Physiotherapists Registration Board Of Western Australia and Thompson
[2005] WASAT 281
•24 OCTOBER 2005
PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA and THOMPSON [2005] WASAT 281
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 281 | |
| PHYSIOTHERAPISTS ACT 1950 (WA) | |||
| Case No: | VR:253/2005 | DETERMINED ON THE PAPERS | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MS D DEAN (MEMBER) PROF J COLE (SENIOR SESSIONAL MEMBER) | 24/10/05 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA ANDREW THOMPSON |
Catchwords: | Professions Physiotherapist Allegations of misconduct Offensive comments in email to professional association Meaning of misconduct as used in regulations Comments inappropriate and offensive Whether misconduct |
Legislation: | Physiotherapists Act 1950 (WA) Physiotherapists Regulations 1951 (WA), reg 15, reg 20, reg 21 State Administrative Tribunal Act 2004 (WA), s 11(4) |
Case References: | Nil Cranley v Medical Board of WA (Unreported 21.12.90 Supreme Court WA Lib No 8668) Felix v General Dental Council [1960] AC 704 Jemeilita v The Medical Board of Western Australia (unreported decision of Supreme Court of WA on 13.11.92) Pillai v Messiter [2] (1989) 16 NSW LR 197 |
Orders | Application dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : PHYSIOTHERAPISTS ACT 1950 (WA) CITATION : PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA and THOMPSON [2005] WASAT 281 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MS D DEAN (MEMBER)
PROF J COLE (SENIOR SESSIONAL MEMBER)
- Applicant
AND
ANDREW THOMPSON
Respondent
Catchwords:
Professions Physiotherapist Allegations of misconduct Offensive comments in email to professional association Meaning of misconduct as used in regulations Comments inappropriate and offensive Whether misconduct
Legislation:
Physiotherapists Act 1950 (WA)
(Page 2)
Physiotherapists Regulations 1951 (WA), reg 15, reg 20, reg 21
State Administrative Tribunal Act 2004 (WA), s 11(4)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr B Grubb
Respondent : Self-represented
Solicitors:
Applicant : Arthur Metaxas & Co
Respondent : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Cranley v Medical Board of WA (Unreported 21.12.90 Supreme Court WA Lib No 8668)
Felix v General Dental Council [1960] AC 704
Jemeilita v The Medical Board of Western Australia (unreported decision of Supreme Court of WA on 13.11.92)
Pillai v Messiter [2] (1989) 16 NSW LR 197
(Page 3)
Summary of Tribunal's decision
1 On 11 May 2005, the applicant referred to the Tribunal an allegation of improper practices or misconduct by the respondent. The impropriety alleged was the sending of an email to staff members of the Australian Physiotherapy Association containing a number of quite offensive comments about the Association's web page and its author.
2 The matter was set down for hearing on 2 August 2005, but was unable to proceed on that date. The respondent had written to the Tribunal indicating that he did not propose to attend any hearing of the matter. In the circumstances, the applicant agreed that the matter could be most conveniently dealt with on the papers without any need for a formal hearing.
3 The Tribunal was constituted in accordance with s 11(4) of the State Administrative Tribunal Act 2004 (WA) and considered the materials provided. Having done so, the Tribunal concluded that while the content of the email subject of the complaint was inappropriate and offensive, the Tribunal did not consider that the sending of the email constituted improper practices or misconduct warranting disciplinary action under the Physiotherapists Regulations 1951 (WA). Accordingly, it concluded that the complaint should be dismissed.
The facts
4 Mr Thompson is apparently not a member of the Australian Physiotherapy Association. On 11 October 2004, he was moved to send an email to the Association. It was not addressed to any particular officer of the Association. The email read:
"The APA website is the most cripplingly retarded web page I have ever seen. It strengthens my decision not to renew my membership. Please fire the dyslexic, work experience student who designed it."
5 That email, while obviously intemperate and gratuitously offensive, is not the subject of any complaint.
6 In response, an officer of the Association replied by email on 19 October 2004. She reported that Mr Thompson's message had been passed on to her as manager of the Association's IT Centre. She outlined
(Page 4)
- the size and usage of the website and politely requested more specific information on the difficulties Mr Thompson experienced in visiting the website "… as this is the only way in which we can continually strive to meet visitors needs …". As Mr Thompson subsequently acknowledged in a letter to the Registrar of the Board, the officer's response was "polite, informative and appropriate".
7 Two days later, on 21 October 2004, Mr Thompson forwarded the email which forms the subject of the complaint to the Tribunal. He commenced by making a number of suggestions as to how problems with the site might be identified. Rather than identifying with any precision, actual problems with the website, he suggested a series of questions which might be asked of "an independent navigator" which presumably Mr Thompson expected would provide answers that indicated problems with the site. Those relatively cryptic and generally unhelpful suggestions then concluded with the sentence:
"Then get the moron who designed the web page to make the sections so fundamentally obvious and easy to access that people like me don't want them dead."
8 That is the first of four statements which the applicant relies upon as demonstrating improper practice or misconduct.
9 After then commenting on the officer's observations concerning the size and usage of the web site, Mr Thompson made assertions of "mediocrity" in relation to members of the physiotherapy profession, and said:
"The APA has a clinic recognition/quality assurance program that places more emphasis on a clinicians tidy filing cabinet and locking away the key to their placebo laser machines than it does on making sure the physiotherapists can actually do their fucking job – and most of them can't."
10 That is the second statement relied upon as demonstrating improper practice or misconduct.
11 The email then proceeded to make comments as to the indifference of physiotherapists generally which Mr Thompson suggested was the reason that there had not been more complaints about the website. In that context, Mr Thompson said:
(Page 5)
- "So don't take the fact that you have survived this much of you [sic] professional career without the threat of having your fingers glues [sic] together so you can never bugger up a website again, as an indication that you're actually doing a reasonable job. You're not."
12 That is the third statement relied upon by the applicant.
13 After concluding his tirade, Mr Thompson added a postscript. It suggested that if the recipient was not the one responsible for designing the web page, the email should not be dismissed altogether. He then added:
"Chances are that much of the criticism still applies to you on some level. After all, you are defending the silly twat."
14 That is the fourth statement relied upon as demonstrating improper practice or misconduct.
The character of the statements
15 The applicant submits that the respondent's conduct constitutes improper practices or misconduct, but not misconduct in a professional respect, and thus disciplinary action is called for pursuant to reg 21 of the Physiotherapists Regulations 1951. Although the conduct is said to be either improper practices or misconduct, in our view the proper enquiry is whether the conduct is "misconduct".
16 The Physiotherapists Regulations 1951 distinguish between "misconduct in a professional respect" and "misconduct". The former is dealt with by reg 20. It provides that the Tribunal may strike off the name of a person from the register if it concludes that a practitioner has been guilty of misconduct in a professional respect. Regulation 20 contains a proviso which reads:
"Provided that the expression 'misconduct in the professional respect' shall not include any misconduct which, either from its trivial nature or from the surrounding circumstances does not in the public interest require that the physiotherapists should be struck off the register."
17 In this case, the applicant, quite properly, does not contend that the conduct complained of in this case is "misconduct in the professional respect".
(Page 6)
18 Misconduct and improper practices are dealt with by reg 21. By virtue of the proviso to reg 20, that regulation, in effect, covers all misconduct which does not in the public interest require that the physiotherapist be struck off the register. The penalty available under reg 21 is either a reprimand, or a suspension of a person's licence for a period not exceeding six months. Regulation 21 is, therefore, clearly intended to encompass misconduct of a serious nature, so long as it falls short of requiring, in the public interest, removal of the practitioner's name from the register.
19 Misconduct for the purpose of reg 21 should be given its ordinary and natural meaning. Hughes JM, Mitchell PA, Ramson WS, (ed) "The Australian Concise Dictionary" Oxford University Press, South Melbourne, 1992 describes misconduct as "Improper or unprofessional behaviour".
20 Trumble WR, Stevenson A, (5th ed) "Oxford English Dictionary" Oxford University Press, New York, 2002 relevantly describes misconduct as "Improper or wrong behaviour". Sinclair JM, Wilkes GA, Krebs WA, (5th ed) "The Collins Australian Concise Dictionary" Glasgow, 2003 defines misconduct as "Behaviour, such as … professional negligence, that is regarded as immoral or unethical."
21 In our view, misconduct as used in reg 21 means improper conduct. While, the conduct of Mr Thompson in writing the email in the terms in which he did was clearly inappropriate and offensive, the question for the Tribunal is whether it was improper.
22 In a letter to the Tribunal in answer to the allegations, Mr Thompson said that:
"I wrote a letter of complaint about the APA's web page… although the underlying tone of the letter was intended to be humorous, my grievance was legitimate (and has been subsequently acted upon). I agree the letter can be viewed as brash and certainly very critical, but when written in such a style, there is surely no way it can be taken as genuinely threatening or malicious."
23 He accepted that his email warranted an apology. In an earlier letter to the Registrar of the Board, he had indicated a willingness to apologise, but indicated that he would await a response from the Board before doing so. It is regrettable that Mr Thompson did not unconditionally apologise
(Page 7)
- to the recipient of the email as soon as he was told of the distress which his communication had caused.
24 However poorly expressed, it is clear that Mr Thompson's motivation in writing the email of 21 October was to draw to the Australian Physiotherapy Association's attention to deficiencies which he perceived in the website. Although the email was copied to another person at the Association, that person had also been sent a copy of the email to which Mr Thompson was replying. It was essentially a private communication.
25 While the tone of his communication was inappropriate, in our view it falls short of constituting impropriety and thus misconduct for the purposes of reg 21. Although the email was directed to an officer of a professional association, the conduct bore no relationship to Mr Thompson's practice as a physiotherapist.
26 Clearly, there may be misconduct unrelated to practice which is of a character that demands professional disciplinary action be taken. In our view, however, this is not conduct of that kind.
27 While the Board was entitled to take the view that this matter warranted a reference to this Tribunal, this may have been a case where some form of consideration outside the formal referral process might have been appropriate. Neither the Physiotherapists Act 1950 (WA) nor the regulations made under it provide for any summary procedures to enable the Board to deal with less serious matters without reference to the Tribunal. That position may change if proposed amendments to a number of Acts dealing with disciplinary proceedings of various medical professionals are enacted.
28 In the meantime, there is nothing to stop the Board attempting to conciliate complaints in those cases where the public interest does not demand that a penalty be imposed, but some other outcome can satisfy the concerns of a complainant. We make this observation not in any sense to criticise the Board in bringing this reference, but rather in hope that our comments might be of assistance to the Board in the future.
29 We find that the allegation of misconduct is not established, and the application should be dismissed.
(Page 8)
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT
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