Proceedings had been commenced in the Tribunal by the Medical Board alleging a breach of professional boundaries, sexual misconduct, misleading entries in clinical notes and making false statements to AHPRA and the Board.

Following conferral between the parties, a document entitled "Minute of Proposed Orders" was signed by the solicitors acting for the parties. The Minute took the form of an order to be made by the Tribunal on an application by the parties to settle the proceedings. In preparing the Minute the parties had also agreed the relevant background facts, set out in the Schedule attached to the Order.

The agreed facts, as attached to the Minute, restricted the allegations of sexual misconduct to the performance of fellatio upon the Doctor by the patient and did not include other allegations previously referred to in the Board's Application. The agreed facts also recorded the allegation of failing to maintain proper professional boundaries in general terms rather than the specific terms alleged in the Application.

In preparation for the penalty hearing, both parties were required to file bundles of documents and submissions. The Board had previously filed a bundle of documents which had been prepared for a hearing on both conduct and penalty and which included statements of evidence proposed to be given by the patient. The Doctor filed a bundle of documents addressing penalty and costs only.

In providing its reasons for decision on penalty the Tribunal made reference to sections of the patient's statement and made findings of fact in terms of the patient's evidence. A finding was also made to the effect that the Doctor had committed perjury in earlier District Court proceedings even though no allegation to that effect was made in the proceedings before the Tribunal.

The Doctor appealed the Tribunal's decision on the grounds that it should not have taken into account matters that were outside the scope of the agreed conduct and had denied him procedural fairness in making findings of fact that were substantially different from, or in addition to, the agreed facts, without drawing to the attention of the parties that it intended to do so.

In opposing the appeal, the Board submitted that when the Tribunal's decision was read as a whole, the matters raised in the appeal were simply by way of background or context and the only matters of fact that were operative were those contained within the Minute agreed by the parties.

The Court of Appeal held that there was no doubt that the Tribunal had made findings of fact adverse to the Doctor and had relied upon those findings in arriving at its decision on penalty, in circumstances in which the Doctor had no notice that findings of that kind were to be made, nor had opportunity to present evidence or submissions in relation to them.

The Appeal was allowed and the matter was referred back to a differently constituted Tribunal for redetermination.

Of note, the Court was also critical of the Tribunal's reasons which, in part, replicated the text of the Board's written submissions without any form of attribution. The Court stated at [35] that the preparation of reasons by applying 'scissors and paste' to written submissions presented by the successful party without acknowledging that process is bound to cause the unsuccessful party to doubt whether the decision maker has properly engaged  with the case presented by the unsuccessful party. 

To read the full decision in Lal v Medical Board of Australia [2018] WASCA 109, click here.