An example of professional non-misconduct and vexatious litigation and misplaced indignation.
This is the case of: the Medical Board of Australia and McCarthy  WASAT 210
In this case The Medical Board of Australia alleged that a consultant psychiatrist, Dr McCarthy, was guilty of gross carelessness by making three incorrect statements in a medical report.
The medical report was prepared at the request of the patient’s former employer for use in legal proceedings between it and the patient.
The Tribunal assessed the statements in their context, reviewed the relevant evidence in relation to each statement, and concluded that the Board’s allegations were not established. The application was dismissed.
A footnote stated “Practitioner’s application for costs will be heard in January 2013”. Dr McCarthy was represented by senior counsel. (Note that Dr McCarthy is identified although completely vindicated but the vexatious litigant retains his anonymity.)
The report refers to a Medical Board hearing regarding, what appears to be at face value, a frivolous complaint leading to a total waste of time and money.
Dr McCarthy, a psychiatrist wrote a report about a KR, a workers compensation claimant. The claimant objected to 3 phrases used in the report. The Medical Board then proceeded to a hearing alleging that the three phrases were false and that by making the statements Dr McCarthy was grossly careless. Two senior counsel were appointed and the matter was heard by a board including a judge.
It is particularly noteworthy that there was no complaint as to the ultimate diagnosis reached by Dr McCarthy.
It is difficult to conceive of any reason for proceeding with this by the complainant other than causing trouble for Dr McCarthy. It is difficult to understand why the Medical Board would go to such lengths to pursue it. There must be some sort of circuit breaker to head off these type of complaints.
The judge reprimanded Dr McCarthy for his indignant letter to the Board when he was informed of the complaints. He described KR’s complaint as “vexatious, malicious, inappropriate and incorrect“. He wrote “This man is currently behaving as he behaved on a number of fronts for many years and I don’t imagine any response would reassure him.”
It is difficult not to agree with Dr McCarthy no matter how inappropriate his language.
Furthermore the response of the judge may strike you as sanctimonious:
No matter how unjustified a complaint might be thought to be, members of the public are entitled to bring theirgrievances to the appropriate authority, and to have them investigated. They are entitled to be treated with respect.
When claimants make totally unfounded and ultimately damaging allegations regarding one’s professional competence out of what appears to be a sense of spite? One may give the appearance of respect but I would imagine most of us would feel anger and contempt although it was not wise to not denigrate the claimant no matter what the provocation.
One wonders what the emotional and physical toll was on Dr McCarthy. I wrote a paper about this some years ago. The paper was entitled “It’s not Fair!“and was about morbidity amongst healthcare providers following complaints.
The only satisfaction is that the good guy one, but at what a cost.
The Judgment (edited).
Dr Peter McCarthy is a consultant psychiatrist with many years experience. In 2006, he undertook a medical review of KR. The review was undertaken on instructions from KR’s former employer, Australia Post, for the purpose of workers compensation proceedings brought by KR against Australia Post in the Administrative Appeals Tribunal.
Dr McCarthy reviewed KR on 22 September 2006. He subsequently provided a report, dated 14 December 2006, to Australia Post. The Medical Board of Australia (Board) contends that three statements contained in that report were false, and that by making those statements, Dr McCarthy was grossly careless. The alleged inaccuracies are said to be grossly careless because of the significance of the statements to KR’s claim, and to his entitlement to receive workers compensation payments.
Two broad questions arise in relation to each of the allegedly incorrect statements.
1.The first question is whether the statement is inconsistent with what KR told Dr McCarthy during the consultation on 22 September 2006.
2.In that event, the question then arises as to whether the making of the incorrect statement amounts to gross carelessness for the purposes of s 13(1)(c) of the Medical Act 1894 (WA) (which was the applicable disciplinary provision applying to medical practitioners at the relevant time).
Dr McCarthy’s report was 10 pages in length. The first seven pages, in which all three of the allegedly incorrect statements are found, recited the history obtained by Dr McCarthy and concluded with his opinion. The balance of the report was given over to answering specific questions which had been asked of Dr McCarthy by Australia Post. In these proceedings, there is no complaint as to the ultimate diagnosis reached by Dr McCarthy.
The first ‘incorrect’ statement
Dr Mc Carthy wrote ‘[KR] admitted that his depression settled somewhat in 1998.’
The first thing that can be said about the first allegedly incorrect statement is that it comprises merely the first clause in a much longer sentence. The full sentence reads as follows:
[KR] admitted that his depression settled somewhat in 1998, but maintained that he continued to have fluctuating symptoms of anxiety and depression for the 6 years of his business, although it appeared his mood disorder was
not sufficient to motivate him to continue specialist treatment.
Two paragraphs earlier in the report, the following is said:
In 1998 he bought a bob cat and a truck and began working on his own business in April 1998 at house sites. He continued seeing Dr Fred Ng, Psychiatrist, who in his letter of 5 January 1998 reported that [KR] was making good progress on his anti-depressant medication Zoloft (sertraline) at the high but manageable dose of 225 mgs per day. Dr Fred Ng described his Major Depressive disorder as being in remission, i.e. having settled in January, although in his letter of 17 February 1998 he indicated that [KR] had become demoralised again due to a lack of work. [KR] had ceased seeing his Clinical Psychologist Graham Guest and thus the sychiatrist Dr Fred Ng indicated he adopted a more psychotherapeutic role in [KR’s] management, while [KR] remained on his anti-depressant medication. In June 1998 [KR’s] depression was in remission, and had remained in remission. It appears the opportunity to purchase his own bob cat and truck and to start his own business, had led to a settling of his psychiatric symptoms. His psychiatrist noted that [KR’s] morale and self-confidence, and his traumas from his difficulties at Australia Post ‘certainly continued to recede into the background’. He remained on his anti-depressant medication, his depression remained in remission, and he ceased seeing his psychiatrist sometime in 1998.
KR was cross-examined about his condition in 1998. When pressed, he reluctantly accepted that he had experienced some improvement as a result of his medication in 1998. He said that if his condition was 50% in 1997, it would have been 60% in 1998, and that he was ‘managing things better with the help of the drugs’.
As his report noted, Dr McCarthy had been sent a substantial number of earlier medical reports, including the reports of Dr Frederick Ng, KR’s treating psychiatrist. In cross-examination, KR ultimately accepted that, if the statement had said that ‘his depression settled somewhat in 1998 as a result of taking Zoloft’, then he would agree with that statement.
That concession is sufficient to dispose of the first complaint.
The effect of the statement is a proposition which KR accepts as accurate.
The Board also noted Dr Ng’s report of 8 April 1998 stated ‘I do believe that the major depression remains in remission due to the Zoloft’. Two months later, on 5 June 1998, Dr Ng reported a significant improvement in KR’s psychological state which he said ‘comes about as a result of feeling back in control of his destiny, and of being able to perhaps earn a living on his own accord’. He described KR’s depression as ‘remaining in remission’. Later that month, on 22 June 1998, Dr Ng described the depressive order as ‘currently in remission’ and said that he had responded exceedingly well to treatment so that his major depression ‘is now clearly in remission, and he is asymptomatic’. He described the prognosis as good.
Thus, the comment ‘his depression settled somewhat in 1998’ appears almost an understatement when measured against the contents of Dr Ng’s reports, which Dr McCarthy had before him and read prior to seeing KR.
The grounds for complaint seems to be that KR ‘did not admit or say that his depression settled somewhat in 1998‘ rather than the rather compelling support for Dr McCarthy’s statement from Dr Ng.
This invites consideration of what KR said at the consultation in September 2006. Dr McCarthy’s notes of the consultation show that events during 1997 and 1998 were discussed. We did not find KR’s evidence particularly reliable.His reluctance to accept the proposition, strongly supported by Dr Ng’s contemporaneous reports, that his symptoms had improved significantly in 1998 showed a tendency to recollect events in a way that supported his complaint against Dr McCarthy.
The second statement
Dr McCarthy wrote ‘He was somewhat vague whether he remained on medication, this was written in reference to the years between 1998 and 2004. The grounds of complaint was that [KR] told [Dr McCarthy) words to the effect that:
(i) between April  and February 2004, he had worked as a self employed Bobcat driver;
(ii) whilst working [as] a self employed Bobcat driver, he had made approximately twelve applications for employment and four applications for income protection and workers cover and he had stopped taking Zoloft every time he completed an Application because he thought that each Application was more likely to succeed if he could manage without taking Zoloft;
(iv) he had resumed taking Zoloft within approximately three days of completing each Application;
(v) he had consulted with Dr Ng in October 2003 after which time, his prescription of Zoloft was increased to 275 mg daily;
(vi) with the exception of the periods of time when he stopped taking Zoloft, he had regularly taken Zoloft between 1998 and 2004 in varying doses of between 225 mg and 275 mg daily; and
(vii) he had remained depressed between 1998 and 2004.
In his written statement of evidence, KR said that he used words to the effect of those set out above. When questioned, KR he agreed that the reason he stopped taking Zoloft when he completed an application for employment or income protection insurance was that he wanted to be able deny that he was currently taking any medication. He said that the statement in his written evidence that he did that ‘every time’ he completed an application was a mistake, and that he only did that sometimes and had done so on the advice of a doctor although he knew that it was misleading. He said sometimes he would forget to take his medication, and sometimes he would go off it because he could not be bothered. He acknowledged that he told Dr McCarthy that there were times when he went off his medication.
Having heard KR’s evidence as to the frequency and duration of his periods off medication for various reasons, we have no clear picture of the extent to which he took himself off medication during that period. We thought Dr McCarthy’s comment that KR was ‘somewhat vague’ was correct.
KR might have been reluctant to discuss his behaviour that he knew was misleading. He was uncomfortable discussing that aspect of his evidence under questioning from counsel. We understand that Dr McCarthy’s comment expressed a conclusion and were not the actual words used.
The third statement
Dr McCarthy wrote ‘He has now ceased his Zoloft (sertraline) although it is not clear when and his current medication is …’. KR gave evidence that he said the words to the effect alleged by the Board. Dr McCarthy had no independent recollection of the discussion and relied on his notes to support the statement made in his report. Dr McCarthy was cross-examined and accepted the possibility that he may have misheard KR, although only on the basis that ‘anything is possible’.
Counsel for both parties accepted, and we agree, that the task for the Tribunal is not simply a question of deciding whose evidence is to be preferred. Both accepted that the Tribunal should be guided by the observations of Miller J in Hewett v Medical Board of Western Australia  WASCA 170 at  –  where his Honour said:
It may be tempting in disciplinary proceedings for a tribunal to look to see who is telling the truth and who is lying, but there is a danger in following this path. It overlooks the fact that the ultimate question for a tribunal in these circumstances is whether the tribunal of fact is persuaded on the balance of probability that the allegations contained within the Notice of Inquiry have been made out.
In Briginshaw v Briginshaw (supra), Dixon J (at 362 – 363) formulated the appropriate reasoning processes that are required of a tribunal of fact sitting as the Board was in this case. His Honour said:
‘… Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of the kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency … It is often said that such an issue as fraud must be proved ‘clearly’, ‘unequivocally’, ‘strictly’ or ‘with certainty’ … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil case may, not must, be based on a preponderance of probability.
It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.’
This well-known and oft-cited passage stresses the need for the Board in this case to have approached its task by considering carefully as the primary issue whether it was satisfied to the requisite standard that the complaints had been made out. There is a danger that in looking first to see who was telling the truth and who was lying, the Board may have obscured what was the essence of its inquiry.
In this case, quite properly, neither counsel suggested that any of the witnesses were ‘telling lies’. The question remains, however, whether the Tribunal is satisfied to the requisite standard that the complaints are made out.
We are satisfied that KR did somehow convey to Dr McCarthy that, at the time of the consultation, he was not taking Zoloft.
As we have already noted, we have concerns as to the reliability of the evidence of both KR and JR (his wife) so that its weight is reduced to the extent that we are unable to be satisfied to the requisite standard that the report was false. It follows that the third complaint is not made out.
Dr McCarthy’s response to the Medical Board
When KR’s complaints were first referred to Dr McCarthy, he responded by letter to the Board. In that letter he described KR’s complaints as ‘vexatious, malicious, inappropriate and incorrect’. He said ‘This man is currently behaving as he behaved on a number of fronts for many years and I don’t imagine any response would reassure him’.
Dr McCarthy was cross-examined on those statements and it was put to him that they demonstrated an antipathy to KR which could only have emerged from his consultation with KR in September 2006, and provided a context against which the allegedly incorrect statements had been made Dr McCarthy denied that proposition.
We do not consider that those statements in Dr McCarthy’s letter of response to the Board, unfortunate as they are, should lead us to the inference suggested by counsel for the Board. The comments can more easily be construed as demonstrating a sense of indignation on Dr McCarthy’s part at the making of a complaint to his professional regulatory authority. Having said that, we would observe that the statements made by Dr McCarthy in his response were particularly unfortunate and ill-advised. No matter how unjustified a complaint might be thought to be, members of the public are entitled to bring their grievances to the appropriate authority, and to have them investigated. They are entitled to be treated with respect. Inflammatory responses respect neither the complainant nor the process. It is especially surprising to see comments of that nature made by a psychiatrist, albeit not the treating psychiatrist, in relation to a patient who has been treated over an extensive period for significant depression.
For the above reasons we find that the complaints of gross carelessness are not made out and the application should be dismissed. At the close of the hearing, counsel for Dr McCarthy foreshadowed an application for costs. The matter will be listed for directions on the question of costs.
1. The application is dismissed
2. The question of costs is listed for directions at 10 am on
13 November 2012.
I certify that this and the preceding  paragraphs comprise the reasons
for decision of the State Administrative Tribunal.
JUSTICE J A C, PRESIDENT