Medical Board of Australia v Currie (Review and Regulation) [2024] VCAT 427

In this case, the VCAT found it unfortunate that the lawyers’ request to the experts was to assist a party in defending the allegations at a hearing, which could mislead experts regarding their role.

Background

The Medical Board of Australia (the Board) received ten notifications about the practice of medicine of Dr Currie, a registered medical practitioner with general and specialist registration in addiction medicine and a physician in the field of neurology. It concerned his treatment of 15 patients. The Board referred the matter to the VCAT, under the Health Practitioner Regulation National Law (Victoria) Act 2009.

Expert witness evidence

Dr Currie relied on his own opinion, as well as that of Dr DG, a psychiatrist and Dr GO, a Clinical Associate Professor of Psychiatry Neuroscience.

The Board argued that Dr DG and Dr GO lacked the necessary independence expected of expert witnesses. The Board referred to the engagement letters from Dr Currie’s lawyers to Dr DG and Dr GO, which requested their expert opinion “to assist in the defense of Currie”, instead of asking for independent evaluations of the clinical treatment and/or management provided by Dr Currie. Specifically, the letters state:

We act for Currie. We request your assistance with consideration of documentation which accompanies this letter and provision of your opinion upon allegations made against Currie by the Medical Board of Australia (the Board). Your opinion is sought to assist Currie in defending the allegations at a hearing in the Victorian Civil and Administrative Tribunal (VCAT), the date of which has not yet been fixed.

The Board pointed out that Practice Note, PNVCAT 2 Expert Evidence indicates that:

• An expert witness has a paramount duty to the Tribunal and not to the party retaining the expert; and
• An expert witness is not an advocate for a party to a proceeding.

According to the Board, Dr Currie’s lawyers’ request for assistance to defend or advocate for Dr Currie, is contrary to the duty of an expert before the Tribunal, articulated in PNVCAT 2.

The Tribunal found it “unfortunate” that the language of the request to Dr DG and Dr GO was to ‘assist Currie in defending the allegations at a hearing’. The Tribunal held that this could mislead a potential expert regarding their role. However, VCAT’s practice note on expert evidence was included with the letter of engagement, informing Dr DG and Dr GO of their responsibilities as expert witnesses.[101]

Additionally, the Board argued that Dr DG admitted to referring her own patients to Dr Currie, which constitutes a personal endorsement of Dr Currie’s professional abilities. This creates a potential conflict of interest, whether real or perceived, when presenting evidence. Dr DG had a vested interest in upholding her confidence in Dr Currie’s conduct, which conflicts with her duty to provide impartial evidence to the Tribunal.

The Tribunal regarded Dr DG as sufficiently independent of Dr Currie that her evidence required consideration, since it was not surprising that one medical practitioner will refer to another medical practitioner where they take the same approach to treatment. However, Dr DG’s close relationship with Dr Currie diminished the Tribunal’s confidence in the unbiased objectivity of her opinions.[103]

This is based on the Tribunal’s examination of Dr DG’s evidence, which revealed that she has a close professional relationship with Dr Currie, including mutual patient referrals. For instance, Dr DG discussed a patient’s treatment by Dr Currie. When Dr Currie was barred from prescribing for the patient, Dr DG took over and reported that the patient was doing well. In January 2023, she described co-managing patients with ADHD and SUD with Dr Currie. Thus, while the Tribunal accepted Dr DG’s opinion, it was given little weight and was not preferred.[107]

The Tribunal also gave no weight to the evidence of Dr GO, who offered no information regarding his expertise, seemingly relying solely on a letterhead. In his report, the Tribunal found that Dr GO demonstrated no understanding of his role as an expert, confusing it with that of an advocate for a party in a legal proceeding, leading the Tribunal to question his independence.[110]

Key Takeaways:

• Lawyers should be cautious about instructing expert witnesses, so as not to mislead them as to their engagement.
• Experts should be mindful that their evaluation is independent and not in assistance of a party and always guided by their duties under the Expert Witness Code of Conduct.
• While an expert’s referral to a party who is also a medical expert may not be considered a conflict, a close professional relationship with the party may affect the weight given to the expert’s opinion.

Read the full decision here.