Woollard v The Medical Board of Australia Sitting as a Performance and Professional Standards Panel
[2016] WASCA 151
•29/08/16
WOOLLARD -v- THE MEDICAL BOARD OF AUSTRALIA SITTING AS A PERFORMANCE AND PROFESSIONAL STANDARDS PANEL [2016] WASCA 151
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 151 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:144/2015 | 22 AUGUST 2016 | |
| Coram: | NEWNES JA MURPHY JA MITCHELL JA | 29/08/16 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KEITH VICTOR WOOLLARD THE MEDICAL BOARD OF AUSTRALIA SITTING AS A PERFORMANCE AND PROFESSIONAL STANDARDS PANEL |
Catchwords: | Judicial review Certiorari for nonjurisdictional error of law on the face of the record Reasons incorporated into record Whether reasons for decision were inadequate Professional regulation Health profession Discipline Health Practitioner Regulation National Law Performance and Professional Standards Panel 'Unsatisfactory professional performance' Health practitioner's failure to maintain appropriate records |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010 (WA) Health Practitioner Regulation National Law, s 41, s 191, s 192, s 199 |
Case References: | Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Australian Postal Commission v Wallace (1996) 41 ALD 455 BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 Comcare v Parker [1996] FCA 678 Dornan v Riordan (1990) 24 FCR 564 Dornan v Riordan [1989] FCA 708; (1989) 19 ALD 185 Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149 Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Re A Medical Assessment Panel; Ex parte Hays (Unreported, WASC, Library No 98057C, 5 October 1998) Re Babban; Ex parte Suleski [2001] WASCA 289 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 Re Croser; Ex parte Rutherford (2001) 25 WAR 170 Re Gillett; Ex parte Rusich [2001] WASCA 111 Re Knezevic; Ex parte Carter [2005] WASCA 139 Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 Solomon v Australia Health Practitioner Regulation Agency [2015] WASC 203 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 Woollard v The Medical Board of Australia sitting as a Performance and Professional Standards Panel [2015] WASC 332 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WOOLLARD -v- THE MEDICAL BOARD OF AUSTRALIA SITTING AS A PERFORMANCE AND PROFESSIONAL STANDARDS PANEL [2016] WASCA 151 CORAM : NEWNES JA
- MURPHY JA
MITCHELL JA
- Appellant
AND
THE MEDICAL BOARD OF AUSTRALIA SITTING AS A PERFORMANCE AND PROFESSIONAL STANDARDS PANEL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ALLANSON J
Citation : WOOLLARD -v- THE MEDICAL BOARD OF AUSTRALIA SITTING AS A PERFORMANCE AND PROFESSIONAL STANDARDS PANEL [2015] WASC 332
File No : CIV 1257 of 2015
Catchwords:
Judicial review - Certiorari for nonjurisdictional error of law on the face of the record - Reasons incorporated into record - Whether reasons for decision were inadequate
Professional regulation - Health profession - Discipline - Health Practitioner Regulation National Law - Performance and Professional Standards Panel - 'Unsatisfactory professional performance' - Health practitioner's failure to maintain appropriate records
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Health Practitioner Regulation National Law, s 41, s 191, s 192, s 199
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A P Skerritt
Respondent : Mr M D Cuerden SC & Ms F A Stanton
Solicitors:
Appellant : Andrew P Skerritt
Respondent : MDS Legal
Case(s) referred to in judgment(s):
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Australian Postal Commission v Wallace (1996) 41 ALD 455
BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221
Comcare v Parker [1996] FCA 678
Dornan v Riordan (1990) 24 FCR 564
Dornan v Riordan [1989] FCA 708; (1989) 19 ALD 185
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Re A Medical Assessment Panel; Ex parte Hays (Unreported, WASC, Library No 98057C, 5 October 1998)
Re Babban; Ex parte Suleski [2001] WASCA 289
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Croser; Ex parte Rutherford (2001) 25 WAR 170
Re Gillett; Ex parte Rusich [2001] WASCA 111
Re Knezevic; Ex parte Carter [2005] WASCA 139
Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422
Solomon v Australia Health Practitioner Regulation Agency [2015] WASC 203
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480
Woollard v The Medical Board of Australia sitting as a Performance and Professional Standards Panel [2015] WASC 332
- REASONS OF THE COURT:
Introduction
1 This is an appeal against a decision of Allanson J in Woollard v The Medical Board of Australia sitting as a Performance and Professional Standards Panel1 (primary reasons), in which his Honour dismissed an application for judicial review by the appellant.
2 The appellant is a medical practitioner. On 29 August 2014, the Performance and Professional Standards Panel (Panel) of the Medical Board of Australia resolved to caution the appellant, having found that he had behaved in a way that constituted 'unsatisfactory professional performance'.
3 The Panel's decision was made under the Health Practitioner Regulation National Law (National Law). The National Law is a schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (Act). The National Law, which constitutes the national legislative scheme for the regulation of the health profession, is applied in Western Australia by s 4 of the Act. The finding of unsatisfactory professional performance was made pursuant to s 191(1)(b)(i) of the National Law. The Panel had the power to caution a practitioner pursuant to s 191(3)(c) of the National Law.
4 The appellant applied to the primary court for an order of certiorari to quash the Panel's decision.2 It was that application which was dismissed by the primary judge. The appellant now appeals against that decision of the primary judge. The sole ground of appeal is that the primary judge erred in law by failing to grant certiorari on the basis of the (alleged) inadequacy of the Panel's reasons for decision.
5 The appeal should be dismissed for the reasons which follow.
The complaint against the appellant
6 On 30 October 2012, the Medical Board of Australia received a voluntary notification from a former patient of the appellant, on whom the appellant had performed a coronary angioplasty. The complaint concerned the appellant's alleged failure to explain the risks and possible complications of a coronary angioplasty, and to discuss alternative, non-invasive, treatment options.
7 In May 2014, the Medical Board brought allegations of unsatisfactory professional performance against the appellant. These allegations, set out in a statement of proposed facts and a statement of allegations dated 8 May 2014, were that the appellant:
(a) failed to obtain informed consent from the patient for the coronary angioplasty, in that he:
(i) did not adequately inform the patient of the possible risks and potential complications; and/or
(ii) failed to confirm the patient's understanding of the risks and potential complications,
and, or in the alternative,
(b) failed to maintain clear, appropriate, accurate and detailed clinical records of his discussion(s) with the patient regarding the risks and potential complications of the coronary angioplasty.
The background facts
8 The following facts were not in dispute.
9 The appellant was, at all relevant times, registered as a medical practitioner pursuant to pt 7 of the National Law. In 2011, the appellant was practising as a cardiologist who consulted from rooms at St John of God Murdoch and at the Mount Hospital Perth, Western Australia.
10 The patient was a retired medical practitioner who had previously worked as a consultant gastroenterologist. The appellant had known the patient for some 30 years before the procedure and the appellant stated that he had been on good terms with him both before and after the events in question.
11 The patient had first attended upon the appellant on 28 September 2011, after being referred to the appellant by his general practitioner.
12 Following the initial consultation, the patient underwent a stress echocardiograph (stress ECG) on 30 September 2011. At the consultation with the appellant following the stress ECG, it was arranged for the patient to undergo a CT angiogram on 6 October 2011. The CT angiogram revealed calcified plaque in the patient's major epicardial blood vessels. Upon receiving the results of the CT angiogram, the appellant recommended that the patient undergo an invasive angiography. The patient gave his consent, and the patient underwent a coronary angiogram performed by the appellant on 20 October 2011 at the Mount Hospital.
13 On 20 October 2011, following the angiography, the appellant advised the patient that he would benefit from a coronary angioplasty. Coronary angioplasty is a medical procedure used to treat coronary heart disease. During coronary angioplasty, a small balloon is inflated inside one or more of the coronary arteries in order to open them up and improve blood flow to the heart.
14 The patient was later sent by ordinary post a consent form entitled 'coronary angioplasty'. The consent form outlined a number of risks associated with the procedure, including the rare possibility of complications which could result in permanent damage and even death. The patient signed the consent form on 27 October 2011, and also signed a Mount Hospital pre-admission summary and consent form on 2 November 2011. The pre-admission summary and consent form included a declaration that the patient had been advised of the material risks associated with the procedure, that the patient understood the risks, and that the patient had had the opportunity to ask questions and was satisfied with the information received.
15 On 2 November 2011, the coronary angioplasty was performed on the patient by the appellant. Fifteen minutes after the surgery was performed, the patient was found to have suffered a stroke.
16 The appellant continued caring for the patient following the stroke. The patient had his final consultation with the appellant on or about 24 April 2012, when he told the appellant that he was feeling well and exercising approximately four times per week. Arrangements were made for the patient to see another doctor.
The reference to and decision of the Panel
17 On 4 March 2012, the Medical Board of Australia resolved to refer the matter to the Panel for hearing and determination. The Panel comprised two medical practitioners, and one member representing the community.3 Briefing Submissions were prepared for the Panel by counsel assisting the Panel.
18 The appellant's evidence was to the effect that in addition to the provision of the consent form and the pre-admission summary and consent form signed by the patient, he had also orally advised the patient of the risks associated with coronary angioplasty, including the remote risk of serious harm from heart attacks and strokes.4 This was said to have occurred on 20 October 2011, whilst the patient was in recovery after the invasive angiography. The patient's evidence included evidence to the effect that he did not recall such a discussion with the appellant.5
19 It was not in dispute that there was no record of any discussion between the appellant and the patient on 20 October 2011 concerning the risks associated with coronary angioplasty.
20 The appellant also relied on a Heart Foundation Booklet (Booklet) which he said his secretary had sent by post to the patient.6 The patient did not recall receiving the Booklet.7
21 The Briefing Submissions before the Panel recorded that the appellant contended that he had maintained 'clear and accurate medical records to enable the continuing good care of the [p]atient and that his records [were] compliant with clause 8.4 of the Good Medical Practice: A Code of Conduct for Doctors in Australia (Code)'.8 The appellant, in his written submissions for the Panel, also contended that he had 'maintained clear, accurate and contemporaneous clinical records for the primary purpose of enabling the continuing good care of [the patient]. Further, [his] clinical records [were] compliant with clauses 2.2.3 and 8.4 of the Code …'.9
22 On 29 August 2014, after the hearing, the Panel found that the appellant had behaved in a way that constituted unsatisfactory professional performance and issued a caution to the appellant. The Panel gave written reasons for its decision.
23 In its reasons, the Panel set out the facts of the matter and the appellant's version of events, the allegations against the appellant, submissions made by the patient and the appellant, and the expert evidence.
24 At par 31 of the reasons, the Panel stated that:
[It] had regard to the full set of documents in the Bundle, including, but not limited to:
a. the Practitioner's clinical notes …, which did not appear to record any discussions with the Patient regarding the risks and the possible complications of a coronary angioplasty;
b. the consent form entitled 'Coronary Angioplasty' … signed by the patient on 27 October 2011 …
c. the Mount Hospital 'Pre-admission Summary and Consent' form … signed by the Patient on 2 November 2011.
25 The Panel found that it was not persuaded that the appellant had failed to obtain informed consent from the patient to perform the coronary angioplasty. Nor did the appellant fail to confirm the patient's understanding of the risks and potential complications. The consent forms alerted the patient to the risk, and the appellant had conversed with the patient about the coronary angioplasty procedure shortly after the patient's coronary angiogram, even though the conversation did not take place at an 'ideal time' because of the medication administered to the patient during the coronary angiogram.
26 However, the Panel was persuaded that the practitioner had:10
failed to maintain clear, appropriate, accurate and detailed clinical records of his discussion(s) with the Patient regarding the risks and potential complications of the coronary angioplasty.
27 In this regard, the Panel said:11
In reaching this finding, the Panel noted the following:
a. The system the Practitioner had in place by which documentation was provided to patients, particularly the signing of consent-related documents, was less than ideal.
b. It was concerned with the accuracy and thoroughness of the Practitioner's clinical notes and considered that the Practitioner should have included reference to having provided a consent form and the Booklet and having discussed the potential risks and complications with the Patient, in his notes.
28 The Panel accordingly found that the appellant:12
had behaved in a way that constitutes unsatisfactory professional performance pursuant to s 191(1)(b)(i) of the National Law.
29 The Panel also said that after considering the oral and written evidence, it had decided to caution the appellant.13
The Code
30 As the primary judge observed,14 s 41 of the National Law provides that a code approved by a National Board is admissible in proceedings against a health practitioner registered by the Board 'as evidence of what constitutes appropriate professional conduct or practice for the health profession'. The Medical Board of Australia had approved a code: 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (Code).
31 In s 1.1, the Code states its purpose in these terms:
Good Medical Practice (the code) describes what is expected of all doctors registered to practise medicine in Australia. It sets out the principles that characterise good medical practice and makes explicit the standards of ethical and professional conduct expected of doctors by their professional peers and the community.
...
This code does not set new standards. It brings together, into a single Australian Code, standards that have long been at the core of medical practice.
32 Section 1.2, entitled 'Use of the Code', states that the Code will be used, amongst other things:
To assist medical boards in their role of protecting the public, by setting and maintaining standards of medical practice. If your professional conduct varies significantly from this standard, you should be prepared to explain and justify your decisions and actions. Serious or repeated failure to meet these standards may have consequences for your medical registration.
33 Section 2 is headed 'Providing good care'. Section 2.1 states that providing good care includes facilitating coordination and continuity of care. In s 2.2, the Code continues that good medical practice involves:
2.2.3 Maintaining adequate records (see Section 8.4).
…
2.2.5 Communicating effectively with patients (see Section 3.3).
34 Section 3.3 is headed 'Effective communication'. It states a number of matters involved in effective communication in the doctor/patient relationship, including:
3.3.3 Informing patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment.
3.3.4 Discussing with patients their condition and the available management options, including their potential benefit and harm.
3.3.5 Endeavouring to confirm that your patient understands what you have said.
3.3.6 Ensuring that patients are informed of the material risks associated with any part of the proposed management plan.
35 Finally in s 8, headed 'Professional Behaviour', the Code deals with medical records. Section 8.4 states:
Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves:
8.4.1 Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management.
8.4.2 Ensuring that your medical records are held securely and are not subject to unauthorised access.
8.4.3 Ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks.
8.4.4 Ensuring that the records are sufficient to facilitate continuity of patient care.
8.4.5 Making records at the time of the events, or as soon as possible afterwards.
8.4.6 Recognising patients' right to access information contained in their medical records and facilitating that access.
8.4.7 Promptly facilitating the transfer of health information when requested by the patient. (emphasis added)
The primary decision
36 The primary judge referred to the relevant statutory scheme, including the definition of 'unsatisfactory professional performance' in s 5 of the National Law:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
37 His Honour said:15
The obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been a reviewable error. In general, the adequacy or sufficiency of reasons is assessed by reference to their function and purpose.
38 His Honour also referred to McLure JA's observations in Re Knezevic; Ex parte Carter,16 to the effect that in the context of medical assessment panels, it is not possible to derive a mechanical formula for determining what constitutes sufficient reasons, and the content of the duty to provide adequate reasons will not be the same for every panel decision.
39 His Honour also referred to the High Court's decision in Wingfoot Australia Partners Pty Ltd v Kocak,17 and observed that the content of a statutory duty to provide reasons is to be determined as a matter of statutory construction. His Honour went on to state that in the present case, the obligation to provide reasons is found in s 192 of the National Law, which provides:
(1) As soon as practicable after making a decision under section 191, a panel must give notice of its decision to the National Board that established it.
(2) The National Board must, within 30 days after the panel makes its decision, give written notice of the decision to -
(a) the registered health practitioner or student the subject of the hearing; and
(b) if the hearing related to a notification, the notifier.
(3) The notice given to the registered health practitioner or student must state -
(a) the decision made by the panel; and
(b) the reasons for the decision; and
(c) that the registered health practitioner or student may appeal against the decision; and
(d) how an application for appeal may be made and the period within which the application must be made.
41 His Honour then considered a number of the statutory features of decision-making by the Panel, including the absence of any legal members on the Panel; the Panel's power to decide its own procedures; the fact that is not bound by the rules of evidence but must observe the principles of natural justice; and the nature of its powers.18
42 His Honour also noted that the appellant relied on the decision in Solomon v Australia Health Practitioner Regulation Agency.19 In that case, Mitchell J said that a finding of unsatisfactory professional performance involves, in essence, three elements. The first is that the practitioner's behaviour enables a certain inference to be drawn about the knowledge, skill or judgment possessed, or care exercised by the practitioner. Such an inference must be drawn on the facts. Secondly, the knowledge etc is possessed, or the care is exercised, 'in the practice of the health profession in which the practitioner is registered'. The third element is that the level of knowledge etc or care reflected in the relevant behaviour is 'below the standard reasonably expected of a health practitioner of an equivalent level of training and experience'. Mitchell J said that a conclusion about this third element involves answering three questions:
(a) What level of training and experience is possessed by the practitioner?
(b) What standard of knowledge etc or care would be expected of a health practitioner with that level of training and experience?
(c) Was the knowledge etc or care reflected in the practitioner's behaviour (as found by the Panel) below the standard identified in the answer to question 2?
43 Allanson J continued:20
With respect, I agree with and would adopt Mitchell J's analysis, and also his comments that followed immediately, regarding the context of the particular case which may make it unnecessary for a panel to deal with the steps separately and sequentially. Those further comments, in my opinion, apply to the present case.
First, the facts relating to the records kept by [the appellant] were not in dispute. The panel said at par 31 that it had regard to the full set of documents, including the practitioner's clinical notes, 'which did not appear to record any discussions with the patient regarding the risks and possible complications of a coronary angioplasty'. The undisputed fact is that the clinical notes did not record any discussion with the patient on any occasion on which [the appellant] said he discussed risks and complications. [The appellant] relied upon the consent forms as being part of the clinical record, and on the submission that the NHMRC General Guidelines for Medical Practitioners on Providing Information to Patients suggests doctors should normally discuss material risks but says nothing about recording the risks discussed. In that regard, the panel stated that it considered that [the appellant] should have included reference in his notes to having provided the consent form and a booklet on the procedure, and to having discussed potential risks and complications. The factual basis of the finding is clear.
Second, no question arises in this case about level of skill or experience. It was undisputed that [the appellant] is a senior medical practitioner, practising as a cardiologist. The standard applied was one applicable to all practitioners.
Third, there was no controversy about the applicable standard. The briefing submission, which was provided to [the appellant] before the hearing, clearly identified the issue as whether [the appellant] maintained appropriate clinical records of his discussion(s) with the patient; identified the Code as the standard, under the National Law, of what constitutes appropriate professional conduct or practice; and identified the relevant sections of the Code. The reasons record [the appellant's] submission that his records comply with s 8.4 of the Code and, in particular, that the consent form was part of the medical records. Section 8.4.1 of the Code states, relevantly, that good medical practice involves keeping accurate records that 'report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management'.
Whether a practitioner has complied with the Code is conduct which shows knowledge, skill or judgment possessed, or care exercised by the practitioner, or the want of those matters. The finding of unsatisfactory professional performance necessarily implies that the panel found a failure to comply. This is explicit in the statement of the panel at par 43 that the practitioner should have included reference in his notes to having provided a consent form and the booklet, and having discussed the potential risks and complications.
The reasons of the panel have not been shown to be inadequate.
The appellant's submissions
44 As noted earlier, there is only one ground of appeal, which is to the effect that the Panel's reasons for decision were inadequate.
45 The appellant's submissions comprehended two related themes. The first is that the Panel's decisions, on their face, disclose inadequacy. The second is that there were specific errors in the judge's reasoning which led his Honour to conclude (allegedly erroneously) that the Panel's reasoning was adequate.
46 The appellant submitted that neither the Panel's reasons nor Allanson J's reasons answered the following 'key' questions:21
1. What does 'less than ideal' amount to in respect of par 43a of the Panel's reasons for decision?
2. What was the 'ideal' standard that should have been followed?
3. Which particular professional guideline or rule had been breached by the appellant?
4. What evidence was specifically relied upon to reach the adverse finding against the appellant?
47 It was also submitted that 'a sweeping' statement by the Panel that it had had regard to the full set of documents, is an error as it 'does not give the decision of the Panel adequacy'.22 The appellant contended that a general announcement that all of the relevant evidence has been considered is not an adequate identification of reasons. In support of that proposition, counsel for the appellant quoted a passage purportedly taken from Dornan v Riordan.23 He also submitted that the reasons should enable the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. Reference was made to Soulemezis v Dudley (Holdings) Pty Ltd.24 The appellant submitted that the Panel did not satisfy this obligation.25
48 The appellant also submitted that the Panel apparently considered that, in addition to the signed consent form, the appellant should have made a 'separate contemporaneous note' of his discussion with the patient of the risks associated with coronary angioplasty.26 However, the Panel, according to the appellant, never identified in its reasons the specific professional rule or requirement that compels a practitioner to complete a consent form with a patient and to also make a separate contemporaneous note that the consent form had been discussed with the patient.27 It was said that this omission was not explained by Allanson J.28
49 Further, the appellant submitted that the Panel did not explain why it rejected his evidence that he had complied with the professional standards and that his note-taking and records were accurate.29 It was submitted that because there was conflicting evidence as to the appellant's compliance, the Panel should have expressly stated which evidence it did not accept and that it should have provided some reasoned basis for the choice.30 In respect of this submission, counsel for the appellant quoted a passage purportedly taken from two cases, Australian Postal Commission v Wallace31and Total Marine Services Pty Ltd v Kiely.32
50 Specifically with reference to the second theme of his submissions, the appellant submitted, citing Comcare v Parker,33 that Allanson J reasoned back from the Panel's finding of unsatisfactory professional conduct to make several assumptions as to the evidence and basis upon which the Panel's decision was made.34 In this regard, it was said that his Honour made reference to the appellant's breach of s 8.4 of the Code even though the Panel did not refer to the Code in its findings.35 It was submitted that Allanson J appears to have understood the Panel's finding of unsatisfactory professional performance as necessarily implying that the Panel found that the appellant failed to comply with the requisite professional standards.36 The appellant contended that Allanson J should not have stated that 'the factual basis of the findings is clear'.37
51 The appellant also submitted that Allanson J's use of the terms 'clinical records' and 'clinical notes' is 'confusing'. This was because, it was said, a practitioner may consider a signed consent form as both part of the patient's 'clinical notes' as well as the patient's 'clinical record'.38 Imprecise language in this regard may lead a medical practitioner to become confused in respect of his obligations, which in turn is said to give strength to the assertion that the Panel was obliged to identify precisely why the practitioner had 'transgressed' and the basis upon which he had done so.39
52 Ultimately, the appellant submitted that the failure of the Panel to give adequate reasons for its decision gives rise to an inference that it failed to exercise its power according to law.40
Disposition
53 In Re A Medical Assessment Panel; Ex parte Hays,41 Wheeler J (Pidgeon & White JJ concurring) said:
The essence of the reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with the decision to determine whether there has been a reviewable error[.]
54 Although Wheeler J's observations were made in a somewhat different statutory context, her Honour's statement reflects in general terms the requirement for reasons contained in the National Law. The statutory scheme of the National Law also indicates the importance of reading reasons fairly and as a whole, in their context, taking proper account of the decision-maker's lack of legal expertise, and without applying a 'fine-tooth appellate comb', or 'an eye keenly attuned to the perception of error'.42
55 There is no merit in the appellant's arguments that the primary judge erred in the application of the relevant principles to the Panel's reasons in the present case.
56 In paragraph 43a of its reasons, the Panel said in effect that, to the extent that the appellant contended that his system for maintaining records included the provision of the consent form and Booklet, its dependence on the material being sent to the patient, via post, 'was less than ideal'. But that observation is itself contextual to the main conclusory finding in par 43b that the practitioner should have recorded in his notes the provision of any oral or written communication to the patient about potential risks and complications. It is plain that par 43a is not intended to be read as a stand-alone basis for the ultimate finding of unsatisfactory professional performance.
57 The Panel's statement that it had had regard to the full set of documents was an introductory statement about the material it had examined. The appellant's submissions on this point take the statement out of context and seek to invest it with a meaning and significance that it cannot possibly bear when the reasons are read as a whole.
58 As to the evidence relied on, it was not in dispute that the appellant kept no notes of any oral communications of the disclosure of risks to the patient, and no notes of having provided documents to the patient with respect to such matters. Nor was it in dispute that a medical practitioner of the appellant's level of training and experience would reasonably be expected to maintain clear and accurate medicate records reporting relevant details and information given to patients. The expected standard of care and what the appellant did to record the information he gave to the patient were not controversial issues before the Panel. The only real issue in controversy before the Panel was whether the appellant's conduct involved the exercise of the expected standard of care. That was an evaluative decision for the Panel to make. The Panel was not required to say expressly in its reasons that those matters were not in dispute. When its reasons are read as a whole, it evidently proceeded on those undisputed facts.
59 As to the guidelines or rules relied on, the Panel recorded the appellant's submission that he had complied with s 8.4 of the Code,43 and the Panel evidently rejected that contention. In other words, when the reasons are read as a whole, it is plain that the Panel had regard to s 8.4 of the Code in finding that the appellant had failed to maintain clear, appropriate, accurate and detailed clinical records of his discussions with the patient regarding the risks and potential complications of the coronary angioplasty.
60 The primary judge did not reason back from the Panel's finding of unsatisfactory professional conduct, or make any assumptions in that regard, as alleged by the appellant. Rather, his Honour read the Panel's reasons and attributed a scope and meaning to them which, on any ordinary reading of the reasons, they plainly bear. It is both appropriate and necessary to have regard to not only what is expressly stated in the reasons, but also to what can be reasonably inferred from the reasons: Carter.44 The primary judge did not err in drawing the necessary inferences from the Panel's reasons.
61 Nor is there any proper basis for imputing error to his Honour in relation to his Honour's use of the words 'clinical records' and 'clinical notes'. The suggestion in this appeal that a practitioner may consider a signed consent form as both part of the patient's 'clinical notes' as well as the patient's 'clinical record', is an assertion of fact not grounded in the findings of the Panel, and not the subject of the ground of appeal. Moreover, even if it be assumed that a consent form signed by the patient could ultimately be regarded as part of the doctor's 'clinical notes', the Panel's reasons are clear. It was the practitioner's failure to record in his clinical notes the fact that he had provided a consent form, or the Booklet, and his failure to make any record of his oral communication with the patient regarding the risks of the coronary angioplasty procedure, that constituted the appellant's unsatisfactory professional performance.
62 Further, the authorities to which counsel for the appellant referred in his written submissions do not assist the appellant in this appeal. Counsel for the appellant's submissions also misstated a number of the authorities cited.
63 The decision in Soulemezis, to which counsel for the appellant referred, was a decision concerning the provision of reasons in a judicial decision. Observations about the purposes served by judicial reasons provide, except at the highest level of generality, very little concrete guidance to the scope and content of reasons required under specific statutory regimes such as the National Law.
64 In Dornan, a tribunal was responsible for determining a base fee for pharmaceutical benefits. It decided to reduce the base rate fee for the remuneration of pharmacists from $4.55 for each 'ready prepared item' to $3.50. However, the tribunal failed to disclose how this figure of $3.50 was reached, or what it was considered to represent.45 The tribunal stated that it had not engaged in mathematical calculations but had come to the figure after weighing the material before it. Such a general statement was found to be inadequate in the context. All the tribunal had done was set out the contentions of the parties and announce its conclusion.46 Unlike the present case, there was no statement of reasons at all.47 Moreover, the passage quoted by counsel for the appellant,48 purportedly from Dornan, does not appear in Dornan.49 It appears to be taken from an article by Goldberg J, not referred to by counsel for the appellant in his written submissions, that provides a commentary on Dornan.50 In that article, Goldberg J indicated that usually the Federal Court will take a very restrained approach when reviewing a tribunal's reasons.51
65 Also, the passage in the appellant's written submissions52 which is attributed to Wallace and Kiely53 appears to be drawn from Goldberg J's article.54 The quote from the article reads 'where there is conflicting medical evidence it will usually be necessary for the tribunal to find expressly which evidence is accepted and which evidence is not accepted and to provide some reasoned basis for the choice'.55 The quoted sentence was written by Goldberg J in the context of an observation that 'any significant fact must be recognised in such a way that the reasons themselves provide a sufficient indication that the ultimate facts to be decided have been fully kept in mind and that no significant area of primary fact has been ignored'.56
66 In Wallace, there was a factual dispute as to whether the applicant continued to suffer compensable injury in the relevant time period. The tribunal favoured the views of the applicant's doctors, but it did not disclose why that evidence was favoured. Conversely, in Kiely, the Federal Court found that the tribunal had revealed its reasoning process in resolving the conflicting medical evidence. Wallace and Kiely are distinguishable from the facts of the present matter, as here there was no factual dispute about what the appellant had done.
67 Counsel for the appellant also referred in his written submissions57 to Comcare. In that case, the relevant tribunal was required to consider whether the claimant suffered an 'injury' as a result of a failure to obtain a promotion. The tribunal's conclusion was to the effect that the claimant's medical condition was caused, at least in part, by the interview for the promotion. The Federal Court considered that the reasons given by the tribunal did not disclose any reasoned basis for its conclusion that 'the interview was totally separate to the promotion process'. Finn J concluded that:
It is not in my view either appropriate or profitable to speculate about the possible course of reasoning which produced the Tribunal's conclusion. Both the parties and, for that matter, this Court should be able to discern that course from the reasons given. In saying this I am not for a moment suggesting that the mere presence of some doubt, some ambiguity or some parsimony in the reasons given will for that reason render reasons for decision inadequate. Rather what I am saying is that the reasons here are 'unduly uninformative' - to adopt a description employed by Sachs J in Eaves v Eaves and Powell [1956] P 154 at 157. (emphasis added)
68 Counsel for the appellant quoted only the italicised portion of the above passage in his submissions. But as the remainder of the passage indicates, Finn J regarded it as important to add that the mere presence of some doubt, or parsimony in expression, will not in themselves render the reasons inadequate. In the present case, the Panel's reasoning process is explicit in par 43b, albeit succinctly expressed.
Other matters
69 Although the National Law provides for appeals to the State Administrative Tribunal from a number of disciplinary decisions, it does not provide for an appeal from a decision to caution a practitioner.58 It was presumably the absence of any right of appeal which led the appellant to seek judicial review of the Panel's decision. If such an avenue of appeal were available, its existence would ordinarily be a powerful discretionary consideration against the issue of certiorari.59
70 Parliament's omission to provide for any right of appeal in this case might be explained by the absence of any impact which a 'caution' has on the legal rights and obligations of the health practitioner. That lack of legal effect on legal rights and duties also raises a question as to whether certiorari lies to quash the Panel's decision to caution the appellant.60 In the present case, that question would arise where the error alleged - a failure to give reasons - would be an error of law on the face of the record, rather than a jurisdictional error going to the validity of the decision to caution.61
71 The failure of the appellant's ground of appeal makes it unnecessary to determine whether certiorari, or declaratory relief as an alternative to certiorari,62 would have been available if the alleged error had been established.
Conclusion
72 The appeal should be dismissed.
1Woollard v The Medical Board of Australia sitting as a Performance and Professional Standards Panel [2015] WASC 332.
2 It was common ground that there was no 'appeal' to the State Administrative Tribunal, given that only a caution was imposed: s 199 of the National Law.
3 See s 182 of the National Law.
4 Appellant's statement, pars 61 - 63; GB 60 - 61.
5 Panel reasons, par 23(b); BB 32.
6 Panel reasons, par 26(e).
7 Panel reasons, par 23(d).
8 GB 15.
9 Dr Woollard's written submissions to the Panel, par 58; GB 33.
10 Panel reasons, par 42.
11 Panel reasons, par 43.
12 Panel reasons, par 39.
13 Panel reasons, par 44.
14 Primary reasons [11] - [16].
15 Primary reasons [48].
16Re Knezevic; Ex parte Carter [2005] WASCA 139 [22] - [32], especially [32]; primary reasons [49].
17Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [43] - [44].
18 Primary reasons [53] - [59].
19Solomon v Australia Health Practitioner Regulation Agency [2015] WASC 203[131] - [136]; primary reasons [60].
20 Primary reasons [61] - [66].
21 Appellant's written submissions, pars 35 - 36; WB 12 - 13.
22 Appellant's written submissions, par 31; WB 11 - 12.
23 Appellant's written submissions, par 31; WB 11 - 12, citing Dornan v Riordan [1989] FCA 708; (1989) 19 ALD 185 (Affirmed on appeal: Dornan v Riordan (1990) 24 FCR 564).
24 Appellant's written submissions, par 36; WB 13, citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279.
25 Appellant's written submissions, par 36; WB 13.
26 Appellant's written submissions, par 37; WB 13.
27 Appellant's written submissions, par 38; WB 14.
28 Appellant's written submissions, par 38; WB 14.
29 Appellant's written submissions, par 40; WB 14.
30 Appellant's written submissions, par 40; WB 14.
31Australian Postal Commission v Wallace (1996) 41 ALD 455.
32Total Marine Services Pty Ltd v Kiely (1998) 51 ALD 635, 640.
33Comcare v Parker [1996] FCA 678.
34 Appellant's written submissions, par 30; WB 11; Appellant's written submissions, par 32; WB 12; Appellant's written submissions, par 39; WB 14, citing Comcare [27].
35 Appellant's written submissions, par 33; WB 12.
36 Appellant's written submissions, par 29.6; WB 11.
37 Appellant's written submissions, par 30; WB 11, referring to Allanson J's reasons [62].
38 Appellant's written submissions, par 37; WB 13.
39 Appellant's written submissions, par 37; WB 13.
40 Appellant's written submissions, par 41; WB 14, citing Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422, 446; Dornan; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; Re Gillett; Ex parte Rusich [2001] WASCA 111; Re Babban; Ex parte Suleski [2001] WASCA 289; Wingfoot.
41Re A Medical Assessment Panel; Ex parte Hays (Unreported, WASC, Library No 98057C, 5 October 1998) 6.
42Solomon [146]; see also (albeit in a different statutory context) BP Australia Pty Ltd v Contaminated Sites Committee [2012] WASC 221 [124] - [125].
43 Panel reasons, par 25(c).
44Carter [4], [29] citing Re Croser; Ex parte Rutherford (2001) 25 WAR 170, 184. See also Wingfoot [61], [63].
45Dornan (appeal decision) (568 - 569).
46Dornan (appeal decision) (570).
47Dornan (appeal decision) (570 - 571).
48 Appellant's written submissions, par 31; WB 11.
49 Either the first instance or appeal decision.
50 Alan Goldberg J, 'When are Reasons for Decision Considered Inadequate?'(2000), AIAL Forum No 24, 3 - 4.
51 Alan Goldberg J, 'When are Reasons for Decision Considered Inadequate?'(2000), AIAL Forum No 24, 3.
52 Appellant's written submissions, par 40; WB 14.
53Kiely (640).
54 Alan Goldberg J, 'When are Reasons for Decision Considered Inadequate?' (2000), AIAL Forum No 24, 5.
55 Alan Goldberg J, 'When are Reasons for Decision Considered Inadequate?' (2000), AIAL Forum No 24, 5.
56 Alan Goldberg J, 'When are Reasons for Decision Considered Inadequate?' (2000), AIAL Forum No 24, 5.
57 Appellant's written submissions, par 32; WB 12.
58 Sections 191(3)(c) and s 199(1) of the National Law.
59Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [134] - [140].
60 See Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 159.
61Solomon [179] - [190].
62 See Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 - 582
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