Papps v Medical Board of South Australia - [2008] SASC 204

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
PAPPS v MEDICAL BOARD OF SOUTH AUSTRALIA
[2008] SASC 204
Judgment of The Honourable Chief Justice Doyle
23 July 2008
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LICENCES AND REGISTRATION - APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION
PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - RESTORATION TO REGISTER
Appeal pursuant to s 65(2)(b) of the Medical Practice Act 2004 (SA) - medical practitioner suspended from register - refused reinstatemnet - whether the Medical Board gave proper weight to material before it - whether Medical Board erred in its assessment of the material - whether the Reasons for Decision given by the Medical Board were sufficient.
Held: appeal allowed - decision of Medical Board set aside - remitted to the Medical Board for rehearing. There was a risk that the Medical Board misused the materials before it which created a substantial unfairness to the appellant.
Medical Practice Act 2004 (SA) s 5, s 13, s 24, s 31(1)(b), s 32, s 33, s 37, s 43, s 46(1), s 51, s 57, s 65(2)(b), s 65(6)(c); Workers Compensation and Rehabilitation Act 1986 (SA); Health Insurance Act 1973 (Cth), referred to.
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70; Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127, applied.
Club Resorts (Finance) Pty Ltd v The Commercial Tribunal (1992) 58 SASR 277, distinguished.
Papps v Medical Board of South Australia (No 1) [2005] SASC 345; Papps v Medical Board of South Australia (No 2) [2006] SASC 234, discussed.

PAPPS v MEDICAL BOARD OF SOUTH AUSTRALIA
[2008] SASC 204
Magistrates Appeal: Civil

DOYLE CJ: This is an appeal against a decision by the Medical Board of South Australia (“the Board”). The Board refused an application by Dr Papps for his reinstatement on the general register of medical practitioners.
His registration had been suspended for a period of 12 months by the Medical Professional Conduct Tribunal (“the Tribunal”). The Tribunal made that order because it was satisfied that there was proper cause for taking disciplinary action against Dr Papps.
The application by Dr Papps for reinstatement was made when the period of suspension had expired.
On appeal, Mr Stewart, for Dr Papps, submits that the Board failed to give proper weight to the material that Dr Papps put forward in support of his application. He submits further that the Board erred in relying on certain material, put forward by counsel assisting the Board, as supporting a decision to refuse reinstatement.
The issue before me is whether the Board came to the wrong decision, having regard to the material before it. As will appear, there is a further issue of whether the Board’s reasons adequately support the decisions it made.
The appeal to this Court lies under s 65(2)(b) of the Medical Practice Act2004 (SA) (“the Act”). By s 65(6)(c) of the Act:
65 Right of appeal to Supreme Court
…
(6)The Court, on an appeal under this section—
…
(c)must give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
I consider that the Board’s decision should be set aside. The Board’s reasons do not adequately explain how the Board used the material before it. I am not able to tell whether the Board gave proper consideration to some significant aspects of the material. There is a risk that the Board misused some of the material. In the circumstances, the hearing before the Board has miscarried. The application should be remitted to the Board for consideration by a differently constituted committee of the Board, in the light of these reasons.
The Board might reach the same conclusion on a rehearing. I am reluctant to order a further hearing, but fairness requires that the matter be reconsidered.
The Act
The Act regulates the provision of medical treatment and the registration of medical practitioners.
The Board is established by s 5 of the Act. The Board’s functions include maintaining registers of practitioners and regulating the practice of medicine: s 13. One of the registers that the Board keeps is the general register: s 31(1)(b).
Registration on the general register (or an appropriate other register) authorises a person to provide medical treatment: s 32 and s 43 of the Act.
Before the order for suspension, Dr Papps was registered on the general register. He was a general practitioner.
The Tribunal is continued in existence by s 24 of the Act.
Following a scheme that is common in legislation regulating professions and occupations, both the Board and the Tribunal have power to take disciplinary action against medical practitioners: see s 51 and s 57. The Act makes it apparent that the Tribunal is to deal with more serious cases of unprofessional conduct. By s 46(1) there is proper cause for taking disciplinary action against a registered person, either before the Board or before the Tribunal, if the person is guilty of unprofessional conduct. The orders that the Tribunal can make if there is proper cause for taking disciplinary action are more severe than the orders that the Board can make.
Background
Dr Papps began work as a general practitioner in 1986.
His history of appearances before the Board and before the Tribunal is a significant aspect of this case. What is set out below is drawn in part from earlier decisions of this Court involving Dr Papps: see Papps v Medical Board of South Australia (No 1) [2005] SASC 345 and Papps v Medical Board of South Australia (No 2) [2006] SASC 234.
In 1992 Dr Papps appeared before the then Board on a charge of unprofessional conduct relating to the treatment of a patient in 1989. Dr Papps admitted the charges. The complaint was that Dr Papps prescribed medication without taking into account its addictive potential. Dr Papps pleaded guilty to unprofessional conduct and the Board administered a reprimand. Dr Papps undertook to report to the Board for a period of time when he prescribed certain medications. He undertook to attend a retraining program.
In June 2001 the then Board dealt with a further complaint against Dr Papps. The complaint was made in June 2000. The complaints came before the Board on a number of occasions. I refer to the culmination of events in June 2001.
The substance of the allegations was that between June 1998 and June 1999 he failed to provide copies of records to other medical practitioners taking over the care of former patients; that between May and July 2000 he failed to communicate adequately with a rehabilitation service relating to a patient; and that in July 2000 he failed to communicate adequately with a workers’ compensation insurer in relation to a patient.
Dr Papps admitted the charges of unprofessional conduct. He was reprimanded again. He gave detailed undertakings to the Board. Rather than set them out in full I will summarise them. He agreed to undertake practice management training; he agreed to ensure proper storage for his records; he agreed to compile a list of medical records held by him; he agreed to inform former patients that he had their records; he agreed to keep proper records of requests for records, and to deal with such requests promptly; he agreed to comply with requirements of the Workers Compensation and Rehabilitation Act to the extent that that Act impinged on his practice; he agreed to provide a copy or summary of medical records for a reasonable fee.
As the summary indicates, the Board was obviously concerned about his ability to manage his practice, and about the manner in which he managed patient records that he held. The Board emphasised to Dr Papps the seriousness of a breach of the undertakings.
Further complaints were made against Dr Papps in October 2003. This time they came before the Tribunal. The Tribunal dealt with these matters in February 2005. The complaint alleged that Dr Papps had failed to comply with the undertakings referred to. In support of this allegation it was alleged that in a number of respects he had failed to deal with medical records according to his undertakings, and that he failed to cooperate with the Board when checking on his compliance. There were complaints of unprofessional conduct unrelated to the undertakings. Dr Papps was alleged to have used inappropriate advertising promoting services outside the scope of his medical practice; he was alleged to have used abbreviations that implied that he held specialist qualifications that he did not in fact hold; it was alleged that he had issued inappropriate medical certificates and had failed to maintain accurate clinical records; it was alleged that he carried out a surgical procedure in inappropriate circumstances using facilities that were not of a proper standard, and that he failed to obtain appropriate pathology results; it was alleged that he failed to follow up pathology tests following a surgical procedure, and failed to communicate the results of the tests; it was alleged that he failed to communicate adequately with a rehabilitation service and with a patient in relation to that patient’s rehabilitation.
Dr Papps admitted the allegations.
The Tribunal said that viewed objectively, the appropriate order was one for cancellation of Dr Papps’ registration. But the Tribunal decided to be lenient, and to suspend Dr Papps’ registration for a period of 12 months. As a result of appeals by Dr Papps, the period of suspension did not begin until August 2006. It expired in August 2007.
As well, the Board imposed a number of conditions on Dr Papps. Most of these conditions were intended to operate if and when Dr Papps was reinstated to the register.
There was a condition requiring him to obtain access to suitable facilities were he to carry out surgical procedures; he was required to undergo assessment of his performance of surgical excisions; he was required to complete a practice management training course yet again; he was required to ensure proper storage of medical records, and to keep proper records of requests relating to medical records; he was required to deal promptly with requests for medical records; he was not to use or claim qualifications or memberships without the approval of the Registrar of the Board.
Dr Papps appealed against that decision of the Tribunal. He complained that the Tribunal had proceeded unfairly, and he complained that the order for suspension was unjustified. His appeal was dismissed by a single Judge of this Court, and a subsequent appeal was dismissed by the Full Court. The references to those decisions are above.
Reinstatement
Section 37 of the Act deals with reinstatement on the register. Section 37(2) provides:
37    Reinstatement on register or in specialty
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(2)     A person whose registration on a register or in a specialty has been suspended may apply to the Board for reinstatement on that register or in that specialty (but not, in the case of an order for suspension for a specified period made in disciplinary proceedings, until after the expiry of that period).
Section 37(7) provides:
37    Reinstatement on register or in specialty
…
(7)     Subject to this section, the Board must reinstate on the appropriate register or in a specialty an applicant under this section if satisfied that the applicant is eligible for registration on that register or in that specialty.
Eligibility for registration is dealt with by s 33. A person must have the required qualifications; must meet any requirements determined by the Board, and must be medically fit to provide medical treatment. Section 33(1)(e) provides as well that a person is eligible for registration if the person “… is a fit and proper person to be registered …”.
The Board has power to grant limited registration and also to impose conditions on registration.
In light of Dr Papps’ background, certain matters obviously called for careful consideration by the Board. They are the matters that the Board had dealt with in 1992 and 2001 and the matters that led to the Tribunal’s order. Broadly, they embrace practice management, record keeping and dealing with records, the standard of the facilities used by Dr Papps for surgical procedures, his competence for certain surgical procedures, and the manner in which he held himself out as entitled to practise.
It was necessary for the Board to satisfy itself that Dr Papps understood what was expected of him as a matter of proper professional practice, particularly in the aspects of professional practice that led to the Tribunal’s decision, and that led to the earlier decisions by the Board. The Board had to satisfy itself that Dr Papps realised that in the past his conduct had not met the required professional standards, that he had undertaken training to remedy this, and that he was in fact likely to observe proper professional standards in future.
In short, the Board could not be satisfied that Dr Papps was a fit and proper person to be registered unless Dr Papps satisfied the Board that in future the unsatisfactory aspects of his professional conduct (as demonstrated by his appearances before the Board and the Tribunal) were unlikely to be repeated. To put it a little differently, he had to show an understanding of his own failures, that he had done what was necessary and appropriate to remedy his lack of medical and management skills, and that he genuinely intended to observe proper professional standards in the future, and was likely to do so.
All this flows from the requirement that Dr Papps satisfy the Board that he was a fit and proper person to be registered. That requirement embraces a wide range of matters. As Walters J said in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76, in a different context:
The issue whether an appellant has shown himself to be "a fit and proper person", within the meaning of s 16(1) of the Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf. Ex parte Meagher (1919) 19 SR(NSW) 433).
The breadth of the statutory requirement is emphasised by observations made by Dixon CJ, McTiernan and Webb JJ in Hughes and Vale Pty Ltd v The State of New South Wales (No 2) (1955) 93 CLR 127 at 156-157. Their Honours said:
… The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"--Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances …
In short, the requirement that Dr Papps satisfy the Board that he was a fit and proper person to be registered was no formality. In light of his record, it required the Board to give careful considerations to the matters to which I have referred.
The hearing before the Board
At the hearing of the application counsel appeared to assist the Board. Dr Papps was self represented. It appears that there had been a number of preliminary meetings between Dr Papps and representatives of the Board, at which Dr Papps was informed about matters that counsel assisting proposed to raise. No complaint has been made that Dr Papps was not given an adequate opportunity to deal with the matters that were raised.
The presiding member of the Board properly asked Dr Papps to confirm that he had had adequate opportunity to obtain legal representation, and wished to proceed without that representation. Dr Papps said that he would have preferred to be represented, but wished to proceed without delaying the matter further.
Counsel assisting the Board then outlined certain material that was to be put before the Board. He tendered several bundles of documents. Dr Papps then addressed the Board, outlining what he had done during the period of suspension, and subsequently, to demonstrate that he was a fit and proper person to be registered. He made some comments on the material tendered by counsel.
After outlining his case for reinstatement, he was cross-examined by counsel on the material that counsel had tendered. The hearing concluded, having lasted for about two hours 20 minutes.
The Board invited counsel assisting and Dr Papps to provide written submissions to the Board. Each of them did so.
The Board refused the application. Its reasons are quite brief, and it is convenient to set them out in full. They are as follows:
The Board has dismissed the application by Mr Papps for reinstatement. In coming to this view the Board is cognisant of Mr Papps proven history of unprofessional conduct by the Medical Practitioners Professional Conduct Tribunal, the Medical Board and the Medicare Services Review Tribunal. It was noted that the applicant himself accepts that he had in the past failed to comply with undertakings which he had entered into with the Board.
It is noted that the Board considers failure to comply with agreed undertakings most seriously. Furthermore, the Board heard through the course of the hearing a number of further issues which had not previously been heard in formal proceedings. These included his mother’s will and that of Mrs Lily Barrett, a resident of a nursing home then owned and run by the applicant and his wife. The Board could not find in Mr Papps’ testimony reasonable explanations for his admitted actions surrounding these events. The Board considered that these provided further evidence of Mr Papps’ longstanding failure to apply the standards expected by the profession and the public to his medical practice.
In order to allow an application for reinstatement, the Board is required to have confidence that any such applicant could be held out to the public at large as a fit and proper person to inspire public trust and confidence. It would be important for the Board to be provided with evidence that the applicant accepted his past conduct, expressed contrition and provided evidence of a change in his behaviour and circumstance. Although Mr Papps was invited several times during the proceedings to provide the Board with such evidence he was unable to do so.
In these circumstances Board members unanimously felt that the Board was unable to have the confidence in Mr Papps as described above and therefore rejected his application.
It is clear from the transcript and from the written submissions, that Dr Papps was at a disadvantage before the Board. That is hardly surprising, bearing in mind that he was not legally represented. Nevertheless, there is no suggestion that he was unfairly treated, or that he wanted, or should have been granted, a further adjournment.
Issues on appeal

The first issue argued on appeal is the manner in which the Board dealt with the material that Dr Papps put forward in support of his application for reinstatement.
At the beginning of the hearing, the presiding member drew to Dr Papps’ attention the need for him to satisfy the committee that he was a fit and proper person to be registered. The presiding member emphasised that the number of occasions on which Dr Papps had failed to observe proper professional standards, the period of time over which they had taken place, and the absence of an indication of reform or change on Dr Papps’ part during that period of time, were matters which had to be addressed. I am satisfied that Dr Papps was fairly informed of the issues before the Board.
Counsel assisting the Board tendered a bundle of documents that Dr Papps had provided to the Board in support of his application (Exhibit R2). This bundle included documents proving that Dr Papps had completed a practice management course in 2007; evidence that Dr Papps had received surgical instruction of the kind contemplated by the Board and the Tribunal; evidence that Dr Papps had participated in a number of courses and workshops of the kind that would improve his skills, and a number of brief reports from persons for whom and organisations for which Dr Papps had performed medical work under supervision. The Reports suggest to me that his work was satisfactory. Dr Papps tendered a document (Exhibit A1) in which he undertook not to perform any surgical excisions until the Board was satisfied it was appropriate for him to do so. He also undertook that in the meantime he would perform surgical excisions only under appropriate supervision, and that in future he would ensure that any surgical excisions were carried out at places with suitable facilities. He also gave undertakings relating to the keeping of and handling of records, and the claiming of qualifications.
Before he gave evidence, Dr Papps addressed the Board about these matters, and about the issues that had previously been before the Board and the Tribunal. He canvassed these matters further in his written submissions to the Board, provided after the completion of the hearing. He made the point, that I accept, that in a way it was difficult for him to demonstrate a change of attitude, other than by expressing regret (which he did), by attending courses and undergoing further training, and by assuring the Board that he had changed. As he said in his written submission to the Board:
As a layperson, I did profess at the hearing that I was unable to go beyond the submissions and tender documents to show the Board that I had changed. This illustrated the difficulty in defining, rather than an absence of, reform in character in determining fitness and propriety.
I accept that Dr Papps had some difficulty in grappling with the task that confronted him, particularly as he was self-represented. But it remained for him to satisfy the Board that he was a fit and proper person, and it was not the task of the Board to do this for him.
In written submissions by counsel assisting the Board, counsel said:
The Board should give serious consideration to the character and professional testimonials included by the applicant in deciding whether he is a fit and proper person to be restored to the register … the applicant … has informed the Board that at first he had not accepted his shortcomings as a doctor, but now accepts them.
Mr Stewart submits that Dr Papps acknowledged his past failings, and that the material submitted by him to the Board, and his evidence to the Board, demonstrated that Dr Papps had remedied the shortcomings as a medical practitioner that he had demonstrated. He submits that Dr Papps could do no more than he did. He submits that the Board failed to give proper weight to this material.
He referred to the passage in the Board’s reasons where it said that although Dr Papps was invited several times during the proceedings to provide the Board with appropriate evidence, he was unable to do so (see above).
As to this, Mr Grant accepts that at no stage did Mr Grant or the Board identify any particular inadequacy in the material that Dr Papps put forward. He accepts that this observation by the Board, in its reasons, must relate to the presiding member’s preliminary remarks, which were of a general nature.
It was not necessary for the Board to identify shortcomings in the material that Dr Papps put forward, but it is relevant to bear in mind that it did not do so. And it is notable that the Board has given no explanation for its conclusion that what Dr Papps had done to demonstrate that he was a fit and proper person was not enough to satisfy it.
Mr Stewart invited me to make my own assessment of the material. It is not appropriate for me to do so. The required assessment is one that calls for a professional judgment by Dr Papps’ peers. Without the assistance of the Board’s reasons on the point, I am unable to determine the weight that should be given to the material that Dr Papps put forward.
If this were the only issue, I might have concluded that the appeal should be dismissed on the basis that the Board had not been persuaded that Dr Papps was a fit and proper person, and that it was open to the Board to reach that conclusion on the material before it. I recognise the possibility that the Board’s conclusion reflected, in part, the fact that having regard to Dr Papps’ unsatisfactory record, the Board was simply not persuaded that he had really changed. But I do not decide the appeal on this basis, because there are other reasons for setting aside the Board’s decision.
If there is a rehearing, I suggest that it would be useful for the Board to identify to Dr Papps any significant deficiencies in the material that he puts forward, and that the Board gives him an opportunity to respond to those deficiencies. It would also be helpful if the Board explained in its reasons, if necessary in general terms, why the material that Dr Papps puts forward is not sufficiently persuasive.
The second issue argued on appeal arises from material tendered to the Board by Mr Grant. Mr Grant tendered as Exhibit R3 a substantial book of documents. The book contained a Report by a Professional Services Review Committee which had reviewed aspects of Dr Papps’ practise.
The Committee acted under the Health Insurance Act 1973 (Cth). The Report is a detailed document. It is accompanied by a substantial body of supporting material. The Report relates to the provision of medical services by Dr Papps during 2001. It deals with some 74 occasions in relation to which the Committee found that the conduct of Dr Papps “would be unacceptable to the general body of general practitioners”, and therefore was “inappropriate practice” for the purposes of the Health Insurance Act. Dr Papps had appeared before the Committee, had made submissions to it, and had had an opportunity to respond to the Report. The final Report is dated 19 October 2007. The matter had been referred to the Board under the Health Insurance Act, for the Board’s consideration.
In brief, the Report is critical of Dr Papps’ history taking; of a failure to perform necessary examinations; of the manner in which he recorded procedures he had carried out; and of claims for payment made by Dr Papps with reference to an MBS item which was not appropriate, having regard to the procedure carried out.
It goes without saying that this substantial body of material reflected seriously on Dr Papps’ competence. The number and nature of the criticisms are both significant. On the other hand, it is also to be noted that the Committee Report relates to 2001, a period before Dr Papps had come before the Tribunal, and well before he had undertaken remedial action already canvassed in these reasons.
The Report by the Committee was canvassed at the hearing before the Board. Dr Papps had been warned that it would be raised. Mr Grant questioned Dr Papps only briefly about the Report. Dr Papps said that he accepted the findings. In his written submissions he said that he had stopped performing the relevant kind of work (relating to skin cancer), and had undergone further training in the relevant area of skill. He said that he had not made any claim in respect of a significant number of the relevant procedures, once he became aware that his work and billing practices were being questioned. He said that this demonstrated his realisation that his work and practices had not been appropriate.
The Board was entitled to take the Report of the Committee into account. The findings appear to me to be serious findings, constituting a significant matter for consideration. They add to Dr Papps’ the record of past failures to observe proper professional standards.
However, the Board has not explained how it used the Report. The failures by Dr Papps that the Committee identify are similar to failures that the Board and the Tribunal had considered in the past. That is, they are further examples of the kind of unprofessional conduct that had previously come before the Board and the Tribunal, culminating in Dr Papps’ suspension. To that extent, it might be said that the findings of the Committee do not have the same significance, when considering reinstatement, as they would otherwise have. By this I mean they are not completely new material. But the findings of the Committee do indicate a persistent or prevalent pattern of unprofessional conduct. But on the other hand, while the Report is new material, it relates to a period before Dr Papps came before the Tribunal. It could be said that if the material put before the Board demonstrated that Dr Papps had learned his lesson, had improved his skills and was likely to perform satisfactorily in the future, then that conclusion applied as much to the concerns that the Report would generate, as it did to the concerns that the findings of the Tribunal would generate.
In short, there were some issues that the Board needed to consider.
Clearly enough the material put forward by Dr Papps did not displace in the mind of the Board the adverse effect of the Report of the Committee. But the Board has not explained how it came to this conclusion. Perhaps the sheer number of additional adverse findings was overwhelming. Perhaps the Committee’s findings involved more serious unprofessional conduct than had previously been uncovered. Perhaps the problem was that the material put forward by Dr Papps was unconvincing.
The difficulty is that all of these are hypotheses. If the Board failed to give proper weight to the material put forward by Dr Papps, that failure could have affected its approach to the Report of the Committee. The reasons of the Board do not enable me to determine satisfactorily the use made by the Board of the Report.
The third issue on appeal arises from Exhibit R1, tendered Mr Grant.
Exhibit R1 comprises a bundle of documents. It contains a copy of a will apparently made by Mrs Vasilios, Dr Papps’ mother, in May 1997. It also contains a report from a handwriting expert stating that what purports to be the signature of Mrs Vasilios is not genuine. There are other documents in the bundle, some of which appear to be the result of police investigations into the matter. It is apparent that Mrs Vasilios had made an earlier will in 1989, under which the balance of her estate went to Dr Papps. The will of 1997 left the balance of her estate to a son of Dr Papps. In 1997 Dr Papps had recently been bankrupted, but even more recently the bankruptcy had been rescinded. The material in Exhibit R1 is capable of supporting an argument that the second will was made to ensure that in the event of Mrs Vasilios’ death, her estate did not become available to Dr Papps’ creditors.
Mr Grant questioned Dr Papps about the will. I do not propose to go into the details. Suffice it to say that the cross-examination laid a basis for suggesting that the will was forged, and that Dr Papps was in some way implicated in the forgery.
Dr Papps gave answers offering explanations for matters relied upon by Mr Grant. He denied any impropriety on his part.
Dr Papps has not been charged with any offence, even though the police have been informed of the matter, and have had the expert handwriting report since 1997. I was told that no application for probate has been made relying on the will. The estate of Mrs Vasilios is as yet unadministered. I do not know the details.
In evidence to the Board, and in his written submissions, Dr Papps made the point that he has never been charged. He claims to have been exonerated.
In his written submissions to the Board, Mr Grant submitted:
There is no need for the Board to attempt to make any findings with respect to the disputed signature.
It is apparent from Mr Grant’s submissions to me that his stance then was, and now is, that it is up to Dr Papps to dispel any suspicion of improper conduct that might arise from the circumstances. Mr Grant submits that this must follow from the fact that it is up to Dr Papps to prove that he is a fit and proper person to be registered.
I asked Mr Grant what it was that Dr Papps had to deal with, or dispel, if the matter was approached on the basis that the signature of Mrs Vasilios was genuine. No answer was forthcoming. In short, Mr Grant’s submission is that once the allegation was made, whatever the allegation might be, it was for Dr Papps to deal with it.
The Board must have acted on this submission. As its reasons indicate, after referring to the will it said that it could not find “reasonable explanations for his admitted actions surrounding these events”. In this respect the Board erred. In fairness to the Board, it has done no more than adopt the submission put to it. But the end result has been that Dr Papps has been treated unfairly, to the extent that he has been denied a fair hearing.
Mr Grant relies on the decision of a judge of this Court in Club Resorts (Finance) Pty Ltd v The Commercial Tribunal (1992) 58 SASR 277. In that case a company made application to the Commercial Tribunal for a credit provider’s licence. The company had to prove that it and each relevant employee was a fit and proper person to hold the licence. An objector asserted that the company and the relevant persons were not fit and proper persons to hold the licence. The objector alleged past breaches of the relevant legislation, and that the company or relevant persons had acted “negligently, fraudulently or unfairly to the prejudice of the rights or interests of persons dealing with them …”. The Judge upheld the decision of the Tribunal refusing the licence, and the finding that the relevant persons were not fit and proper persons. There were a number of specific adverse findings made, which the Judge found to be justified. The Judge’s reasons indicate that the Tribunal had found that in a number of respects the company and its employees had engaged in what might be called unsatisfactory or undesirable conduct, in the course of its business. In that context the Judge referred to the allegations by the objector of breaches of legislation relating to consumer credit and consumer transactions. The Judge said at 289:
… Notwithstanding that, it was not incumbent upon the Tribunal to find that those alleged contraventions or any of them had been made out, before dismissing the application. Of course, if there had been earlier convictions for any such contraventions, that would have been relevant. Even absent of such convictions, if the tribunal had found, on the evidence before it, that proven conduct amounted to breach of any such provisions, that would likewise have been relevant. But it was unnecessary and probably undesirable for the Tribunal to express its conclusions in terms of proof or not or breaches of other Acts. Neither was it necessary to make specific findings as to the success or failure of the objector on each of the matters it put forward. The application was not to be treated as being a lis inter partes.
The Tribunal quite properly directed itself, at the end of the day, to the question whether, on the whole of the evidence, the appellant had satisfied it that every person who was in a position to control or influence its affairs was fit and proper to discharge that role, and whether the appellant had satisfied it as to the other criteria for a grant, having regard to the terms of s 29(9) of the Act.
In so far as the Tribunal found adversely to the appellant on that general issue, on my own reading of the evidence I would reach the same conclusion.
That case is quite different from the present case. In that case the Tribunal heard evidence about what amounted to a course of conduct that involved high-pressure salesmanship and misrepresentation. It was in that context that the Judge observed that it was not necessary to go so far as to find specific breaches of the legislation, and that it might (for obvious reasons) be undesirable for the Tribunal to make such specific findings.
The present case is quite different. Mr Grant raised before the Board a specific and serious allegation. The allegation was raised by tendering a bundle of documents, and then questioning Dr Papps on the basis that it was for him to provide such explanations as he could for what was in the documents. In the circumstances, that was unfair because the questioning seems to have proceeded on the assumption that the documents should be treated as establishing that the will in question was forged. But there is a more fundamental difficulty, to which I have alluded. If the will was not forged, what was it that Dr Papps had to dispel? No answer to this question was ever given. In Club Resorts (Finance) Pty Ltd v The Commercial Tribunal findings were made which supported a refusal of the licence, the point being made by the Judge that it was not necessary to go further and to make specific findings of breaches of the legislation. In the present case, if the will was not forged, there may be nothing at all for Dr Papps to answer.
I understand why Mr Grant was reluctant to invite the Board to make a finding of forgery. It would only be in exceptional circumstances, in my opinion, that the Board should be invited to make a finding of criminal conduct in an area not part of or arising out of a practitioner’s medical practice. But that understandable caution cannot be used to create a situation in which, the suggestion of forgery having been raised, it became incumbent upon Dr Papps to disprove the forgery and, moreover, to provide “explanations” for unidentified misconduct on his part.
I consider that the Board has erred in treating the circumstances surrounding the alleged will as supporting a finding that Dr Papps did not provide “reasonable explanations for his admitted actions…”. This is a significant error. In that respect the hearing has involved substantial unfairness to Dr Papps.
The final matter that arises on appeal is also raised by Exhibit R1.
Exhibit R1 contains documents relating to the will of Mrs Barratt. In 1994 she was a resident of a rest home, apparently owned by Dr Papps and his wife. She was a patient of Dr Papps. In 1991 she had made a will leaving her estate to two relatives. In 1994 she made a new will, leaving almost her entire estate to the rest home. For present purposes the validity or effectiveness of such a disposition need not be considered. Mr Grant questioned Dr Papps about this matter. Dr Papps, in the end, acknowledged that he had been told that Mrs Barratt was going to make a will leaving her estate to the rest home. Not only was she a resident of the home at time, she was also a patient of Dr Papps and there was evidence in Exhibit R1 suggesting that she was in a vulnerable state (she was 94 years of age) and possibly not in a fit state to make a decision about the disposition of her property. Dr Papps acknowledged that he made no attempt to persuade Mrs Barratt not to leave her estate to the rest home and that he made no attempt to arrange for someone to provide independent advice to Mrs Barratt. It is not entirely clear from the material what happened after Mrs Barratt’s death. It is common ground, as I understand it, that ultimately Mr Papps did not put forward the 1994 will as a valid will made by Mrs Barratt. As I understand it, the earlier will was ultimately proved in solemn form. Dr Papps said that once he learned that Mrs Barratt had living relatives, he desisted from relying in any way upon the 1994 will. The stage at which he did so is not completely clear. Before the Board Dr Papps acknowledged that he had not behaved appropriately, saying “…looking back on it now, I’d probably do things differently, and probably I would do things differently and it wouldn’t have got to that stage”.

As there must be a rehearing, it is not desirable that I should make any specific findings in relation to this matter. However, it is fair to say that assuming Mrs Barratt was Dr Papps’ patient at the time, and was in a position of dependency upon him, because she was a resident in a home that he controlled, or because of emotional dependency or dependency due to frailty, as a matter of proper professional practice Dr Papps should at least have done his best to insist upon Mrs Barratt obtaining independent advice before making a will in favour of a business enterprise in which Dr Papps had a substantial interest. Before the Board, Mr Grant submitted that in relation to Mrs Barratt, Dr Papps had behaved in “a grossly unethical manner”. It is clear from the Board’s reasons that it made an adverse finding against Dr Papps in this respect, and it was entitled to do so, having regard to his own admissions.
This is a matter that is relevant to the fitness of Dr Papps for registration. But it was at least necessary to address the fact that the will was made in 1994, some 13 years before the hearing before the Board, and to deal with the fact that Dr Papps apparently acknowledged the unsatisfactory aspect of his conduct. On the other hand, the fact that in his written submissions to the Board Dr Papps continued to assert that what was involved was “an error of judgment, rather than deliberate intent” is a cause for concern, as is his argument that the incident involved something “… not seen as a personal gain but mistakenly rather as a benefit to the institution”.
If this matter stood alone, I would be disinclined to interfere. It was open to the Board to find that Dr Papps’ explanations for his conduct were inadequate. It was open to the Board to find that this was a substantial obstacle to his reinstatement, notwithstanding the passage of time. However, it would be preferable if the Board had explained, briefly, why the passage of time and Dr Papps' acknowledgments of error were not sufficient.
My conclusion is that the hearing before the Board has miscarried, in the sense that Dr Papps suffered a substantial unfairness from the manner in which the allegations relating to his mother’s will were dealt with. In addition, the reasons of the Board do not provide an explanation that is sufficient to enable me to conclude that there is no risk of the Board having failed to give adequate consideration to the material put forward by Dr Papps, and to the passage of time since the occurrence of the matters dealt with in the Report of the Committee.
For those reasons, the appeal must be allowed. The decision of the Board should be set aside. The application for reinstatement must be remitted to the Board for further consideration by a differently constituted committee.
I wish to emphasise, although it is hardly necessary, that it will be for the Board in due course to decide, on the evidence presented at the rehearing, whether Dr Papps should be reinstated. I express no opinion on that matter. Indeed, there are clearly some significant obstacles to his reinstatement.
It is also appropriate that I should emphasise that my decision does not rest upon an assumption that the Board, when dealing with an application of this kind, must provide detailed reasons of the kind that might be expected from a Court. Members of the Board are entitled to, and are expected to, make use of their own knowledge and experience, particularly those members who are medical practitioners. My conclusion that the appeal should be allowed rests upon the fact that there are several central steps in the Board’s reasoning that called for some explanation, although that might have been quite brief. In addition, the Board has inadvertently conducted the hearing in a manner that gave rise to substantial unfairness to Dr Papps.
The Board will need to decide whether the circumstances surrounding the will of Mrs Vasilios and Mrs Barrett should be the subject of a complaint under s 51 or s 57. It may be that a specific incident like these matters would be better dealt with in that way, leading to specific findings, rather than being relied on merely as evidence to go before the Board on a reinstatement application. That is a matter for the Board and its advisors. The same comment might not apply to the findings of the Review Committee, assuming that they are not disputed.
Conclusion
For those reasons I allow the appeal, set aside the decision of the Board, and remit the matter to the Board for further consideration by a differently constituted committee of the Board.