Physiotherapists Registration Board v Townsend
[2008] WASCA 25
•12 FEBRUARY 2008
PHYSIOTHERAPISTS REGISTRATION BOARD -v- TOWNSEND [2008] WASCA 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 25 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:75/2007 | 18 DECEMBER 2007 | |
| Coram: | PULLIN JA BUSS JA BEECH AJA | 11/02/08 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | PHYSIOTHERAPISTS REGISTRATION BOARD GRANT TOWNSEND |
Catchwords: | Appeal Application for leave to appeal on a question of law Issue raised on appeal on issue not raised or dealt with in the tribunal Turns on own facts |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2) |
Case References: | Archer v Howell (No 2) (1992) 10 WAR 33 Briginshaw v Briginshaw (1938) 60 CLR 336 Paridis v Settlement Agents' Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PHYSIOTHERAPISTS REGISTRATION BOARD -v- TOWNSEND [2008] WASCA 25 CORAM : PULLIN JA
- BUSS JA
BEECH AJA
- Appellant
AND
GRANT TOWNSEND
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR M WIKLUND (SENIOR SESSIONAL MEMBER)
MS D NEWMAN (SENIOR SESSIONAL MEMBER)
Citation : PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA and TOWNSEND [2007] WASAT 81
File No : VR 209 of 2006
(Page 2)
Catchwords:
Appeal - Application for leave to appeal on a question of law - Issue raised on appeal on issue not raised or dealt with in the tribunal - Turns on own facts
Legislation:
State Administrative Tribunal Act 2004 (WA), s 105(1), s 105(2)
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr A Metaxas
Respondent : Mr A P Hershowitz
Solicitors:
Appellant : Metaxas & Hager
Respondent : Guild Legal
Case(s) referred to in judgment(s):
Archer v Howell (No 2) (1992) 10 WAR 33
Briginshaw v Briginshaw (1938) 60 CLR 336
Paridis v Settlement Agents' Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
(Page 3)
1 JUDGMENT OF THE COURT: This is an appeal against the decision of the State Administrative Tribunal (SAT), whereby the tribunal dismissed a complaint by the appellant board that the respondent was guilty of misconduct in a professional respect, or of improper practice or misconduct, in that the respondent 'fondled and massaged' the breasts of the complainant who was one of his patients.
2 The proceedings in SAT were commenced by an application by the appellant seeking orders:
1. That the respondent, being a registered physiotherapist, has been guilty of misconduct in a professional respect insofar as the respondent fondled and massaged the breasts of [the complainant] in the course treating her on or about 21 April 2006 at Sportsmed Subiaco in contravention of Regulation 20 of the Regulations.
2. In pursuance of the finding in paragraph 1 above, the respondent's name be struck off the Register pursuant to Regulation 20 of the Regulations.
3. In the alternative to paragraph 1 and 2 above, the respondent has been guilty of improper practices or misconduct but not misconduct in a professional respect insofar as the respondent fondled and massaged the breasts of [the complainant] in the course treating her on or about 21 April 2006 at Sportsmed Subiaco in contravention of Regulation 21 of the Regulations.
4. In pursuance of the finding in paragraph 3 above, the respondent's licence be suspended for 6 months.
3 Both the complainant and the respondent gave evidence and the tribunal said:
The accounts given by each of [the complainant] and [the respondent] as to what occurred in the treatment room on 22 April 2006 differ. This is, therefore, one of those difficult cases where the Tribunal must determine whose version of events should be preferred. That difficulty is compounded by our conclusion; that, having observed both witnesses, we consider both endeavoured to give their evidence honestly. We consider it highly likely that, given the distress or shock which [the complainant] said she experienced on the day, the distress which [the respondent] said he experienced following the complaint by [the complainant] being made, and the passage of time before they gave their evidence, that they each recall events in a way which supported their perception of what had occurred.
- However on the central issue, the tribunal preferred the evidence of the respondent. This is evident in [27] where the tribunal said:
- We are satisfied that his objective was to reduce tension in the pectoralis major, and he sought to do so by providing a relaxing massage by the use of his finger tips around the sides of the breasts, rather than massaging the breast itself. As [the respondent] acknowledges, there was contact between his hands and breast tissue, but that was of an accidental nature. What occurred does not constitute either massaging, or fondling, of the breast. We consider that the impression created by [the complainant's] letter of complaint which used the expression 'massage both of my breasts simultaneously with both hands including the nipple and lower region with oil' does not accurately describe the process. That description of the treatment is inconsistent with [the complainant's] oral evidence, and with [the respondent's] description of what he did.
- and in [28] where the tribunal said '[W]e prefer [the respondent's] account of precisely how he applied the massage in the breast area'.
4 The tribunal correctly directed itself that while the facts had to be determined on the balance of probabilities, the tribunal should take what is commonly referred to as the Briginshawapproach (see Briginshaw v Briginshaw (1938) 60 CLR 336).
5 In [1] and [2] of the tribunal's reasons, a summary of the decision was given in these terms:
The Physiotherapists Registration Board brought a complaint against [the respondent], a registered physiotherapist, that, in the course of treating a patient, he fondled and massaged her breasts, and was thus guilty of misconduct or improper practice.
[The respondent] denied the allegation. He did acknowledge that, during the course of providing massage to the patient in relation to symptoms of neck stiffness, he administered a massage to the pectoral muscles which involved massaging to the sides of the patient's breasts, resulting in some inadvertent contact between his hand and some breast tissue. The Tribunal heard evidence from both the patient and [the respondent], and from experienced physiotherapists who discussed the treatment provided by [the respondent]. It concluded that, whilst criticism could be made of [the respondent] about the way he undertook the treatment, what occurred did not amount to fondling and massaging of breasts as the Board alleged. The Tribunal accepted that he believed that the treatment which he administered was of benefit to the patient. In the circumstances, the Tribunal found that the allegation of misconduct or improper practice was not made out, and dismissed the complaint. [1] - [2].
6 At [27], after considering the evidence, the tribunal said:
In hindsight, [the respondent] should have taken more care to fully explain the progression of the treatment, and the modality he had chosen. He appears to have strayed beyond a treatment which had a sound clinical
(Page 5)
- basis to a treatment which he believed offered subjective benefit to the patient without adequately assessing the consequences of his actions. The complaint against him, however, is that he 'fondled and massaged' [the complainant's] breasts. We are satisfied that his objective was to reduce tension in the pectoralis major, and he sought to do so by providing a relaxing massage by the use of his finger tips around the sides of the breasts, rather than massaging the breast itself. As [the respondent] acknowledges, there was contact between his hands and breast tissue, but that was of an accidental nature. What occurred does not constitute either massaging, or fondling, of the breast.
7 In the appellant's written submissions before this court, under the heading 'Issues before the State Administrative Tribunal', the appellant states:
1. The Tribunal was called upon to consider whether in the treatment of the patient the respondent was guilty:
1.1 of misconduct in a professional respect insofar as the respondent fondled and massaged the breasts of the patient in the course of treating her on or about 21 April 2006 at Sportsmed Subiaco; and in the alternative
1.2 of improper practices or misconduct but not misconduct in a professional respect insofar as the respondent fondled and massaged the breasts of the patient in the course of treating her on or about 21 April 2006 at Sportsmed Subiaco.
The tribunal erred in law in failing to find that the respondent's conduct in massaging the patient between her breasts simultaneously with both of his hands which contact with her breast tissue, albeit accidental, was not in breach of Regulation 20 or Regulation 21 insofar as:
1. the Tribunal misdirected itself by determining the application solely by reference to whether the respondent intentionally fondled and massaged the patient's breasts;
2. in so doing the Tribunal failed to consider whether the massage provided, on the respondent's version of the facts, was in itself, misconduct by the respondent;
3. there was no therapeutic justification for the massage given that the pectoralis major muscle in a woman is beneath the breast tissue and so cannot be massaged;
4. the procedure could not have been performed without contact, accidental or otherwise, with the patient's breasts;
(Page 6)
- 5. the practice of physiotherapy is directed to what is clinically justifiable and not to what a patient may request; and
6. no physiotherapist of good standing and repute would have performed massage in the manner performed by the respondent given that it had no therapeutic justification
- It may be observed that the grounds reveal no attempt by the appellant to overturn the finding that the respondent did not 'fondle and massage' the complainant's breasts. The appellant explained that the grounds of appeal were to be understood as contending that the respondent made accidental or incidental but inevitable, contact with the complainant's breast tissue, that there was no therapeutic justification for the massage which the respondent said he was administering, and that the tribunal should have found that this constituted a contravention of reg 20 or 21. This contention is advanced even though the charges as formulated (via the orders sought) and the issue set out in the statement of issues filed by the parties did not allege that such conduct involved a contravention of the regulations.
9 The respondent submits that the ground of appeal is an attempt to raise an issue which was not an issue at the hearing before the tribunal and is not addressed in the tribunal's reasons. The respondent submits that the appellant did not pursue, before the tribunal, a case as to whether the massage provided, on the respondent's version of events, was in itself misconduct.
10 The respondent's submission must be upheld for the following reasons. The initiating document in the tribunal sets out the charges. The charges were contained within the orders sought. They are set out above. The appellant then filed a written statement of issues, facts and contentions. Under the heading 'Issues' only one paragraph appeared. It read:
1. Whether in the treatment of [the complainant] the respondent was guilty:
1.1 of misconduct in a professional respect insofar as the respondent fondled and massaged the breasts of [the complainant] in the course of treating her on or about 21 April 2006 at Sportsmed Subiaco; and in the alternative
1.2 of improper practices or misconduct but not misconduct in a professional respect insofar as the respondent fondled and massaged the breasts of [the complainant] in the course of treating her on or about 21 April 2006 at Sportsmed Subiaco.
(Page 7)
11 The respondent in his statement agreed that this was a correct statement of the issue. Under the heading 'Facts', par 7 of the appellant's statement read 'The respondent then moved behind [the complainant] and began to massage with oil both of her breasts simultaneously with his hands including her nipples'. This was disputed by the respondent in his answering statement. Paragraph 8 of the appellant's document under the heading 'Contentions' read:
There was no clinical justification for the respondent to massage [the complainant's] breasts or near her breasts.
12 The respondent's contention was to admit that there was no clinical justification for the respondent to massage the complainant's breasts, but otherwise the contention was denied and the respondent repeated his denial that he fondled or massaged the complainant's breasts. This exchange made it clear that if the tribunal found that the respondent did fondle and massage the complainant's breasts, then there was no clinical justification for doing so. The parties were therefore in complete agreement that there was only one issue to be decided, and that was whether the respondent did or did not fondle and massage the complainant's breasts.
13 At the commencement of the hearing, counsel for the respondent addressed the tribunal before any witness was called, indicating that there were certain opinions expressed in one of the experts' reports that he would ordinarily object to on grounds of relevance and admissibility. He then said:
[B]ut [I will not] as long as there is an understanding that no other finding can be made against us for contravention other than fondling and massaging breasts.
14 Counsel for the appellant responded 'Well, there is no other case'.
15 Then, in the cross-examination of the respondent by counsel for the appellant, the following interchange occurred:
Exactly. So, clinically, we are stuck with a procedure that had no justification. Is that correct?---It had justification.
Well, apart from making the patient feel good ?---I think my job is to make the patient feel better.
HERSHOWITZ, MR: Your Honour, I don't know what the relevance - just hold on, if I could object. I don't know what the relevance
(Page 8)
- METAXAS, MR: The relevance is
HERSHOWITZ, MR: - of the justification of the treatment is. If it is going to be said that this somehow can enable you to reach a decision as to the allegations, I can understand that. The justification of the treatment, whether there was or was not, with respect, must be irrelevant. It is not a matter you would have to resolve one way or the other and it could not be determinative of a finding.
METAXAS, MR: What I am getting at is the lack of clinical justification, the fact that the massage was performed simultaneously on both breasts, detracts from the proposition that this had any clinical justification and was other than as has been described by [the complainant]. That will be the submission.
JUDGE CHANEY: I will allow the question. It seems to me that the context in terms of the clinical treatment of what went on is relevant to conclusions as to what, in fact, occurred.
METAXAS, MR: Thank you.
16 In closing addresses, counsel for the respondent said:
Now, my learned friend sought to cross-examine [the respondent] on the appropriateness and the clinical justification of the treatment that was carried out. We say that is a red herring.
17 Counsel for the appellant, in his closing address, made it clear that his submission were directed to persuading the tribunal to accept the evidence of the complainant and to reject the evidence of the respondent. He identified matters that he submitted added to the complainant's credibility and then, nearing the end of his submissions, summarised by saying that 'So all of these matters because of the context, require the tribunal to make a determination about whose evidence is to be believed'. That was followed by a submission that the respondent '[H]ad no business being around her breasts'. That submission was in context a submission that this was a reason for preferring the evidence of the complainant and rejecting the evidence of the respondent.
18 The result is that the charges and the issue, as formulated, and the case advanced by the appellant required a decision to be made only about whether the respondent fondled and massaged the breasts of the complainant. That was the only issue being litigated. Once the finding was made that this did not happen, the application had to be dismissed.
19 The ground of appeal does not seek to reverse the finding of fact and nor could it, because s 105(2) of the State Administrative Tribunal Act
(Page 9)
- 2004 (WA) confers jurisdiction on this court to hear appeals from decisions of the tribunal only on a question of law (s 105(13) not applying in this case). Leave to appeal is also required; s 105(1). As to 'question of law' see Paridis v Settlement Agents' Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53]. There is no question of law involved if the appellant attempts to raise before this court an issue concerning the facts which was not an issue before the tribunal and, as a result, was not dealt with or determined by the tribunal. At par 19 of the appellant's submissions to this court, the appellant concludes with a submission that:
[N]o physiotherapist of good standing and repute would have performed massage in the manner performed by the respondent given that it had no therapeutic justification. That finding was sufficient to sustain the charge. The Tribunal's focus was incorrectly limited to whether the respondent fondled the breasts. The respondent's admitted conduct was sufficient to attract disciplinary action.
21 The appellant by the appeal attempts to raise and deal with an issue which the tribunal was not required to deal with. Indeed, had the tribunal decided the case adversely to the respondent on the basis now contended by the appellant, that would, given the way the case was put and run before the tribunal, have involved a breach of the requirements of procedural fairness: Archer v Howell (No 2) (1992) 10 WAR 33.
22 In those circumstances, leave to appeal should be refused.
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