Mandatory reporting & allegation of delay before conduct proceedings

Thompkins v Medical Board of Australia [2018] SASC 72 is well explained in a brief headnote.

The plaintiff, a practising psychiatrist, applied for a permanent stay of proceedings in the South Australian Health Practitioners Tribunal arising from allegations that, between October 2002 and August 2004, he engaged in professional misconduct during and after course of his treatment of a patient, BW. The investigation into the plaintiff’s conduct occurred as a result of two mandatory notifications made by treating medical practitioners of BW on 18 February 2014 and 16 April 2014 respectively and included allegations that he entered into a sexual relationship with BW shortly after his treatment of her ceased.

The plaintiff asserted that the proceedings should be stayed on a number of grounds and particularly that, due to the defendant’s delay in notifying the plaintiff of the mandatory notifications and subsequent investigations (which delay was asserted to be contrary to the provisions of the National Law), the plaintiff had proceeded to routinely cull and destroy patient records including those of BW; and that he was now prejudiced due to the unavailability of potentially exculpatory evidence.

Held per Peek J (refusing the application for a stay):

1) The plaintiff has failed to demonstrate that actual – rather than presumptive – prejudice occurred as a result of asserted delay by: BW; or the medical practitioners in notifying the defendant of the alleged misconduct; or the defendant in investigating the alleged misconduct.

2) The defendant did not breach its statutory obligations to notify the plaintiff as soon as practicable. The minutes of committee meetings established compliance with the legislative scheme and the plaintiff failed to prove to the contrary.

3) In any event, having regard to the factual matrix advanced by the defendant (including substantial esoteric knowledge displayed by BW), the present case was not of the exceptional nature required to justify a permanent stay of disciplinary proceedings. (This part of the headnote appears to be a reference to the strength of the case brought by the Medical Board and the level of detail appearing in the statement by the patient.)

At [8] it is mentioned that the patient BW had initially sought a medico-legal report from the psychiatrist, who continued to offer her psychiatric treatment thereafter.