Dekker v Medical Board of Australia1
This appeal arose from disciplinary action taken against a medical practitioner (Dr D) in Western Australia arising out of a car accident in 2001. While driving home one evening Dr D was involved in a motor vehicle accident with another vehicle. Dr D did not check whether anyone in the other vehicle was injured and instead drove to the local police station to report the accident. It transpired that one the passengers was thrown out of the other vehicle and died at the scene.2
Dr D’s failure to check whether anyone was injured before driving away from the scene triggered an investigation and disciplinary action by the Medical Board of Western Australia in the State Administrative Tribunal (Tribunal).
The Tribunal found3 that Dr D’s conduct amounted to infamous or improper conduct in a professional respect as judged by professional colleagues of good repute and competency in breach of the Medical Act 1984 (WA).
The Tribunal concluded that “although the practitioner’s conduct did not occur in medical practice, there is a sufficiently close link or nexus between her conduct and the profession of medicine for the conduct to be ‘in a professional respect”.
Dr D submitted that the decision would effectively create a positive duty on medical practitioners to render assistance where there was no doctor/patient relationship. The Tribunal stated that it did not matter that she did not have a professional relationship because “saving human life and healing sick and injured people is a core purpose and ethic of the medical profession” and thus there was a sufficiently close nexus.
Dr D’s explanation for leaving the scene included that it was dark at the time, she did not have a phone, she had no equipment, she knew the police station was only a short distance away and that she was in shock. The Tribunal was not sympathetic to these arguments stating that her “professional duty required that she overcome or at least put aside the shock and provide assistance to the occupant or occupants of the second vehicle.” Dr D appealed the Tribunal’s decision.
The WA Court of Appeal unanimously held that the Tribunal made errors of law in assuming the existence of a professional duty to render assistance in the circumstances without regard to whether it was generally accepted by members of the medical profession of good repute and competency at the time of the accident.
Given that the Tribunal was made up of two non-medical members, the Court was critical of the Tribunal’s finding in the absence of any evidence, noting that the non-medical members would have no experience themselves to make findings about whether Dr D’s conduct was improper as judged by colleagues of good repute and competency. Further, the Tribunal breached the rules of natural justice by drawing on its own knowledge and experience in finding that there was a professional duty in the circumstances.
It is clear that the lack of evidence was critical to the Court of Appeal’s decision. If a similar case arose and appropriate evidence was called to support what doctors of good repute and competency would do, the outcome could have been different.
Disciplinary matters are now governed by the National Health Practitioner Regulation National Law and the definition of ‘professional misconduct’ makes clear that a medical practitioner’s conduct does not have to occur in connection with their practice. Rather, the conduct is judged by whether it would be inconsistent with the practitioner being a fit and proper person to hold registration in the profession.4