Rajagopalan v MBSA

[1997] SASC 6363

IN THE SUPREME COURT OF SOUTH AUSTRALIA

DEBELLE J

Professions and trades - medical and related professions - appeal from Medical Practitioners Professional Conduct Tribunal - finding by Tribunal that specialist medical practitioner performed an act of gross negligence during a routine operation - whether finding in excess of jurisdiction - whether Tribunal correct to inquire as to facts surrounding operation. Standard of proof - whether the Tribunal erred by making orders restricting the areas of practise as well as suspending the practitioner - whether the Tribunal took into account all relevant considerations - whether the penalty imposed was manifestly excessive - whether the Tribunal was validly constituted. Medical Practitioners Act 1983ss24, 25, 26, 58, referred to. Pentecost v London District Auditor [1951] 2 All ER 330; Briginshaw v Briginshaw (1978) 60 CLR
336; Heinrich v Medical Board of South Australia (Full Ct. 11 December 1996, unreported, Judgment No S5899); Kerin v Legal Practitioners Complaints Committee (1996) 188 LSJS 125; Re Evatt; ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236; ex parte Attorney-General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234; Adamson v Queensland Law Society Inc. [1990] 1 Qd R 498; Bannister v Walton (1993) 30 NSWLR 699; Chan v Medical Board (1986) 41 SASR 434; Ziems v Prothonotary of the Supreme Court of NSW
(1957) 97 CLR 279; Wentworth v NSW Bar Association (1992) 176 CLR 239; Law Society (NSW) v Foreman (1994) 34 NSWLR 408; Re Phillips (1978) 18 SASR 44; Law Society of NSW v Bannister (1993) LPDR 24; Re Nelson and the LegalPractitioners Act (1991) 106 ACTR 1; Re Maidment (1992) 92 ATC 4450; Markey v Medical Board of SA (unreported, Duggan J, 15 May 1997, Judgment No S6143), applied. R v Godfrey (1993) 69 A Crim R 318; R v Reiner (1974) 8 SASR 102; Richter v Walton (unreported, Kirby P, Priestley JA and O'Keefe AJA, 15 July 1993); Medical Board of SA v Newcombe 1 September 1995; New South Wales Bar Association v Evatt (1968) 117 CLR 177; Clyne v New South Wales Bar Association (1960) 104 CLR 186, discussed. R v Maitland [1963] SASR 332; R v Perre (1986) 41 SASR 105; T v Medical Board of South Australia (1992) 58 SASR
382, considered.

ADELAIDE, 26 March 1997 (hearing), 11 September 1997 (decision)

#DATE 11:9:1997

#ADD 15:9:1997

Appearances:

Counsel for the Appellant: Mr M Abbott QC, with Mr Agresta

Solicitors for the Appellant: Wallmans

Counsel for the Respondent: Mr Stevens

Solicitors for the Respondent: Crown Solicitor (SA)

Order: appeal dismissed.

DEBELLE J

The appellant is a medical practitioner. He is an ear, nose and throat surgeon. For convenience I will refer to him as "the practitioner". On 23 December 1993 at the Lyell McEwin Hospital he commenced a pharyngeal biopsy upon a patient who was under general anaesthetic. In the course of the procedure, the internal carotid artery ruptured. The patient died the next day.

A coronial inquest was held on 10 and 11 April 1995 and on 22 May 1995. Later, the Medical Board of South Australia ("the Medical Board") issued a complaint dated 21 March 1996 charging the practitioner with unprofessional conduct. The complaint was heard by the Medical Practitioners' Professional Conduct Tribunal ("the Tribunal") on 22 July and 9 and 12 August 1996. On 27 November 1996 the Tribunal found the complaint proved. It ordered: "(1) That the registration of the practitioner be suspended by the removal of his name from the General Register and from the Specialist Register for a period of six months.

(2) That thereafter the following condition restricting the practitioner's right to practise medicine be imposed, namely, that he should not in future perform surgical procedures other than the following:- (a) Tonsillectomy (b) Septoplasty (c) Rhinoplasty (d) Mastoidectomy (e) Stapedectomy (f) Endo Nasal Surgery (g) Functional Endoscopic Sinus Surgery (h) Endoscopies as: A. Microlaryngoscopy B. Oesophagoscopy C. Bronchoscopy (i) Myringotomy and insertion of tubes in the ear (j) Reduction of nasal bone"

The practitioner appeals from that decision. There are five grounds of appeal. I deal with each in turn.

The Finding of Gross Negligence

The grounds for the complaint of unprofessional conduct, as amended at the hearing, were expressed in these terms: "1. On the 23rd December, 1993, at Lyell McEwin Hospital, the respondent commenced a pharyngeal biopsy procedure upon Trevor McDonald under general anaesthetic. In the course of that procedure, the internal carotid artery ruptured.

2. After clamping the artery, the respondent failed to correctly identify the artery notwithstanding that Nurse O'Dowd had alerted him to the likelihood of it being the internal carotid artery and bearing in mind the significant blood loss from it once perforated.

3. If there was any uncertainty about identification of the blood vessel, the respondent was negligent when he ligated it, given the seriousness of the consequences in the event of error.

4. If there was any uncertainty about identification of the blood vessel, the respondent failed to make urgent arrangements for transfer of the patient to the Royal Adelaide Hospital for angiography."

At the hearing before the Tribunal, counsel for the practitioner conceded that the patient's internal carotid artery had ruptured in the course of the procedure as stated in paragraph 1. The practitioner conceded that he had clamped the ruptured artery and had failed correctly to identify it. The rest of the allegations in paragraph 2 were disputed. It was also conceded on behalf of the practitioner that he had ligated the ruptured artery and that the patient had died on the following day, 24 December 1993. The practitioner also conceded that he had been guilty of unprofessional conduct.

There were, therefore, outstanding issues between the Medical Board and the practitioner. The Tribunal heard evidence from a specialist ear, nose and throat surgeon called by the Medical Board and admitted a number of documents including the transcript of the coronial inquest and documents tendered at that inquest. Those documents included statements from medical practitioners and nursing staff present in the operating theatre on the date in question. The Tribunal then heard evidence from the practitioner and an ear, nose and throat surgeon called by him. After this evidence, it was apparent to the Tribunal that there was a conflict between the evidence given by the practitioner and the statements tendered at the coronial inquest of medical practitioners and nursing staff who had been in the operating theatre at the Lyell McEwin Hospital on the occasion in question. The Tribunal decided to hear oral evidence from those persons. The hearing was adjourned to 9 August 1996 to enable this evidence to be called.

It is unnecessary to review the evidence. It will suffice to note the findings of fact made by the Tribunal. 1. The procedure was undertaken for the purpose of removing a small node on the left posterior pharyngeal wall behind the posterior pillar of the tonsils.

2. The practitioner gained access to the field of operation through the patient's mouth.

3. The practitioner made an incision in the patient's throat close to the mid line and medial to the posterior pillar on the left hand side. He started to dissect what he considered to be the node. The medial aspect was almost completely dissected and the practitioner turned to dissecting the lateral aspects. As he did so, a blood vessel ruptured.

4. When the vessel ruptured the practitioner thought there was a vessel feeding into a tumour. He sought to control the bleeding by using a tampon and pressing upon it with his finger. He saw that blood had poured into the patient's mouth. After the rupture, the patient had lost a significant quantity of blood. The bleeding was eventually controlled with the further aid of a clamp. A sucker was used to remove the blood from the patient's mouth. A little later the practitioner sutured the ruptured vessel.

5. In the presence of the practitioner, the anaesthetist and a theatre nurse both raised the possibility that the ruptured vessel was the internal carotid artery. The anaesthetist suggested that possibility more than once. The practitioner asserted that it was the ascending pharyngeal artery. Nevertheless, the anaesthetist saw fit to change the anaesthetic being used to one which was more suitable for use in the event that the carotid artery had been damaged.

6. That, although the practitioner had asserted at the hearing that he had remained confident that the vessel was the ascending pharyngeal artery, he was at the time uncertain in his identification of the vessel and unsure what steps he should next take. The Tribunal's reasons for the this finding are set out in some detail. Briefly summarised they were that, had the practitioner been certain the vessel was the ascending pharyngeal artery, there would have been no point in suturing it at all. Instead, the obvious thing would have been to ligate it at once. Next, there were good reasons why he should have recognised the vessel as the internal carotid artery and not as the ascending pharyngeal artery. A great deal of blood had been lost over a short period of time and the patient's blood pressure had dropped. Whatever the precise size of the damaged vessel at the time, it was of sufficient dimension to raise concerns as to its identification. Thirdly, the practitioner had sought the assistance of young medical practitioners at the hospital for the purpose of identifying the vessel. The Tribunal found that had he been as confident as he asserted, he would not have sought that assistance.

7. The practitioner had an insufficient basis for deciding that the damaged vessel was the ascending pharyngeal artery as there were too many indicators that it might have been the internal carotid artery.

8. It was a grievous error for the practitioner to have ligated the artery if there was any real possibility at all that it was the internal carotid artery. The consequences of ligating that vessel are so serious that identification of the ruptured vessel was of primary importance.

9. The appropriate course for the practitioner to adopt was to make an incision in the patient's neck so that he could obtain better access to and vision of all relevant structures. He could have then located and identified both arteries with certainty. Sufficient time was available to undertake that procedure. The patient's bleeding had been controlled and there was no hindrance to the practitioner's proceeding to locate and identify both arteries positively.

10. Alternatively, the practitioner should have transferred the patient to the Royal Adelaide Hospital where appropriate facilities were available. The Tribunal found that all of the medical practitioners involved in this operation at Lyell McEwin Hospital bear some responsibility for not advocating this course.

The Tribunal concluded, "We are fully satisfied that the practitioner was, in all of the circumstances, grossly negligent on the occasion in question. Of great concern is his present attitude to what were his clear inadequacies at the time of the ill-fated procedure with which this case is concerned."

The Tribunal then noted that it was not its primary function to punish the practitioner but to protect the public. It then continued: "In the present case, the practitioner's conduct fell far below the professional standard of a specialist practitioner. Notwithstanding the practitioner's previous reputation, we consider that the protection of the public requires that we bring home forcibly to the practitioner, and to others who might be tempted to take unnecessary risks with the well-being of their patients, that conduct of the nature found here cannot be tolerated under any circumstances. In our opinion, the practitioner's misconduct has been of such a nature that, notwithstanding his past reputation, the Tribunal must suspend him from practice. Gross negligence which leads to the death of a patient could rarely be met by any less sanction in the interests of the public."

The Tribunal concluded its reasons by making the orders I have set out above.

Mr Abbott QC, who appeared for the practitioner, attacked the finding of gross negligence as being made in excess of jurisdiction. He submitted, that in the absence of either a complaint of gross negligence or particulars in the complaint alleging gross negligence, such a finding was not open to the Tribunal. In his submission, the scope of the complaint and the matters particularised in it determined the matters into which the Tribunal should inquire. He called in aid s58 (2) of the Medical Practitioners Act 1983 which requires the Tribunal to "inquire into the subject matter of the complaint". Thus, he said, given the terms of s58(2), it was not proper for the Tribunal to embark upon an investigation of a more serious offence than had been charged. This was particularly so, he said, given that the practitioner had conceded that he had been guilty of unprofessional conduct. The Tribunal should not, therefore, have embarked on the course of calling for the evidence. While that might be appropriate, he said, for the purposes of resolving disputed facts, the Tribunal did not limit itself in that way. He relied on decisions in R v Godfrey (1993) 69 A Crim R 318 and R v Reiner
(1974) 8 SASR 102, and submitted that findings made as a result of a disputed facts hearing cannot be used as basis for punishing an offender for offences not charged.

I have set out this part of Mr Abbott's submission at some length because it was central to the practitioner's case on appeal. But the submission fails to represent fairly the conduct of the hearing and in particular fails to recognise the reasons why the Tribunal embarked on its inquiry as to the facts.

A perusal of the transcript discloses the reasons why the Tribunal undertook the inquiry as to facts. Although the practitioner had pleaded guilty to unprofessional conduct, there was no agreement as to the factual basis upon which the plea had been made. When the hearing began, the extent of the dispute concerning the facts was outlined to the Tribunal. For that reason the Tribunal began to hear evidence. After hearing evidence led by the Board and then by the practitioner, it became apparent to the Tribunal that there was a conflict between the evidence given by the practitioner and the evidence contained in statements of medical practitioners and nursing staff present in the operating theatre which had been tendered at the coroner's inquest. The President of the Tribunal raised this question at the conclusion of the first day of the hearing. He was concerned to clarify the basis upon which the plea had been made. The President noted that by his plea the practitioner had admitted negligence but he was concerned to ascertain what he called "the degree" of the negligence. It was necessary, he said, for the Tribunal to determine that question for the purpose of determining what sanction should be imposed by the Tribunal. He asked the parties to agree the facts, or, in the absence of agreement, to call evidence. The parties could not agree the facts. By consent, the hearing was adjourned to enable evidence to be called. The transcript of the hearing clearly shows that counsel for the practitioner had no objection to this course. Indeed, he consented to it. The evidence was led at the adjourned hearing a little over two weeks later on 9 August. Submissions were made by counsel for the parties on the basis of that and other evidence.

Thus, the Tribunal conducted its inquiry in order to determine the manner in which the practitioner had departed from the proper standard of professional conduct and the seriousness of that departure. The Tribunal did not at any time stray from the proper bounds of the inquiry which was to determine whether the practitioner being guilty of unprofessional conduct on the occasion in question and the seriousness of that unprofessional conduct. The gravity of the offending would be relevant when determining the orders which should be made under s58(3) of the Act. The term "unprofessional conduct" is capable of referring to a wide range of acts or omissions which vary in seriousness. It is not limited to conduct which is disgraceful or dishonourable. It might be constituted by an inadvertent departure from the standard of professional conduct observed or approved of by members of the profession of good repute and competence. In any particular case, the unprofessional conduct may be the result of simple inattention, inadvertence or thoughtlessness or it may be a deliberate and wilful act or series of acts. The fact that it denotes a wide range of acts or omissions is reflected in the fact that s58(3) provides for a range of penalties from a reprimand through to cancellation of the registration of the medical practitioner. Thus, it was appropriate for the Tribunal to embark upon an inquiry to determine the seriousness of the practitioner's conduct. The Tribunal's inquiry was, therefore, entirely proper. In no sense did it exceed its jurisdiction.

Furthermore, given the conflict which existed between the practitioner's evidence and the statement tendered at the coroner's inquest, the Tribunal had no alternative but to hear evidence and determine the true facts. In doing so, it was not inquiring into matters which went beyond the scope of the complaint or the particulars in the complaint. Mr Abbott's reliance on the decisions in Godfrey and Reimer was misplaced as they are cases where an offender was punished for offences with which he had not been charged. The Tribunal did not in any sense transgress in that way. Instead, it proceeded to make the factual inquiry for the purpose only of resolving the disputed facts and determining the gravity of the offending. This was a case where the key facts were in dispute and could only be decided after hearing sworn evidence: compare with R v Maitland [1963] SASR 332 and R v Perre (1986) 41 SASR 105.

Mr Abbott also sought to support his submission by relying on the word "negligent" in paragraph 3 of the particulars of the complaint. The practitioner had, he said, pleaded guilty to a negligent act, not to an act of gross negligence. His reliance on the word "negligent" is misplaced. The use of the word "negligent" in paragraph 3 was not intended to characterise the unprofessional conduct. It was used to characterise the act of ligating the artery. The subject matter of the complaint was not limited to the negligent ligation of the blood vessel. It was concerned also with the question of the practitioner's failure correctly to identify the blood vessel, the circumstances in which he failed to identify it, the alternatives which were available to him, and steps which should have been taken in the event of uncertainty. It is apparent from the paragraph I have just quoted from the Tribunal's reasons that the term "gross negligence" has been used to refer to the unprofessional conduct. Although the negligent ligation of the carotid artery was a significant part of the practitioner's unprofessional conduct, it is not the only aspect of it. It was, therefore, open to the Tribunal to conclude that the unprofessional conduct should be characterised as gross negligence. It has been said that epithets applied to negligence so far as the common law is concerned are meaningless and always misleading: see Pentecost v London District Auditor [1951] 2 All ER 330 per Lynskey J at 332 and Lord Goddard at 333. But in this context it is appropriate to use the expression in order to mark the seriousness with which the Tribunal viewed this departure from the standards of professional conduct.

Standard of Proof

Mr Abbott QC submitted that the appropriate standard of proof was proof beyond reasonable doubt and that the Tribunal had failed to apply that standard when making its findings of fact.

The standard of proof to be applied when determining disputed issues of fact in disciplinary proceedings has been considered on several occasions. In T v Medical Board of South Australia (1992) 58 SASR 382 there was a difference of opinion between members of the court as to whether the standard is proof beyond reasonable doubt or proof on the balance of probabilities, as explained in Briginshaw v Briginshaw (1978) 60 CLR 336. In Heinrich v Medical Board of South Australia (Full Court 11 December 1996, unreported, Judgment No S5899) counsel conceded that the standard of proof referred to in Briginshaw was the appropriate standard. The court did not in any respect question the concession and also noted that the decision in Kerin v Legal Practitioners Complaints Committee (1996) 188 LSJS 125 supported the view taken by counsel. In Kerin, the Full Court had held that, in disciplinary proceedings under the LegalPractitioners Act, the standard of proof was the civil onus as explained in Briginshaw. Courts in other States have adopted a like view in relation to disciplinary proceedings against both legal practitioners and medical practitioners: see, for example, Re Evatt; ex parte New South Wales Bar Association (1967) 67 SR (NSW) 236; ex parte Attorney-General; Re a Barrister and Solicitor (1972) 20 FLR 234, 246; Adamson v Queensland Law Society Inc. [1990] 1 Qd R 498 at 504; and Bannister v Walton (1993) 30 NSWLR 699 at 711-712. There is, therefore, a substantial body of authority to the effect that the standard of proof is that which applies in civil proceedings as explained in Briginshaw, that is to say, proof on the balance of probabilities having in mind the gravity of the allegations being made. See also the remarks of Cox J in Heinrich. Mr Abbott's submission that the required standard of proof is proof beyond reasonable doubt therefore fails.

The question then arises as to what standard applies to proof of matters of aggravation. There is no basis in either logic or justice for a different standard of proof from the civil onus.

The Tribunal did not expressly refer in its reasons to the standard of proof. The presiding officer was a judge of extensive experience who has presided over sittings of the Tribunal on a number of occasions. It is reasonable to infer that he would have been very alert to decisions to the effect that the standard of proof is the civil onus as explained in Briginshaw. Support for that conclusion is to be found at page 188 of the transcript of the submissions made at the conclusion of the hearing, when there was a brief discussion concerning the standard of proof. The judge referred to the refusal by the High Court of the application for leave to appeal in Bannister v Walton and suggested that it was the onus in civil proceedings as opposed to that in criminal proceedings. Finally, it is apparent from the reasons of the Tribunal that it has adopted the civil onus as explained in Briginshaw.

The only issue of fact on which there was a real contest concerned the practitioner's state of knowledge as to the nature of the blood vessel which had ruptured and his confidence in his identification of it. This was expressly recognised by the Tribunal, which decided that oral evidence was necessary to resolve the conflict between the evidence of the practitioner and statements provided by witnesses to the coroner's inquest. The Tribunal did not accept the evidence of the practitioner. It accepted the evidence of a specialist ear, nose and throat surgeon called by the Medical Board. It examined the other evidence on this issue and it is apparent from the Tribunal's reasons that it was clearly satisfied, not only that the practitioner was unsure of the nature of the blood vessel, but also that facts existed which pointed to the conclusion that it was the internal carotid artery. I have summarised those facts in paragraphs 4 to 9 above. They were the steps which led the Tribunal to its ultimate conclusion that it was "fully satisfied that the practitioner was, in all the circumstances, grossly negligent on the occasion in question". The use of the expression "fully satisfied" indicates that the Tribunal was applying the correct standard of proof.

This appeal is a rehearing: T v Medical Board of South Australia (supra) at 389 and 406; Chan v Medical Board of South Australia (1986) 41 SASR 434, 440-441. I must, therefore, examine the matters afresh. I have examined the evidence. Applying the civil onus of proof as explained in Briginshaw, I am satisfied that, for the reasons expressed by the Tribunal, the practitioner was extremely negligent in failing to ascertain with certainty the nature of the blood vessel before ligating it. It is unnecessary to set out my own reasons for this conclusion as they would be almost identical to the reasons expressed by the Tribunal. As the consequences of an incorrect identification could lead to the death of the patient, there was no room for any course other than correctly to identify the blood vessel. The Tribunal was, therefore, justified in concluding that the practitioner was grossly negligent.

No Denial of Natural Justice

In the course of his submissions on the standard of proof, Mr Abbott submitted that there had been a denial of natural justice in that the Tribunal had examined the patient's medical records and drawn conclusions from those records. The submission fails to have regard to what occurred at the hearing. The patient's medical records were tendered by consent as part of the evidence. There was, therefore, no denial of natural justice.

The Exercise of the Tribunal's Discretion

The next ground of appeal was that, when making the order, the Tribunal had erred in the exercise of its discretion, in that (i) The Tribunal had exceeded its jurisdiction by making inquiries and investigations beyond the scope of what was alleged in the complaint;

(ii) The Tribunal had misunderstood its role in penalising the practitioner;

(iii) The Tribunal had failed to take into account relevant considerations as to the appropriate penalty to be imposed in all the circumstances of the case.

I deal with each in turn.

These reasons have already dealt with the complaint in paragraph (i) but there were three other matters which, Mr Abbott said, were taken into account by the Tribunal which were not alleged in the complaint. They were: (a) that the practitioner's examination of the patient was confined to the areas of his expertise;

(b) that no full physical examination was conducted; and

(c) that, if the practitioner did not do a full physical examination himself, he should have ensured that it was done by another practitioner.

These comments were made by the Tribunal in the process of determining whether the practitioner was negligent when ligating the blood vessel. It is necessary, therefore, to put the Tribunal's comments in context. The relevant paragraph reads: "Finally, no thought seems to have been given by any of the doctors, and most importantly the practitioner himself (being a senior and widely experienced consultant) to the significant possibility that the internal carotid artery had a different anatomical configuration from the normal. It is disturbing to note, that the autopsy report showed no evidence of tumour anywhere in the patient's body. It appears that the practitioner's examination of the patient was limited, in that it was confined to the area of the practitioner's own expertise. The copies of his medical records which were tendered in evidence do not indicate that a full physical examination was performed. If the practitioner did not undertake this himself, it would seem necessary to ensure that it had been done by another practitioner."

When this paragraph is read as a whole, it is apparent that the Tribunal is doing no more than identifying one further fact which points to the negligence of the practitioner. It is related to an earlier finding that the practitioner should have adopted the course of making an incision in the patient's neck so that he could gain better access to and vision of all relevant structures. It was also related to the finding that, given the degree of uncertainty as to the true nature of the blood vessel, it would have been appropriate to consider transferring the patient to the Royal Adelaide Hospital. The matters noted by the Tribunal in this paragraph were, therefore, relevant to the complaint which the Tribunal was investigating and to the seriousness of his departure from the proper standard of professional conduct. The facts of this case are quite different from those in Chan v Medical Board (supra) on which Mr Abbott relied. Furthermore, with the consent of counsel for the practitioner, the Tribunal had inquired into these matters. The Tribunal did not, therefore, act in excess of its jurisdiction.

Mr Abbott then submitted that the Tribunal had misunderstood its role when making the orders. The Tribunal had ordered that the registration of the practitioner be suspended by the removal of his name from the general register and the specialist register for a period of six months and had also restricted the practitioner's right to practise by preventing the practitioner from performing procedures other than those listed in paragraph 2 of its order. Mr Abbott submitted that an order restricting the right to practice can be both punitive and protective of the public but an order suspending a practitioner could only be made for the protection of the public. In imposing both penalties, he said, the Tribunal had failed to identify sufficient reasons why the practitioner should be struck off the general register and the specialist register for six months. He submitted that the public was already protected by the restriction of the practitioner's right to practice medicine so that the order suspending the registration of the practitioner could only be punitive in its effect.

Section 58(3) authorises the Tribunal to make one or more of the following orders: (i) reprimand the medical practitioner;

(ii) order the medical practitioner to pay a fine not exceeding five thousand dollars;

(iii) impose conditions restricting his right to practise medicine;

(iv) suspend the registration of the medical practitioner by removing his name from the general register or the specialist register for a period not exceeding one year;

(v) cancel the registration of the medical practitioner on the general register or on the specialist register.

It will be immediately noticed that the Tribunal has power both to restrict the right to practise as well as to suspend. I will return to that question.

Before making these orders, the Tribunal had expressly stated that its primary function was not to punish the practitioner. It referred to its reasons in Medical Board of SA v Newcombe (1 September 1995) which had relied on the following observations of Kirby P and O'Keefe AJA in Richter v Walton (unreported, Court of Appeal, NSW, 15 July 1993) to the effect that the purpose of proceedings is to protect the public and not to punish the practitioner. "The purpose of an order under section 32R of the Act is to protect the public, not to punish the practitioner. The disciplinary power is, as the High Court said in New South Wales Bar Association v Evatt ((1968) 117 CLR 177 at 183), 'entirely protective'. In no sense is the order to be regarded as punitive or imposed to conform to notions of due punishment for the conduct which is found. Removing the name of a medical practitioner from the Medical Register is the ultimate professional sanction, in the same way as is the disbarring of a barrister. Again as the High Court has said 'when such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege: Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201 to 202."

The Tribunal recited these remarks in its reasons. Section 32R of the Medical Practitioners Act 1938 (NSW) is in very similar terms to s58(3). The Tribunal referred also to the remarks of Cox J in Chan v Medical Board of SA (supra) at 442 where His Honour said that the powers of the Tribunal to restrict the right of a medical practitioner to practise medicine was "primarily remedial, or protective of the public, and not punitive". His Honour's remarks were confined to s58(3)(iii).

It is convenient to repeat the Tribunal's concluding remarks before making its orders: In the present case, the practitioner's conduct fell far below the professional standard of a specialist practitioner. Notwithstanding the practitioner's previous reputation, we consider that the protection of the public requires that we bring home forceably to the practitioner, and to others who might be tempted to take unnecessary risks with the well-being of their patients, that conduct of the nature found here cannot be tolerated under any circumstances. In our opinion, the practitioner's misconduct has been of such a nature that, notwithstanding his past reputation the Tribunal must suspend him from practice. Gross negligence which leads to the death of a patient could rarely be met by any less sanction in the interests of the public. Indeed, we have considered whether we should remove the practitioner's name from the Register altogether. In the final result, however, we have decided that that course is not necessary."

Mr Abbott submitted that the emphasised passage has all the hallmarks of a sentencing judge giving reasons for sentence and referring to the elements of personal and general deterrence. Reference to that passage, he said, supported his contention that the Tribunal had adopted a punitive approach, particularly given that it had also restricted the practitioner's entitlement to practise in a way which protects the public. Mr Abbott asked, what further protection to the public is provided by the order of suspension? If none is provided, the order is merely punitive in its operation.

The Tribunal's conclusion that the primary function of these disciplinary proceedings was not to punish the practitioner accords with settled authority. The objective of disciplinary proceedings is the same for the legal profession and the medical profession. In addition to the decisions mentioned by the Tribunal, reference can also be made to Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 286, 289; Wentworth v NSW Bar Association
(1992) 176 CLR 239 at 251 and Law Society of NSW v Foreman (1994) 34 NSWLR
408, at 440-441 and 470-471. The concern is to ensure that the practitioner is a fit and proper person to practise. Thus, when speaking of the power to cancel the registration of a medical practitioner, King J said in Re Phillips
(1978) 18 SASR 44 at 64: "The purpose of these proceedings is not to punish the practitioner but to ensure that a person who, by his conduct, has shown that he is no longer fit to be a medical practitioner is deprived of his right to practise the profession."

The protection of the public has a two-fold aspect. First, it involves the protection of the public from the practitioner in question. Secondly, it involves the protection of the public from other practitioners who might be minded to act in a like manner. The position was expressed by Giles A-JA in Law Society of NSW v Foreman (supra) at 471 in these terms: "But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practise in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with. These sentences are, I think a sufficient statement of established principles found in, for example, Clyne v New South Wales Bar Association (1960) 104 CLR 186, New South Wales Bar Association v Evatt (1968) 117 CLR 177 and Law Society of New South Wales v Bannister (1993) 4 LPDR 24."

See also Mahoney JA in the same decision at 441; Re Nelson (1991) 106 ACTR
1, 24; Re Maidment (1992) 92 ATC 4450, 4462; and Markey v Medical Board of SA (unreported, Duggan J, 15 May 1997, judgment No.S6143). Mr Abbott's submission fails to acknowledge that the protection of the public may have elements of personal as well as general deterrence. Depending upon circumstances, it may be appropriate to remind the practitioner in a forceful way of the seriousness of his conduct by suspending him from practise. Such an order will also have the capacity to reinforce in the minds of other medical practitioners their obligation to adopt the appropriate standard of care when performing surgical procedures. Thus, the fact that the Tribunal referred to the need for an element of deterrence did not vitiate the penalty.

A period of suspension may be ordered so that the Tribunal can direct a practitioner to acquire or renew skills and practices to avoid the risk of a repetition for the same misconduct. Chan v Medical Board of SA (supra) provides an example. The position was different in this case. The Tribunal was concerned to remind the practitioner of his obligations always to adhere to proper surgical procedures. In its reasons, it had expressed its concern that the practitioner had been stubborn in his refusal to acknowledge the seriousness of the error he had made. The practitioner had taken what the Tribunal believed to be an unnecessary risk and did not acknowledge that fact. When read as a whole, the reasons of the Tribunal show why it believed that the protection of the public required that it bring home to the practitioner the seriousness of his misconduct so as to ensure that he would not engage in like conduct again. It is also apparent that it wished to assure the public that this extremely serious lapse from professional standards would not lightly be passed over. An order for suspension has punitive aspects in that it disqualifies the practitioner from the financial rewards of practising during the period of suspension. However, it is apparent that the Tribunal's primary concern was to protect the public. The Tribunal had thought that the protection of the public required that it cancel the practitioner's registration, but it stepped back from that course. It is apparent that the Tribunal took the view that, once the practitioner had had an opportunity to reflect upon the gravity of his conduct and understand the seriousness of his error, it would be appropriate to permit him to practise in a restricted way. The Tribunal also believed that there are areas where the practitioner will be a fit and proper person to practise and, if restricted to those areas of practice, will not be in a position to endanger the public.

Finally, Mr Abbott submitted that the Tribunal had failed to take into account, or give sufficient weight, to four factors when considering the appropriateness of suspending the practitioner for a period of six months. The first of those factors was that the practitioner's error did not involve a total disregard of the duty of care in that the error occurred in circumstances in which the size, shape and location of the carotid artery were unusual. However, reference to the reasons of the Tribunal shows that it has recognised these features but has concluded that the practitioner's unprofessional conduct essentially consisted in his proceeding to ligate the artery when he was uncertain as to its true nature. This submission must, therefore, fail.

The other three factors were that the practitioner is 67 years old and, prior to this occasion, had an unblemished record in a long and distinguished career as a surgeon; that the practitioner intends to practice until he is 70 years old, so that the suspension represents one sixth of his remaining professional career; and that the practitioner has already been the subject of extensive and adverse media coverage. It is relevant also to have regard to the fact that the suspension may have had the effect of terminating the contract of employment of the practitioner by the Lyell McEwin Hospital. That contract involved him operating one morning each week in that hospital. The Tribunal's reasons show that it was aware that the practitioner had been an ear, nose and throat surgeon for 38 years; that the public part of his practice had been conducted at the Royal Adelaide Hospital and the Lyell McEwin Hospital and that he had been well regarded in both hospitals. The Tribunal also referred to the extensive experience of the practitioner, including the fact that he has held various, and progressively more senior, appointments in otorhinolaryngology at the Royal Adelaide Hospital until June 1995 and that he had held visiting appointments in a number of other hospitals and had remained in private practice. It is apparent that the Tribunal has had regard to the factors identified by Mr Abbott which concern the practitioner's professional career. The only matter identified by Mr Abbott which is not expressly mentioned is the media coverage of the practitioner's conduct. That fact was mentioned to the Tribunal in the course of submissions, and it is reasonable to infer that it would not have been overlooked by the Tribunal.

For all of these reasons, I do not think that the Tribunal failed to have regard to any relevant considerations.

Was the Order Manifestly Excessive?

Mr Abbott also submitted that the order amounted to a penalty which was manifestly excessive. He relied on the same grounds as those which have just been canvassed and in particular the fact that the restrictions on practice were a sufficient protection to the public. As the purpose of the order of suspension was to bring home to the practitioner the seriousness of his conduct, it might be said that a shorter period of suspension would have sufficed. As Mr Abbott contended, the public will not receive any greater protection from an order suspending the practitioner for six months instead of a period of, say, three months. A countervailing factor is that the misconduct was so grave that it merited a stern order as a measure of personal as well as general deterrence. As already mentioned, the Tribunal wished to assure the public that this extremely serious form of unprofessional conduct would not be lightly passed over. The maximum period of an order of suspension is twelve months. It cannot be overlooked that the Tribunal considered whether it should cancel the practitioner's registration and so prohibit him from practising in any respect. Here again it is relevant to have regard to the fact that the Tribunal was concerned that the practitioner had not appreciated the gravity of his conduct. I do not think that, in the circumstances of this case, an order suspending the right to practise for half of the maximum period constitutes a penalty which was manifestly excessive.

The Constitution of the Tribunal

Mr Abbott submitted that the inquiry by the Tribunal was invalid and of no effect because, he said, the Tribunal was wrongly constituted. In order to understand the submission, it is necessary to refer to ss24, 25 and 26 of the Medical Practitioners Act. Section 24 provides for the membership of the Tribunal. It comprises a presiding officer, who is to be the Senior Judge of the District Court of South Australia, or his nominee, and four members appointed by the Governor. Three of the members appointed by the Governor must be appointed on the nomination of the Minister and they must include two medical practitioners and a person who is neither a medical practitioner nor a legal practitioner. The fourth person appointed by the Governor must be appointed on the nomination of the South Australian Branch of the Australian Medical Association Inc. ("the AMA"). There is no requirement that the AMA's nominee should be a medical practitioner, but it is obviously open to the AMA to appoint one.

Section 25(1) prescribes the constitution of the Tribunal for the purpose of hearing and determining proceedings in these terms: "Subject to the rules of the Tribunal, the Tribunal shall be constituted, for the purpose of hearing and determining proceedings, of the presiding officer and not less than two other members of whom at least two are medical practitioners."

In this case, the Tribunal comprised the Senior Judge as the presiding officer and two medical practitioners. Pausing here, it appears that the Tribunal was validly constituted. However, Mr Abbott QC called in aid s26, which provides: "A question arising before the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Tribunal or, where they are equally divided in opinion, in accordance with the opinion of the presiding officer."

He submitted that the proper construction of ss25 and 26 requires that the Tribunal be constituted by at least four members, of whom one should be neither a legal nor medical practitioner. It was the intention of the Act, he said, that the Tribunal should have a balanced membership. Unless the Tribunal comprised four members there was, Mr Abbott said, no work for s26. Those submissions pay no heed to the express terms of s25. While it recognises that the Tribunal may comprise more than three members for the purpose of hearing and determining proceedings against a medical practitioner, s25 expressly and unambiguously fixes a minimum of three persons, who shall be the presiding officer and two medical practitioners. Section 26 will operate where the Tribunal is constituted by three or more persons. For these reasons, the challenge to the constitution of the Tribunal fails.

Conclusion

The practitioner has failed to show that the Tribunal has erred in the manner it dealt with these proceedings or in the orders it had made. The appeal is, therefore, dismissed.