XG v Medical Board of Australia

[2011] VSC 638

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2010 00599

XG	Plaintiff
v
MEDICAL BOARD OF AUSTRALIA (formerly MEDICAL PRACTITIONERS BOARD OF VICTORIA) and DR L.A. SHAPERO, DR B.M. WHITE, MRS S. PANAGIOTIDIS AND MR M. GORTON (a panel of MEDICAL PRACTITIONERS BOARD OF VICTORIA appointed pursuant to section 46 of the Medical Practice Act 1994)	Defendants

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	29 and 30 November 2011
DATE OF JUDGMENT:	9 December 2011
CASE MAY BE CITED AS:	XG v Medical Board of Australia
MEDIUM NEUTRAL CITATION:	[2011] VSC 638

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ADMINISTRATIVE LAW – Inherent power of the Supreme Court to stay a proceeding before a panel of the Medical Board of Australia – Complaint of infamous conduct against general medical practitioner in relation to a female patient – Whether tribunal proceeding should be permanently stayed – Alleged conduct occurred in the period 1973 to 1979 – Complaint made in January 2007 – Lengthy delay – Unavailability of potential witnesses and medical records – Balancing competing considerations – Prejudice to practitioner – Public interest in having serious allegations investigated – Severance of complaint – Stay granted in respect of some allegations in the complaint – Medical Practice Act 1994 ss 1, 22, 25, 38K, 46, 65, 102A – Medical Practitioners Act 1970 ss 16, 17 – Health Professions Registration Act 2005 ss 117, 163(1), 166, 168, 184 – Health Practitioners Regulation National Law (Victoria) Act 2009 sch cl 289.

SUPREME COURT – Inherent jurisdiction – Power to stay a proceeding before a medical tribunal on the ground that it is an abuse of process of the tribunal. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J J Noonan SC with Mr M W Richardson	John W Ball & Sons
For the Defendants	Mr A D Clements	Minter Ellison

TABLE OF CONTENTS

Introduction and summary........................................................................................................ 1

Court’s inherent power to stay proceedings constituting an abuse of process................... 2

Relevant statutory provisions................................................................................................... 5

The subject matter of the Panel Hearing................................................................................. 7

Summary of AA’s first affidavit........................................................................................... 8

AA’s background............................................................................................................. 8

Pethidine prescriptions and sexual relationship with the plaintiff............................... 9

Linacre Private Hospital............................................................................................... 11

Gresswell Rehabilitation Centre.................................................................................... 11

Prince Henry’s Hospital................................................................................................ 12

One-off sexual encounter with the plaintiff in 1979.................................................... 12

Events between 1980 and 1992.................................................................................... 12

Summary of AA’s supplementary affidavit....................................................................... 13

Affidavits of two acquaintances of AA.............................................................................. 13

The plaintiff’s response to AA’s allegations....................................................................... 14

Evidence obtained after the commencement of this proceeding........................................ 14

Facts based on contemporaneous records.............................................................................. 15

AA’s consultations with the plaintiff................................................................................. 15

AA’s admissions to various institutions............................................................................. 17

Linacre............................................................................................................................ 17

Alfred Hospital.............................................................................................................. 17

Parkville Psychiatric Unit.............................................................................................. 18

Gresswell........................................................................................................................ 20

Sir Charles Gairdner Hospital....................................................................................... 20

Prince Henry’s Hospital................................................................................................ 20

Unavailability of evidence...................................................................................................... 21

Dead or unavailable witnesses........................................................................................... 21

Unavailable records............................................................................................................. 22

Witnesses with no recollection............................................................................................ 22

Submissions of the parties...................................................................................................... 23

Decision regarding the sex for pethidine allegation............................................................ 24

Unavailability of medical records....................................................................................... 25

Unavailability of witnesses................................................................................................. 27

Additional prejudice caused by AA’s delay....................................................................... 29

Conclusion........................................................................................................................... 31

Decision regarding the long-term sexual relationship allegation...................................... 32

Decision regarding the one-off sexual encounter allegation.............................................. 34

Decision regarding the abortion allegation........................................................................... 35

Proposed order.......................................................................................................................... 37

HIS HONOUR:

Introduction and summary

1. This is an application by the plaintiff, a general medical practitioner, for an order permanently staying the proposed formal hearing by a panel (‘Panel’) established by the Medical Practitioners Board of Victoria (‘MPBV’) into allegations that the plaintiff engaged in infamous conduct in relation to a female patient (‘Panel Hearing’).

1. The application is made pursuant to the Court’s inherent jurisdiction.  Interlocutory orders have been made requiring that the plaintiff be referred to as ‘XG’ and that the patient be referred to as ‘AA’.

1. The Panel was established following the MPBV’s receipt of a complaint from AA on 4 January 2007.  In the complaint, AA made the following allegations against the plaintiff:

(a)in the period from 1973 until 1978, on numerous occasions, the plaintiff provided to AA the analgesic drug, pethidine, in return for sexual favours;

(b)in the period from 1973 until 1978, on numerous occasions, the plaintiff engaged in sexual acts with AA;

(c)in 1974 or 1975, at a consultation with AA outside normal business hours, the plaintiff performed a dilatation and curette without any anaesthesia with the purpose and effect of terminating AA’s pregnancy; and

(d)in 1979, on one occasion, the plaintiff engaged in sexual intercourse with AA during a consultation.

1. The basis of the plaintiff’s application for a stay is that the Panel Hearing constitutes an abuse of process.  The plaintiff asserts that, by reason of the lengthy delay between the commission of the alleged infamous conduct and the making of the complaint to the MPBV, and intervening events such as the deaths of potential witnesses and the unavailability of medical records, he is unable to receive a fair hearing before the Panel.

1. The defendants to the plaintiff’s application are the Medical Board of Australia (‘Board’), which replaced the MPBV on 1 July 2010, and four individuals who comprise the Panel.[1] 

   [1]See below [17]-[19].

1. For the reasons that follow, I have concluded that a permanent stay should be granted in relation to the allegations set out at [3](a) and (b) above but not in relation to the allegations set out at [3](c) and (d) above.

Court’s inherent power to stay proceedings constituting an abuse of process

1. This Court has an inherent power to make an order staying a proceeding in a statutory tribunal on the ground that the proceeding constitutes an abuse of the tribunal’s process.[2]    

   [2]Walton v Gardiner (1993) 177 CLR 378, 391-2 (‘Walton’); XD v Johnson [No 2] (2002) 6 VR 381, 383-5 [3]‑[10] (‘XD [No 2]’); Batistatos v Roads and Traffıc Authority (NSW) (2006) 226 CLR 256, 264 [6] (‘Batistatos’).

1. There is a clear analogy between the concept of abuse of a court’s process in relation to criminal proceedings and the concept of abuse of a tribunal’s process in relation to disciplinary proceedings.[3]   

   [3]Walton (1993) 177 CLR 378, 395; XD [No 2] (2002) 6 VR 381, 384-5 [9]; Herron v McGregor (1986) 6 NSWLR 246, 254 (‘Herron’).

1. The Court’s inherent power to control its own process and proceedings is not restricted to defined and closed categories; it is broad and may be exercised as and when the administration of justice demands.[4]

   [4]Jago v District Court of New South Wales (1989) 168 CLR 23, 74 (‘Jago’); Walton (1993) 177 CLR 378, 394; Batistatos (2006) 226 CLR 256, 264 [7], 265 [9]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 (1 December 2011) [89].

1. In determining whether the Panel Hearing should be permanently stayed, the Court must engage in a weighing process.  The weighing process involves a subjective balancing of a range of considerations supporting or militating against a conclusion that a continuation of the Panel Hearing would be so unfairly and unjustifiably oppressive of the plaintiff as to constitute an abuse of the Panel’s process.[5]  The considerations include:

   [5]Walton (1993) 177 CLR 378, 395-6, 398; Jago (1989) 168 CLR 23, 33-34, 60-61, 72.

(a)       the need to maintain public confidence in the system for the investigation of complaints against medical practitioners;[6]

[6]Walton (1993) 177 CLR 378, 395-6; XD [No 2] (2002) 6 VR 381, 388-9 [23].

(b)      the public interest in the proper and impartial investigation of complaints against medical practitioners and in the exposure of malpractice by those licensed by the State to carry out invasive and intimate examinations for medical reasons;[7]

[7]XD [No 2] (2002) 6 VR 381, 385 [12], 388-9 [23].

(c)       the protective character of the disciplinary proceeding;[8]

[8]Walton (1993) 177 CLR 378, 395-6; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637 (‘Litchfield’).

(d)      the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners;[9]

[9]Walton (1993) 177 CLR 378, 395-6.

(e)       the seriousness of the complaint against the medical practitioner;

(f)       the requirements of fairness to the medical practitioner;[10]

[10]Walton (1993) 177 CLR 378, 395-6.

(g)the length of any delay in the making of a complaint against the medical practitioner or in its investigation and the reasons for the delay;[11]

(h)      the prejudice to the medical practitioner from a continuation of the disciplinary proceeding, having regard to matters such as the age and lack of detailed particulars of the allegations to be investigated and the medical practitioner’s lack of records that may have assisted his or her defence of the allegations;[12] and

(i)       the capacity of the disciplinary tribunal to give directions or to mould its procedures so as to ameliorate any prejudice to the medical practitioner.[13]

[11]See below [13].

[12]XD [No 2] (2002) 6 VR 381, 388-9 [23]; Herron (1986) 6 NSWLR 246, 254.

[13]Dr SS v Health Care Complaints Commission [2002] NSWCA 391 (9 December 2002) [32] (‘Dr SS’); XD [No 2] (2002) 6 VR 381, 389 [24]-[25].

1. The above considerations make clear that the public interest in the Panel Hearing continuing is not the only public interest to consider.  There is also a public interest in a fair hearing and in ensuring that the Panel’s proceedings are not an abuse of process.[14]  In Herron v McGregor,[15] McHugh JA said:

If the prejudice or unfairness is so oppressive as to amount to an abuse of process, the public interest requires that the proceedings be stayed.  There is no public interest in hearing a complaint and making a finding of professional misconduct against a doctor where the delay of the complainant has caused the defendant substantial prejudice and unfairness amounting to an abuse of process.  Members of the public could have no confidence whatever in a finding of professional misconduct made in those circumstances.[16]

[14]Herron (1986) 6 NSWLR 246, 267.

[15](1986) 6 NSWLR 246.

[16]Herron (1986) 6 NSWLR 246, 267.

1. It has been said that there is a ‘very heavy burden’ imposed on a medical practitioner seeking an order from this Court to stay a proposed investigation into allegations concerning the practitioner’s professional conduct.[17]  It has also been said that the Court’s power to permanently stay proceedings in a medical tribunal should only be exercised in ‘very exceptional circumstances’.[18]  What is meant by these statements is that, as there are strong public interest considerations against granting a stay, very potent grounds must be demonstrated in a particular case in order to tip the balance in favour of granting a stay. 

   [17]XD [No 2] (2002) 6 VR 381, 385 [12].

   [18]Dr SS [2002] NSWCA 391 (9 December 2002) [23], [33].

1. Delay in the making of a complaint or in its investigation and the reasons for the delay are relevant considerations in the Court determining whether to grant a stay.[19]  However, unexplained delay by a complainant should not normally, by itself, lead to a permanent stay order being made unless it will result in an unfair hearing.[20]  According to Mason CJ in Jagov District Court of New South Wales,[21] the granting of a permanent stay on the basis of delay alone will be very rare.[22]

   [19]Herron (1986) 6 NSWLR 246, 256; Litchfield (1997) 41 NSWLR 630, 637; Dr SS [2002] NSWCA 391 (9 December 2002) [12], [23].

   [20]Dr SS [2002] NSWCA 391 (9 December 2002) [12], [23].

   [21](1989) 168 CLR 23.

   [22]Jago (1989) 168 CLR 23, 33-4. See also at 60 per Deane J.

1. In summary, this Court should only exercise its inherent power to stay the Panel Hearing as an abuse of process if it is satisfied that, in all the circumstances, the Panel Hearing would involve unacceptable injustice or unfairness.[23]

   [23]Walton (1993) 177 CLR 378, 392.

1. In my opinion, an abuse of process may be constituted by all or part of the subject matter of a hearing by a disciplinary tribunal.  Accordingly, if this Court concludes that the continuation of the Panel Hearing in relation to only some of AA’s allegations would constitute an abuse of process in the sense discussed above, it has inherent power to stay the Panel Hearing in so far as it relates to those allegations.  The parties did not cavil with this proposition. 

Relevant statutory provisions

1. The MPBV was established pursuant to s 65 of the Medical Practice Act 1994 (‘MP Act’). The Panel was established pursuant to s 46 of the MP Act for the purpose of conducting a formal hearing into the professional conduct of the plaintiff.

1. On 1 July 2010, the MPBV was abolished pursuant to s 184 of the Health Professions Registration Act 2005 (‘HPR Act’), and the Board was established pursuant to s 31 of the Health Practitioner Regulation National Law (Victoria) Act 2009. The MP Act was repealed on 1 July 2007 by s 163(1)(d) of the HPR Act.

1. From 1 July 2007 until 1 July 2010, the MPBV continued in existence pursuant to ss 117 and 166 of the HPR Act. As the complaint by AA about the professional conduct of the plaintiff was received by the MPBV on 4 January 2007, s 168 of the HPR Act enabled the MPBV to complete the investigation as if the provisions of the MP Act had not been repealed.

1. Therefore, AA’s complaint about the plaintiff is to continue to be dealt with by the Board and under the statute pursuant to which it was made, namely the MP Act.[24]

   [24]Health Practitioner Regulation National Law (Victoria) Act 2009 sch cl 289(2)(a),(b).

1. One of the main purposes of the MP Act is to protect the public by providing for ‘investigations into the professional conduct … of registered medical practitioners’.[25] 

   [25]MP Act s 1(a).

1. Section 22 of the MP Act enables a person to notify the MPBV of ‘any matter relating to a registered medical practitioner’ if the person believes that ‘the medical practitioner may have engaged in unprofessional conduct’.[26]    

   [26]MP Act s 22(1)(b).

1. The MPBV must conduct a preliminary investigation into the notification to determine whether or not it is necessary to conduct an informal or a formal hearing into the professional conduct of the medical practitioner.[27]

   [27]MP Act s 25(2).

1. Once the preliminary investigation has been completed, the MPBV must determine whether the investigation into the matter not proceed further or whether an informal or a formal hearing be held into the matter.[28]  If the Board determines that a formal hearing is to be held, it must appoint a panel to hold the hearing and serve notices on the medical practitioner and on the person who made the notification.[29]   

   [28]MP Act s 38K(1)(a),(b), (2).

   [29]MP Act s 46.

1. AA’s complaint concerns activities of a medical practitioner that are alleged to have occurred before the commencement of the MP Act on 1 July 1994. Therefore, the MP Act applies in so far as there was power to conduct an inquiry under s 16 or 17 of the Medical Practitioners Act 1970 (‘1970 Act’) into those activities.[30]  Any determination or outcome of a hearing into the alleged conduct of the medical practitioner must be one that would have been available as a finding or decision in an inquiry by the then Medical Board of Victoria (‘MBV’) under the 1970 Act.[31]

   [30]MP Act s 102A(1).

   [31]MP Act s 102A(2).

1. Section 16 of the 1970 Act empowered the MBV to conduct an inquiry into any matter concerning the activities of a medical practitioner. Under s 17(4) of the 1970 Act, where the MBV made a finding that a medical practitioner was guilty of ‘professional misconduct’, it could, among other things, reprimand him or her, suspend his or her registration or remove his or her name from the Medical Register of Victoria (‘Register’). Under s 17(4A) of the 1970 Act, where the MBV made a finding that a medical practitioner was guilty of ‘infamous conduct in a professional respect’, it was required to remove his or her name from the Register.

The subject matter of the Panel Hearing

1. As stated at [3] above, on 4 January 2007, the MPBV received a complaint from AA about the professional conduct of the plaintiff. Following an interview with AA on 23 April 2007, the MPBV decided to conduct a preliminary investigation. The plaintiff was notified of AA’s complaint on 15 May 2007.

1. On 28 February 2008, the MPBV determined to conduct a formal hearing into the plaintiff’s professional conduct.  The plaintiff was advised of this decision on 11 March 2008. 

1. On 4 September 2009, the MPBV served on the plaintiff a notice (‘Notice’) advising him that the Panel would conduct a formal hearing into AA’s allegations commencing on 1 February 2010.  The Notice stated the subject matter of the Panel Hearing as follows:

That on any or all of the occasions below, you engaged in infamous conduct in a professional respect [in] that:

(a)In between around 1973 to around 1978, on numerous occasions, you engaged in sexual activities (including oral sex and sexual intercourse) with your patient, [AA], both during and outside consultations.

(b)In around 1979, on one occasion, you engaged in sexual intercourse with [AA] during a consultation.

(c)In between around 1973 to around 1978, you inappropriately prescribed and/or administered pethidine to [AA] in exchange for sexual activities (including oral sex and sexual intercourse), both during and outside consultations.

(d)In between around 1974 and around 1975, at a consultation with [AA] (outside normal business hours) you performed a dilatation and curette, without any anaesthesia, with the purpose and effect of terminating [AA’s] pregnancy.

1. I will refer to the allegation in para (a) of the Notice as the ‘long-term sexual relationship allegation’, the allegation in para (b) as the ‘one-off sexual encounter allegation’, the allegation in para (c) as the ‘sex for pethidine allegation’ and the allegation in para (d) as the ‘abortion allegation’. 

1. For the purposes of the Panel Hearing, the MPBV prepared a ‘Book of Evidence’ which was served on the plaintiff on 12 March 2009.  The Book of Evidence contained 26 documents which included an earlier version of the Notice, four affidavits, an expert report and correspondence.

1. The four affidavits included an affidavit affirmed by AA on 22 August 2008 (‘first affidavit’) and a supplementary affidavit affirmed by her on 19 December 2008 (‘supplementary affidavit’).  These affidavits set out details of AA’s complaint against the plaintiff, and are summarised at [32] to [62] below.  

Summary of AA’s first affidavit

AA’s background

1. AA was born on 7 May 1954.  In approximately May 1972, she commenced training as a nurse at the Prince Henry’s Hospital.  In approximately November 1972, she commenced living with her boyfriend at his mother’s house.  AA and her boyfriend married in May 1975 and divorced in approximately 1978.  Depending on the context, I will refer to AA’s former husband as her ‘fiancé’, ‘husband’ or ‘former husband’.  

1. From around mid-1972 until mid-1973, AA suffered from recurrent urinary tract infections.  In mid-1973, AA had a kidney operation at the Prince Henry’s Hospital.  She continued to suffer a significant amount of pain and was readmitted to have a right nephrectomy.  AA believes that she was given pethidine while in hospital. 

1. AA began attending consultations with the plaintiff in around 1972.  At that time, the plaintiff was practising with another doctor, Dr Connard, at a clinic (‘Clinic’).[32]  AA continued to attend consultations with the plaintiff until around 1978.  She was billed for all her consultations. 

   [32]As the Clinic is still in operation, its name has not been disclosed.

1. Prior to her second kidney operation, AA had approximately 10 consultations with the plaintiff. 

Pethidine prescriptions and sexual relationship with the plaintiff

1. Following her second kidney operation, AA attended the plaintiff due to ongoing pain.  The plaintiff gave her an injection of pethidine to assist her with her pain. 

1. AA attended a follow-up appointment the next day.  At this appointment, the plaintiff gave AA another pethidine injection.  AA saw the plaintiff ‘a couple more times during this week’ and he gave her more injections of pethidine during these consultations.

1. Approximately one week after AA’s first appointment with the plaintiff in which he gave her a pethidine injection, the plaintiff gave her one or more prescriptions for pethidine or ampoules of pethidine to self-administer.  Each ampoule was 100mg of pethidine.  AA described this as a ‘regular practice’ which continued for several weeks.   

1. AA could not recall whether the plaintiff initially gave her ampoules for the first few weeks and later started giving her prescriptions for pethidine.  AA believed that the plaintiff may have also been giving her Valium so as to try to reduce her pethidine consumption.

1. AA described the plaintiff’s provision of pethidine as follows:

…he would usually give me a box of five ampoules, each containing 100mg of Pethidine.  Also, when he did give me prescriptions, I recall that he gave me five prescriptions at a time on many occasions.  Each prescription was usually for one box of five ampoules, each containing 100mg of Pethidine.  As my addiction to Pethidine grew, I would attend five different chemists in five different areas and get all of the prescriptions filled on the same day. 

1. AA could ‘clearly recall’ one particular consultation with the plaintiff where ‘things went very differently’.  At this consultation, the plaintiff told her that she needed to relax, asked her to get onto his examination couch and locked his door.  The plaintiff took AA’s pants down a little, put his hands on her stomach and moved his hands down and underneath her underpants.  The plaintiff then put his fingers into AA’s vagina and started to masturbate her.  After the plaintiff had masturbated AA, he gave her either scripts for or ampoules of pethidine and syringes to take home. 

1. AA returned to the plaintiff after this consultation because she was ‘in a lot of pain’ and she believed that ‘by that stage [she] was addicted to Pethidine and [she] needed the scripts for Pethidine’.  AA felt very dependent on the plaintiff.  She knew that she could get the scripts from him without any questions. 

1. At AA’s subsequent consultations with the plaintiff, he would, on most occasions, ask her to get onto the examination couch and he would masturbate her.  This progressively led to her giving the plaintiff oral sex and to full penetrative sex. 

1. The plaintiff did not physically force AA to engage in sexual conduct with him, however she was ‘hooked’ on the pethidine and felt ‘intimidated by his power’.  AA ‘knew that if [she] did what [the plaintiff] wanted [she] would get the Pethidine’. 

1. AA may have initiated the penetrative sex the first time because ‘[she] knew this would mean that [she] would be able to obtain as many Pethidine scrips as [she] wanted’.  It was AA’s belief that ‘the only way to get the prescriptions was to have sex with [the plaintiff]’.

1. AA described her arrangement with the plaintiff as ‘almost habitual’:

I came in for Pethidine and he would give me the prescriptions and I would have sex with him, give him oral sex or he would masturbate me. 

1. Between 1973 and 1978, AA visited the plaintiff’s house on at least 20 occasions to collect prescriptions for pethidine.  AA would contact the plaintiff if she had run out of pethidine and was starting to feel withdrawal symptoms.  AA and the plaintiff would have sex in a room of the house that the plaintiff called the ‘maids’ quarters’, if the plaintiff’s wife and children were not home or if the children were at home and in bed. 

1. The plaintiff also visited AA’s house on a number of occasions, and they had sex on the majority of these occasions. 

1. On one occasion, when the plaintiff was away, AA visited another doctor at the Clinic.  That doctor refused to give her a prescription for pethidine and said that she should wait until the plaintiff returned.  

1. AA’s pethidine addiction progressively worsened.  She realised that she was addicted to pethidine in around early 1974. 

Linacre Private Hospital

1. In around 1974, the plaintiff admitted AA to Linacre Private Hospital (‘Linacre’) to undertake some investigations into her headaches.  The plaintiff conducted a lumbar puncture, which involved inserting a needle between AA’s vertebrae and extracting spinal fluid to see whether there was any infection.  AA stayed at Linacre for two weeks. 

1. During AA’s stay at Linacre, she was being injected with pethidine by some of the nurses, which she believed would have been prescribed by the plaintiff on the hospital’s medication chart.  AA recalled that ‘the nurses were not happy giving it to me’. 

1. The plaintiff would come to Linacre in the evenings after he had finished work and would take AA out of the hospital.  AA described what occurred as follows:

I do not know if [the plaintiff] had any permission to take me out of the hospital.  Some of the nursing staff who were working at this time were aware that [the plaintiff] was coming and taking me out of the hospital, as many of them would have actually seen this happen, but they never asked me about it.  I would have been dressed in my pyjamas or a nightie and perhaps a dressing gown on these occasions.

I recall this happening every night but it may have been that it was every second night.  I cannot be sure.

1. After AA and the plaintiff left the hospital, he would drive her to the Clinic on most occasions, and to the plaintiff’s home on some occasions.  There they would engage in sexual conduct, including penetrative sex.  The plaintiff would then take AA back to the hospital, usually by the end of visiting hours. 

Gresswell Rehabilitation Centre

1. In 1978, towards the end of AA’s consultations with the plaintiff, she was twice admitted to the Gresswell Rehabilitation Centre (‘Gresswell’).  The first admission was arranged by Helen Metcalf, the matron at the Moorabbin Hospital where AA was working at the time.  AA was found unconscious in the toilet with a syringe in her arm and Ms Metcalf arranged the admission to help AA with her pethidine addiction.      

Prince Henry’s Hospital

1. In around 1978, in between AA’s two admissions to Gresswell, she presented to the casualty ward of the Prince Henry’s Hospital complaining of a headache.  In fact, AA was trying to get some pethidine.  

One-off sexual encounter with the plaintiff in 1979

1. In 1978, AA ceased her consultations with the plaintiff and moved to Perth to get away from him.  In Perth, AA’s pethidine addiction transformed into an addiction to heroin. 

1. AA returned to Melbourne in around 1979 to visit family and friends.  AA also visited the plaintiff at the Clinic.  AA described this visit as follows:

For some reason I went to visit [the plaintiff] at his clinic.  I had hoped that he would say sorry to me for everything that had happened, but instead, when I came into the consultation room, he locked the door and again he wanted sex from me.  Like in the past, I was still terrified and was unable to respond.  We had sex on this occasion.  This was the last time we had sex as I never returned to the practice and never contacted [the plaintiff] again.

Events between 1980 and 1992

1. AA returned to Perth following her visit to Melbourne in 1979.  In 1982, AA moved to an isolated town in Queensland.  In approximately 1989, she commenced a methadone program.

1. In 1992, during a visit to Melbourne, AA’s methadone permit was transferred to a local methadone prescriber so that she could continue to take the drug while she was in Melbourne.  AA consulted Dr Michael Kozminsky.  She described this consultation as follows:

I recall that I asked [Dr Kozminsky] whether he knew [the plaintiff] because they both were in similar areas.  Dr Kozminsky told me that [the plaintiff] was now a … surgeon and he told me that [the plaintiff] had made some ‘foolish choices’ while his first marriage was breaking down.  

Summary of AA’s supplementary affidavit

1. In around 1974 or early 1975, AA discovered that she was pregnant.  At that time, AA was engaging in sexual intercourse with both her fiancé and the plaintiff.

1. At one of AA’s consultations with the plaintiff, she told him that she believed she was pregnant and that she wanted to terminate the pregnancy.  The plaintiff told her that he could perform a termination in an after hours consultation at the Clinic.  AA described what occurred at that consultation as follows:

The plaintiff performed a dilatation and curette on me to terminate my pregnancy, which occurred.  As it was after hours no one else was there.  [The plaintiff] did not give me any sedation or anaesthesia.  I recall almost passing out from what I describe as ‘white pain’.  It was the most painful experience I have had.  From memory, the procedure took between 15 and 20 minutes, however, I cannot be sure.  I can recall [the plaintiff] saying that he was not going to document this procedure as he should not be doing it.

Affidavits of two acquaintances of AA

1. The MPBV obtained affidavits from two female acquaintances of AA.  The first acquaintance said the following: 

(a)In 1974, she and her husband went out to dinner with AA and her fiancé and some other people and:

[AA] had had a few drinks and told [them] that her doctor masturbated her and that this made her orgasm and that she enjoyed this more than she enjoyed being with [AA’s fiancé].

(b)She realised that AA was a drug addict after AA got married.  AA’s fiancé told her that he saw that AA was taking pethidine, that AA had scripts and that, on one occasion, he saw lots of pills and vials in a locked wardrobe. 

1. The second acquaintance said the following: 

(a)In late 1973 or early 1974, when she and AA were with some friends, someone said ‘she’s pregnant’, referring to AA.   

(b)She believes that someone told her that AA’s pregnancy was terminated.  AA was never quite the same after this.

(c)AA used to get all sorts of medications from the plaintiff.  AA had medications in her kitchen cupboard.  In around 1976 or 1977, when she visited AA’s home with her two-year-old son, AA injected herself in the thigh in front of her son. 

The plaintiff’s response to AA’s allegations

1. As stated at [26] above, the plaintiff was notified of AA’s allegations by letter dated 15 May 2007 from the MPBV. By letter dated 8 June 2007, the plaintiff responded as follows:

Thank you for your letter of 15 May 2007.  I note the allegations against me by [AA].

You ask for a complete and clear copy of my medical records.  I left Australia in 1981 and sold my practice in 1982 or thereabouts.  I have no idea where the medical records from my former practice are located, if in fact they still exist.

I have only a vague memory of [AA].  I deny her allegations of unprofessional conduct.  In particular, I deny that I engaged in a sexual relationship with her.  I am unable to say whether I prescribed her pethidine at any time as I have no access to my patient records.  

Evidence obtained after the commencement of this proceeding

1. The plaintiff commenced this proceeding on 2 February 2010.  The Panel Hearing has been deferred pending the hearing and determination of this proceeding.  

1. In his amended statement of claim dated 15 March 2010, the plaintiff sought an order permanently staying the Panel Hearing or, alternatively, an order staying the Panel Hearing until 90 days after the Board provided to the plaintiff 11 categories of evidence that were said to be relevant to the subject matter of the Notice. 

1. The proceeding was listed for hearing before Williams J on 25 November 2010.  On that day, the parties agreed that the Board would seek further evidence and the hearing was adjourned part-heard until 21 February 2011.  The hearing was subsequently aborted and the proceeding was re-listed for hearing before me commencing on 29 November 2011. 

1. At the hearing before me, the plaintiff abandoned his alternative claim that the Board had failed to obtain all relevant available evidence.  This is because, following the adjournment on 25 November 2010, the Board obtained further evidence which it provided to the plaintiff.  Some of this further evidence was tendered at the hearing before me and is incorporated in the factual analysis set out at [71] to [103] below.

1. Accordingly, the sole remaining issue is whether the Panel Hearing should be stayed on the basis that it constitutes an abuse of process. 

Facts based on contemporaneous records

AA’s consultations with the plaintiff

1. The table below sets out Medicare records of medical services provided to AA from July 1975 until May 1976 that attracted Commonwealth medical benefits.  The Medicare records show that from 10 July 1975 until 20 May 1976, AA attended 33 consultations with the plaintiff of varying durations, both in and after hours, and for various medical treatments. 

Date	Doctor	Medicare item no.	Brief description of service	Explanation
10/07/75	Plaintiff	26	GP Consultation	Long consultation (25 to 45 minutes) – after hours
21/07/75	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
25/07/75	Dr Percy Zerman	33	GP Consultation	Prolonged consultation (more than 45 minutes) – in hours
01/08/75	Plaintiff	748	Anaesthetics	Initial major regional or field block
01/08/75	Plaintiff	6460	Gynaecological Surgery	Curettage of uterus
01/09/75	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
16/09/75	Plaintiff	19	GP Consultation	Standard consultation (5 to 25 minutes) – after hours
07/10/75	Plaintiff	19	GP Consultation	Standard consultation (5 to 25 minutes) – after hours
07/10/75	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
13/10/75	Plaintiff	51	GP Consultation	Standard home visit (5 to 25 minutes) – in hours
15/10/75	Plaintiff	51	GP Consultation	Standard home visit (5 to 25 minutes) – in hours
03/11/75	Plaintiff	19	GP Consultation	Standard consultation (5 to 25 minutes) – after hours
19/11/75	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
02/12/75	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
02/12/75	Plaintiff	1704	Pathology test for pregnancy	Chronic gonadotrophins (for diagnosis of pregnancy)
16/01/76	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
21/01/76	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
28/01/76	Unknown	110	Consultant Physician attendance
01/02/76	Plaintiff	748	Anaesthetics	Initial major regional or field block
01/02/76	Plaintiff	6460	Gynaecological Surgery	Curettage of uterus
10/02/76	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
07/03/76	Plaintiff	19	GP Consultation	Standard consultation (5 to 25 minutes) – after hours
14/03/76	Plaintiff	53	GP Consultation	Standard home visit (5 to 25 minutes) – after hours
16/03/76	Plaintiff	19	GP Consultation	Standard consultation (5 to 25 minutes) – after hours
17/03/76	Plaintiff	7085	Neuro-Surgical procedure	Lumbar puncture
19/03/76	Plaintiff	53	GP Consultation	Standard home visit (5 to 25 minutes) – after hours
21/03/76	Plaintiff	53	GP Consultation	Standard home visit (5 to 25 minutes) – after hours
27/03/76	Plaintiff	53	GP Consultation	Standard home visit (5 to 25 minutes) – after hours
28/03/76	Plaintiff	53	GP Consultation	Standard home visit (5 to 25 minutes) – after hours
06/04/76	Plaintiff	19	GP Consultation	Standard consultation (5 to 25 minutes) – after hours
13/04/76	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
23/04/76	Plaintiff	14	GP Consultation	Standard consultation (5 to 25 minutes) – in hours
27/04/76	Plaintiff	19	GP Consultation	Standard consultation (5 to 25 minutes) – after hours
16/05/76	Plaintiff	53	GP Consultation	Standard home visit (5 to 25 minutes) – after hours
20/05/76	Plaintiff	51	GP Consultation	Standard home visit (5 to 25 minutes) – in hours

AA’s admissions to various institutions

Linacre

1. As stated at [51] to [54] above, in her first affidavit, AA said that the plaintiff admitted her to Linacre in around 1974 and conducted a lumbar puncture.  Linacre has destroyed the patient records for AA.  The only document held by Linacre about AA is a single page computer printout containing AA’s name and other identifying details.  The printout does not disclose the period in which AA stayed at Linacre, the nature of her condition or any treatment or medication that she received. 

Alfred Hospital

1. According to the records of the Parkville Psychiatric Unit of the Royal Melbourne Hospital, AA was admitted to the Alfred Hospital in approximately July 1975 ‘following an overdose’.  The Alfred Hospital’s pre-2004 medical records pertaining to AA were destroyed in November 2010.

Parkville Psychiatric Unit

1. AA was first admitted to the Parkville Psychiatric Unit on 2 September 1976, following a referral from a general practitioner, Dr Sabar Rustomjee.  In his referral letter dated 1 September 1976 to a psychiatrist, Dr Stephen Joshua, Dr Rustomjee stated:

[AA] has been dependent on Fortral since last 6 months up to 120mgm /close three times daily and Valium 20mgm three times daily. 

She is well motivated to give this up and I feel hospitalisation is required for this purpose.

1. Fortral is one of the brand names for the analgesic drug, pentazocine.  Valium is one of the brand names for the tranquiliser drug, diazepam. 

1. AA was seen by Dr Joshua on 2 September 1976.  In a letter dated 8 September 1976 to Dr Rustomjee, Dr Joshua said the following about AA:

She has been abusing Fortral and Valium for the past six or seven months, stating that this is the only thing that helps her chronic headaches.  She is a dependent person with marital problems and personality problems with a thinly veiled underlying hostility.

1. AA was also seen by a psychiatric registrar, Dr Lolita Ellims.

1. AA was discharged on 3 September 1976.  She was readmitted on 27 September 1976 and was seen on that day by Dr Ellims.  Dr Ellims prepared a report dated 27 September 1976 which stated:

Diagnosis … Pentazocine dependency … Diazepam dependency. 

Presented with a 2 year history of chronic headaches and pentazocine and diazepam abuse.  A dependent personality with marital problems and guilt over an extramarital affair.

1. AA was discharged on 29 September 1976 against medical advice. 

1. The records of the Parkville Psychiatric Unit contain a document entitled ‘Summary’ that was prepared by Dr Ellims on 14 October 1976 (‘PPU summary document’).  The PPU summary document described AA’s ‘Present Problem’ as follows:

This 22 year old nurse presented with a two year history of chronic headaches, an escalating analgesic and minor tranquiliser abuse…To relieve [the headaches] she has used numerous tranquilisers and anti-depressants.  However, in the last few months her pentazocine intake has escalated to 160 mg intravenously three times a day, and diazepam 60mg three times a day.

…

In the last 18 months…[t]here have also been marital problems, and her involvement in an extramarital affair has caused considerable guilt feelings.

1. Under the heading ‘Family and Personal History’, the PPU summary document stated:

Prior to her marriage 18 months ago she had a string of relationships.  She finds her husband does not meet her sexual needs but he is a kind and passive person on whom she feels very dependent.

1. The PPU summary document described AA’s ‘Formulation’ in the following terms:

She has personality problems with marked dependency needs which are unmet by her husband, but her extramarital affair has created considerable guilt, hostility and depressive symptoms which are expressed by means of chronic headaches.

1. Under the heading ‘Management & Progress’, the PPU summary document stated that AA’s husband decided to take two weeks off from work to ‘help her cease the fortral’. 

1. The records of the Parkville Psychiatric Unit include a ‘Continuation Sheet’ which contains handwritten clinical notes about AA.  The handwritten notes include the following:[33]

   [33]All errors are in the original.

8/12 in hospital prior to marriage [because] of depressed.  Dr Napastak.  Antidepress.

July 75 [overdose] amytal → Alfred.  [Plaintiff] – Surgeon – local Dr … ‘Know them socially as well’. 

…

Since Sept 75 ‘Generally felt rotton’. 

…

12 [years] raped ([the plaintiff] eventually got it out of me).  ‘Sex revolted me’.  Enjoyed sex ‘long time ago’.  Sex [with] variety of boyfriends.  Never enjoyed it [with] husband.  Rare occurrence.  1 x 2/12.    

…

Problem centres around marital problems with passive husband on whom she is dependent but who does not meet her sexual needs.  These are met by an extramarital affair about which she feels intensely guilty.  Hostility/guilt/depression masked by complaint of headaches.

…

Precipitating admission

1. Failed exams

2. Complicated relationships

1. Dr. who is also personal friend

2. Sexual relationship [with] a mysterious figure

Gresswell

1. As stated at [55] above, in her first affidavit, AA said that she was twice admitted to Gresswell in 1978. The only available record from Gresswell relating to AA is a two-page ‘Admission and Discharge of Patient’ form which simply states that AA was admitted from 12 May to 3 July 1978 and from 3 October to 12 October 1978.

Sir Charles Gairdner Hospital

1. The records of the Prince Henry’s Hospital indicate that AA was an inpatient at the Psychiatric Ward of the Sir Charles Gairdner Hospital in Perth for nine months in the late 1970s.  The Sir Charles Gairdner Hospital does not have any record of AA ever attending the hospital.

Prince Henry’s Hospital

1. AA was admitted to the Psychiatric Ward of the Prince Henry’s Hospital on two occasions in October and November 1980. 

1. A clinical summary sheet from the Prince Henry’s Hospital dated 15 October 1980 recorded AA as having had ‘years of extreme investigation for haematuria and urinary tract infections, including termination of an “ectopic kidney”’ and ‘many courses of strong and/or narcotic analgesics’ in the past.  AA’s past psychiatric history was recorded as follows: ‘[i]n 1978 to 1979 she took three serious overdoses in the context of depression’.  The summary sheet stated that AA ‘has tried heroin, marijuana in the past’ and described AA’s premorbid personality as ‘[c]hronic sense of emptiness, paranoia, depression, always felt the outsider, uncared for, lonely’.  AA discharged herself against medical advice. 

1. A document entitled ‘History and Examination’ dated 12 November 1980 from the Prince Henry’s Hospital stated that AA had a diagnosis of Personality Disorder and Munchausen’s Syndrome,[34] and that she had readmitted herself ‘due to depression which occurred as soon as she went home’.

   [34]According to senior counsel for the plaintiff, Munchausen’s Syndrome is a condition in which a person engages in self-harm in order to seek medical attention.

1. A large number of medical records of the Prince Henry’s Hospital relating to various inpatient admissions by AA were not tendered.  Instead, the parties tendered a joint memorandum stating that the hospital records relating to AA show that during various inpatient admissions, AA was administered intramuscular pethidine on 12, 13 and 18 July 1973; 18, 19 and 23 to 27 February 1976; 7 March 1976; 6, 12, 13, 14, 26 and 27 August 1980 and 3 September 1980.  The joint memorandum also states:

It is not suggested that on any of these dates the Pethidine administered to [AA] at the hospital was administered or prescribed by [the plaintiff].

The hospital records contain a handwritten note by an unidentified doctor which relates to [AA] and which states ‘The chance of drug addiction should be noted – [indecipherable] that she has been asking for Pethidine’.  The note is undated but it commences on a page on which there is a separate note dated 3 March 1976. 

Unavailability of evidence

Dead or unavailable witnesses

1. In the period from 1973 until 1979, the medical practitioners working at the Clinic were the plaintiff, Dr A B Connard, Dr Feldman and Dr J L Sinclair.  Dr Connard is suffering from dementia.  Dr Feldman cannot be located.  No information is currently available about Dr Sinclair.  None of the staff who worked at the Clinic in the period from 1973 until 1979 have been located.

1. Dr Zerman, who saw AA on 25 July 1975,[35] died in 1996. 

   [35]See the table at [71] above.

1. Ms Metcalf, the matron at the Moorabbin Hospital where AA was working in 1978, and who arranged AA’s first admission to Gresswell,[36] has died.

   [36]See above [55].

1. AA’s former husband died in 1990.  

Unavailable records

1. The Clinic no longer holds medical records for AA.

1. As discussed at [72] to [73] and [85] to [86] above, either all or most of the records of Linacre, the Alfred Hospital, Gresswell and the Sir Charles Gairdner Hospital relating to AA in the period from 1973 until 2004 are not available. 

1. The Board and its predecessor, the MPBV, have not been able to obtain from any government authority any records relating to drugs prescribed for AA in the period from 1973 until 1978. 

1. It will be recalled from [84] above that the records of the Parkville Psychiatric Unit refer to a ‘Dr Napastak’.  This is a reference to a psychiatrist, Dr Chili Naparstek, who does not have any records relating to AA. 

1. Dr Kozminsky, who allegedly saw AA in 1992,[37] cannot locate his records for AA.  

   [37]See above [60].

Witnesses with no recollection

1. Dr Rustomjee, who referred AA to the Parkville Psychiatric Unit in 1976,[38] cannot recall AA’s name or anything about her. 

   [38]See above [74].

1. Dr Joshua, who saw AA at the Parkville Psychiatric Unit in 1976,[39] cannot recall AA and cannot add anything more to the clinical notes, which he said ‘speak for themselves’.

   [39]See above [76].

1. As stated at [80] above, Dr Ellims attended AA in September 1976 at the Parkville Psychiatric Unit and prepared the PPU summary document dated 14 October 1976. In an interview with the defendants’ solicitors on 8 July 2008, Dr Ellims was taken through the records of the Parkville Psychiatric Unit. When Dr Ellims was asked what she remembered about AA, she said, ‘I don’t remember anything really’. She said that AA’s consumption of diazepam ‘would be a huge amount’. A file note of the interview records Dr Ellims as stating the following about AA:

Problem [with] having Dr as personal friend, one can develop transference.  Dr becomes object of fantasy.  Reality can … be squeezed.  Particularly when cognition impaired by drugs.  [Very] complicated for doctor to manage … Patients that do tell you problematic things, you remember …  She might not have reliable history.

Heavy duty psychotropics.  Serious anti-depressant.  You’d have to be psychotic to handle that (800 mg).

1. Dr Kozminsky cannot recall the alleged consultation with AA in 1992. 

Submissions of the parties

1. As the resolution of this proceeding depends upon the outcome of a balancing of competing considerations, it was not surprising that John Noonan SC, who appeared with Mark Richardson for the plaintiff, emphasised the considerations favouring the granting of a stay and that Andrew Clements, who appeared for the defendants, emphasised those militating against the granting of a stay.

1. Mr Noonan SC submitted that the delay of between 28 and 34 years between the occurrence of the alleged infamous conduct and the making of AA’s complaint has caused unacceptable unfairness to the plaintiff.  He contended that during the intervening period, medical records have become unavailable, potential witnesses have died or have become unavailable and the witnesses who are available cannot now remember matters that are relevant to AA’s allegations against the plaintiff.   According to Mr Noonan SC, these considerations mean that the plaintiff is unable to properly defend himself and is therefore unable to receive a fair hearing from the Panel. 

1. Mr Noonan SC submitted that XD v Johnson [No 2][40] was distinguishable for the following reasons:

(a)       the delay in XD was a much shorter period of eight to 23 years; and

(b)      prejudice was claimed in XD due to a lack of records, whereas in the present case, the prejudice is ‘multi-factorial’ and extends beyond the absence of records.

[40](2002) 6 VR 381.

1. Mr Noonan SC conceded that AA’s allegations against the plaintiff are very serious.  He also conceded that the unavailability of witnesses and medical records was less prejudicial in relation to the abortion allegation than it was in relation to the other three allegations. 

1. Mr Clements submitted that there were three broad reasons why a stay should not be granted.  First, the allegations against the plaintiff are very serious.  Secondly, as the allegations relate to conduct that occurred when the plaintiff and AA were alone, the plaintiff and AA themselves are the most important witnesses and the unavailability of other individuals does not prejudice the plaintiff in effectively defending himself.  Thirdly, the absence of medical records is not of any significance, as the nature of the alleged conduct is such that it is unlikely to have been recorded. 

1. Mr Clements emphasised that the Notification sets out four separate allegations and that, unlike the sex for pethidine allegation, the other three allegations were not premised upon the prescription of pethidine in exchange for sexual favours.  He submitted that, even if the Court were satisfied that the absence of medical records caused prejudice to the plaintiff in relation to the sex for pethidine allegation, such prejudice would not apply to the other allegations.  

Decision regarding the sex for pethidine allegation

1. It will be recalled from [28] above that the sex for pethidine allegation was expressed as follows:

In between around 1973 to around 1978, [the plaintiff] inappropriately prescribed and/or administered pethidine to [AA] in exchange for sexual activities (including oral sex and sexual intercourse), both during and outside consultations.

1. In my opinion, the considerations in favour of granting a stay in relation to the sex for pethidine allegation significantly outweigh the considerations militating against the granting of a stay. 

Unavailability of medical records

1. The most significant consideration in favour of granting a stay is the unavailability of the plaintiff’s medical records relating to his treatment of AA during the period from 1973 until 1978, including his clinical notes and prescription records.

1. It is true, as Mr Clements submitted, that the plaintiff is in a position to give evidence denying the sex for pethidine allegation, as the alleged conduct occurred only in the presence of the plaintiff and AA.  It is also true that it is inherently unlikely that any record would have been made of the sexual activity.  The absence of the medical records, however, denies the plaintiff the opportunity to present to the Panel contemporaneous evidence that supports his denial.  For example, if the plaintiff’s records had indicated that he provided legitimate medical treatment to AA and at no stage prescribed or administered pethidine to her, then those records would have assisted the plaintiff to rebut the sex for pethidine allegation.  Given that AA’s allegation involves sex being exchanged for pethidine, proof that the plaintiff never prescribed pethidine for AA would have significantly undermined this allegation.  

1. I accept Mr Clements’ submission that the above analysis involves speculation about the contents of the plaintiff’s medical records.  Speculation is unavoidable because the absence of the medical records makes it impossible to establish their contents.  The speculation, however, is not devoid of any factual foundation.  None of the surviving medical records contain any reference to the plaintiff prescribing pethidine for AA or administering the drug to her.  Those records indicate that pethidine was administered to the plaintiff only while she was an inpatient at the Prince Henry’s Hospital.  Further, none of the surviving medical records indicate that AA became addicted to pethidine; they show that AA initially became addicted to Fortral and Valium and subsequently to heroin. 

1. The surviving contemporaneous medical records cast doubt on AA’s allegation that the plaintiff prescribed pethidine for her in return for sexual favours over an extended period and that, as a result, she became addicted to pethidine.  In these circumstances, the unavailability of the plaintiff’s clinical notes and prescription records deprives him of a real and material opportunity to bolster his prospects of persuading the Panel to reject the sex for pethidine allegation.   

1. The unavailability of the plaintiff’s medical records also deprives him of the opportunity to establish whether he performed a legitimate pelvic examination at the time that AA has alleged that he first masturbated her.[41] 

   [41]See [41] above.

1. The reasons set out at [113] to [115] above as to why the unavailability of the plaintiff’s prescription records is prejudicial also apply to the unavailability of government records relating to medications that were prescribed by the plaintiff for AA in the period from 1973 until 1978.  Although some Medicare records exist for the period from 1975 until 1976,[42] they do not disclose what medications the plaintiff prescribed for AA. 

   [42]See the table at [71] above.

1. The unavailability of records from Linacre, Gresswell, the Alfred Hospital and the Sir Charles Gairdner Hospital is also prejudicial to the plaintiff for a number of reasons.  First, those records might contain statements made by AA to medical practitioners about the plaintiff that support the plaintiff’s case.  For example, they might contain indications, along the lines of the records of the Parkville Psychiatric Unit, that AA had an extramarital affair with a person other than the plaintiff.[43] 

   [43]See above [84].

1. Secondly, the records are likely to discuss AA’s medical history and diagnoses of her physical and mental health in the period from 1973 until 1978.  In so far as the clinical notes might suggest that AA was paranoid,[44] psychotic[45] or cognitively impaired due to chronic drug abuse,[46] they would assist the plaintiff to make submissions to the Panel about AA’s reliability as a historian. 

   [44]See above [88].

   [45]See above [102].

   [46]See above [102].

1. Thirdly, the records are likely to record the medications that were administered to AA while she was being treated at the institutions.  If there is no mention of pethidine, this would support the plaintiff’s case.  The position of Linacre is particularly significant, as AA stated in her first affidavit that the nurses at that institution administered pethidine to her that would have been prescribed by the plaintiff on Linacre’s medication chart.[47]  If the medication chart did not show that the plaintiff prescribed pethidine for AA, then the non-availability of the chart would prejudice the plaintiff in the manner explained at [113] to [115] above.

   [47]See above [52].

Unavailability of witnesses

1. The unavailability of all of the medical practitioners who worked at the Clinic in the period from 1973 until 1979 is prejudicial to the plaintiff.  This is because in the course of being interviewed by the MPBV’s solicitors and by her current psychologist, AA said that she believed that the other medical practitioners at the Clinic knew that the plaintiff was providing pethidine prescriptions to her.  If the other medical practitioners were available, it is possible that they could have assisted the plaintiff to refute AA’s sex for pethidine allegation by giving evidence at the Panel Hearing that they were not aware that the plaintiff prescribed pethidine for AA.  This is a real and material possibility, as the plaintiff’s former wife has informed the MPBV that, contrary to AA’s assertion, she never saw the plaintiff give to AA prescriptions for pethidine at their former home.     

1. The unavailability of non-medical staff who worked at the Clinic in the period from 1973 until 1979 is also potentially prejudicial to the plaintiff.  In her interview with the MPBV on 23 April 2007, AA stated that she saw the plaintiff weekly by appointment.  If this is correct, it is inevitable that the receptionist and other staff at the Clinic would have noticed her.  They may well have been able to shed light on whether the plaintiff prescribed pethidine for AA and on AA’s demeanour when she attended the Clinic. 

1. The unavailability of medical, nursing and other staff who worked at Linacre during AA’s stay at that institution is potentially very prejudicial to the plaintiff.  This is because of AA’s allegations about the administration of pethidine to her by the nursing staff and about the plaintiff’s attendance during visiting hours to take her out of the premises in her nightclothes for the purpose of having sex with her at the Clinic or at his home.[48] 

   [48]In May 2008, the MPBV’s solicitors managed to locate a woman who worked at Linacre in the period from 1973 until 1974.  She initially stated that she had heard rumours about the plaintiff but had not personally observed him engage in the conduct that AA had alleged against him.  The woman subsequently made it known to the solicitors that she did not wish to have any further communications with them.

1. If the nurses at Linacre had been available to give evidence that they did not administer pethidine to AA, such evidence would have assisted the plaintiff to rebut AA’s allegations.  Furthermore, AA’s allegations about the plaintiff’s nocturnal visits are so unusual that, if they occurred, they would have been noticed by staff at Linacre.  If members of staff were available to give evidence that they never saw the plaintiff take AA out of the premises, such evidence would undermine AA’s allegations relating to the plaintiff’s conduct while she was an inpatient at Linacre. 

1. The death of AA’s former husband in 1990 is also prejudicial to the plaintiff.  As AA lived with her former husband throughout most of the period from 1973 until 1978, he may have been able to give evidence about the medical treatment that AA received (including any hospitalisations), what prescription drugs AA was taking and who was prescribing those drugs.[49]  He may also have been able to give evidence about AA’s mental state during the period of their cohabitation and about whether he was aware that AA was having an extramarital affair. 

   [49]See above [63](b).

1. The deaths of Dr Zerman[50] and Ms Metcalf[51] have deprived the plaintiff of the opportunity to interview them to ascertain whether they were aware of any matters that could assist the plaintiff to defend himself against AA’s allegations.

   [50]See the table at [71] above.

   [51]See above [55].

Additional prejudice caused by AA’s delay

1. By any measure, the delay of between 29 and 34 years between the occurrence of the alleged conduct involving sex for pethidine and AA’s complaint about that conduct is inordinate.  While delay in itself is insufficient to warrant the granting of a stay, where the delay causes prejudice, it is a factor to be taken into account in balancing the competing considerations.[52] 

   [52]See above [13].

1. In the present case, the inability of key individuals to recall matters that are of critical relevance to AA’s allegations means that the delay has caused additional prejudice to the plaintiff.

1. Many aspects of AA’s allegations are vague and lack precise particulars.  In addition, some aspects of those allegations have changed since she made her complaint in January 2007.  This indicates that the passage of time has eroded AA’s ability to accurately recollect what she claims took place between her and the plaintiff.  For example, in her initial communication with the MPBV, AA stated that she did not have any social interaction with the plaintiff and that he did not perform any medical procedures on her at Linacre.  Subsequently, AA stated that the plaintiff and his then wife attended her wedding in 1975 and that the plaintiff administered a lumbar puncture to her at Linacre.  Further, the abortion allegation was not included in AA’s first affidavit. 

1. As appears from [65] above, the plaintiff has informed the MPBV that he has ‘only a vague memory of [AA]’ and that he is unable to say whether he prescribed pethidine for her at any time. 

1. All of the medical practitioners who treated AA in the period from 1972 until 1992 and who are available to give evidence, namely, Dr Rustomjee, Dr Joshua, Dr Ellims, Dr Kozminsky and Dr Naparstek, cannot now recall anything about AA beyond what appears in any relevant surviving medical records.  The inability of those doctors to shed any additional light on what AA told them and on what they observed about her is potentially damaging to the plaintiff. 

1. This is particularly the case in relation to Dr Ellims.  When Dr Ellims was interviewed by the MPBV’s solicitors on 8 July 2008, she speculated that AA may have developed transference in relation to the plaintiff and that AA may be an unreliable historian.[53]  If AA had made her complaint to the MPBV on a timely basis, Dr Ellims may have been able to recollect additional details relating to AA based on her attendances upon AA at the Parkville Psychiatric Unit in September 1976 and may have been able to give expert evidence about her clinical opinion of AA based on her recollection.  The passage of time has deprived the plaintiff of any expert evidence from Dr Ellims other than what appears in the records of the Parkville Psychiatric Unit. 

   [53]See above [102].

1. The position of Dr Kozminsky is also significant.  AA has alleged that, when she consulted Dr Kozminsky in 1992, he told her that the plaintiff had made some ‘foolish choices’ while his first marriage was breaking down.[54]  AA has stated that she interpreted this alleged comment as a reference to the plaintiff’s alleged sexual relationship with her.  On the face of it, it is unusual for a medical practitioner to make a comment about the personal life of a colleague to a new patient.  Accordingly, if AA had made her complaint to the MPBV on a timely basis, Dr Kozminsky may have had a recollection of his attendance upon AA and may have been in a position to say whether he made the alleged comment about the plaintiff and, if so, what he meant by it.  If Dr Kozminsky denied making the comment to AA or stated that it did not relate to any of the plaintiff’s patients, Dr Kozminsky’s evidence would have assisted the plaintiff. 

   [54]See above [60].

1. Mr Noonan SC relied upon an additional feature of AA’s delay in making her complaint in support of the plaintiff’s application for a stay. That feature was an amendment to s 17 of the 1970 Act that was made by the Medical Practitioners (Miscellaneous Amendments) Act 1984. Prior to the amendment, which took effect on 16 September 1984, s 17 provided that, where a medical practitioner was found guilty of infamous conduct in a professional respect, the MBV ‘may remove’ his or her name from the Register. After the amendment, s 17 provided that, where a medical practitioner was found guilty of infamous conduct, whether before or after the amendment to s 17, the MBV ‘shall remove’ his or her name from the Register.

1. Mr Noonan SC submitted that AA’s delay has prejudiced the plaintiff because, if she had made her complaint on a timely basis, there was a prospect that the plaintiff may have retained his registration even if he had been found guilty of infamous conduct. 

1. I reject Mr Noonan SC’s submission.  Any potential prejudice to the plaintiff would be due to a retrospective change in the law rather than to any inordinate delay by AA.  The consequences arising from the change in the law would have been the same for any medical practitioner whose conduct prior to 16 September 1984 was the subject of a finding of infamous conduct after that date, irrespective of the length of time that had elapsed between the conduct and the finding.  There is also much to be said for Mr Clements’ submission that, given the very serious nature of AA’s allegations against the plaintiff, the change in the law would not have made any difference to the likely outcome of any finding of infamous conduct against the plaintiff. 

1. In reaching my conclusion on whether to grant a stay in relation to the sex for pethidine allegation, I have taken into account the reasons given by AA for her delay in making the complaint and the fact that those reasons were not the subject of any adverse submission by Mr Noonan SC. 

Conclusion

1. The considerations militating against the granting of a stay in relation to the sex for pethidine allegation include: 

(a)       the need to maintain public confidence in the system for the investigation of complaints against medical practitioners;

(b)      the public interest in AA’s complaint being properly and impartially investigated and in the exposure of any malpractice by the plaintiff;

(c)       the protective character of the Panel Hearing;

(d)      the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners; and

(e)       the seriousness of each of AA’s allegations against the plaintiff. [55]

[55]See above [10].

1. The sex for pethidine allegation is extremely serious and, if substantiated, would enable the Panel to make a finding that the plaintiff had engaged in infamous conduct and to remove his name from the Register. 

1. However, the considerations in favour of the granting of a stay that I have discussed at [112] to [133] above, in combination, significantly outweigh those militating against the granting of a stay.  The combined effect of the former considerations is that, if the Panel were to hear the sex for pethidine allegation, the plaintiff would suffer unacceptable unfairness and the Panel Hearing would constitute an abuse of process. 

1. The circumstances of this case, in so far as they relate to the sex for pethidine allegation, are ‘very exceptional’ in the sense discussed at [12] above. I am satisfied that, in relation to that allegation, the plaintiff has discharged the very heavy burden to which reference was made by Bongiorno J in XD.[56] 

   [56]XD [No 2] (2002) 6 VR 381, 385 [12]. See above [12].

1. It follows that a permanent stay will be granted in relation to the Panel Hearing in so far as it concerns the sex for pethidine allegation. 

Decision regarding the long-term sexual relationship allegation

1. It will be recalled from [28] above that the long-term sexual relationship allegation was expressed as follows:

In between around 1973 to around 1978, on numerous occasions, you engaged in sexual activities (including oral sex and sexual intercourse) with your patient, [AA], both during and outside consultations.

1. The long-term sexual relationship allegation covers the same alleged sexual acts as the sex for pethidine allegation.  However, the long-term sexual relationship allegation does not refer to the provision of pethidine. 

1. Mr Clements submitted that the long-term sexual relationship allegation is very serious and that the Panel Hearing should not be stayed in relation to it even if that hearing is stayed in relation to the sex for pethidine allegation.  He contended that the unavailability of witnesses and medical records does not cause any prejudice to the plaintiff because the long-term sexual relationship allegation depends on facts of which only the plaintiff and AA are aware and which would not be expected to have been documented. 

1. I reject Mr Clements’ submission.  Although the long-term sexual relationship allegation and the sex for pethidine allegation are included in the Notification as distinct allegations, they are intertwined and the evidence relating to them cannot be disentangled.  This is because AA’s complaint, in substance, is that the plaintiff abused his position and took advantage of her pethidine dependence by demanding sex in exchange for the provision of pethidine. 

1. The intertwined nature of the long-term sexual relationship allegation and the sex for pethidine allegation is demonstrated by those parts of AA’s first affidavit that are summarised at [41] to [47] and [52] to [54] above.  It also appears clearly in the following exchange during AA’s interview with the MPBV on 23 April 2007:

Q47.  Was it sex for drugs?

Yes, straight out, no consultations in the true sense.

1. If the plaintiff were able to persuade the Panel that he did not prescribe pethidine for AA or that she was not addicted to pethidine, he would be able to undermine not only the sex for pethidine allegation but also the long-term sexual relationship allegation.  Accordingly, the factors discussed above that have prejudiced the plaintiff’s capacity to rebut the sex for pethidine allegation have also prejudiced his capacity to rebut the long-term sexual relationship allegation. 

1. It follows that, for the reasons set out at [112] to [141] above, a permanent stay will be granted in relation to the Panel Hearing in so far as it concerns the long-term sexual relationship allegation. 

Decision regarding the one-off sexual encounter allegation

1. It will be recalled from [28] above that the one-off sexual encounter allegation was expressed as follows:

In around 1979, on one occasion, you engaged in sexual intercourse with [AA] during a consultation.

1. The one-off sexual encounter allegation differs from the long-term sexual relationship allegation and the sex for pethidine allegation in the following respects:

(a)The one-off sexual encounter allegation did not involve sex for pethidine.  This is made clear in the notes of AA’s interview with the MPBV on 23 April 2007. 

(b)The alleged sexual encounter was not part of the alleged ‘habitual’ sexual relationship between the plaintiff and AA between 1973 and 1978.[57]  Rather, it was a one-off sexual encounter that allegedly took place a year after AA’s last consultation with the plaintiff in 1978, prior to her move to Perth. 

(c)Although the alleged one-off sexual encounter took place in the plaintiff’s consulting room, AA has not asserted that she sought medical treatment or that the plaintiff treated her or prescribed any medication on this occasion.  It appears from AA’s first affidavit that she visited the plaintiff in the hope that he would apologise to her for his alleged past conduct. 

[57]See above [46].

1. The one-off sexual encounter allegation has the characteristics of an ‘oath against oath’ allegation.[58]  The very nature of this allegation means there are no witnesses to it and there is no documentary evidence of it. 

   [58]Cf Dr SS [2002] NSWCA 391 (9 December 2002) [30].

1. The unavailability of some medical records is potentially prejudicial to the plaintiff in relation to the one-off sexual encounter allegation.  This is particularly so in relation to any records that indicate the reason for AA’s hospitalisation at the Psychiatric Ward of the Sir Charles Gairdner Hospital around the time of the alleged one-off sexual encounter and the treatment that she received at that hospital. 

1. There may also be some evidentiary difficulties in the Panel conducting a hearing in relation to the one-off sexual encounter allegation, yet being precluded from conducting a hearing in relation to the sex for pethidine allegation and the long-term sexual relationship allegation.  This is because, according to AA, the plaintiff’s previous conduct towards her provided the motive for her visit to the plaintiff in 1979 and established the context for the sexual encounter that took place during that visit.    

1. Overall, the factors discussed above that caused the balance to tip in favour of granting a stay in relation to the sex for pethidine allegation and the long-term sexual relationship allegation do not apply, or do not apply with the same force, to the one-off sexual encounter allegation. Further, any unfairness to the plaintiff arising from the evidentiary difficulties referred to at [154] above is capable of being ameliorated by appropriate directions by the Panel, including directions about the extent to which evidence-in-chief and cross-examination can touch upon the events preceding the alleged one-off sexual encounter in 1979.

1. In all the circumstances, I am not satisfied that the factors favouring the granting of a stay in relation to the one-off sexual encounter allegation are sufficient to displace the factors referred to at [138] above which militate against the granting of a stay.

1. It follows that a stay will not be granted in relation to the Panel Hearing in so far as it concerns the one-off sexual encounter allegation.

Decision regarding the abortion allegation

1. It will be recalled from [28] above that the abortion allegation was expressed as follows:

In between around 1974 and around 1975, at a consultation with [AA] (outside normal business hours) you performed a dilatation and curette, without any anaesthesia, with the purpose and effect of terminating [AA’s] pregnancy.

1. The abortion allegation differs from the other three allegations in the following respects:

(a)The abortion allegation does not involve either sex or pethidine. 

(b)The abortion allegation is an allegation of medical misconduct rather than sexual misconduct.  It is, in substance, an allegation that the manner in which and the place at which a medical procedure was conducted by the plaintiff on AA were inappropriate. 

1. The unavailability of the plaintiff’s medical records will result in some prejudice to the plaintiff in relation to the abortion allegation. However, there are entries in the Medicare records that are set out at [71] above that appear to be relevant to this allegation.

1. The unavailability of witnesses may also cause some prejudice to the plaintiff.  However, this is unlikely to be significant because it is not alleged that anyone witnessed the abortion procedure. 

1. The delay of approximately 33 years between the alleged abortion procedure and AA’s complaint in relation to it will inevitably affect the plaintiff’s capacity to remember what, if anything, took place.  However, the plaintiff can give evidence about his usual practice in 1974 and 1975 in relation to such procedures.  The Panel will, no doubt, be mindful of the difficulties associated with the passage of time in deciding whether to make any adverse finding against the plaintiff in relation to the abortion allegation. 

1. In all the circumstances, I am not satisfied that the factors favouring the granting of a stay in relation to the abortion allegation are sufficient to displace the factors referred to at [138] above which militate against the granting of a stay.

1. It follows that a stay will not be granted in relation to the Panel Hearing in so far as it concerns the abortion allegation.

Proposed order

1. I propose to make an order permanently staying the Panel Hearing in so far as it relates to the sex for pethidine allegation and the long-term sexual relationship allegation.  I will hear from the parties on the precise terms of the order and on the question of costs.

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