Smith v Medical Board of Queensland
[2007] QDC 297
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Smith v Medical Board of Queensland[2007] QDC 297
- Add to List
Smith v Medical Board of Queensland[2007] QDC 297
Smith v Medical Board of Queensland[2007] QDC 297
DISTRICT COURT OF QUEENSLAND
CITATION: | Smith v Medical Board of Queensland [2007] QDC 297 |
PARTIES: | BRUCE RODERICK SMITH Appellant and MEDICAL BOARD OF QUEENSLAND Respondent |
FILE NO/S: | 1684/07 |
DIVISION: | Civil |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 16 November 2007 |
DELIVERED AT: | Brisbane |
JUDGE: | Griffin SC DCJ |
- [1]The Medical Board of Queensland (“the Board”) is the respondent to these proceedings, which is an Appeal by Mr Smith against the decision of the Medical Board of Queensland not to register him as a medical practitioner. The Board has applied before me for Orders which include findings that the respondent to this Application, Smith, is of impaired capacity and consequential Orders that the proceedings should be then undertaken by a legal guardian appointed in consequence of the finding I am asked to make.
- [2]The respondent Smith resists the Application.
- [3]A “person with impaired capacity” is defined, by reason of Sch 4 of the Uniform Civil Procedural Rules (UCPR), and Sch 2 of the Supreme Court of Queensland Act 1991, as a “person who is not capable of making the decisions required of a litigant for conducting proceedings”. A person with impaired capacity is a “person under a legal incapacity” by reason of Sch 2 of the Supreme Court of Queensland Act 1991.
- [4]The effect of a finding of legal incapacity is that a person under a legal incapacity may start or defend proceedings only by way of the person’s legal guardian. Further, anything in a proceeding required or permitted by the Rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party’s legal guardian.
- [5]These proceedings have of course already been commenced as an Appeal before the District Court against the decision of Medical Board of Queensland. Although Rule 91(1) of the UCPR permits a person under a legal incapacity to “start or defend” proceedings only by a litigation guardian, the Rule does not expressly deal with a case where proceedings are already on foot, or in circumstances where legal incapacity may be argued to have supervened after the proceeding had been commenced. Nonetheless, the power to appoint a litigation guardian in those circumstances is one which I consider is available to this Court.[1]
- [6]The evidence in these proceedings called by the applicant is based upon medical opinions expressed by two experts in psychiatry Dr Jill Reddan and Dr Nigel Prior. Dr Reddan had seen the respondent on a number of occasions since 2002, and ultimately prepared a short report focusing upon the issue of capacity on 18 October 2007 which was tendered in these proceedings. Dr Prior has had one opportunity to see and examine the respondent on 8 August 2007, consequent upon an Order made for such examination.
- [7]Dr Reddan’s reports of 26 July 2002, and 10 December 2006 come to the conclusion that the respondent suffers from a paranoid schizophrenic illness, with a differential diagnosis of delusional disorder. She considers that he has suffered from a psychotic disorder rather than a severe personality disorder, based on the longitudinal history and his presentation.
- [8]Specifically in relation to these proceedings, in her report of 18 October 2007, Dr Reddan presented the following view:
“At the time I last evaluated Mr Smith on 14 September 2006 he would not have been capable of making the decisions required of a litigant to conduct proceedings. There was evidence of morbidly abnormal thinking, formal thought disorder, marked disorganisation and a lack of insight into the nature of a psychological functioning. The abnormality of his mental state has, for some considerable period of time, underlay the difficulties Mr Smith experienced in the medical practice and also underlayed the abnormal behaviour he has exhibited as a medical practitioner. … Mr Smith’s disordered mental state centres primarily on the issues that resulted in him becoming deregistered in the first place. Furthermore, Mr Smith as part of his condition has difficulty in focusing on the most significant issues at hand and of organising material to support his case or his assertions. This is a reflection of his difficulty in selecting information to process and to extrude other matters of less immediate concern. He would not be able to promptly deal with new information and respond adequately as a Trial progressed. Due to his condition, Mr Smith is unable to approach material and witnesses with any objectivity as is required before a Court. His ability to properly instruct Counsel would be impaired by his abnormal thinking and thus his ability to undertake the much more complex task of effectively representing himself is significantly impaired by his disorganisation and thought disorder.”
Comprehensive as this assessment is, some caution must be exercised with it on the basis that Dr Reddan has not seen the respondent since September 2006.
- [9]The assessment of a person’s impairment must be at the relevant time, i.e. in this case at the time of hearing. A more relevant assessment has been made by Dr Nigel Prior who saw the respondent on 8 August 2007.
- [10]As with Dr Reddan’s report, Dr Prior focused upon the issue of impaired capacity. Dr Prior’s conclusions are that the respondent showed evidence primarily of a delusional disorder, or of a severe personality disorder with obsessional narcissistic and paranoid traits. Further, Dr Prior concluded that the respondent has an “entrenched belief system of persecutory type” and the respondent’s delusional disorder centres primarily on the issues that resulted in his deregistration in the first place, namely the respondent’s predicament is as a result of his comments about the “provision of substandard medicine to patients in the form of high volume servicing of patients by GPs” and further, the belief that he has been the subject of a witch hunt by the Medical Board because of this. Mr Smith believes that as a result of medical practitioners’ jealously of him in his area of practice in Toowoomba, he has been targeted by them as a whistle-blower and mistreated by both colleagues and the psychiatrists who have assessed him.
- [11]To Dr Prior, the respondent also said that he considered his Appeal to be a “highly political issue” and wanted to air in open Court many grievances, including his views in relation to high volume servicing of patients by GPs, issues about the Federal Government allowing general practitioners to put people’s lives at risk by the number of patients allowed to be seen per day, current practices of psychiatrists and the improper behaviour of the Medical Board conducting what he referred to as a “witch hunt”.
- [12]Dr Prior made the following comments in his assessment of the respondent:
- (a)The respondent has no insight into the delusional nature of this belief system, seeing himself more highly experienced, qualified and trained than his colleagues.
- (b)The respondent believes that previous psychiatrists have made assertions in reports about the appellant which were based on “confabulations”.
- (c)An assessment by a psychiatrist Dr Degotardi was based improperly on the fact that Dr Degotardi had a “bone to pick” with the respondent because of a difference of opinion in relation to the treatment of a mutual patient.
Effectively Dr Prior’s conclusion was that whilst the respondent may be capable of understanding the role of the Court and the nature of the proceedings, he was unable to properly conduct proceedings in a structured way, or conduct what Dr Prior described as a meaningful defence, as the respondent’s “defence” is based upon delusional beliefs.
- [13]Of course in this case it is recognised that the nature of the proceedings is an Appeal in which the present respondent has the onus of proof as appellant in those proceedings, however, the import of Dr Prior’s concerns may be understood in that context.
The respondent’s evidence
- [14]The respondent gave evidence and called a number of witnesses. In relation to his evidence I will deal with that in some detail below.
- [15]Dr Petchkovsky gave evidence for the respondent. Although he had treated the respondent in the past, no evidence was given as to any aspect of treatment apart from the fact that he said at one time he had wrongly diagnosed dementia in the respondent. Furthermore, Dr Petchkovsky gave no evidence as to any recent formal diagnosis of the respondent and in fact, when asked by me in relation to whether the respondent suffered from any mental incapacity, the witness’s evidence was quite prevaricative. The focus of the respondent’s questioning of this witness really concerned issues relating to a conspiracy amongst psychiatrists and the Medical Board and an overarching “political conspiracy” against the respondent. This was a central theme in the entire presentation of the respondent’s case in these proceedings.
- [16]Significantly, in Dr Petchkovsky’s evidence, there was an entire lack of any opinion given as to the mental condition of the respondent in any sense. Furthermore it was clear from his evidence that he accepted in some way that there was a likely or possible conspiracy against him. Having regard to the issues raised in these proceedings before me, Dr Petchkovsky’s evidence is of little assistance and I can place little weight upon it in terms of the issues to be decided.
- [17]Emeritus Professor Kearney, a psychologist, gave evidence on behalf of the respondent. He swore that he conducted a psychological test upon the respondent in 2002 concluding that there was no evidence of any personality disorder although he added that the testing had to be viewed with some caution, having regard to the manner in which the respondent answered the questions proposed in the testing process. He had not since that date in any way, formally or informally, assessed the respondent. In fact, he was entirely unaware of the contents of Dr Prior’s opinion although he thought it unlikely, from the standpoint of an expert psychologist that the respondent was presently suffering from a psychotic illness, on the basis that he could not pursue the case as he had over the course of the previous day in court. It is to be noted however, that Dr Prior’s opinion is that the respondent is not psychotic but suffers from a delusional disorder.
- [18]Once again, in Professor Kearney’s case, the focus of evidence by the respondent’s questioning of this witness went to issues of the conspiracy against the respondent. Professor Kearney’s evidence did not address, apart from the formal assessment in 2002, any issue really relevant to this hearing. The view formed of the respondent in 2002 is now so remote in time as to be of little use, and I therefore regard it as carrying little weight.
- [19]As to the respondent’s own evidence, it was discursive, focusing as much as one could understand it, on a view that a conspiracy has been formed between psychiatrists who have examined him and the Medical Board, and that all of this is for a political purpose, that is, to “silence a whistle-blower”.
- [20]Mr Smith makes clear his claim that psychiatrists such as Dr Reddan and also Dr Prior have behaved deliberately unethically. Mr Smith in fact submits that the opinions of Dr Reddan and Dr Prior are not simply wrong or mistaken, but deliberately fashioned for the purpose of assisting the Medical Board in silencing and punishing him as a whistle-blower. These are clearly grave assertions. On the material before me however, I can find no evidence to support this allegation.
- [21]I was however in a unique position to observe Mr Smith throughout the course of the hearing. His examination and cross-examination of witnesses was discursive and very highly emotional. I cannot, of course, form any judgment as to his mental state from his behaviour in court, but it is sufficient to say in terms of the issues to be decided by me, that as the matter progressed from cross-examination of the applicant’s witnesses to examination of his own witnesses and indeed his own evidence, he showed little or no awareness of the relevant issues in these proceedings. In fact, the focus of his attention was almost entirely on what I have described as the “conspiracy” against him by healthcare practitioners. Although that has, no doubt, some real relevance to the issue in the Appeal which he wishes to pursue, he was almost entirely incapable of properly pursuing the issue of his own mental capacity which was fundamental to the issues before me in this Application.
- [22]Dr Morris, psychiatrist, gave evidence for Mr Smith. Dr Morris did not have available to him all the materials available to both Dr Reddan and Dr Prior. He saw Mr Smith on two occasions only, on 6 and 13 June 2007. He did not concede that the lack of material available to him inhibited him forming a proper view of Mr Smith’s condition.
- [23]Furthermore Dr Morris said that it was unnecessary for his opinion to have the extra materials available, nor did he have resort to the opinion of Dr Reddan of December 2006, although he had read the opinion of Dr Prior.
- [24]I am satisfied that the opinion of Dr Morris must be given significantly less weight having regard to the fact that he did not have all the materials available to both Dr Reddan and Dr Prior.
- [25]Dr Gerard Byrne, a psychiatrist, also gave evidence on behalf of Mr Smith. He examined Mr Smith in 2005 on one occasion only, and expressed caution about his opinion being provided at a time relatively remote from the time of hearing. In evidence, he expressed his views in this way:
“I reviewed in some detail the evidence that we had and spoke to you on several occasions, as did members of my staff which included other doctors, psychologists, occupational therapists and a variety of nursing staff. And we also had the opportunity during the time, the 13 days that you were in hospital in our ward, to observe your general mental state and behaviour. So it was a reasonably intensive period of observation, as well as giving us an opportunity to conduct serial mental state examinations. As a result of those assessments, the history we obtained, the evidence from brain scans and related materials and our own observations and examinations of you, I formed the view that I couldn't support a diagnosis of any type of schizophrenia, let alone paranoid schizophrenia, nor could I support a diagnosis of any type of dementia, let alone Picks Disease, a specific type of dementia which had been previously put up as a putative diagnosis. However, I did think the history was entirely consistent with depression and at times, I think, quite severe depression. Possibly depression associated with psychotic symptoms, although at the time you were in hospital with us there was no evidence of such depression or psychotic symptoms. In relation to a personality disorder I thought there were clear signs of a severe mixed personality disorder, with what I thought were prominent obsessive compulsive features and narcissistic features and preoccupations with thoughts of injustice. And I thought at that time you probably had reduced insight into the nature of your difficulties and that was the view that I expressed in my report to Dr Edward Tan.”
- [26]What is at issue in these proceedings is whether Mr Smith has an impaired capacity. In my view, it is unnecessary that the applicant demonstrate that Mr Smith suffers from a specific mental condition amounting to a relevant incapacity. What however must be demonstrated is that the litigant is “not capable of making the decisions required of a litigant for conducting proceedings”.
- [27]I have already made some mention of the manner in which Mr Smith has conducted the proceedings. Quite apart from that, there are a number of issues in relation to the presentation of his case against the contention that he is of impaired capacity.
- [28]Mr Smith’s presentation of the case demonstrated the following characteristics:
- Failure to adequately focus upon the issue of impaired capacity.
- Almost total focus upon issues concerning the conspiracy of psychiatrists against him and their mala fides in producing reports for the Medical Board and for the Court. These included Dr Reddan and Dr Prior.
- Failure to provide his expert witnesses with relevant reports relied upon by the Medical Board, demonstrating, I consider, a deep lack of appreciation of the real nature of these proceedings.
- An inability to focus in his questioning of his own witnesses and the witnesses on behalf of the Medical Board on the substantive issues in these proceedings.
- Mr Smith’s own evidence was effectively devoid of any meaningful reference to issues of incapacity.
- [29]Some of these matters may of course normally be explainable by reference to the fact that Mr Smith has no training in law. However, that is really a question of degree. The enormity of the failure in the presentation of the case cannot however be so satisfactorily explained.
- [30]The range of specialist psychiatric opinion and indeed the opinion of Professor Kearney includes a range of opinions expressed that Mr Smith suffers from paranoid schizophrenia to what is described by Dr Morris as “personality problems or difficulties” (although Dr Morris conceded that this may also be described as a personality disorder).
- [31]It is unnecessary for me to determine in any precise way what condition Mr Smith suffers from. I have no doubt however that on the preponderance of the evidence that Mr Smith labours under some disability and that it operates so as to impair his capacity. That is, I find Mr Smith is not capable of making the decisions required of a litigant for conducting proceedings. In this regard the opinion to which I give most weight, is the opinion expressed by Dr Prior. Dr Prior’s opinion is based upon the most recent assessment of Mr Smith in August 2007, and is the most comprehensive. It is supported by opinions expressed by Dr Reddan and Dr Byrne in that those differing opinions also conclude different but significant mental health issues . It includes many more materials than the fewer materials used in the formulation of the opinion presented by Dr Morris.
- [32]I have been in a position to have regard to the respondent’s conduct during these proceedings before me. As with all unrepresented parties who come before a Court, the respondent suffered the usual difficulties in appreciating the proper way in which questions should be put to witnesses in the form of examination and cross-examination. His cross-examination was often discursive, sometimes irrelevant and most often prefaced by lengthy factual statements.
- [33]In a case such as this, despite Dr Prior saying that eventually “the respondent got to the point” in eventually asking relevant questions, the issue of incapacity is to be assessed on a rather more sophisticated basis than merely doing that. Matters of judgment about evidence, witnesses and materials, tactics (for the Appeal is an adversarial process) and appreciation of the purpose of the proceedings, and the limitations of those proceedings, in the sense that they may not be used as a forum for other opinions or complaints, are all matters that must be taken into account in such an assessment.
- [34]Of course, many of these matters are difficulties encountered by unrepresented litigants. However, in this case, without deciding whether the respondent is a person under such a disability as to deprive him of the right to be registered as a Medical Practitioner, I am nonetheless satisfied on the evidence that the applicant has made out its case that the respondent at this time operates under an impaired capacity.
- [35]Furthermore, however one may characterise Mr Smith’s current mental state it goes beyond mere imprudence or defective judgment or mere obsession about the litigation itself.
- [36]I therefore make the following orders:
- (1)No further step may be taken in the appeal until a person files written consent in the Registry to be the appellant’s litigation guardian pursuant to r 95(1) of the UCPR. I will hear submissions as to costs.
Footnotes
[1] See Thompson v Smith [2005] QCA 466 per McPherson J at para 6.