legislation we have a statement from Parliament which indicates in the preamble it says:

The Parliament recognises that it is desirable –

(c)     to recognise the difficult circumstance that face medical practitioners in advising patients and providing guidance in relation to treatment options –

And more importantly –

(b)     to give protection to medical practitioners who act in good faith in accordance with a patient’s express wishes –

Now, we say that the construction of that section ought to have been permitted and we say that there is a long line of authority on the issue of raising new points.  We do not concede that it is a new point before the Court of Appeal, but the matter that we say is important in respect of what is advanced in respect of this argument, is that reading from Water Board v Moustakas and I can hand up a copy to your Honours.

HAYNE J:   I am familiar enough with that, yes.

MR ISLES:   Your Honours are more than familiar with it.  At page 497 of the majority judgment their Honours stated:

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below.  Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.

We say that in the exercise of the court’s discretion it ought to have allowed that question to be determined as to the meaning and construction of the relationship between the Medical Treatment Act, the statement in the preamble as to the desirability of medical practitioners to be protected and we say that in those circumstances that is clearly an error of law.  Chief Justice Warren makes it clear in her judgment that we need not satisfy the test that the error will succeed at trial but we have to show that there is just more than a question of law before leave will be granted. 

We are comforted in the regard that when we had to seek leave from the Court of Appeal, from Justices Buchanan and Nettle on 1 April 2005 they state – and these reasons are set out on the last page of the application book at page 181:

“A finding of professional misconduct against a medical practitioner is one of some importance.  Accordingly, we think that there is a risk of substantial injustice being caused to the applicant if the decision is to stand although wrong. 

We are also of the opinion that there are tenable grounds available to the applicant with respect of correctness of the decision below”. 

So we say that we have identified one question of law, which is the meaning of the Act in respect of what is unprofessional conduct having regard to the protection that ought to be given to the doctor when he acts in the patient’s interest and in accordance with their express wishes.  The second point is we say that there is a question of law in relation to the interrelation between the Medical Treatment Act and the Medical Practice Act.

The last matter that we say is this aspect that we state in our application for leave to appeal and that is this point that there is a fact in this judgment, there is an assertion by the senior member, the Deputy President of VCAT, in relation to what he said to be my client’s view as to the treatment that his patients have received from the hands of his family.  The statement that he has made in the VCAT decision is one in which it is said that my client had an unsubstantiated belief in elder abuse. 

The issue of elder abuse was the subject of evidence in the proceedings before VCAT when Professor Burrows, who is a professor of psychiatry from the Austin Hospital, gave evidence.  He agreed with the definition that elder abuse is “abuse in the elderly occurs when decisions are made on the patient’s behalf against their wishes”. 

We say that really the whole reasons for decision in respect of his conduct were so permeated by the belief that he was acting unreasonably, acting in circumstances where he had an unsubstantiated belief in elder abuse, that it permeated the answer to every one of the remaining 10 charges that he was found guilty of and we say that you do not have to go to the body of evidence to find the answer to that. You merely have to look at the wording of the charges that he was charged with.  They are all redolent with elder abuse.  The first allegation, which is dealt with in Justice Warren’s judgment at appeal book page 133 says:

Dr Myers failed to exercise the care and skill of a competent geriatrician in that he attempted to impose his personal views about the appropriate manner of Mrs A’s accommodation and care.

The evidence in relation to this and the findings of the Tribunal was that, in respect to Mrs A’s wishes, Mrs A’s wishes at all times were to go home.  After 21 May when the bed card doctor had written in the hospital records that Mrs A can go home, there was no reason to stop Mrs A from going home.

CRENNAN J:   But there was a lot of other evidence, was there not, in relation to this topic of elder abuse and cross‑examination of relevant witnesses and at the end of the day the Tribunal simply did not accept the case put by Dr Myers and that is why there was a finding against him in relation to that.

MR ISLES:   In my submission, the issue in respect of this is, if you go to the examination of the charges, which appear in the first pages of the Medical Board decision, if you start with page 4, charge (f)(i) that:

Dr Myers engaged in inappropriate communications and activities with or in relation to Mr A such as threatened to compromise the professional boundaries which ordinarily delineate the professional relationship between medical practitioners and patients, in that:

(i)during the period April 2000 to June 2001, he developed a social relationship with Mr A and took him from his home for one or more social outings –

His patient was Mrs A and Mr A.  He would take him to the synagogue when he was going to the synagogue.  He would take him.  Mr A, although he had ‑ ‑ ‑

HAYNE J:   But these are the quintessentially factual inquiries and our focus must remain upon whether the courts at every level below have been wrong in saying no question of law warranting grant of leave to appeal has been identified.  That must remain the focus of our attention.

MR ISLES:   I understand that, but Chief Justice Warren in her decision pointed to the fact that there will be instances where you have a question about the sufficiency of evidence.  If you can get over the hurdle of establishing that no reasonable tribunal could have come to that finding, then that constitutes an error of law.  Based on what is put ‑ ‑ ‑

HAYNE J:   No evidence cases, Wednesbury unreasonableness cases, might present as questions of law, but is that the case that is made?  What is the error of law?

MR ISLES:   The error of law is in determining the definition of “unprofessional conduct” in relation to the facts of this case having regard to the riders that we say operate in respect to the doctor being protected where he has acted in the interests of his patient and in accordance with the patient’s expressed wishes.  Can I indicate, your Honours, that one of the matters which we say is important and which is dearly important and which my client persists with this application even though he has lived with this decision and this blemish on his reputation, probably which, even if leave were granted, would be difficult to shift for four and a half years.

HAYNE J:   That is why I asked about why this case had taken so long, because it concerns a professional man’s professional reputation.  It is an important matter.  I understand that fact.

MR ISLES:   The difficulty that my client has is that he adhered to a notion, perhaps a pious notion, that his adoption of and adherence to the Hippocratic Oath was important and transcended his obligations to the other family members who had been in a discordant position for 20 years.  My client adopted perhaps a noble view of saying, as Edmund Burke said that the only thing necessary for the triumph of evil is for good men do nothing.  He saw a woman in hospital that had been in hospital ‑ ‑ ‑

HAYNE J:   I do not need persuasion that your client acted from good motive.  What I do need persuasion about is that the courts below got it wrong in saying no question of law was identified.  That is the essence.

MR ISLES:   We wish to say that no reasonable tribunal could come to that finding that my client had an unsubstantiated belief in elder abuse and that finding so permeated the decision as to transcend all the findings.  It is a little bit like the question of the boy on the beach who runs up and down and waves and points out to sea.  You look out to sea.  You cannot see anything.  You think he is mad and you revile him.  But if you see the small boy drowning, then all of a sudden that transcends his behaviour into that of someone to be revered, not reviled. 

This is a case in which offered medical evidence of the doctors before this case.  We had a general practitioner who said if he was confronted with this sort of discord in a family he would genteelly retire.  The other specialist doctor, Dr Lefkovits, stated that in respect of his conduct he would watch his backside.  It is interesting in that regard that his hospital record note of 21 May indicated that the patient should stay in the hospital and only come out at the direction of the daughter‑in‑law, even though the patient had competence on his own evidence for another two weeks. 

This Court and the decision of this judgment sends out an important message to the profession in terms of the conduct of the practice of medicine in difficult circumstances.  We say that the words

that appear in the preamble to the Medical Treatment Act, which is an indication from Parliament that it is desirous ‑ ‑ ‑

HAYNE J:   You have made that point.  Just a moment, Mr Isles.  I do see your time is up.  You have made the point about the Medical Treatment Act.  We are seized of that.  Is there anything else you wish to say?

MR ISLES:   No, those are the submissions I wish to put.

HAYNE J:   Yes, thank you, Mr Isles.  We will not trouble you, Mr Bourke.

This application concerns allegations of professional misconduct by a medical practitioner.  The Court of Appeal dismissed an appeal from the decision of the Supreme Court of Victoria which in turn dismissed an appeal from the decision of a Master of the Supreme Court denying leave to appeal against a decision of the Victorian Civil and Administrative Tribunal.

The applicant had sought to challenge a determination of the Medical Practitioners Board.  The Tribunal varied the decision of the Board with respect to a requirement that the applicant obtain counselling but otherwise affirmed the decision of the Board.

We see no reason to doubt the conclusion reached at all levels in the courts below that no arguable question of law was identified by the applicant which warranted the grant pursuant to section 148 of the Victorian Civil and Administrative Tribunals Act 1998 (Vic) of leave to appeal from the Tribunal to the Supreme Court of Victoria.

It follows the special leave to appeal must be refused and it must be refused with costs.

MR ISLES:   May I speak on the question of costs, your Honour?

HAYNE J:   Of course, Mr Isles.  What is it you wish to say?

MR ISLES:   My client has brought this application.  It is apparent from his outline of argument that there were aspects of public policy in terms of the broader issues of doctors’ relationship and positions with their patients.  We say that that is a matter which interests or ought to interest the respondent and we say that in those circumstances, although the application has been unsuccessful, it ought not be visited with the question of costs, that is, notwithstanding what we said on the question of costs in our application.

HAYNE J:   Yes, Mr Bourke.

MR BOURKE:   Your Honour, we say that many issues come before this Court on special leave and have elements of public policy, that the normal rule should still apply.  Further, we say Dr Myers made a forensic decision to come here, we say, in circumstances where really the case was very poor and we say we have been put to the expense all the way through this process and there is no reason why costs that followed the event in every other stage of this matter should not follow the event at this stage.

HAYNE J:   Yes.  Leave is refused.  It will be refused with costs.

Adjourn the Court to Tuesday, 29 January 2008 at 3.30 pm in Canberra.

AT 3.56 PM THE MATTER WAS CONCLUDED