Singh v Medical Board of Australia
[2018] WASCA 125
•26 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SINGH -v- MEDICAL BOARD OF AUSTRALIA [2018] WASCA 125
CORAM: MURPHY JA
MITCHELL JA
HEARD: 24 JULY 2018
DELIVERED : 24 JULY 2018
PUBLISHED : 26 JULY 2018
FILE NO/S: CACV 83 of 2017
BETWEEN: ANISH DWARKA SINGH
Appellant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRESIDENT, JUSTICE J C CURTHOYS
MS H LESLIE (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)
Citation: MEDICAL BOARD OF AUSTRALIA and SINGH [2017] WASAT 33
File Number : VR 235 of 2014
Catchwords:
Health Practitioner National Law - Appeal from decision of State Administrative Tribunal disqualifying medical practitioner from registration - Professional misconduct - Prescription of anabolic steroids and other treatment without proper therapeutic indication when prescription poses unnecessary risks - Whether grounds of appeal have any reasonable prospect of succeeding - Turns on own facts
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 193(1)(a), s 196
Result:
Grounds 1 - 5 and 8 - 12 struck out
Extension of time to file and serve appellant's case granted
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Ms F A Stanton |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | MDS Legal |
Case(s) referred to in decision(s):
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
House v The King (1936) 55 CLR 499
Medical Board of Australia and Singh [2017] WASAT 33
Medical Board of Australia and Singh [2017] WASAT 33 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Saunders v The Public Trustee [2015] WASCA 203
REASONS OF THE COURT:
Introduction
On 22 June 2017, the State Administrative Tribunal ordered that the appellant be disqualified from applying for re-registration as a medical practitioner for a period of 10 years, and fined him $5,000. The Tribunal found that the appellant engaged in professional misconduct under the Health Practitioner Regulation National Law (National Law).[1] The misconduct principally comprised the prescription, without proper therapeutic indication, of anabolic androgenic steroids and other drugs with potential adverse effects, to persons seeking assistance with weight loss, physical conditioning and/or body building. The Tribunal also found that the appellant provided other kinds of treatment without proper therapeutic indication, and failed to take adequate clinical notes.
[1] The National Law is in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
The appellant seeks to appeal against the Tribunal's orders on 11 grounds, numbered 1 - 6 and 8 - 12. He requires an extension of time to file his appellant's case. The matter came before us by way of a Registrar's Notice to Attend to consider:
(1)Whether an extension of time to file the appellant's case should be granted.
(2)Whether grounds of appeal 1 - 5 and 8 - 12 should be struck out on the basis that they do not have any reasonable prospect of succeeding or do not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules).
(3)The appellant's failure to comply with the order made on 3 May 2018, requiring him to file and serve a Practice Direction 7.4 schedule by 23 May 2018.
At the conclusion of the hearing we made the following orders:
(1)The time for the appellant to file and serve his appellant's case is extended to 27 April 2018.
(2)Grounds of appeal 1 - 5 and 8 - 12 are struck out, and the Registrar amend the appellant's case accordingly.
(3)The order of the court made on 3 May 2018 be discharged.
(4)The appellant pay the respondent's costs fixed in the sum of $300.
We did not strike out ground 6, which in effect alleges that the penalty imposed on the appellant was manifestly excessive.
What follows are our reasons for making those orders.
The Tribunal's Misconduct Decision
On 23 February 2017, after a hearing in August 2016, the Tribunal published reasons for concluding that the appellant had engaged in professional misconduct under the National Law.[2] The Misconduct Decision also found that the appellant had acted carelessly, incompetently and/or improperly for the purposes of the Medical Practitioners Act 2008 (WA), which was in force up to 18 October 2010. As the penalties were imposed under the National Law, it is appropriate in these reasons to focus on the issues arising under the National Law.
Board's allegations
[2] Medical Board of Australia and Singh [2017] WASAT 33 (Misconduct Decision).
The principal allegations made by the Board in the proceedings were that, from early 2008, the appellant engaged in a general practice of prescribing to patients, who consulted him seeking weight loss, physical conditioning and/or body building, anabolic androgenic steroids and other treatments in circumstances where there was no therapeutic reason for the use of the drugs and the patients were unnecessarily exposed to adverse effects.[3] Other allegations were that:
(1)The appellant engaged in the general practice of prescribing Clomid to patients in contravention of reg 38C of the Poisons Regulations 1965 (WA), made under the Poisons Act 1964 (WA).[4]
(2)The appellant engaged in the general practice of ordering the infusion of iron, fresh frozen plasma (FFP) infusions and DEXA scans for patients when there was no recognised therapeutic indication for those treatments.[5]
(3)The appellant failed to keep adequate clinical notes.[6]
[3] Misconduct Decision [102], [106].
[4] Misconduct Decision [104].
[5] Misconduct Decision [108] - [110].
[6] Misconduct Decision [317].
In addition to the above allegations about the appellant's general practice, specific complaints were made about the treatment of two patients, designated in the Tribunal's reasons as Patient J and Patient B.
Evidence before the Tribunal
The evidence before the Tribunal included dispensing histories obtained from two pharmacies, the appellant's clinical notes and the evidence of the appellant.[7] The Tribunal noted that it was not in issue that the appellant prescribed the drugs and treatments which were the subject of the proceedings.[8]
[7] Misconduct Decision [34].
[8] Misconduct Decision [101].
The Tribunal also received evidence from the following expert witnesses:
(1)Professor Gary Wittert, a specialist physician with registration in general medicine and endocrinology, called by the Board;
(2)Professor David Joyce, a specialist in pharmacology and toxicology, called by the Board;
(3)Professor Sean Hood, a consultant psychiatrist, called by the appellant;
(4)Professor David Nutt, a specialist in neuropsychopharmacology, called by the appellant; and
(5)Professor Alistair Vickery, a general practitioner, called by the appellant.
Tribunal's assessment of the witnesses
The Tribunal found that the appellant was a highly qualified physician, but that the objective evidence did not support his explanations for prescribing the drugs. Further, under cross‑examination, the appellant conceded that he was supplying steroids for body building for a large number of patients.[9] The Tribunal said:[10]
In the light of Dr Singh's concession, and the other evidence, it became apparent that much of Dr Singh's evidence was deliberately untrue. Normally, the Tribunal would consider the evidence Dr Singh gave as a medical practitioner and a physician and take it into account, in answer to the expert evidence of Professor Wittert and Professor Joyce. However, this Tribunal has been unable to place any reliance on Dr Singh's evidence. No scientific rationale advanced by Dr Singh can be safely relied upon by this Tribunal, given that he has persisted in untruths as to the basis for his prescribing.
[9] Misconduct Decision [85] - [94].
[10] Misconduct Decision [96].
The Tribunal also observed that the appellant sought to adopt various scientific studies when it suited him but rejected those that did not, as illustrated by an exchange where the appellant referred to pharmacology as a 'pseudoscience'.[11]
[11] Misconduct Decision [97].
The Tribunal regarded each of Professors Wittert, Joyce, Hood and Nutt as highly qualified experts. However, the evidence of Professors Hood and Nutt was confined to the appropriateness of prescribing certain drugs for Patient J. At the conclusion of the evidence, the Board withdrew the allegations about those drugs. Professors Hood and Nutt also gave evidence about the appropriateness of referring Patient J to a psychiatrist for treatment of body dysmorphia syndrome with binge eating disorder. The appellant had given evidence that Patient J suffered from that condition. However, the Tribunal said that it did not accept the appellant's diagnosis of Patient J and that, accordingly, the evidence of Professors Hood and Nutt was largely irrelevant.[12]
[12] Misconduct Decision [53] - [56], [64] - [67].
The Tribunal found that Professor Vickery's evidence was of very limited value. He was a general practitioner whose expertise was far outweighed by that of the other experts. The Tribunal was not satisfied that Professor Vickery had the requisite level of independence from the appellant to give expert evidence, finding that he was also too personally close to the appellant to give objective evidence. The Tribunal therefore preferred the evidence of Professors Joyce and Wittert over that of Professor Vickery.[13]
Prescription of anabolic androgenic steroids and other drugs
[13] Misconduct Decision [70] - [78].
The Tribunal accepted Professors Wittert's and Joyce's evidence that the therapeutic indication for the prescription of anabolic androgenic steroids is for men with low blood testosterone levels, and that there were no recognised indications for taking combinations of anabolic steroids.[14] The Tribunal also accepted those witnesses' evidence as to the potential adverse effects of using anabolic steroids.[15] It accepted Professor Wittert's evidence that there were in fact adverse effects in some of the appellant's patients.[16]
[14] Misconduct Decision [112] - [116].
[15] Misconduct Decision [118] - [124].
[16] Misconduct Decision [125].
The Tribunal referred to the record of the appellant prescribing various kinds of anabolic androgenic steroids to a large number of patients, many of whom were prescribed steroids over long periods of time. The appellant accepted, and his clinical notes indicated, that many of those patients were prescribed the drugs for the purposes of body building or weight loss.[17] The Tribunal concluded:[18]
The Tribunal finds that from early 2008, Dr Singh engaged in a general practice of prescribing anabolic androgenic steroids … to patients who consulted him seeking weight loss, physical conditioning and/or body building when in the circumstances there was no proper therapeutic indication or reason to prescribe anabolic androgenic steroids. The Tribunal finds that Dr Singh's prescribing practice was extensive.
[17] Misconduct Decision [126] - [143].
[18] Misconduct Decision [145].
The Tribunal accepted the evidence of Professor Wittert that:[19]
The prescribing of combinations of anabolic steroids with the primary purpose of increasing muscle mass and function in the absence of any other appropriate indication is not now, nor ever has been, accepted practice.
[19] Misconduct Decision [146].
The Tribunal said that it followed that the prescription of drugs to prevent the side effects of the prescription of anabolic androgen steroids must also be an unacceptable practice.[20]
[20] Misconduct Decision [147].
The Tribunal went on to make similar findings in relation to Clenbuterol,[21] ephedrine and/or ephedrine, aspirin, caffeine (EAC),[22] Human Growth Hormone[23] and a number of other drugs.[24]
Prescription of Clomid
[21] Misconduct Decision [148] - [163].
[22] Misconduct Decision [164] - [177].
[23] Misconduct Decision [187] - [213].
[24] Misconduct Decision [214] - [284].
The appellant accepted that, from early 2008 and when he considered it medically appropriate or therapeutic, he prescribed Clomid (the trade name for clomiphene citrate).[25] The Tribunal found this to be contrary to reg 38C of the Poisons Regulations,[26] which at the relevant time provided:
Clomiphene or cyclofenil or a substance containing clomiphene or cyclofenil and other substances specifically prepared to stimulate ovulation shall not be prescribed except:
(a)by a gynaecologist or obstetrician; or
(b)by any other medical practitioner, if authorised in writing by the CEO; or
(c)by a veterinary surgeon for the purpose of veterinary trials under the direction of a veterinary surgeon.
[25] Misconduct Decision [179] - [180], [182].
[26] Misconduct Decision [185] - [186].
The Tribunal concluded that:[27]
Regulation 38C provides a general prohibition against the prescription of clomiphene except in the circumstances set out in subparagraphs (a)‑(c). Dr Singh did not fall within any of those circumstances. Dr Singh's contention that the prescription of clomiphene is restricted only when it is 'specifically prepared to stimulate ovulation' is rejected.
Iron infusions
[27] Misconduct Decision [184].
The Tribunal found that the appellant ordered infusions of iron for a number of patients whose iron levels were within the normal range, including some patients with haemochromatosis and/or beta‑thalassaemia (diseases of iron excess which are contraindications for the infusion of iron). Professors Wittert, Vickery and Joyce agreed that the recognised therapeutic indications for the infusion of iron is iron deficiency.[28] The Tribunal concluded:[29]
The Tribunal finds that from early 2008, Dr Singh engaged in a general practice of prescribing Iron to patients who consulted him seeking weight loss, physical conditioning and/or body building when in the circumstances there was no proper therapeutic indication or reason for the use of any of Iron by the patient for whom they were prescribed.
The Tribunal finds that Dr Singh's rationale for the ordering of iron infusions generally and specifically for patients with haemochromatosis or beta-thalassaemia trait, the ordering of iron infusions was not reasonable.
FFP infusions
[28] Misconduct Decision [285] - [294].
[29] Misconduct Decision [295] - [296].
The Tribunal noted the evidence of Professors Joyce and Wittert that the infusion of FFP is only used for clotting factor replacement, and there was no therapeutic indication for the ordering of FFP infusions which outweighed the potential adverse effect of a FFP infusion. The Tribunal noted the appellant's concession that he had ordered FFP infusions while appreciating the side-effects which his patients would suffer.[30] The Tribunal concluded:[31]
The Tribunal finds that from early 2008, Dr Singh engaged in a general practice of prescribing FFP to patients who consulted him seeking weight loss, physical conditioning and/or body building when in the circumstances there was no proper therapeutic indication or reason for the use of any of FFP by the patient for whom they were prescribed.
The Tribunal accepts that there were actual adverse side effects from the treatment with FFP.
The Tribunal finds that the use of FFP in association with combinations of anabolic steroids with the primary purpose of increasing muscle mass and function in the absence of any other appropriate indication is not now, nor ever has been, accepted practice.
DEXA scans
[30] Misconduct Decision [299] - [300], [303].
[31] Misconduct Decision [304] - [306].
The Tribunal found that that from early 2008, the appellant engaged in a general practice of ordering DEXA scans (for the assessment of bone mineral density) for patients who consulted him seeking weight loss, physical conditioning and/or body building when in the circumstances there was no proper therapeutic indication or reason for the ordering of DEXA scans for the patient for whom they were ordered. The Tribunal found that the appellant's practice of doing this was extensive.[32]
Inadequate clinical notes
[32] Misconduct Decision [309] - [313].
The Tribunal found (as the appellant conceded in his closing submissions before the Tribunal) that the appellant's clinical notes were inadequate. The Tribunal referred to a large number of instances where the clinical notes were either non-existent or totally inadequate.[33]
Findings of professional misconduct
[33] Misconduct Decision [317] - [333].
Under s 5 of the National Law, 'unprofessional conduct' of a registered health practitioner is relevantly defined to mean:
professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers.
'Professional misconduct' is relevantly defined in the same section to include:
unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The Tribunal found that the conduct summarised above would be regarded as improper by professional colleagues of good repute and competence, and was substantially below that standard reasonably expected of a registered medical practitioner of an equivalent level of training or experience.[34]
Complaints relating to specific patients
[34] Misconduct Decision [340] - [346].
The Tribunal made specific findings, of the kind referred to above, in relation to Patient J and Patient B.
Patient J was a patient who resided in Darwin and visited Perth for the purpose of consulting with the appellant. The appellant's conduct in relation to him was governed by the Medical Practitioners Act.The Tribunal found that the appellant prescribed steroids to Patient J for use in body building purposes, also prescribed Clenbuterol, Clomid and other drugs for which there was no therapeutic basis for prescribing, and failed to adequately monitor Patient J while using these drugs. The Tribunal concluded that this conduct would be regarded as improper by colleagues of good reputation and competence. The Tribunal also found that the appellant kept inadequate clinical notes in relation to Patient J, which amounted to acting carelessly.[35]
[35] Misconduct Decision [347] - [411].
Patient B consulted the appellant on a number of occasions in 2011. The appellant obtained a 24 hour blood pressure report, which showed that Patient B suffered from hypertension. The appellant said that he made a working diagnosis of circadian rhythm disruption. The Tribunal found that the appellant engaged in professional misconduct by:[36]
(1)failing to consider, investigate or advise Patient B of differential diagnoses;
(2)prescribing Tamoxifen, testosterone and Human Growth Hormone when there was no medical indication for their prescription;
(3)prescribing Clomid in contravention of reg 38C of the Poisons Regulations;
(4)failing to take any steps to ensure appropriate monitoring of Patient B; and
(5) failing to make adequate clinical notes in relation to Patient B.
[36] Misconduct Decision [412] - [437].
The Tribunal also found that the appellant engaged in professional misconduct by writing a derogatory letter to the medical practitioner who notified the Board of the medications which Patient B was receiving for body building pursuits.[37]
[37] Misconduct Decision [438] - [443].
The Tribunal's Penalty Decision
Having found the appellant to have engaged in professional misconduct, and/or careless, incompetent or improper conduct, in the above respects, the Tribunal made orders for the parties to file written submissions as to penalty and costs.
On 22 June 2017, the Tribunal delivered its reasons for penalty and costs,[38] which it determined on the documents. In the course of determining the appropriate penalty, the Tribunal observed that:
(1)The inappropriate prescription of drugs when there was no proper therapeutic basis is a serious matter. This was all the more so because, in a number of the instances that the Tribunal identified, it exposed the appellant's patients to the risk of side effects.[39]
(2)The range of drugs and treatments prescribed without a proper therapeutic basis, and the combinations of drugs to a large number of patients, showed that the appellant's conduct was not isolated,[40] and that there was a very substantial risk of the appellant engaging in such conduct again.[41] The sheer magnitude of the appellant's prescription of drugs and other treatments - to some 740 patients between early 2001 and late 2015 - was extremely worrying.[42]
(3)The appellant's extensive failure to take adequate notes was a fundamental failing in his obligations to his patients.[43]
(4)The appellant's misconduct in relation to Patient J and Patient B were particular examples of his broader failings.[44]
(5)Money is often a powerful incentive for the inappropriate prescribing of drugs, and the penalty must be sufficient to deter the appellant and other practitioners from engaging in similar misconduct.[45]
(6) Public confidence in the ability and integrity of medical practitioners is essential, and was undermined by the appellant's misconduct.[46]
(7)The appellant acted dishonestly in that his misconduct involved cloaking prescriptions with the veil of a proper therapeutic basis when in fact there was no proper therapeutic basis.[47]
(8)The appellant failed to show any remorse or insight, and the Tribunal could not have any confidence that he would not engage in such misconduct again given the opportunity.[48]
[38] Medical Board of Australia and Singh [2017] WASAT 33 (S) (Penalty Decision).
[39] Penalty Decision [38].
[40] Penalty Decision [39].
[41] Penalty Decision [44].
[42] Penalty Decision [57].
[43] Penalty Decision [40].
[44] Penalty Decision [41].
[45] Penalty Decision [44] - [47].
[46] Penalty Decision [49].
[47] Penalty Decision [51].
[48] Penalty Decision [64].
The Tribunal decided to impose a global penalty having regard to the appellant's overall misconduct, rather than isolating certain incidents and imposing separate penalties.[49]
[49] Penalty Decision [73].
As the appellant had allowed his registration as a medical practitioner to lapse, there was no occasion to cancel his registration. The Tribunal expressed the view that the appellant's misconduct was so serious that he is permanently or indefinitely unfit to practice.[50]
[50] Penalty Decision [74] - [75].
The Tribunal decided to disqualify the appellant from applying for re‑registration as a medical practitioner for a period of 10 years from the date of the Tribunal's order, under the National Law.[51] In doing so, the Tribunal noted that the majority of the appellant's offending occurred under the National Law, and that his previous conduct under the Medical Practitioners Act could be taken into account in fixing a period of disqualification under the National Law.[52]
[51] Penalty Decision [78].
[52] Penalty Decision [76].
The Tribunal also fined the appellant $5,000 in respect of his letter to the notifying practitioner referred to at [32] above,[53] and made orders as to costs.[54]
[53] Penalty Decision [82].
[54] Penalty Decision [89].
The appeal
On 11 August 2017, the appellant filed an appeal notice against the orders made by the Tribunal on 22 June 2017. The notice indicated that the last day for appealing was 14 July 2017, and applied for an extension of time in which to appeal.
The appellant failed to file and serve an appellant's case within the time required by the Rules. Orders requiring the filing of an appellant's case were made by a Registrar on:
(1)11 October 2017 (requiring the appellant's case be filed by 3 November 2017);
(2)9 November 2017 (extending time to 24 November 2017);
(3)5 December 2017 (extending time to 22 December 2017); and
(4)19 December 2017 (extending time to 19 February 2018).
On 28 February 2018, the appellant lodged a purported appellant's case, which the Registrar did not accept for filing. On 8 March 2018, the matter was called on for directions before Mitchell JA, who attempted to explain to the appellant the need for his proposed grounds of appeal alleging factual error to do so by reference to the evidence before the Tribunal.[55] At the conclusion of the hearing, the time for the appellant to file and serve his appellant's case was further extended to 19 April 2018.
[55] ts 8 March 2018, 3 - 5.
An appellant's case was filed by the appellant on 27 April 2018. It contains 11 grounds of appeal, numbered 1 - 6 and 8 - 12. Ground 6 seeks to impugn the penalty imposed by the Tribunal as 'excessively harsh and punitive'. The other grounds seek to impugn various aspects of the Tribunal's Misconduct Decision.
Nature of the appeal
Section 105(1) and s 105(3) of the State Administrative Tribunal Act 2004 (WA) provide for a right of appeal to this court, with leave,[56] from a decision of the Tribunal constituted by, or by members who include, a judicial member. Generally, under s 105(2), an appeal can only be brought on a question of law. However, there is an exception, provided for by s 105(13), where the Tribunal's decision under the National Law 'has the effect of depriving a person of the person's capacity to lawfully pursue a vocation'. Where that exception applies, an appeal may be brought under s 105 'on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact'. Clearly, that exception applies in the present case.
[56] As to the power to grant of leave to appeal, see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [14] - [18].
Even where s 105(13) applies, an appeal to this court is an appeal by way of rehearing,[57] rather than a de novo review of the evidence. If no further evidence is admitted and there has been no relevant change in the law, this court can interfere only if satisfied that there was error on the part of the Tribunal.[58] While this court has power to admit additional evidence in an appeal, the circumstances in which it will do so are limited.[59] Otherwise, factual error must be established by reference to the evidence before the Tribunal.
[57] Rule 25 of the Rules.
[58] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14] applied in Saunders v The Public Trustee [2015] WASCA 203 [84].
[59] Saunders [85] - [90].
Grounds of appeal relating to Misconduct Decision
In our view, none of the grounds of appeal attacking the findings of professional misconduct under the National Law, or careless, incompetent or improper conduct under the Medical Practitioners Act, have any reasonable prospect of succeeding. The appellant's grounds of appeal are prolix and discursive, and clearly do not comply with the Rules. Their length and nature is such that they cannot be conveniently set out here. Below, we identify the main elements of the relevant grounds, and our reasons for concluding that they have no reasonable prospect of succeeding.
Grounds 1 - 2, 4 - 5 and 10: inappropriate prescriptions where no proper or recognised therapeutic indication
These grounds appear to attack the Tribunal's findings of misconduct based on the prescription of drugs referred to above.
In large part, the arguments advanced by the appellant are semantic, in effect criticising as insufficiently precise the use of phrases such as 'no proper therapeutic indication', 'no recognised therapeutic indication' and the 'inappropriate' prescribing of drugs. There is no merit in this aspect of the grounds. Although there are medical value judgments inherent in those descriptions, such a value judgment is required by the statutory definitions of unprofessional conduct and professional misconduct quoted at [26] ‑ [27] above. There is no error, in this context, in concluding that the prescription of anabolic androgenic steroids for body building purposes:
(1)is a prescription given in the absence of a proper or recognised therapeutic indication; and
(2)involves the inappropriate prescription of drugs.
There is nothing exceptional or objectionable about such a statement. When the Tribunal's reasons are considered as a whole, it is clear that the Tribunal applied the applicable statutory test.
In other respects, these grounds seek to challenge the scientific basis for the conclusions reached by the Tribunal. The difficulty is that the appellant does not base his challenge on the evidence before the Tribunal. As noted above, the Tribunal acted on the evidence of Professors Wittert and Joyce in reaching conclusions about medical matters, and gave reasons for why it preferred and accepted their evidence to that of the appellant and Professor Vickery. The appellant's assertions in his grounds and submissions as to the flawed nature of Professors Wittert's and Joyce's evidence provides no basis for this court to disturb the Tribunal's factual findings based on that evidence. This court can only act on the evidence before the Tribunal in the absence of an application to adduce additional evidence in the appeal (which would only be granted in limited circumstances which are not apparent in this case).
The appellant's contentions that the Tribunal proceeded on the basis of imprecise language and flawed medical evidence do not establish any arguable case for allowing the appeal.
Ground 3: reg 38C of the Poisons Regulations
In this ground, the appellant challenges the Tribunal's construction of reg 38C of the Poisons Regulations. The basis for doing so is not clear. His submissions refer to the use of the word 'formulated' rather than 'synthesised' in the statutory text.[60] However, neither word appeared in the regulation. The appellant's construction which contends that the prescription of Clomid is prohibited only for the purposes of stimulating ovulation finds no support in the text of the regulation, set out at [20] above.
Ground 8: Iron infusions
[60] Page 5 of the appellant's submissions.
The appellant seeks to attack two findings under this ground which the appellant says 'cannot be supported by the facts'.[61]
[61] Page 3 of the appellant's grounds of appeal.
The first impugned finding is that the appellant ordered iron infusions for patients who did not suffer from iron deficiency. The Tribunal's conclusion was expressed in the following terms:[62]
Dr Singh ordered infusions of iron to the following people within the list (dealing only with those from A to D) when their iron levels were within the normal range:
Patients 7, 13, 22, 24, 26, 28, 29, 35, 38, 54, 57, 59, 78, 87, 90, 91, 94, 126, 153, 156, 160, 168 and 169.
Dr Singh's evidence when attempting to explain why he did so by reference to the blood results was unsatisfactory and contradicted by Professor Wittert's reports and evidence. Dr Singh's interpretation of the blood results in relation to iron levels is idiosyncratic in much the same way as his interpretation of testosterone levels is.
[62] Misconduct Decision [290] - [291].
It appears from this passage that the Tribunal reached its conclusion, and its rejection of the appellant's evidence, based on its assessment of the evidence before it. The appellant's submissions do not explain why those conclusions were not open to the Tribunal on the evidence before it.
The second impugned finding is that a diagnosis of haemochromatosis and/or beta-thalassaemia is a contraindication for iron infusion. This finding was based on the medical evidence referred to at [22] above. The appellant does not establish arguable error by asserting in his grounds that the expert opinion given before the Tribunal 'has no basis in clinical practice and cannot be supported'.
Ground 9: DEXA scans
The appellant contends that the Tribunal's conclusion in relation to DEXA scans 'is a nonsense and has no foundation in fact' as there 'is no such thing as an excessive number of DEXA scans for the measurement of body composition'. The ground asserts that a DEXA scan has never had, nor will ever have, a therapeutic indication'.[63]
[63] Page 3 of the appellant's grounds of appeal.
The assertions in this ground are inconsistent with the evidence of Professor Wittert, as summarised by the Tribunal:[64]
Professor Wittert's opinion was that the recognised therapeutic indications for the performance of DEXA scans was for the assessment of bone mineral density in order to diagnose osteoporosis and monitor the response to treatment.
Professor Wittert saw no utility or need for Dr Singh's routine use of DEXA scans when as he said scales and a tape measure were all that was required in circumstances when it was not necessary to also test bone density. Professor Wittert's opinion was that there was not a proper and/or reasonable therapeutic indication for the ordering of one or more DEXA scans. He stated that it is a research tool and it would not be routinely used in obesity clinics where reliance would be placed on the use of anthropometric measurements or in other instances bio electrical impedance where there is no radiation exposure whatsoever.
[64] Misconduct Decision [309] - [310].
The appellant's grounds and submissions do not explain, by reference to the evidence before the Tribunal, why it was an error for the Tribunal to accept this evidence.
It may also be noted that, although the provision was not relied on by the Tribunal, the Tribunal's conclusion is also supported by the following inclusive aspect of the definition of 'unprofessional conduct':[65]
unprofessional conduct … includes:
…
(d)providing a person with health services of a kind that are excessive, unnecessary or otherwise not reasonably required for the person's well-being.
Grounds 11 and 12: findings in relation to Patients J and B
[65] Section 5 of the National Law (par (d) of the definition of 'unprofessional conduct').
Grounds 11 and 12 respectively attack the Tribunal's findings in relation to Patient J and Patient B. These grounds also make a number of allegations which are generally unsupported by references to the evidence noted above. The grounds also contend that Patient B's seizure was caused by a withdrawal from benzodiazepines and that Patient J was satisfied with his treatment. These aspects of the grounds seem to miss the point of the Tribunal's findings, which were not whether the medications prescribed by the appellant, rather than withdrawal from benzodiazepines, caused a seizure in Patient B, or whether Patient J was satisfied with his treatment.
Ground of appeal relating to penalty
Ground 6 contends that the Penalty Decision, which prohibits the appellant from applying for re-registration as a physician for 10 years, is excessively harsh and punitive. The appellant then refers to the personal impact the decision has had on him, before concluding that:[66]
Given that there has been no patient death, patient complaint, evidence of criminality or harm done, I believe that the judgement is unreasonable and warrants revision.
[66] Page 3 of the appellant's grounds of appeal.
In substance, the ground alleges the well‑recognised species of legal error implied from a decision which is unreasonable or plainly unjust.[67] Given the 10 year disqualification period and all the circumstances of the case, it appeared to us that this ground is reasonably arguable (which is not to say that the ground would necessarily succeed). The Board did not seek to contend to the contrary. The ground was, in any event, not included in the Registrar's Notice to Attend.
[67] See House v The King (1936) 55 CLR 499, 504 - 505.
Disposition
For the above reasons, we ordered that grounds 1 - 5 and 8 - 12 be struck out on the basis that they have no reasonable prospect of succeeding. The Registrar's order for the filing of a Practice Direction 7.4 schedule then became unnecessary, and so was discharged. We extended the time for the appellant to file his appellant's case to the day it was filed, so that ground 6 can be pursued. Given the extensive opportunities which the appellant has been given to formulate his appellant's case, noted at [40] - [41] above, we did not consider it appropriate to make orders providing for the appellant to have a further attempt to formulate grounds challenging the Misconduct Decision. We ordered that costs follow the event in an amount which appeared to us to be reasonable in all the circumstances.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL26 JULY 2018
7
6
1