Dekker v Medical Board of Australia

[2014] WASCA 216

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Tribunals
3. › State Administrative Tribunal
4. › Vocational regulation
5. › Medical practitioner
6. › Improper conduct in a professional respect
7. › Whether specific prescriptive professional duty to render assistance in emergency situation
8. › Whether duty generally accepted by medical profession at time of alleged misconduct
9. › No evidence to support finding
10. › Error of law
11. › Medical Act 1894 (WA), s 13(1)(a)
1. Administrative Law
2. › Tribunals
3. › State Administrative Tribunal
4. › Specialist tribunal
5. › Use of expertise of tribunal members
6. › Whether tribunal may rely on expertise of medical members to find specific professional duty
7. › Whether notice required before relying on members' expertise
8. › Natural justice
9. › State Administrative Tribunal Act 2004 (WA), s 9(c), s 32
1. Administrative Law
2. › Tribunals
3. › State Administrative Tribunal
4. › Appeal on question of law
5. › No evidence
6. › Whether finding supported by evidence
7. › Whether to remit to tribunal for fresh hearing
8. › Evidence incapable of sustaining case
9. › No remitter
10. › State Administrative Tribunal Act 2004 (WA), s 105(2), s 105(9)
1. Professions and Trades
2. › Medical practitioners
3. › Disciplinary proceedings
4. › Improper conduct in a professional respect
5. › Test for improper conduct
6. › Conduct reasonably regarded as improper by professional colleagues of good repute and competency
7. › Whether general duty to care for the sick sufficient basis
8. › Need for evidence of generally accepted professional standard or duty
9. › [name withheld] standard applicable

Quick Take

A finding of improper conduct in a professional respect against a medical practitioner must be based on evidence that the relevant professional standard or duty was generally accepted by the medical profession at the relevant time; a specialist tribunal cannot formulate and impose a specific professional duty from its own members' expertise without evidence and without giving the practitioner notice and an opportunity to address it. Where the evidence adduced is incapable of sustaining the case, the appropriate course is to dismiss the application rather than remit for a fresh hearing.