Re Physiotherapists Registration Board of Western Australia;
[2000] WASCA 108
•3 MAY 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: RE PHYSIOTHERAPISTS REGISTRATION BOARD OF WESTERN AUSTRALIA; EX PARTE RISELEY [2000] WASCA 108
CORAM: IPP J
STEYTLER J
WHEELER J
HEARD: 1 FEBRUARY 2000
DELIVERED : 3 MAY 2000
FILE NO/S: CIV 1978 of 1999
MATTER :An Application for Certiorari against the Physiotherapists Registration Board of Western Australia
EX PARTE
MARK RANDELL RISELEY
Applicant
Catchwords:
Administrative law - Particular tribunals - Physiotherapists Registration Board - Whether evidence to found determination of misconduct - Validity of regulations
Legislation:
Physiotherapists Act 1950 (WA), s 16
Physiotherapists Regulations 1951 (WA), reg 20, reg 21
Result:
Application allowed in part
Representation:
Counsel:
Applicant: Mr R L Le Miere QC & Mr M T S Rennie
Respondent: Mr A Metaxas
Solicitors:
Applicant: Michael Rennie
Respondent: Arthur Metaxas & Co
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Associated Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Carbines v Powell (1925) 36 CLR 88
City of Subiaco v Minister for Planning & Heritage; unreported; FCt SCt of WA; Library No 970051; 19 February 1997
Craig v South Australia (1995) 184 CLR 163
Custom Credit Corporation v Lupi [1992] 1 VR 99
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 24 ALR 513
Luu v Renevier (1989) 91 ALR 39
Mahon v Air New Zealand (1983) 50 ALR 193
Parramatta City Council v Pestell (1972) 128 CLR 305
R v Australian Stevedoring Industry Board (1953) 88 CLR 100
R v Blakeley; ex parte Association of Architects of Australia (1950) 82 CLR 54
R v Commonwealth Court of Conciliation; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Minister for Planning and Heritage; Ex parte City of Subiaco, unreported; FCt SCt of WA; Library No 970051; 19 February 1997
Shanahan v Scott (1957) 96 CLR 245
Utah Construction and Engineering Pty Ltd v Pataky [1966] AC 629
IPP J: I agree with the reasons of Wheeler J and have nothing further to add.
STEYTLER J: I have had the advantage of reading the reasons proposed to be published by Wheeler J. I agree with them and have nothing to add.
WHEELER J: This is the return of an order nisi for a writ of certiorari. The applicant is a registered physiotherapist. On 6 May and 19 May 1999 the respondent conducted an inquiry into the conduct of the applicant to determine if he was guilty of misconduct in a professional respect contrary to reg 20(c) of the Physiotherapists Regulations 1951 (WA) ("the regulations"). There were five complaints against the applicant, and on 11 August 1999 the respondent delivered written reasons in which it determined that the applicant was guilty of misconduct, but not in a professional respect, in relation to two complaints, dismissing the others.
The applicant was convicted in respect of complaints 1.3 and 1.4, which read:
"1.3on or about 17 November 1997 you caused to be submitted to the SGIC an undated account totalling $16,543.57 for payment for the provision of physiotherapy services by you to your wife Jennifer Maree Rezos on 517 occasions between 26 July 1994 and 17 November 1997 when some or all of the listed services had not been provided by you as set out in that account;
1.4that you submitted the undated account to the SGIC for payment for services provided by you to your wife Jennifer Maree Rezos, knowing that she was not entitled to compensation from the SGIC in respect of those services as they were being provided by you without charge;"
These complaints arose in the following way.
In 1994 Ms Rezos, the wife of the applicant, sustained injuries in a motor vehicle accident. Between 1994 and November 1997 the applicant provided physiotherapy treatment to Ms Rezos at home and at his clinic. He submitted accounts to the SGIC for payment in respect of his treatment of Ms Rezos up to 15 April 1996. It appears that the SGIC would not then pay for further treatment so, although he continued to treat
Ms Rezos, the applicant ceased to bill for it. He kept no records of this further treatment.
Apparently because of concern that the SGIC did not regard his wife's injuries as being serious, the applicant, in January 1997, submitted to the SGIC a document in the form of an account dated 18 November 1996, together with a letter which qualified the document as being for information only and meant as an indication of the treatment Ms Rezos had received from the applicant at home. Because of the covering letter, and because of a telephone conversation between an SGIC officer and the applicant, it appears that the SGIC did not regard the document as an account for payment. Complaints in respect of this document were dismissed.
In the course of preparation for a District Court action instituted by Ms Rezos for damages sustained in the motor vehicle accident, in March or April 1997 Ms Rezos' solicitor, Ms Boston, asked the applicant to prepare a document that reflected his treatments of his wife at home, in order to found a claim for gratuitous services. The respondent found that the applicant told Ms Boston that he had not kept any records of this home treatment and that the document would have to be based on averages.
Ms Boston's evidence in relation to this request suggested that something less precise than a list of treatments was sought. She said that she asked for "a better estimation as to the treatment" or put another way, "just a generalised picture as between, I suppose, the months when Mark was treating her quite intensively and when it reduced". The applicant in his evidence said that a "list" was requested, and this evidence seems to have been accepted by the respondent.
The applicant instructed his secretary, Ms Pederson, to create a list of treatments of Ms Rezos which reflected an average of three treatments per week. She did this over a period of time. The document created was headed "List of Treatments for Patient", with Ms Rezos' name on it, and it contained a number of columns entitled: "Treatment Date"; "Item Code"; "Description"; "Price"; "Prov"; and "Invoice." Each column was filled in. The description of most items under the description heading was "standard consult" for which in the price column an amount of $32 was reflected in each instance. The provider was described as "MR" (the applicant's initials). There were a variety of invoice numbers. The explanation given for the invoice numbers was that a different invoice was created each time Ms Pedersen logged off the computer.
The respondent found that later a Mr Harris took over Ms Rezos' claim and that he met with the applicant several days before a pre‑trial conference was to be held. Mr Harris asked for the document relating to treatments requested by Ms Boston and the applicant then instructed Ms Pedersen to complete the document and courier it to Mr Harris. The respondent noted that there was conflicting evidence about the conversation at the meeting, Mr Harris saying that he did not recall the applicant telling him that he had no clinical notes to prepare such a schedule, while Ms Rezos said that the applicant said that he had no records of treatment but could provide an estimate of frequency and costs. Mr Harris said that he did not know that the document produced was an estimate based on reconstruction.
The document was in due course used at the pre‑trial conference, being presented by Mr Harris to the solicitor for the SGIC. It is not clear from the evidence whether it was presented as part of a claim for gratuitous services or for special damages.
The respondent took the view that it was not required to decide whether Mr Riseley's treatments of Ms Rezos were presented as special damages or gratuitous services, or what would have been the appropriate presentation. It concluded: "Either way, Mr Riseley's treatments of Ms Rezos formed the basis of a claim for damages". That is plainly true. The respondent was satisfied, and there was ample evidence to support the conclusion, that the applicant was responsible for the preparation of the document and gave it to Ms Rezos' solicitors knowing that it was to be used at the pre‑trial conference in support of a claim for monetary compensation as part of her claim for damages.
The respondent also concluded that some, or all, of the services listed in that document were not provided. There was ample evidence to support that proposition. The applicant acknowledged that the document contained errors in the form of double entries, although his evidence was that he only discovered that shortly before the inquiry. Further, on the applicant's own evidence, the list was at best an estimate and did not accurately reflect his treatment pattern, since his evidence was that he treated Ms Rezos more than three times a week for the first "couple of months", gradually varying the frequency downwards so that it was only one or two days a week in early 1997.
The critical finding of the respondent was that:
"Mr Riseley (through his wife's solicitors) caused [the document] to be submitted to the Commission as an account totalling $16,543.57 for payment as part of Ms Rezos' claim for damages".
This was the finding which was the foundation of a finding of guilt in respect of complaint 1.3. In relation to complaint 1.4, the respondent found that when he prepared the document, Mr Riseley knew that Ms Rezos had no entitlement to compensation for those treatments "because, firstly, the list was not accurate and secondly, any treatments he had given to her were at no charge".
Complaint 1.4
It is not necessary to give detailed consideration to the finding in relation to complaint 1.4, since it is conceded on behalf of the respondent that that conviction cannot stand. The reason for the concession is that the inaccuracy of the list formed no part of the case against the applicant in respect of complaint 1.4. To the extent that the respondent appears to have relied upon that finding in order to convict, the conviction cannot stand. In effect, by relying on that matter, the respondent was convicting the applicant twice for his presentation of an inaccurate list, since that was the essence of complaint 1.3.
It should further be noted, although there was no specific concession in respect of this issue, that it is difficult to see how the respondent could convict the applicant in respect of presenting a list for treatments given "at no charge" without first rejecting the applicant's evidence that, so far as he was concerned, the purpose of the list was to found a claim for gratuitous services. Gratuitous services are, by definition, those provided without charge and if the applicant thought that the claim was framed in this way, it is difficult to see how he could possibly know that his wife was "not entitled to compensation", as the complaint alleges.
The result of the concession in respect of complaint 1.4 is that the respondent's decision in respect of penalty must be quashed and both matters remitted to the respondent for further consideration. This is because the respondent imposed a global penalty of suspension in respect of both complaints without distinguishing between them. It is not possible to say that the same penalty would have been imposed had the applicant been convicted only in respect of complaint 1.3, especially since, in principle, the presentation of an account in respect of which there is no entitlement at all may be regarded as a more serious matter than the presentation of an account which is known to be inaccurate.
Complaint 1.3
The Board's finding in respect of this complaint is attacked on a number of grounds, alleging variously that there was "no evidence" to support it, that it was relevantly unreasonable, that the Board asked itself the "wrong questions", and that it otherwise made an error of law. All these propositions boil down to the same submission, which is as follows:
It is said that the applicant did not cause the document to be submitted "for payment"; rather, he made it clear to Mr Harris that he was not seeking payment and if it was submitted for payment, that was the act of Ms Rezos' solicitors, for which he was not responsible. Further, it is said that the document cannot be regarded as an "account for payment"; it is submitted that the ordinary meaning of that expression requires that it be a document representing that a liability had been incurred for the amount appearing on the document (in this case, representing either that the SGIC was liable to the applicant or, alternatively, that Ms Rezos was liable to the applicant, for payment of the amount indicated). These are questions involving the ordinary meaning of words. Additionally, it is said that the applicant told the solicitors that the document was merely an estimate, so that it was not his doing if it was not presented in this light.
In my view, it was open to the Board to reach the conclusion that the applicant did cause the document to be submitted "for payment". Unlike the other document to which I have referred, this was not a list merely indicating the scope of treatment. Rather, the evidence of both Mr Harris and Ms Rezos, which the Board accepted, points to the conclusion that the applicant knew that the document was intended to be used in support of a claim for payment. It was understood that there would be a process of negotiation and that it was unlikely that anything like the full amount appearing on the document would be received. However, the purpose of the document was to serve as a basis for discussion about the amount which Ms Rezos would be paid in respect of those services provided by the applicant which were indicated on that document. In my view, that is sufficient, in the ordinary understanding of the words, to constitute the document one present by the applicant "for payment".
The question of whether the document could properly to be regarded as an "account" is a somewhat more difficult one. The Macquarie Dictionary 2nd ed provides a number of different meanings for the word account. Relevant ones appear to be "a verbal or written recital of particular transactions and events"; "a statement of pecuniary transactions"; and "a bill, as for service rendered or goods purchased". Although the document is headed "List of Treatments", it is in appearance a statement of services rendered which are assigned a particular financial value. A category of consultation is recorded against each of the relevant dates and a pecuniary value assigned to each of those consultations. The document is a "… written recital of particular … events" (ie treatments) and/or a statement of transactions (treatments) which have a particular pecuniary value. It could equally be regarded as a "bill", albeit one which would never be presented to Ms Rezos for payment by her, since it was prepared in the context of a claim for gratuitous services (on the view most favourable to the applicant). It was open to the Board to regard the document as an "account" in those senses, even though it did not purport to record a legal liability to the applicant.
In my view, the gravamen of this complaint is the presentation of an apparently accurate narrative of treatments having a particular value for the purpose of obtaining payment to Ms Rezos, in whole or in part, of the value of those transactions. The expressions used in complaint 1.3 sufficiently, although perhaps inelegantly, express that concept. It was open to the Board to find that the applicant had presented an apparently accurate record of treatments having a particular value for the purpose of obtaining payment.
It was argued by the applicant that even if this understanding of the words in the complaint was open, it was not one which the applicant had to face on the inquiry. It was submitted that it was put to the Board that the applicant would be guilty under complaint 1.3 only if the account was submitted, to the knowledge of the applicant, pursuant to a claim for special damages, rather than for gratuitous services. It is true that there was substantial discussion before the Board and substantial evidence led relating to the distinction between special damages and gratuitous services.
However, both the letter responding to the applicant's request for particulars prior to the hearing and the outline of submissions by counsel assisting the Board, focus in respect of count 1.3 on the accuracy of the record, rather than the precise nature of any liability incurred. The issue of whether a liability had been incurred by Ms Rezos to the applicant appears in these documents only in relation to complaint 1.4. In opening submissions, counsel assisting the Board said in respect of complaint 1.3 that:
"… the allegation is that some or all of those services as they appeared detailed in that document were never provided … In that respect, it is intended to lead evidence that the document was created solely for the purposes of assisting Mr Riseley's wife in her claim for compensation …."
The issues of the incurring of liability or of the characterisation of the claim as one for special damages or gratuitous services did not arise at this point. The applicant would not therefore have been misled in his preparation for the hearing or in the conduct of it. The finding of the Board that, whether the treatments formed the basis of a claim for special damages or for gratuitous services, the document was one prepared on Mr Riseley's instructions for the purpose of obtaining monetary compensation from the SGIC, was one which was both open on the evidence and consistent with the way in which the case against the applicant had been presented.
The Board implicitly rejected the applicant's submission that he should not be held responsible for the actions of the solicitors in presenting an account based on estimates as one which was accurate. In my view, it was open to the Board to do so. An "estimate" or list of estimates could have been prepared in a way which did not suggest (as the document on its face suggests) it was compiled as an account is ordinarily compiled, and was accurate. The document was the applicant's creation. He caused it to be created and provided to the solicitors knowing that it was to be used in support of a claim for payment. It was his responsibility to ensure that it was not misleading, although solicitors, no doubt, have a separate responsibility where they have reason to believe a document may not be accurate.
The Penalty
The penalty imposed by the Board is attacked on two bases. In order to understand them, it is necessary to refer to both the Physiotherapists Act 1950 ("the Act") and the regulations made under it. Section 16 of the Act provides that the Governor may make regulations:
"necessary or convenient to be prescribed for facilitating the carrying out or giving effect to this Act and without limiting the generality of the foregoing provisions of this section may make regulations:
(a)relating to the registration and deregistration of physiotherapists;
…
(e)relating to the issue, cancellation, renewal and replacement of licences".
The regulations provide for both registration and licensing of physiotherapists. The structure is that a person proving appropriate qualifications and good character is entitled to be registered. Every physiotherapist whose name appears in the register is entitled, upon application and payment of a fee, to a licence to practise. Registration appears to continue indefinitely until the person either has his or her name withdrawn from the register or is struck off, while licenses are renewable annually. No person may practise physiotherapy unless he or she holds a licence.
Regulation 20 and reg 21 relevantly provide:
"20. The name of any Physiotherapist registered in the Register of Physiotherapists shall be struck off the Register if the Board is satisfied after inquiry … that -
…
(c)after registration … he has been guilty of misconduct in a professional respect…
21. Any physiotherapist who, after due inquiry by the Board in accordance with the rules, is adjudged by the Board to be guilty of improper practises or misconduct (but not 'misconduct in a professional respect') shall be liable to reprimand or suspension of licence for a period not exceeding 6 months, as the Board may decide".
The formal order made by the Board was that Mr Riseley, having been found guilty of misconduct only and not of misconduct in a professional respect, be "suspended from the Register of Physiotherapists for a period of 8 weeks".
The first attack upon this order, which must succeed, is that there is no power pursuant to the regulations to suspend from the register in such circumstances. Regulation 20 deals with striking off the register and is available only where misconduct in a professional respect is proven, while reg 21, dealing with simple misconduct, deals with suspension of licence, not suspension from the register. It was therefore open to the Board under the regulations to suspend the applicant's licence, but not to suspend him from the register.
The more fundamental attack upon the penalty, which in my view should not succeed, is that reg 21 is not authorised by the regulation‑making power under the Act. It is not entirely clear whether the applicant's submissions are based upon the broad proposition that the Act, which is concerned with occupational registration and licensing, does not authorise the making of regulations for disciplining those who are registered or licensed, or with the narrower proposition that the words "issue, cancellation, renewal and replacement" cannot be understood as authorising regulations directed to the suspension of a licence.
So far as the broader proposition is concerned, the purpose of the Act is to ensure the protection of the public by providing a mechanism which will result in allowing only appropriately qualified persons to practise physiotherapy. The qualifications set out in the regulations include both relevant professional training and good character. This is the usual approach taken in those statutory regimes which deal with the regulation of the practise of particular professions or occupations.
The mechanisms which the Act prescribes as a means of achieving its purpose are those of registration and licensing. It is consistent with the statutory object that regulations should provide for the withdrawal, permanently or temporarily, of registration or licensing, should it appear that a person who is registered or licensed ought not, in the public interest, be permitted to practise physiotherapy, either for a time or indefinitely. It appears to me that a regulation which is directed to ensuring the practise of physiotherapy at an appropriate level of competence and integrity, and which uses the temporary or permanent withdrawal of registration or licence as a means to that end, is a means for carrying into effect the provisions of the Physiotherapy Act.
More narrowly, it appears to me that a power in relation to "deregistration" and a power in relation to "cancellation" of licences, must include a power to deregister for a finite period and a power to cancel which is effective for a limited period only. There could be no objection, even of form, to a regulation which provided that on a finding of misconduct the Board could order cancellation of a licence and could provide a period within which the licence was not to be re‑issued or renewed. This is effectively a power of suspension; the objection seems to me to be one of form only, and there is no basis for such an artificial construction of s 16.
Conclusion
In view of the concession in relation to complaint 1.4, and the global penalty imposed in respect of both complaints, it appears to me that the appropriate orders would be to remove into this Court the order of the Board made 23 August 1999, to quash order (2) (so far as it relates to complaint 1.4), and to quash order (3) which imposes the penalty. It would then be open to the Board to consider afresh the question of penalty in respect of complaint 1.3.
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