Tsigounis v Medical Board of Qld [2006] QCA 295 is a warning of the dangers of self-representation by professionals. A medical student at Monash University took more than 11 years to complete her medical degree 20 years ago. She could not find work in Victoria, and travelled to Townsville to do her internship following a period of limited practice in Greece. It was not a happy internship. After extensions of the internship (involving a requirement of psychiatric counselling) and various ‘show cause’ notices, the Medical Board bit the bullet and refused to register her as a doctor, two years after the first application for registration, satisfied that the intern was incapable of satisfactorily completing an internship.
The intern appealed the Board’s decison to the District Court. There was a hearing de novo. The judge set aside the Board’s decision and instead permitted the intern to carry out a further internship at a hospital other than Townsville Hospital. The Court of Appeal thought that decision too generous in light of the other findings made by the judge, but said there was no point setting the decision aside because the effluxion of time since the judge’s decision meant that the intern could now only apply afresh for registration, at which point the whole process started over again. In relation to the arguments put by reference to the intern’s self-representation in the District Court, the Court of Appeal said:
“[66] It may readily be accepted that the applicant was disadvantaged by the circumstance that she represented herself. The disadvantage suffered by a person who acts in litigation as her own lawyer is proverbial. In this case, it may also be accepted that the applicant was especially disadvantaged by her conduct of her own case in that her adversary was af-forded the opportunity to point to her conduct of the litigation as affording confirmation of evidence that, in general, she resisted direction and correction, lacked insight into her shortcomings and was ill-disposed to learn from mistakes. It may also be accepted that it would have been desirable that the applicant be warned of the special potential for such disadvantage in a case where her character was, inevitably, in issue, and that no such warning was given to her by the judge. None of this, however, shows that the applicant was denied a reasonable opportunity to avoid these disadvantages.”
The Court of Appeal doubted the District Court judge’s conclusions that the Board had the burden of proof, and that it was to satisfy that burden on the Briginshaw standard:
“[42] The learned District Court judge approached the appeal before him on the footing that the onus of proof of the inci-dents on which the Board relied was on the Board, and that the standard of proof of these incidents was a very high standard of probability in accordance with the principles stated in the decision of the High Court in Briginshaw v Briginshaw. His Honour took that view principally because of the serious consequences for the applicant of an adverse determination of the appeal.
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in relation to the question whether the applicant had satisfactorily completed her internship, that the District Court was not concerned with whether the applicant had been guilty of ‘infamous conduct’ or whether ‘grave moral delinquency’ was established to its satisfaction. No counsel of prudence or caution, appropriate to proof of moral turpitude, was relevant to the resolution of this ultimate issue or, indeed, of the factual issues which related to the competence of the applicant in the discharge of her duties as an intern.
[77] Furthermore, the case did not involve a ‘serious consequence’, such as the striking off of a registered medical prac-titioner whose entitlement to practise has previously been established. Rather, the case was concerned with whether the applicant had completed requirements necessary to be granted unconditional registration and thereby to assume the special powers and responsibilities for the health and welfare of members of the public. It may be doubted whether the principles in Briginshaw v Briginshaw applied to any aspect of this case.
[78] For the sake of completeness, I should also mention that I would wish to reserve my opinion on the question whether the Board did, in truth, bear the onus of proof, either in relation to the ultimate issues, or the key incidents. The issue was whether the Board (or, on appeal, the District Court judge) was satisfied that the internship had been satisfactorily completed. It was not whether some misconduct had been proved so as to justify cancellation of registration. For present purposes, one may proceed on the footing that the applicant properly had the advantage of favourable rulings by the judge on both the onus of proof and standard of proof.”
The scheme for the admission of doctors to practice in Queensland under the Medical Practitioners Registration Act, 2001 (Qld) was outlined:
“[7] Under the Act, the Board was obliged to determine the applicant’s fitness to practise as a member of the medical profession. The right to practise in Queensland is dependent upon registration under the Act. Registration under the Act may be subject to probationary conditions which include the completion of the prescribed internship to the Board’s satisfaction within a given time. The Board may cancel an individual’s registration on the ground that the registrant has not completed the prescribed internship, to the Board’s satisfaction, within the period determined under the Act.
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[9] It will be seen that if it is not established to the satisfaction of the Board (or, on appeal, the District Court) that the registrant has satisfactorily completed the internship, then the Board must either cancel the registration (s 94(1)(b)(i)) or extend the probationary period (s 94(1)(b)(ii)). The latter course is open only if the Board (or, on appeal, the District Court) considers that the registrant will (on the balance of probabilities) satisfactorily complete the internship during that period. If the Board (or, on appeal, the District Court) does not consider that the registrant will satisfactorily com-plete the course within that period, then no extension may be granted and cancellation is the only option.”
