WA Court of Appeal sets aside Tribunal’s decision

01 May 2017

The WA Court of Appeal dismissed Keith Woollard’s appeal to strike out the Medical Board of Australia’s allegations of false claims regarding his training and experience to perform a coronary angioplasty.

The Court of Appeal in Western Australia (Court of Appeal) has set aside the decision of the State Administrative Tribunal (Tribunal) and substituted its own orders dismissing Dr Woollard’s appeal to strike out the Medical Board of Australia’s (Board) allegations that he had made false claims regarding his training and experience to perform a coronary angioplasty.

In December 2005, a patient of Dr Woollard’s died from cardiogenic shock after Dr Woollard dissected an artery in an angioplasty procedure performed the previous day. Following a complaint from the patient’s widow on 22 May 2012, the Board referred the matter to the Tribunal, alleging that Dr Woollard had behaved in a way that constituted professional misconduct. The initial application to the Tribunal alleged that Dr Woollard acted without direct supervision when he was not sufficiently experienced in the procedure to do so. It also alleged that he failed to adequately inform the patient of the risks and had misled the patient’s widow as to the cause of death.

In July 2015, the Board amended its application and introduced two allegations. The first, referred to as the ‘inadequate training claim’ was that Dr Woollard did not meet the requirements contained in the guidelines published by the Cardiac Society of Australia and New Zealand. The guidelines concern the minimum number of coronary angioplasty procedures that must be performed in order to complete the necessary training. The second allegation referred to as the ‘false representation claim’ was to the effect that Dr Woollard made false representations to the hospital about his training and experience in the context of seeking accreditation.

In October 2015, Dr Woollard applied to dismiss the proceedings as an abuse of process. On 17 March 2016, the Tribunal made orders striking out the ‘inadequate training’ and ‘false representation’ claims. In assessing the claims, the Tribunal found that the Board had taken an unreasonable time to pursue the allegations, which constituted an abuse of process and prejudiced Dr Woollard in response to these complaints. It also found that there was no public interest in pursuing the allegations.

The Court of Appeal found:

• it was not open to the Tribunal to find that the delays were beyond the normal length of an investigation of this nature, particularly in relation to a complaint where the notifier’s husband had passed away
• the Tribunal’s finding that Dr Woollard was prejudiced by the delay as a result of a witness’s death was not founded. Dr Woollard’s evidence was to the effect that he had discussed cases, including the relevant patient’s with the witness but that he could not remember the content of the discussions and he did not know what, if anything, the witness remembered about those discussions. Further, in regards to Dr Woollard’s claims that the witness could have given expert evidence relevant to the topic of counting procedures performed, the Court found that the witness was not the only person who could have given such evidence
• it was not open to the Tribunal to infer that any records that were lost or destroyed following the witness’s death could have assisted Dr Woollard to defend the allegations, as the Board’s case against Dr Woollard was based on Dr Woollard’s own records which he supplied to the hospital in the context of seeking accreditation, and
• in light of the Tribunal’s finding that the allegation of Dr Woollard’s false representation went to the question of Dr Woollard’s fitness to practise, it was not open to the Tribunal to find that there was no public interest in allowing the allegation to proceed to a determination on its merits.

The Court of Appeal dismissed the Tribunal’s orders and substituted its own dismissing Dr Woollard’s appeal and ordering he pay the Board’s costs of the appeal and the Board’s costs of his application to the Tribunal.

The Court of Appeal’s decision is published on AustLii.