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HEALTH & MEDICAL CASE LAW

• Medical Board of SA v T, R & Anor [2006] SASC 312
  Catchwords: Application for judicial review - a complaint against the first respondent (a psychiatrist), alleging two grounds of unprofessional conduct was dismissed by the Medical Practitioners Professional Conduct Tribunal ("the Tribunal") - the Tribunal’s decision focussed upon the alleged facts rather than the particulars of the complaint - whether the Tribunal gave the evidence tendered real and genuine consideration - whether the Tribunal gave proper and genuine consideration to the second ground of complaint - whether the Tribunal can make errors of law without exceeding its jurisdiction - held, application dismissed - the Tribunal does not have power to make errors of law - the Tribunal properly considered the evidence before it - the Tribunal properly considered the second ground of complaint.

• Martin v Medical Complaints Tribunal [2006] TASSC 73,

  Professions and Trades - Medical and related professions - Medical practitioners - Discipline and removal from and restoration to Register - Procedure, evidence and appeal - Tasmania - Not bound by the rules of evidence - Evidence improperly or illegally obtained - Discretion to exclude evidence.

  Ian Anthony Martin was found guilty of professional misconduct last year and struck from the register.

  The Medical Complaints Tribunal found that he had had a sexual relationship with the woman between January and March 2004.

  During the hearing, the tribunal accepted that a swab taken from the patient contained traces of DNA that later matched a profile taken from him.

  He appealed on the basis that the tribunal should not have accepted the DNA evidence, because it amounted to a breach of the Forensic Procedures Act.

  He also appealed on the ground that when the patient gave evidence at the tribunal, his lawyer did not ask her whether she had planted the doctor's DNA on herself.

  But Supreme Court judge Peter Evans dismissed the appeal.

   
• Dr Suman Sood has been de-registered from practice in NSW. Decision of NSW Medical Tribunal.

• Fiek v Nurses Board of Victoria (Occupational and Business Regulation) [2006] VCAT 1968
  Catchwords: Nurses Act 1993; unprofessional conduct of a serious nature; professional conduct reasonably expected of the public or by peers; professional misconduct; weight to be given by the tribunal to the finding and determinations of the Nurses Board of Victoria at de novo hearing; standard of proof; independence of expert evidence; delay in administering morphine; circumstances; whether necessary to call doctor.

  CONCLUSION

  "The finding and determinations made by the Nurses Board of Victoria on 13 February 2006 in relation to Ursula Marlies Fiek are set aside and in lieu thereof the Tribunal finds that on 16 April 2004 Ms Fiek did not engage in unprofessional conduct as defined in the Nurses Act 1993."

• Belle v Chiropractors Board of SA [2006] SASC 250
  Appeal from decision of Chiropractors Board of SA - finding of unprofessional conduct - whether corrective care plan prescribed was sufficiently tailored to the patient - whether number of treatments prescribed was excessive - whether the appellant disparaged orthopaedic surgeons and physiotherapists - whether the appellant's conduct amounted to unprofessional conduct - appeal dismissed.
   
• Papps v Medical Board of South Australia [2006] SASC 234 (8 August 2006)
    Appeal from decision of single Judge dismissing appeal against decision of Medical Practitioners Professional Conduct Tribunal to suspend a practitioner from practice for 12 months with conditions to be complied with upon return to practice - appeal on grounds that: Tribunal had failed to adequately assist the practitioner, who was unrepresented, at the hearing; Tribunal had taken into account the testimony of a medical specialist inappropriately and suspension for 12 months was manifestly excessive - consideration of statutory regime enabling appeals from the Tribunal to be heard by this Court - discussion of the nature of appeals from the Tribunal - Held: decision of Tribunal and transcript of proceedings before it revealed that Tribunal proceeded appropriately - no error made - suspension of 12 months not excessive - appeal dismissed.  

• Dr Abraham Stephanopoulos [2006] MPBV 12 (PDF)

  Dr Stephanopoulos engaged in unprofessional conduct of a serious nature, namely professional misconduct within the meaning of section 3(1)(c) of the Medical Practice Act 1994 ("the Act"), as well as unprofessional conduct within the meaning of section 3(1)(h)(i) by reason of having been convicted by the Magistrates’ Court of Victoria at Dandenong on 26 July 2005 of three indictable offences of knowingly possessing child pornography contrary to sub-section 70(1) of the Crimes Act 1958 (Vic).

• Tsigounis v Medical Board of Queensland [2006] QCA 295
  Medical Board cancelled applicant's conditional registration as a medical practitioner - applicant appealed Medical Board's decision to District Court - District Court upheld appeal against cancellation and thus registration was possible albeit subject to conditions previously imposed by Medical Board - applicant failed to apply for a renewal of her registration and applicant's registration lapsed - whether the decision of the District Court occasioned a substantial injustice to the applicant and whether there is a reasonable argument in support of the applicant's claim to relief
  Appeal and New Trial - Appeal - When Appeal Lies - Error of Law - applicant self-represented during most of the hearing in the District Court - applicant argued District Court "effectively" refused applicant an adjournment and "forced" applicant to represent herself and thereby denied natural justice to the applicant - applicant claimed District Court judge engaged in "amateur psychiatry" - applicant argued District Court paid only "lip service" to standard of proof required by Briginshaw v Briginshaw - whether the decision of the District Court occasioned a substantial injustice to the applicant and whether there is a reasonable argument in support of the applicant's claim to relief.

ORDER:

1. Application for leave to appeal refused 2. Application for leave to cross-appeal refused 3. Ms Tsigounis to pay the costs of the Medical Board of Queensland of her application, to be assessed on the standard basis

• Awad v. Health Care Complaints Commission [2006] NSWSC 698
  Catchwords: Whether a purported complaint under the Health Care Complaints Act 1993 (NSW) was a complaint under the Act - if so, whether it was verified as required by former s.23(3) prior to that provision being omitted by the 2004 amending legislation - the meaning of the phrase "verifies the complaint" - what constitutes "verification" - whether breach of the requirement to verify a complaint constituted jurisdictional error invalidating the investigation of the complaint - the decision to prosecute the complaint before the Pharmacy Board and the decision to refer the complaint to the Pharmacy Board - the extent of the retrospective operation of the 2004 amending Act expressed to apply to "a complaint whether made on or after the commencement of the amendment" and whether the amendment applied to a complaint already investigated prior to the amendment
  Judgment of: Hall J[Lawlink]

• Medical Board of Western Australia and Bham [2006] WASAT 190
  Catchwords: Vocational regulation - Medical practitioner - Whether medical practitioner "unfit to practise" by reason of convictions in New South Wales for offences under s 128A Health Insurance Act 1973 (Cth) - Whether medical practitioner guilty of "infamous or improper conduct in a professional respect" Allegation that practitioner knowingly or recklessly failed to disclose convictions when registered in Western Australia - Allegation that practitioner lied to fellow practitioner about purpose of a $25 000 loan and a $10 000 loan and failed to disclose to him that he was an undischarged bankrupt contrary to s 269(1)(a) Bankruptcy Act 1966 (Cth)[Full text]

• Gad v Health Care Complaints Commission [2002] NSWCA 111 (24 April 2002) Inappropriately administering testosterone injections by a doctor to a minor (16 year old female).
  Mr Griffin, a nurse, was convicted and sentenced to imprisonment in 1999 for sexual offences. The charges for which Mr Griffin was convicted and to which he pleaded guilty can be grouped and summarised as follows: sexual intercourse with males between 10-18 years; inducing a child to participate in an act of child prostitution; aggravated acts of indecency; employing a child for pornographic purposes; indecent assault on a minor by a person in authority over that minor; and indecent assault. (HCCC Annual Report 2003/2004).

• The NSW Medical Board complained that an anaesthetist was suspected of diverting anaesthetic for self-administration, breaches of clinical standards and patient care during surgical procedures, and administration of watered-down anaesthetic to patients to allow diversion. The anaesthetist had allegedly taken the anaesthetic pump home to practise techniques for bypassing the security system to allow for substitution of generic anaesthetic, had taken home used syringes, and had repeatedly left a sedated patient in closed theatre to go to the toilet before a planned urine test. (HCCC Annual Report 2003/2004).

• The Commission made a complaint against Dr Aslam of unsatisfactory professional conduct and professional misconduct. The practitioner met the patient when she was admitted to the accident and emergency department of the hospital where he worked. The complaint alleged numerous boundary violations by the medical practitioner including inviting the patient to his motel room, giving her his mobile phone number, permitting her to shower in his room at the motel, providing her with a meal and discussing matters personal to the patient and himself. The complaint also alleged that the practitioner had sexual intercourse with the patient. The Tribunal found that the practitioner exploited the patient to gain sexual gratification by an act of nonconsensual sexual intercourse. (HCCC Annual Report 2003/2004).

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