FEBRUARY 2015 - UPDATE: “Please note that this case has been the subject of a successful appeal by Dr Dekker to the WA Supreme Court. Readers should review a report on this appeal in the February 2015 issue of the Holman Webb Law Bulletin”  

A recent finding of the State Administrative Tribunal of Western Australia has sparked debate amongst Australian doctors and brought into focus the wide scope of what might constitute “improper or infamous” conduct by a registered medical practitioner.

The Medical Board of Australia alleged that Dr Leila Dekker was guilty of infamous or improper conduct when she did not stop and try to render assistance following a near miss accident involving her vehicle and another vehicle near Roebourne in North Western Australia. It was night time and Dr Dekker and her passenger were returning from a local tip on a side road and narrowly avoided a collision at a T intersection with the other vehicle travelling on the North West Coastal Highway.

While Dr Dekker did not see the other vehicle subsequently go over an embankment and roll over, she heard the noise of the impact and her passenger thought the vehicle may have rolled over. Her passenger suggested that they go and check what had happened. Dr Dekker refused to do so but agreed to drive to the police station and report the event. Dr Dekker did not have a mobile phone with her or first aid equipment or a torch.

The matter came before the WA Tribunal eleven years after the accident, which occurred in April 2002.  A passenger in the other vehicle was thrown out of the vehicle and died at the scene. Dr Dekker was convicted of dangerous driving causing death at a District Court trial in 2005. She was fined $10,000 and disqualified from driving for 2 years.

Dr Dekker  subsequently appealed, and in a 2:1 decision in 2009, her appeal was successful and her conviction quashed by the WA Supreme Court of Appeal. The Court of Appeal found that the evidence in the District Court trial established that the other driver had lost control of his vehicle before Dr Dekker entered the T intersection. While Dr Dekker may not have taken reasonable care when entering the intersection, her driving did not cause his vehicle to leave the road and roll over and hence the conviction could not stand.

The Tribunal considered her statement to the Police a few days after the accident, her evidence in the subsequent trial and appeal and her statement and evidence to the Tribunal.

The Tribunal had to consider whether Dr Dekker’s conduct was sufficiently connected to the profession of medicine and if it was, whether the conduct was improper or infamous.

Dr Dekker and her counsel argued that she was shocked and scared by the near miss, it was dark, she had no torch, first aid equipment or mobile phone, there had been violent incidents in the region and since the police station was nearby  the most expedient thing to do was to go to the police.

The Medical Board’s counsel argued that Dr Dekker knew that an accident had probably occurred with the prospect that persons were injured, she could have used her car headlights to illuminate the area where the noise had come from and at least made a preliminary assessment of who had been injured and the extent of the injuries. The Board argued further that this would be a reasonable expectation of the medical profession and that Dr Dekker’s failure to do so would be regarded by her peers as being improper or infamous.

The Tribunal concluded that there was a sufficient connection between the event and the profession of medicine, even though the event did not occur as part of Dr Dekker’s medical practice. In the Tribunal’s view, “saving human life and healing sick and injured people is a core purpose and ethic of the medical profession”.

In considering her conduct, the Tribunal determined that even though Dr Dekker had reported the event to the police, her failure to stop, make an assessment and render assistance when she was physically able to do so and had the knowledge and skills to do so, would “reasonably be regarded as improper by medical practitioners of good repute and competency”. The Tribunal observed that had Dr Dekker not promptly reported the event to the police, her conduct would have constituted infamous conduct.

After making its finding, the Tribunal determined to hold a further hearing in February 2014 to consider the appropriate penalty and any orders as to costs.

What does this decision mean for Australian doctors?

This decision illustrates three important points for doctors (and other registered health professionals). Firstly, it is not only criminal law and civil litigation that determine what is acceptable conduct. Registration Boards continue to play a key role in regulation of the conduct and the reputation and standing of registered health professionals.

Secondly, the reach of the regulatory body and the associated disciplinary framework extends beyond direct clinical practice and a doctor-patient relationship. In both Australia and the UK, the conduct of doctors in management roles has also been found to come within the disciplinary framework.

Thirdly, the decision confirms that, unless otherwise specified in legislation, the test for what might constitute improper or infamous conduct continues to be, what would professional colleagues think of the conduct in question – a test that has been applied for well over a century.

Medical Board of Australia and Dekker [2013] WASAT 182 (14 November 2013).

Dekker v The State of Western Australia [2009] WASCA 72.

See for example Roylance v General Medical Council (No 2) [2000] 1 AC 311 involving the CEO of a NHS Trust and Hoile v The Medical Board of South Australia (1960) 104 CLR 157 concerning a medical superintendent of a country hospital.

This test was adopted by the Court of Appeal in Allison v General Council of Medical Education and Registration [1894] 1 QB 750.