Delay in making a complaint does not by itself entitle a party to a stay of subsequent disciplinary proceedings.
The South Australian Supreme Court recently dismissed an Application for a permanent stay of a prosecution of a complaint against a medical practitioner for a breach of the National Laws in respect of an alleged allegation of professional misconduct (Thompkins v Medical Board of Australia  SASC 72).
The complaint which was lodged in 2016 relates to the practitioner’s alleged conduct in 2004. The relevant chronology is:
- BW was a patient of Dr T between October 2002 and May 2004.
- BW asserts that between June and July 2004 she engaged in a sexual relationship with Dr T.
- In February 2014 mandatory notification was made to AHPRA by BW’s treating psychiatrist.
- In April 2014 a second mandatory notification was made to AHPRA this time by BW’s treating psychologist.
- AHPRA determined to investigate the notifications. In doing so it decided for a variety of reasons not to immediately notify Dr T of the notifications received and the decision to commence investigations.
- Various investigations took place until September 2015 when Dr T was notified of the complaint.
- Dr T was formally interviewed in April 2016 and in October 2016 AHPRA formally laid a complaint before the medical tribunal.
Dr T applied in April 2017 for a permanent stay of the proceedings. He did so on a number of grounds but in particular:
- The delay in BW raising the issue.
- Delay on the part of AHPRA in its investigation.
- The failure of AHPRA to notify him of the notification coupled with the destruction of the relevant patient records.
The Application was heard by Justice Peek in the Supreme Court and he dismissed the Application on 1 June 2018. In his Reasons, His Honour identifies a number of important relevant principles:
- The power of the Courts to grant a permanent stay is an exceptional remedy and should only be exercised in the clearest of cases.
- The parties seeking the stay must establish actual (not possible) prejudice.
- The destruction (unavailability) of the patient records is by itself not determinative and “the critical issue is whether the Court’s capacity to fairly assess the evidence which will be led has been so compromised that there is an unacceptable risk of a miscarriage of justice” (R v B, P  SASCFC 30).
- Any delay must be causative of the actual prejudice suffered.
One of the balancing factors that His Honour considered is the public interest in ensuring that allegations against medical practitioners be properly investigated and if necessary prosecuted. His Honour identified the following:
- This is to ensure that public confidence in the profession is maintained.
- Proceedings of this nature are not punitive but rather disciplinary and designed to protect the public.
- Mere delay in making a complaint does not give rise to sufficient prejudice to stay any subsequent prosecution.
While there are a number of facts which underpin His Honour’s reasoning which are peculiar to this case, it does raise the issue of when a medical practitioner can or should destroy their records as well as the issue of whether or not there should be some statutory time limit inserted in the legislation for the notification of complaints and/or the institution of proceedings.
This Alert is intended as an alert only. It does not purport to be comprehensive advice. Readers should seek professional advice before acting in relation to these matters.