Srikantha v Medical Practitioners' Board of Victoria
[2009] VSC 368
•28 August 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
COMMON LAW DIVISION
No. 6001 of 2006
| SRI T SRIKANTHA | Plaintiff |
| v | |
| MEDICAL PRACTITIONERS BOARD OF VICTORIA | Defendant |
---
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 1 May, 16 July, 1 August 2008 | |
DATE OF JUDGMENT: | 28 August 2009 | |
CASE MAY BE CITED AS: | Srikantha v Medical Practitioners' Board of Victoria | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 368 | |
---
Judicial review – Medical Practitioners’ Board – investigation – medical practitioner.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | A. Clements | Victorian Government Solicitor |
------------------
HIS HONOUR:
This is a proceeding initiated by Originating Motion seeking a declaration that a formal hearing by a Panel constituted by the defendant in relation to the plaintiff is invalid.
The originating motion was filed on 27 April 2006.
The plaintiff appeared before the Court on his own behalf. He is a legally qualified medical practitioner.
The formal hearing was held on 26 April 2006. It was constituted pursuant to Medical Practice Act 1994. The hearing related to alleged misconduct by the plaintiff in relation to a number of female patients.
Essentially, the grounds upon which the plaintiff relies are that the defendant failed in its duty to perform an appropriate standard of enquiry and in its duty of good faith to avoid bias between the subjects (called complainants) and the plaintiff. The plaintiff by the Motion also seeks to restrain the defendant from conducting hearings into the allegations on the grounds that it would be an abuse of process and oppressive to the plaintiff. Finally the plaintiff seeks an Order that his lapsed medical registration be renewed.
The defendant opposes the Motion, says that its procedures were conducted properly, and that the plaintiff has failed to establish the matters requisite in an Order 56 Review and for prohibition.
A short chronology is as follows.
On 3 September 2002 the plaintiff was granted general registration as a medical practitioner in Victoria. He practised as such until 7 May 2003. On 22 January 2002 he signed an undertaking that, inter alia, he would not consult with female patients without a chaperone, not conduct home visits, and not prescribe certain drugs after 4 April 2002. On 21 March 2002 the plaintiff appeared at a Supervision Hearing of the defendant in relation to his breaching the undertaking of 22 January 2002. In the result he signed a further undertaking in relation to prescribing. On 24 April 2002 a Panel of the defendant, after conducting a formal hearing into the plaintiff’s professional conduct in relation to his prescribing of a mouthwash containing cocaine, made a finding that the plaintiff engaged in unprofessional conduct of a serious nature. The Panel determined that the plaintiff be reprimanded and cautioned and that he undergo further education. On 18 February 2003 the defendant provided the plaintiff Notice of Formal Hearing in relation to allegations received by the defendant by three female notifiers G., E. and K. in 1999, 2000 and 2001. The allegations were of serious sexual misconduct by the plaintiff and of inappropriate treatment by him.
In May 2003 the plaintiff was diagnosed with a brain tumour, and thereupon ceased medical practice.
On 13 May 2003 a Preliminary Conference was held to the Formal Hearing of the allegations from the three female notifiers referred to above. The plaintiff told the defendant that he was shortly to undergo surgery and accordingly the Formal Hearing was postponed. On 16 July 2003 the plaintiff underwent surgery for the brain tumour. Thereafter he underwent months of rehabilitation and suffered some cognitive impairment.
For annual renewal of the plaintiff’s medical registration he needed so to apply by 30 September 2003. He did not. Consequently, and pursuant to s 13(3) Medical Practice Act 1994, the defendant on 31 December 2003 removed the plaintiff’s name from the Register as it was bound to do.
In the meantime, on 22 October 2003 the defendant received a letter from Dr S de Graaf, head of the Neurology Rehabilitation Unit at the Caulfield Rehabilitation Centre stating that the plaintiff was then not fit to be a witness in the defendant’s proceeding. Then on 11 June 2004 the defendant received a letter from Dr de Graaf requesting advice as to assisting the plaintiff to return to medical practice. On 1 July 2004 the defendant advised Dr de Graaf that inter alia the plaintiff’s registration had lapsed and the first necessary step was for the plaintiff to apply for registration. From September 2004 to July 2005 there was correspondence, and some disputation, between the plaintiff and defendant as to the need for the plaintiff to undergo independent medical assessment to advance any application for registration. On 6 July 2005 by letter the defendant informed the plaintiff that the matter of his registration could not be further progressed until he made a formal application for restoration of his name to the Register, or a general application. The defendant provided the plaintiff with both relevant forms. On 2 August 2005 the plaintiff made application pursuant to s 14 Medical Practice Act 1994 for restoration of his name to the Register. On 18 August 2005 the defendant determined to refuse the plaintiff’s application for restoration of the Register, which determination was communicated to the plaintiff on 2 September 2005. On 29 September 2005 the defendant advised the plaintiff that the reason for its determination was its concerns about his health and his ability to practice medicine and that the defendant recommended that the plaintiff apply for general registration. On 18 October 2005 the plaintiff wrote to the defendant applying for “conditional registration” but did not lodge any application for registration. On 1 July 2007 the Health Professions Registration Act 2005 relevantly came into operation. On 17 July 2007 the plaintiff wrote to the defendant seeking “conditional registration”. Again he lodged no application.
In the meantime, on 16 July 2004 a Preliminary Conference was held for the Formal Hearing as to the allegations by the three female notifiers. On 24 February 2006 a Preliminary Conference was held, which the plaintiff did not attend, which determined that the Formal Hearing would proceed on 26 April 2006. The plaintiff was notified of this by letter of 28 February 2006. Formal Hearing by the Panel commenced on 26 April 2006, with the plaintiff in attendance. The Panel adjourned the hearing to a date to be fixed because of its concerns as to the plaintiff’s health and because the plaintiff stated that he intended to seek relief from this Court. On 27 April 2006, as I have stated, the plaintiff filed the Originating Motion.
Additionally to the above, on 29 June 2005 a Formal Hearing by a Panel of the defendant, in relation to an allegation that the plaintiff had failed to provide and transfer medical records was due to commence. The plaintiff did not appear. The Panel, because of concerns as to the plaintiff’s health, adjourned the hearing to a date to be fixed. The hearing has not yet resumed.
As I have said, the plaintiff appeared in person before me.
The plaintiff made extensive oral submissions, and relied in particular upon his affidavit sworn 27 April 2006 of nine pages with 8 exhibits. Mr A. Clements of counsel appeared for the Board. In the highest traditions of the Bar, Mr Clements acted with care and circumspection throughout given that the applicant appeared in person. Because the plaintiff appeared in person, because of the serious matters under consideration by the Board, and because of the plaintiff’s personal medical history, I have myself reviewed all the material in the files in fairness to him and to ensure that no relevant matter in the plaintiff’s favour was left unattended. This has taken some time. I regret the delay in handing down this judgment.
In this proceeding pursuant to Order 56 the plaintiff seeks judicial review of decisions of the defendant in relation to two separate subjects. First an Order in the nature of prohibition restraining a Panel of the defendant conducting a Formal Hearing into the allegations relating to the plaintiff’s professional conduct. Second, an Order from the Court that the defendant renew his registration as a medical practitioner. Effectively the plaintiff seeks certiorari in the quashing of the decision of the defendant made on 2 September 2005 to refuse his application for restoration to the Register of Medical Practitioners; and a mandatory injunction compelling the defendant to renew his registration and or restore his name to the Register.
The defendant was established by s 65 Medical Practice Act 1994. That Act was repealed on 1 July 2007 by s 163(1)(d) Health Professions Registration Act 2005. The defendant continued in existence and operation pursuant to s 117 Health Professions Registration Act 2005.
A principal purpose of the former Act was to protect the public by providing for the registration of medical practitioners and for investigations into, amongst other matters, the professional conduct of medical practitioners: s 1(a). So too of the Health Professions Registration Act: s 1(a).
The plaintiff was granted general registration as a medical practitioner on 3 September 1992 by the defendant’s predecessor pursuant to the provisions of the Medical Practitioners Act 1970. The plaintiff practised as a registered medical practitioner in Victoria from 3 September 1992 until 7 May 2003 when he ceased practise due to diagnosis of a brain tumour.
The plaintiff was due to renew his annual registration by 30 September 2003. The plaintiff did not apply to renew his registration, presumably due to his illness. Pursuant to s 13(3) Medical Practice Act 1994 the plaintiff’s name was removed from the Register of Medical Practitioners three months after his resignation was due to be removed, that is, immediately after 31 December 2003.
In June 2004 the defendant received a report from Dr S de Graaf, Head of Neurology Rehabilitation Unit at Caulfield General Medical Centre, stating that the plaintiff’s condition was improving but that he was still suffering from “mild residual higher cognitive deficits”. Dr de Graaf was of the opinion that the plaintiff was ready for “a graduated but supervised return to the workforce”. In the second half of 2004 and the first six months of 2005 the defendant attempted to obtain independent medical evidence in relation to the plaintiff’s condition but those efforts were frustrated by the plaintiff’s reluctance and at times refusal to undergo independent medical examination.
On 2 August 2005 the plaintiff applied to the defendant to have his name restored to the Register pursuant to s 14 Medical Practice Act 1994. Section 14 provided that a person whose name has been removed from the Register under s 13(3) may apply within two years for restoration to the Register and that upon such application the defendant may restore that person’s name to the Register. At its meeting on 18 August 2005, the defendant determined to refuse the plaintiff’s application for restoration. By letter dated 2 September 2005, the defendant told the plaintiff that his application for restoration has been refused and recommended that he apply for general registration. On 29 September 2005 the defendant provided reasons to the plaintiff for its decision to refuse his application for restoration to the Register, those reasons being that the defendant was concerned about the plaintiff’s health and ability to practise safely as a medical practitioner.
The defendant submits that there are six reasons why the plaintiff’s proceeding insofar as it seeks relief to quash the defendant’s decision to refuse the plaintiff’s application for restoration to the register and to compel the defendant to restore his name to the register should be dismissed. The reasons are as follows (taken from the helpful written submissions of Mr Clements, counsel for the defendant, which he supplemented orally).
First the defendant submits that there is no evidence that the defendant in making its decision to refuse the plaintiff’s application for restoration to the register acted beyond its statutory powers or unlawfully or improperly in any way. On the contrary in light of the defendant’s statutory purpose to protect the public, it was entirely appropriate for the defendant, when considering its decision, to treat as an important matter the issue of whether the plaintiff’s health had recovered to an extent that would enable him to practise medicine safely, particularly in circumstances where the most recent medical evidence in the possession of the defendant at the time the decision was made indicated that the plaintiff was still suffering from “mild residual high cognitive deficits” and that any return to the medical workforce would need to be “graduated” and “supervised”. The defendant’s concern in September 2005 about the plaintiff’s health has since been further vindicated by the service by the plaintiff of his affidavit sworn 9 November 2006 exhibited to which is an “Attending Doctor’s Statement” signed by Dr de Graaf on 9 September 2005 in which Dr de Graaf states in a box asking for comments on the plaintiff’s “current inability to return to his normal occupation” that Dr Srikantha’s “cognitive and language deficits would mean putting patients at risk…”.
Secondly, it is submitted that the Court has no jurisdiction to make an order compelling the defendant to renew the plaintiff’s registration or grant the plaintiff registration or restore his name to the Register. The repository of the statutory power to renew and or grant registration as a medical practitioner is the defendant, not the Supreme Court. The making of an order compelling the defendant to grant, renew or restore the plaintiff’s registration would involve the Court moving beyond the exercise of supervisory jurisdiction into the realm of merits review. If the Court took the view that the defendant had acted unlawfully or ultra vires it could remit the question of whether plaintiff’s name should have been restored to the Register back to the defendant to be decided in accordance with law but it is not for the Court to make the decision itself. However that course would also be problematic because there is no provision in the Health Professions Registration Act 2005 which grants the defendant power to restore a person’s name to the Register (as was the case with s 14 Medical Practice Act 1994) and the transitional provisions in the Health Professions Registration Act 2005 do not preserve the defendant’s power under s 14 Medical Practice Act 1994 beyond the repeal of the Medical Practice Act 1994.
Thirdly, insofar as the plaintiff seeks an order compelling the defendant to grant him registration, the plaintiff is asking the Court to order the defendant to do something that the defendant itself has no power to do. As a creature of statute, the defendant only has the powers conferred on it by statute. The defendant has no power to grant registration to the plaintiff as a medical practitioner because he has not made, and despite defendant’s repeated invitations he refuses to make, an application for registration under the Health Professions Registration Act 2005.
The granting of registration to a person as a medical practitioner is now governed by the provisions of Part 2 of the Health Professions Registration Act 2005 which provide that a person may apply to the defendant for registration as a medical practitioner and imposes various requirements in relation to such applications; see sections 4 to 11 Health Professions Registration Act 2005. The Health Professions Registration Act 2005 does not grant any power to the defendant to grant registration as a medical practitioner to a person who has not made an application for such registration in accordance with the Act.
Pursuant to s 118(4) Health Professions Registration Act 2005, the defendant has all the powers necessary to enable it to perform its functions. One of the defendant’s functions is to “register persons who comply with the requirements” of the Health Professions Registration Act 2005: see s 118(1)(a) Health Professions Registration Act 2005. The defendant submits that no power to grant registration to a person who has not made an application in accordance with the Health Professions Registration Act 2005 arises under s 118(4) Health Professions Registration Act 2005 given the relevant function of the defendant is to “register persons who comply with the requirements” of the Health Professions Registration Act 2005. It cannot be said that the plaintiff has complied with the requirements of the Act given he has failed to make an application for registration and thus failed to comply with s 4(2) of the Act which imposes various requirements in relation to information and documentation which an applicant must provide with an application.
The fourth reason why the defendant submits that the plaintiff’s application for an order that the defendant grant him registration as a medical practitioner should be refused relates to the protection of the public which, as stated above, is one of the main purposes of the Health Professions Registration Act 2005. One of the ways in which the defendant endeavours to protect the public is by carefully considering applications for registration as a health practitioner. One some occasions that necessitates detailed consideration of medical evidence in relation to the applicant’s health and whether as a result of any illness or injury the applicant’s capacity to practise medicine might be impaired in such a manner that might place the public at risk. The defendant has medical practitioners on the Board and a health committee which assists in this task. It is submitted that insofar as the registration of persons as medical practitioners is concerned, the objective of protecting the public is best achieved by the defendant, with its access to medical expertise, making decisions in relation to whether an applicant should be registered as a medical practitioner.
The fifth reason the defendant submits that the plaintiff’s application for an order that the defendant grant him registration as a medical practitioner is misconceived and should be dismissed is that it is far more appropriate for him to follow the procedures laid down by the Health Professions Registration Act 2005 for applying for registration and then, if his application for registration is unsuccessful, he can utilise the remedy provided to him by s 78(1)(a) Health Professions Registration Act 2005 if he so chooses. Pursuant to that section, if the defendant refuses a person’s application for registration or renewal of restoration, the person can apply to VCAT for review of that decision. By including that remedy in the Health Professions Registration Act 2005 it seems clear that the Victorian Parliament did not intend that disputes or complaints about registration be prosecuted in the Supreme Court in the manner the plaintiff is doing.
The sixth reason submitted why the plaintiff’s proceeding insofar as it seeks relief to quash the defendant’s decision to refuse his application for restoration to the register should be dismissed is that it was commenced well outside the 60 day time limit imposed by the Order 56.02. At the very latest, the 60 day time period commenced to run when the plaintiff received the reasons for the decision in the letter dated 29 September 2005. The Originating Motion was not filed until more than 6 months later. No application pursuant to Rule 56.02(3) for an extension of time in which to commence a proceeding under Order 56 should be granted. In order to grant an extension of time the Court must be satisfied that there are “special circumstances” and the Court should not be so satisfied given the proceeding is doomed to fail for the reasons referred to above.
The Originating Motion sought the following relief:
“1. A Declaration that:
(a) the formal hearing by a panel arranged by the first named defendant against the plaintiff on 26 April 2006 pursuant to Medical Practice Act 1994 (“the Act”) is invalid;
(b) the first named defendant failed in their duty to perform an appropriate standard of inquiry;
(c) the first named defendant failed in their Duty of Good Faith to avoid bias between complainants and plaintiff;
2. Relief in the nature of Prohibition to
(a) restrain the defendants from conducting hearings into the complaints on the grounds that it will be an abuse of process to hear matter due to the inordinate delay in prosecuting complaints so as to be obsessive and plaintiff fears that a fair hearing will not occur on grounds the defendant has vested interest in the outcome;
(b) or in the alternative restrain the defendants from conducting a hearing into the complaints [named] on grounds they are not within the jurisdiction of the Act and Order the formal hearing not held until the plaintiff has reached capacity to defend his medical practice.
3. Order the defendant to renew medical registration of plaintiff to allow Rehabilitation Services to assess plaintiff’s capacity to practice medicine after neurosurgery and if so deemed to have said capacity then continue to retrain back into medical practice as an hospital based anaesthetic trained.
4. Such further orders or other relief as this Honourable Court may think fit.”
By Notice on 29 January 1998 the plaintiff sought to amend the Originating Motion by setting out numerous factual allegations and matters of mixed fact and law. On 7 March 2008 Master Kings (as she then was) ordered that the plaintiff have leave to file the document as a submission. I have proceeded on that basis.
On 16 July 2008 I ordered that the paragraph numbered 3 above be struck out. At that time the plaintiff was represented by counsel and leave was sought by the plaintiff to withdraw that part of the relief sought. In the carriage of the main hearing, the plaintiff was unrepresented.
In the Originating Motion, there were ten grounds set out in support of the remedy sought. They include that the defendant has “refused to give a position to the following question of law to date” namely whether the Board “can deem I have reached the capacity to defend by professional practice when they have deemed I do not have the capacity to practice medicine since neurosurgery on 16 July 2003” thereby denying natural justice causing Formal Hearing invalidity (ground 3); that the Formal Hearing is not competent because the plaintiff is not registered as a medical practitioner (ground 4); that the defendant acted ultra vires in the inquiry process because of flaws in that process being failure to inquire into collusion and fraud, presuming that the notifiers were truthful, and failure to obtain relevant evidence and imposing a burden of proof on the plaintiff (ground 5); that the defendant acted ultra vires and failed in its duty of good faith and fair treatment and to avoid bias in that the defendant has sought to secure a conviction and neglected to inquire of matters favourable to the plaintiff, has formulated charges to secure a conviction rather than assess relevant medical criteria, and has prejudged relevant matters (ground 6); that the defendant has caused delay in hearing, laid charges without due investigation, had a predetermined view adverse to the plaintiff such that the hearing would be ultra vires, contrary to natural justice, and should be stayed permanently (ground 7); that the defendant acted ultra vires in refusing the plaintiff’s application for registration which would have enabled retraining and failing to give significant reasons therefor (ground 9); and that the listing of the Formal Hearing was ultra vires by reason of relevant material provided by the plaintiff as to capacity (ground 10).
By summons filed on 15 November 2006 the plaintiff sought an Order
“for an interim remedy that the defendant issue registration to the plaintiff under s 14 of the Medical Practice Act 1994 (‘Act’) to enable Commonwealth Rehabilitation Services to assess plaintiff in an hospital based environment to see if he has a capacity to practice medicine since his neurosurgery”.
A number of affidavits have been filed by the plaintiff. The principal affidavit is that sworn 27 April 2006. Further affidavits by the plaintiff were sworn on 15 November 2006, 7 December 2007, 12 December 2007, 11 February 2008, 14 March 2008 (a substantial affidavit) and 20 March 2008. In the plaintiff’s affidavits he rehearsed the matters of fact and procedure he relies upon as well as much other material. I have read the affidavits with care.
Numerous affidavits have been filed on behalf of the defendant. The principal affidavits are of Ms K. J. Atkinson, solicitor to the Board, sworn on 5 December 2007, 4 March 2008, 22 April 2008 and 15 July 2008. They are substantial affidavits with multiple exhibits and are clear, relevant and helpful to the Court. An affidavit of Mr J.A. Smithers, Australian lawyer, sworn on 11 December 2007, which is in relation to a specific matter, also is filed, and an affidavit of Ms C Geyer, solicitor, sworn on 10 July 2008. I have had regard to all the affidavit material filed on behalf of the defendant.
As I have said, because the plaintiff appeared in person, the mattes under inquiry are serious, and the plaintiff’s personal medical history, I have examined all the material in the exhibits to ensure that no relevant matter in his favour was left unattended.
Having heard the oral submissions of the plaintiff and read his voluminous affidavit material and writings, exhibited I can find no matter of fact, procedure or law to support his claims.
Through his oral submissions, his affidavits and his writings exhibited, the constant theme is that the actions and inaction (in relation to suggested non-inquiry) of the defendant were infected by bad faith and a future inquiry and hearing will likewise be infected. The plaintiff asserted this in the areas of incapacity, insufficiency and third parties. There is no evidence to support this assertion. None.
Further, the plaintiff’s submissions as to the Formal Hearing proceeded upon a misconception as to the proper function and process of a Formal Hearing and the proper process antecedent thereto. The plaintiff proposed, directly or by implication, that a full investigation must occur and be concluded before the convening of a Formal Hearing. That is a misconception. Inherently and inevitably the investigation informs the hearing and the Hearing itself is an investigative entity in which evidence is adduced and tested and at which the plaintiff has locus to initiate evidence and initiate and pursue issues: XD v Johnson & ors (No.2)[1]
[1](2002) 6 VR 381.
Next, the plaintiff has not demonstrated any inappropriate let alone inordinate delay in investigation by the defendant. Serious matters were under investigation and they were being treated with the seriousness they deserved. That included fairly putting material to the plaintiff to give him locus to respond.
Next, there is no evidence that the defendant in the investigation or Hearing process acted unlawfully or improperly. None.
Next, there is no requirement that for an inquiry or Hearing the subject respondent need to registered as a medical practitioner: ss 45B and 106 Medical Practice Act 1994, the Health Practitioners Acts (Further Amendments) Act 2002 and s 168 Health Professions Registration Act 2005.
Next, there is no evidence that the conduct of the defendant in any way obstructed the plaintiff’s rehabilitation. None.
Next, there is no evidence that the defendant acted without notification. The evidence is to the contrary.
Next, there is no evidence that the defendant approached Dr de Graaf improperly or untowardly in relation to employment or retainer, or that Dr de Graaf was or might be so affected by any such approach. None at all.
Next, as to the medical records matters, they are not as serious as the sexual matters but are serious nonetheless. My findings stated above apply equally to the records matter.
I have taken especial care, as I did during the proceedings, to give attention to the plaintiff’s cognitive state and capacity. There is no evidence to establish that the further inquiry or Hearing, or that already taken place, is contrary to the plaintiff’s capacity. The report of Professor S.F. Crowe, Clinical Neuropsychologist, of 27 February 2007 is relevant in that regard.
Although this is not a merits review and it is not necessary for an Order 56 review, having reviewed all the relevant factual material it is clear that the defendant in this case has acted properly and responsibly and in accordance with good practice.
On a Review as to the conduct of an investigatory body charged inter alia with protecting the public there is a heavy burden upon a person seeking to preclude such an investigation. The plaintiff has wholly failed to discharge that burden.
I refuse the relief sought and dismiss the Motion.
I shall hear counsel as to costs.
---
0