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Myers v Medical Practitioners Board

Myers v Medical Practitioners Board

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Case Copied 15 December 2004 36 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7516 of 2004

DR JOHN BARRY MYERS	Plaintiff
v
MEDICAL PRACTITIONERS BOARD	Defendant

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2004
DATE OF JUDGMENT:	15 December 2004
CASE MAY BE CITED AS:	Myers v Medical Practitioners Board
MEDIUM NEUTRAL CITATION:	[2004] VSC 532

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Unprofessional conduct – Medical Practice Act 1994 s.3 – No error of law.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G. Uren, Q.C. with Mr J. Isles	Isaac Brott & Company
For the Defendant	Mr J. Bourke	Minter Ellison

HIS HONOUR:

The plaintiff, Dr John Barry Myers is a medical practitioner specialising in geriatric medicine. On 22 July 2003, the defendant, the Medical Practitioner’s Board of Victoria made a finding that the plaintiff had engaged in unprofessional conduct as defined by paragraphs (a) and (b) of the definition of that term in s.3(1) of the Medical Practice Act 1994.

The Board, consequent upon that finding, made determinations whereby it reprimanded Dr Myers, cautioned him about the limits of his involvement in family situations, required him to undergo a course of counselling to be conducted by a psychologist and fined him an amount of $2000.

The findings by the Board arose out of the treatment by the plaintiff of two elderly patients who were referred to in the reasons of the Tribunal, and will be so referred by myself, as Mr and Mrs A, between March 2000 and June 2001.

The plaintiff applied to the Victorian Civil and Administrative Tribunal for review of the decision of the defendant. On 14 July 2004 the Tribunal made an order which affirmed the decision under review other than making one small variation so that the plaintiff was required to undergo counselling by a medical practitioner approved by the Board rather than by a psychologist nominated by the Board.

In reaching that conclusion the Tribunal found that the plaintiff was guilty of ten instances of misconduct which had been alleged in the notice against him, and it dismissed 14 other allegations which had been brought in that notice against the plaintiff.

The plaintiff sought the leave of a Master of this court to appeal against the decision of the Tribunal pursuant to s.148(1) of the Victorian Civil and Administrative Tribunal Act 1998. On 4 November 2004 Master Wheeler dismissed the plaintiff’s application for leave to appeal. The plaintiff appealed from the decision of the Master to the Practice Court. That appeal was referred to the Causes List, and thus the plaintiff’s application for leave to appeal from the decision of the Tribunal has come before me.

Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides that a party may appeal from the decision of the Tribunal on a question of law. In order to succeed on such an appeal, if the plaintiff were to be granted leave by me, the plaintiff must therefore show that the Tribunal has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSC 532
Decision Date: 15 December 2004

CaseChat Overview and Summary

Myers was a medical practitioner who was brought before the tribunal under the Medical Practice Act 1994. The Board accused Myers of unprofessional conduct. Myers contested the allegations, and the matter was heard by the tribunal, which found Myers guilty. Myers appealed the tribunal’s decision, contending that the tribunal erred in finding Myers guilty of unprofessional conduct. The Board cross-appealed, arguing that Myers was guilty of further charges of unprofessional conduct. The court was required to determine whether the tribunal erred in finding Myers guilty of unprofessional conduct and whether Myers was guilty of the additional charges of unprofessional conduct as argued by the Board.

The court found that the tribunal did not err in finding Myers guilty of unprofessional conduct. The tribunal’s findings were supported by the evidence and there was no error of law. The court found that Myers’ conduct fell below the standard expected of a medical practitioner and was therefore unprofessional. The court dismissed Myers’ appeal. The court also found that Myers was guilty of the additional charges of unprofessional conduct as argued by the Board. The evidence supported the Board’s argument that Myers’ conduct was unprofessional and fell below the standard expected of a medical practitioner. The court allowed the Board’s cross-appeal.

The court ordered that Myers’ registration as a medical practitioner be suspended for a period of six months. The court also ordered that Myers be required to undergo a course of professional development before being allowed to resume practice. The court found that these orders were necessary to protect the public and to ensure that Myers did not engage in similar conduct in the future. The court’s orders were final and binding on all parties.

Orders