Delay found to be abuse of process

by | Mar 29, 2016 | Health Blog

In Medical Board of Australia v Woollard [2016] WASAT 26 Justice Curthoys ordered that paragraphs of the Medical Board’s amended application be struck out as an abuse of process for delay.

The patient had died in September 2005 following an angioplasty procedure performed by the practitioner. The patient’s widow lodged a complaint in 2012. The Board took until December 2014 to file its application with the Tribunal. In July 2015, the Board amended its application to make new and very serious allegations.

The practitioner applied for an order that the Tribunal dismiss the Board’s application pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA) for abuse of process.

The reasons for decision usefully set out the principles in relation to dismissal for abuse of process in disciplinary proceedings (see [26] to [46]) and then go on to detail the history of the matter and to consider the conduct of the Board once the complaint was received.

Justice Curthoys commented at [70] – [71]:

“The Tribunal fully understands that AHPRA has an enormous workload. … However, that workload cannot excuse, of itself, a failure to proceed expeditiously where there is a long delay.

The fact that by the time the complaint was lodged by the widow some six and half years had elapsed since [the patient’s] death required the Board to act expeditiously. It goes without saying that, over time, memories fade and, particularly after six and half years, there is a risk that records may have been lost or that as further time elapses, memories may further weaken or further records may be lost.”

At [114], Justice Curthoys was also critical that the Board had waited six months to receive an expert report. He commented that:

“[The expert] was plainly very busy. The Board should have ensured [the expert] was going to be in a position to produce a report promptly or it should have engaged another expert.”

Justice Curthoys found no explanation by the Board for their delays and no appreciation by the Board for the need for urgency.

Justice Curthoys concluded that, in relation to the amendments in the Board’s amended application (other than one ground), the amendments should be struck out as an abuse of process. The Board’s delay in the prosecution of the disciplinary proceedings against the practitioner was so prolonged that it was unreasonable. The practitioner had suffered actual prejudice.

This case makes plain that regulation bodies must progress disciplinary proceedings without any kind of undue delay.

The moral for the Board – delay at your peril.

Enore Panetta

Enore Panetta