Ooi v Medical Board of Queensland

[1996] QCA 530

IN THE COURT OF APPEAL	[1996] QCA 530
SUPREME COURT OF QUEENSLAND
Brisbane
[Ooi v. Medical Board of Qld]

Appeal No. 4491 of 1996

BETWEEN:

CARL KAR-HIN OOI

Appellant

AND:

MEDICAL BOARD OF QUEENSLAND

Respondent

CASE STATED PURSUANT TO S.43 OF THE MEDICAL ACT 1939

Appeal No.5931 of 1996

Appeal No. 6092 of 1996

BETWEEN:

CARL KAR-HIN OOI

Appellant

AND:

MEDICAL BOARD OF QUEENSLAND

Respondent

Fitzgerald P.
Davies J.A.

White J.

Judgment delivered 20 December 1996

Judgment of the Court

DR. OOI?

ANSWER:	NO.
APPEAL NO. 5931 OF 1996:	APPEAL DISMISSED.
APPEAL NO. 6092 OF 1996:	ORDER OF THE CHAMBER JUDGE MADE BELOW DISCHARGED.

APPELLANT TO PAY THE COSTS OF THE RESPONDENT IN EACH MATTER.

CATCHWORDS:	CIVIL - Case stated from Medical Assessment Tribunal - whether Tribunal erred in applying civil standard to proof to charge of professional misconduct by a medical practitioner - appeal from refusal to Chamber Judge of application to show cause where no evidence to support findings of the Tribunal - appeal from refusal of application to show cause where appellant not afforded opportunity to answer case.
Counsel:	Mr. I. D. F. Callinan Q.C., with him Mr. M. D. Martin for the appellant Mr. R. V. Hanson Q.C. for the respondent
Solicitors:	Flower & Hart for the appellant Gilshenan & Luton for the respondent
Hearing Date:	25 November 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before Fitzgerald P.
Davies J.A.
White J.

[Ooi v. Medical Board of Qld]

Appeal No. 4491 of 1996

BETWEEN:

CARL KAR-HIN OOI

Appellant

AND:

MEDICAL BOARD OF QUEENSLAND

Respondent

CASE STATED PURSUANT TO S.43 OF THE MEDICAL ACT 1939

Appeal No.5931 of 1996

Appeal No. 6092 of 1996

BETWEEN:

CARL KAR-HIN OOI

Appellant

AND:

MEDICAL BOARD OF QUEENSLAND

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 20 December 1996

There were three matters before this Court. The first was a case stated pursuant to s.43 of the

Medical Act 1939. It asked the question whether the Medical Assessment Tribunal erred in law in applying the civil standard of proof, having regard to the gravity of the charge against Dr. Ooi, which

was that on a date unknown in or about the month of April 1990 he was guilty of misconduct in a

professional respect in that with intent to procure the miscarriage of a woman namely Cecilia Lee he

performed a medical procedure upon the said Cecilia Lee unlawfully by means of a curettage. The

Medical Assessment Tribunal found the charge proven and ordered that Dr. Ooi be suspended from

practice for a period of two years.

The second matter was an appeal from a judgment of a Chamber Judge refusing an application

by Dr. Ooi that Mr. Justice Dowsett, who constituted the Medical Assessment Tribunal, and the

Medical Board of Queensland show cause why a case should not be stated that the Medical

Assessment Tribunal erred in law in finding that a para-cervical anaesthetic had been administered to

the complainant in the above charge, prior to or in the course of performing the above medical

procedure, when there was no evidence to support that finding. The third matter was an order by the

Chamber Judge, returnable before this Court, that Mr. Justice Dowsett and the Medical Board of

Queensland show cause why a case should not be stated as to whether the Medical Assessment

Tribunal erred in law in that the Tribunal found that Dr. Ooi had administered a para-cervical anaesthetic

to the complainant of which the complainant was not aware when a case in that respect was not put to,

and/or Dr. Ooi was not afforded the opportunity of answering any such case.

It has long been held that proceedings of the kind in the above charge are not criminal in

nature.[1] However it is sufficient for this proposition to turn to more recent decisions and dicta in the

[1]          Ex parte Brounsall [1778] 2 Cowp. 829; 98 E.R. 1385 per Lord Mansfield C.J.

High Court of Australia.[2] Proceedings to strike off or suspend professional practitioners, including doctors and lawyers, are proceedings, not by way of punishment, but by way of protection of the public

[2]          Clyne v. New South Wales Bar Association (1960) 104 C.L.R. 186 at 201-2; New South

and of the integrity of the profession.3 Nevertheless there have been decisions and dicta of the

predecessor of this Court to the contrary.

Michel v. Medical Board of Queensland4 was a case in which a medical practitioner was found

guilty by the Medical Assessment Tribunal of professional misconduct and struck off. The Full Court

held, by a majority, that the proceedings before the Medical Assessment Tribunal were criminal because

one of the possible consequent orders of a finding of professional misconduct (not the one imposed)

was a fine; it might have been recovered under the Justices Act; and in default imprisonment might have

been imposed.5 In Queensland Law Society Inc. v. A Solicitor6 that decision was followed and one

of the High Court cases referred to above distinguished on the basis that it involved disciplinary

South Wales (1979) 142 C.L.R. 201 at 207.

3           Ibid.

4             [1942] St.R.Qd. 1.

5           Ibid. at 32, 36.

6 [1989] 2 Qd.R. 331; see also McKay v. Kelly; Ex parte McKay [1988] 2 Qd.R. 658 at

667-8.

proceedings in the original jurisdiction of the Court, not proceedings before the statutory committee (or

in this case the Medical Assessment Tribunal).[7] However it is difficult to see, with respect, how the

[7]          Queensland Law Society Inc. at 336-7, 341.

substantial character of the proceedings can be changed merely because they are before a statutory

committee or a Medical Assessment Tribunal rather than before a Court. No such distinction appears

to have been made elsewhere.[8]

[8]          Bhandari v. Advocates Committee [1956] 3 All E.R. 742 at 744-5 (P.C.); Re Hodgekiss

A more recent decision of the Full Court of Queensland has rejected the test stated in Michel,

and accepted as correct in Queensland Law Society Inc., holding that, in proceedings before the

Statutory Committee of the Law Society, the appropriate standard of proof is the civil standard varying

according to the gravity of the fact to be proved.[9] That is the test now commonly accepted as correct

[9]          Adamson v. Queensland Law Society Inc. [1990] 1 Qd.R. 498 at 504-506; see also Medical

in proceedings such as this.[10]

[10]           See for example Bannister v. Walton (1993) 30 N.S.W.L.R. 699 at 711F, 712D, 734E,

In our opinion both principle and authority require the conclusion that proceedings before the

Medical Assessment Tribunal are not criminal proceedings; they are proceedings sui generis in which

the standard of proof varies according to the gravity of the fact to be proved. It was not disputed that

that was the standard of proof which was applied in this case. The question in the stated case which

was:

"Did the Tribunal err in law in applying the standard of proof that it did having regard to the criminal nature of the charges against Dr. Ooi and the consequences to Dr. Ooi?"

should therefore be answered "No".

It was agreed by the parties that, if the Court was prepared to do so, the second and third

matters should be dealt with finally in this hearing so as to avoid the possibility of a second hearing

involving additional costs. Although the Court reserved its attitude to that course it is plainly a sensible

one and should be acceded to if possible. To that end Mr. Callinan Q.C., for Dr. Ooi, sought to state

each of these matters as a question stated for this Court.

The Medical Assessment Tribunal found that Dr. Ooi performed an unlawful abortion on the complainant. It was that finding of fact that resulted in the conclusion of misconduct in a professional respect. Dr. Ooi cannot succeed in the second matter unless he can demonstrate that there was no

evidence to support that finding. Posed as a question, the second matter is whether there was evidence

to support that finding. Plainly there was.

In the first place the complainant swore that Dr. Ooi told her, apparently after performing a

scan, that she was pregnant, that the baby was deformed and that she should have an abortion, that he

would do it and that it should be done as soon as possible. Secondly she swore that he suggested that

the operation take place over the Easter weekend to give her time to recover and return to her

occupation and that eventually she agreed to have the abortion on the Saturday afternoon of the Easter

weekend. Thirdly she swore that on that afternoon he performed a procedure her general description

of which a medical specialist thought was consistent with the performance of an abortion.

It is true that specialist opinion was to the effect that such a procedure required a regional

anaesthetic, the only realistic possibility in this case being a cervical anaesthetic, and the complainant

denied receiving one. However there were a number of possible explanations for the failure of the

complainant to appreciate that such an anaesthetic had been administered to her and it was open to the

Medical Assessment Tribunal to find that one had been administered in the light of the above evidence

which was, plainly enough, evidence on which the Tribunal could have found that an abortion was

performed on that day.

This appeal must therefore fail.

Put as a question the third matter is whether Dr. Ooi was given an opportunity of answering the

proposition that the complainant could have had a para-cervical anaesthetic without being aware of it.

It is true that that hypothesis was not put to Dr. Ooi in cross-examination. However it is not true that he did not have the opportunity of answering it. During the course of Dr. Ooi's examination-in- chief a specialist anaesthetist Dr. McConnel was interposed as part of Dr. Ooi's case. It was put to him

in cross-examination that if a patient were given something like Valium, and anaesthetic gel was used

in the vagina area, it would be possible that the patient would not recognize a para-cervical injection as

an injection. Dr. McConnel agreed that it was possible that the patient might not recognize that; that

it might be identified merely as discomfort. This must have alerted Dr. Ooi to the fact that this

hypothesis was being put and he had adequate opportunity to deal with it in re-examination of Dr.

McConnel, in his own examination-in-chief after Dr. McConnel had given evidence and by other

evidence.

The order of the Chamber Judge should accordingly be discharged.

Dr. Ooi should pay the costs of the respondent in each matter.

Wales Bar Association v. Evatt (1968) 117 C.L.R. 177 at 183-4; see also Weaver v. Law Society of New

[1962] S.R.(N.S.W.) 340.

Board of Queensland v. Cooke [1992] 2 Qd.R. 608 at 616.

734G; Weaver v. Law Society of New South Wales supra fn.2.