Managing editor David Donovan concludes the story of Dr Helen Tsigounis and her struggle against Australia’s vindictive, incompetent and, arguably, corrupt medical and legal establishment.
A system in crisis
It seems that when the medical establishment decides it doesn’t like you, it will take its time and use its significant power and influence to completely and methodically destroy your life and career.
This, in any event, to have been what happened to Dr Helen Tsigounis — a talented young doctor forced to emigrate from her native Australia to Greece to pursue her medical career. And our investigations show her case is far from being unique.
The medical establishment in Australia, one of the dogged bastions of the old boys’ club mentality, has undoubtedly a mean, vindictive and petty side. Indeed, it is disturbing to discover this — as it is quite out of keeping with what one might expect from a trusted profession sworn to do no harm.
This piece concludes IA’s three part series into the shocking miscarriage of justice perpetuated by the Queensland Medical Board against a vulnerable young female doctor, and covers the time from when Helen lost her appeal in 2004 in the Townsville District Court against the Board’s decision to cancel her registration up until the current day.
Part Two concluded as follows (in part):
Based on this evidence, and much more that this piece does not have space to cover, there is little alternative but to hold very grave reservations about the conduct of the case and the judgment made. Much of the evidence against Dr Tsigounis appears to be flimsy, based on personality and hearsay, and derived from allegations made well after she had finished working as an intern at Townsville Hospital, in Queensland.
Throughout their action, the Board chose to include negative reports when they could find or solicit them, and hearsay when they couldn’t — but no favourable assessments appeared at all, though numerous of those existed. In addition, no weight was given to the fact Dr Tsigounis was already an experienced and registered medical practitioner in Greece. In all, a misleading and one-sided picture of Dr Tsigounis’ clinical aptitude appears to have been presented to the Court by the Board — and was accepted by the judge apparently entirely without question.
This summation appears to be supported by expert evidence given during the hearing by various witnesses….
Keeping the doctor away Part 3
After the disappointment of losing the court case in Townville, Dr Helen Tsigounis returned to Melbourne, where she had moved in with her parents in their St Kilda home. The assistance Dr Tsigounis received from her family was considerable, with the legal costs eventually costing them more than $1 million.
“For years, I carried on from one court case to another, wingless and wounded, fighting a war that had erupted from nowhere, or so it seemed,” writes Dr Tsigounis in her book The Red Back Web.
She says she was reassured by several people that the higher courts were of a better quality and less likely to deliver another miscarriage of justice. So, Dr Tsigounis engaged a NSW barrister called Mervyn Ward, who agreed to prepare the necessary documents and initiate the appeal. They signed a contract and he received $30,000, which they agreed would cover him preparing an “Outline of Argument” document. Unfortunately, he failed to complete the document in the agreed time, and is alleged by Dr Tsigounis to have instead demanded another $30,000.
According to Dr Tsigounis, this pattern continued until she had ultimately paid Ward $150,000 just to prepare this one document. Finally, it was completed, but without including all the agreed material, including the procedural errors made by the Medical Board and the malice and fraud issues. Interestingly, just the same matters allegedly omitted by Mark Dreyfus QC [refer to Part 2] in his affidavit for Dr Tsigounis. Ward allegedly agreed to prepare a supplementary affidavit with these points but, like Dreyfus, withdrew before completing this task. Dr Tsigounis complained to the NSW Bar Association about Ward but, as the equivalent self-regulating Victorian body did with Dreyfus, they dismissed her complaint as having “no basis”.
Enter Tony Morris
During this time, the Queensland Government has begun an official Inquiry into Dr Jayant Patel and the Queensland Health administration.
It was chaired by a Brisbane barrister called Tony Morris — the youngest barrister ever to be made a QC in Australia’s legal history. It went for six months before it was shut down abruptly, after Morris was accused of being “aggressive, cynical and sarcastic” towards two bureaucrats — Darren Keating and Peter Leck. Their complaint of apprehended bias against Tony Morris was upheld by Justice Moynihan on September 1, 2005.
Of this event, Tony Morris said, in part:
‘If the person chairing a public inquiry is prohibited by law from forming and voicing suspicions, drawing inferences, and developing hypotheses, then we might as well give up. There is simply no point in having Commissions of Inquiry or Royal Commissions, whilst the law in Queensland remains as stated by Justice Moynihan.’
The power of the medical establishment and its ability to close down scrutiny was on display and demonstrated.
In a submission to a House of Representative’s standing committee into Health Funding, dated 7 September 2005, Tony Morris made some interesting comments:
There are structural and systemic factors that are at the heart of the problems facing the public health sector….
Many of the witnesses who testified before the Commission of Inquiry spoke of a culture within Queensland Health whereby:
The Institutional reaction to adverse events and crises is consistently the same: first you deny the facts; secondly you bury the evidence; and thirdly you shoot the messenger.
People who are troublemakers – that is, those (especially clinicians) who raise concerns and identify problems are subjected to “trumped-up” disciplinary complaints and threats of civil and criminal action; have their honesty, their motives and their clinical competence challenged; are victimised with inconvenient rosters and other workplace impediments; and are otherwise bullied until they are eventually eased (or squeezed) out of the System altogether.
In Tony Morris, Dr Tsigounis saw someone aware of the issues, who was unafraid to take on the medical establishment and a, seemingly, compromised legal system. She employed Tony Morris, and also engaged Boe Lawyers to brief him.
Tony Morris prepared the outline of argument document that Mr Ward had prepared for $150,000 — for $3,500. It details an astounding and extensive array or alleged procedural and legal deficiencies in the conduct of the trial and manifold errors in final judgement. (Essentially, he summarises the sorry tale of injustice told in the latter sections of Part 2.)
Tony Morris’ submission before the Supreme Court
In essence, it is the case for the Appellant / Applicant (hereinafter called Dr Tsigounis) that the learned primary Judge – his Honour Judge Wall QC – acted unjudicially and entirely misconceived his functions in that he paid only lip-service to the Briginshaw standard:
- His Honour made purported findings of fact which were never supported by the evidence;
- Where the evidence was in conflict (especially with respect to matters of expert opinion), failing to articulate any reasoned or intelligible basis for accepting one body of evidence in preference to another;
- Substituting his own amateur diagnostic skills for expert evidence; and
- Failing to address the true issues in the proceedings.
Moreover, the learned primary judge required Dr Tsigounis to commence the hearing without legal representation and to appear unrepresented for the first three days, which amounted to a serious denial of procedural fairness.
And in numerous other instances, either there was no evidence to support the learned primary Judge’s findings in favour of the Board’s case, or to the extent that there was “evidence” supporting the Board’s case, it was technically inadmissible and lacking in any probative weight.
In accepting the Board’s case, the learned primary Judge either rejected – or simply failed to have regard to – the evidence of Dr Tsigounis, and evidence supporting her even when there was no evidence to the contrary and/or to the extent there was evidence to the contrary, it was not put to Dr Tsigounis or the relevant witness in cross-examination.
In virtually every instance, where there was a conflict in the expert evidence, the learned primary judge found in the Board’s favour without any regard to the numerical weight of expert witnesses favouring Dr Tsigounis; the weight of expert testimony from witnesses called by the Board, but who gave evidence favourable to Dr Tsigounis; the fact that expert witnesses called by the Board founded their opinions on assumptions which were contradicted or were not sustained by admissible evidence or concessions made under cross-examination by expert witnesses called by the Board.
The learned primary Judge failed in almost every instance to articulate his reasons, let alone a reasoned or intelligible basis, for preferring the evidence supporting the Board’s case, over the evidence supporting the case for Dr Tsigounis.
The only conclusion reasonably open on the evidence – let alone applying the Briginshaw standard of proof – would have been a finding to the effect that Dr Tsigounis had satisfactorily completed internship conditions in accordance with the Information Notice dated 21 June 2002.
The learned primary Judge utterly misconceived the purpose of the fact-finding exercise on which he was embarked. His honour failed to address the real issue, namely whether, assuming that the treatment received by patients in some instances may have been sub-optimal, Dr Tsigounis was responsible for that to a degree which called into question her fitness to be registered as a medical practitioner.
Tony Morris then proceeded to cover the shortcomings in procedural and natural justice elements in the trial, going into some detail about the conduct of Judge Wall:
His honour fell into error by denying the Applicant legal representation and by not offering the Applicant an adjournment to obtain legal representation.
On day one of the hearing, 28 August 2004, Mr Franzese a legal practitioner in Victoria but not in Queensland, appeared for Dr Tsigounis.
Mr Franzese was uncertain whether his professional indemnity insurance covered legal practice in Queensland, as required pursuant to s74 of the Legal Profession Act 2004 (Qld).
A grant for leave to appear to Mr Franzese pursuant to s52 of The District Court if Queensland Act 1976 was opposed by the Respondent [Queensland Medical Board], and refused by the learned primary judge.
Having regard to the gravity of the complaints and the likely impact on Dr Tsgounis’s livelihood and reputation, the learned primary judge ought to have informed Dr Tisgounis of the availability of an application for an adjournment in order to secure legal representation. Instead the learned primary judge was involved in the following exchange with Dr Tsigounis:
His Honour: But Ms Tsigounis, do you realise you’ll have to conduct the case yourself?
Appellant: Well, I have no choice?
His Honour: Well, I don’t think you do. I don’t think you do have a choice.
These remarks are tantamount to a refusal to an application for adjournment.
The result was that Dr Tsigounis appeared in person on Days 1, 2 and 3 of the hearing – 23 to 25 August 2004 – at which point the case was adjourned to a date to be fixed. The prejudice was significant and incurable. On days 1 and 2, the Board called Dr Gellar, Dr Coley and Dr Ashley, whose evidence was central to the most serious of the complaints, that concerning the “meningitis patient”.
On Day 1 at 4.01pm, the board called Nurse Struthers out of sequence in the witness list. Dr Tsigounis objected and sought an adjournment at least until the following morning on the basis that she did not know she would be “acting as solicitor today, and I certainly haven’t prepared”.
The learned primary Judge’s response was that Dr Tsigounis had “to be ready for changes like that”. It is submitted that His Honour fell into error by rejecting an application for adjournment in respect to the evidence of Nurse Struthers.
On day 1, at the conclusion of the evidence of Nurse Struthers, the Board called Dr Gellar, again out of sequence. Again, Dr Tsigounis objected to Dr Gellar being called out of sequence, as she was having her solicitor attempt to engage counsel and was not prepared.
The learned primary Judges likely attitude to an adjournment application is seen in the following response to Dr Tsigounis’s objection to calling Dr Gellar out of sequence.
His Honour says, “I’d hate to think what’s going to be counsel’s first request tomorrow morning, if you do get counsel”.
On day 1, evidence was given by Nurse Bailey, and on day 4 by Nurse Buldo, that evidence being crucial to complaints related to the cannulation of children.
The denial of legal representation not only had the result that Dr Tsigounis was unrepresented while evidence was adduced from some of the most critical witnesses for the Board. It also had the consequences that the learned primary judge formed an impression of Dr Tsigounis that exceeded an evaluation of her evidence, and was influenced by the manner in which she conducted the case as an unrepresented litigant, unfamiliar with court procedure and lacking legal training and knowledge of evidence, a situation in which she was understandably overwhelmed.
The effect of the learned primary judge having (practically) forced Dr Tsigounis to represent herself – including his Honour having (practically) forced Dr Tsigounis to cross-examine eminent expert witnesses, and witnesses called out of sequence, relevant to what the Board characterised as the “key issues” – was to deny her any semblance of a fair trial.
That should be enough in any case of appellate interference, but this case was much stronger given these additional factors:
First, that Dr Tsigounis was not to blame for the situation.
Secondly, that Dr Tsigounis – as an aspiring member of the medical profession – was placed in the invidious position of cross examining not only her colleagues, but also her supervisors and professional superiors.
Thirdly, that witnesses were called out of turn, which is a difficult situation for even experienced counsel, but impossible for a lay person who has not prepared to conduct cross examination.
Fourthly, that the case presented for the Board was not (for the reasons outlined) characterised by the transparent fairness which is expected of prosecuting authorities in our legal system.
Fifthly, that the factual issues – and especially the issues canvassed in the expert evidence – were of a high order of complexity.
Sixthly, that the procedural and legal considerations were also more than ordinarily complex.
Seventhly, that (for the reasons canvassed above) the learned primary judge exacerbated the situation by:
- Misconceiving the relevant issues; and
- Addressing issues which were not properly before him.
To put the matter rhetorically: How can Dr Tsigounis be expected (as a lay advocate representing herself) have understood and addressed the real issues, when his Honour did not and could not.
Eighthly, that the learned primary Judge was (with respect) less than rigorous in his Honour’s observance of the rules of evidence, for example, admitting and acting upon hearsay where it was prejudicial to Dr Tsigounis – the most striking example is Dr Balanathan’s evidence – but on other occasions rejecting hearsay, including hearsay which may have been beneficial to Dr Tsigounis.
Ninthly, the delayed nature of the complaints – combined with the fact that the Board was less than assiduous in investigating complaints promptly, nor did it inform Dr Tsigounis of complaints against her at a time when she could have responded to them effectively – created a situation which would have been taxing even to experienced counsel, let alone a self-represented litigant.
Tenthly, the extent of the intervention of the learned primary judge – almost invariably in favour of the board, which was represented by senior counsel— created an extraordinarily awkward situation for an inexperienced advocate attempting to represent herself.
Eleventhly, the course of the proceeding unfairly exposed Dr Tsigounis to a situation in which she should never have been placed; a situation in which her performance as an advocate was evidently relied on by the learned primary judge in:
- From her cross-examination of witnesses in relation to clinical issues, assessing her own clinical competence; and
- From her performance at the Bat table (rather than in the witness box), forming his own amateur diagnosis of a psychiatric condition (“personality defects”, “limited capacity for self-examination”).
[Case law was cited as to the governing principles concerning adjournment and fair trials.]
The “superior” courts
Despite this quite comprehensive summary, it seems that Dr Tsigounis was less than totally satisfied with the conduct of the case by Tony Morris.
On the first day of the Supreme Court Appeal hearing, the 1 August 2006, I felt, maybe somewhat prematurely, that Mr Morris was not arguing my case with its full force.
After the first 10 minutes, the case was adjourned and Mr Morris wanted to see me.
He told me that my case had been “politically flagged” and there was no point in going on as the Judge’s mind’s had already been set against us.
Having already paid Tony Morris and Boe $50,000 to conduct the case, Dr Tsigounis instructed Tony Morris to continue, which he allegedly somewhat reluctantly did. Morris was unsuccessful in the judgement handed down later that day:
- Application for leave to appeal refused.
- Application for leave to cross appeal refused.
- Ms Tsigounis to pay the costs of the Medical Board of Queensland…
In the reasons for its judgement, delivered later, many longstanding principles of law appear to have been abandoned by the Supreme Court. Regarding the Briginshaw standard of proof, which was not applied by Judge Wall, the judges, rather laughably, asserted that there had been no need for Judge Wall to apply it because, in essence, not being registered as a doctor is not a serious matter.
According to Justice Keane, the judgement of Wall:
‘…did not involve a serious consequence, such as the striking off of a registered medical practitioner whose entitlement to practice had previously been established. Rather, the case was concerned with whether the applicant had completed requirements necessary to be granted unconditional registration.’ (Para 76-77 of Tsigounis v Medical Board of Queensland  QCA 295 (15 August 2006).
So, being struck off is serious, but not gaining full registration and not being able to practice as a doctor after years and years of medical school and training is somehow not serious? The effects on Dr Tsigounis’ life – its utter ruination, in short – would appear to most reasonable people to be “serious” enough. Surely the Supreme Court was not being “serious”.
The judges proceeded to ignore the evidence and dismiss every one of Dr Tsigounis’ assertions. For instance, with respect to the so-called “meningitis patient”, Keane remarkably puts the onus of proof on the Dr to defend herself against an unsubstantiated attack, rather than requiring the Medical Board to explain why they allege Dr Tsigounis should have treated a patient for a meningitis condition, which her correct diagnosis, supported by lab results, showed the patient simply did not have.
From the judgement of Keane J:
‘The Applicant’s inability to provide a coherent account of her management of JY supports a finding, based on the evidence which His Honour (Judge Wall) accepted, that her management of JY was distinctly unsatisfactory.’
Based on the evidence Judge Wall accepted — which appears to be the testimony of a single doctor from Townsville Hospital, and flies in the face of reams of expert testimony and lab results. Put simply, there was no meningitis patient.
Regarding Judge Wall not allowing an adjournment to Dr Tsigounis to get legal representation, the court asserted that Helen was unrepresented by her own choice.
“The contention that the applicant was a denied a reasonable opportunity to obtain legal representation is farfetched,” said Justice Keane.
Farfetched? What seems farfetched is that the learned judges on the Supreme Court could don the horsehair wigs and gowns and, with a straight face, deny that Tsigounis had any cause to appeal.
Still not yet beaten totally into submission by a callous, and seemingly biased, legal system, Dr Tsigounis then appealed to the High Court. She was, of course, similarly unsuccessful, with Justice Hayne saying (Tsigounis V MBQ, HCATrans234 (24/5/07)):
‘There is no reason to doubt the correctness of the conclusion of the Court of Appeal. It is not in the interest of Justice generally or in this particular case, that there be a grant of special leave.’
Not in the interests of justice? Based on the evidence presented here, the assertion seems absurd.
There seems to be little prospect of justice when one comes up against powerful establishment interests, such as Medical Boards, or banks — as we have seen in many other stories on IA.
Dr Tsigounis’ legal forays did not quite end there, but suffice to say she is no further advanced in her efforts to get her medical registration approved.
Where is Dr Tsigounis now? Perhaps it would be best to let her describe this in her own words:
She made this statement to IA:
I am now in Corfu, Greece, registered with the medical board here and doing locums.
The actions of the Medical Board have destroyed my life, for the obvious reasons that are relayed in my book. Having to leave one’s country to go somewhere completely different to start over again at the age of 36 is not easy, especially when they had drained me financially through the corrupt court process. It has, as you can understand, affected all areas of my life negatively.
Of course I want to come back home in the country I grew up and in an environment I’m used to.
As mentioned at the beginning, Dr Helen Tsigounis’ case is far unique. In fact, one of the expert witnesses used by Dr Tsigounis, Professor Paddy Dewan, has his own battle against the Victorian Medical Board.
He explains what has just happened in the last few days on his website:
A false allegation related to a case operated on 8 years ago, with no complication and a good outcome, and agreed with by other specialists, has resulted in the medical board legal team and VCAT (after what was little better than a circus) concluding I am guilty of MISCONDUCT (which would normally result in loss of registration). See the medico-political and biography pages of this website to understand how ridiculous their position is. Particularly note the Supreme Court finding related to the previous VCAT silliness.
Note, also, that the case against me was commenced after the medical board was identified by me to have failed to thoroughly investigate 25 cases against one surgeon, as part of a collection of almost 100 cases.
He made the following statement to Independent Australia about Dr Helen Tsigounis’s case:
Helen contacted me when she noticed that I had spoken publicly about management lack of accountability in health-care. Subsequently, I have been asked to comment on the argument against Helen being able to be registered.
The circumstance seems common to many scenarios I have since become aware on the “pursuit of an individual” side of the system dysfunction ledger, played out both at the medical board and hospital administration level…
During the interview, I was particularly interested in the failure of the interviewing panel to view the circumstances that Helen was involved in in a manner that gave appropriate weight to the status she held at the time of the alleged clinical events, noting that a fellow resident in my first year as a doctor missed a meningitis, which was the allegation against Helen.
The responsibility of others did not weigh appropriately in the argument. At the end of the proceedings, and with knowledge of the outcome, both the process and the information gathering did not appear to pursue truth, but legal argument. Also, and importantly, the well-being of a medical practitioner did not appear to be at all important.
Helen’s case is not unique, and is not unique to the one level of health management. A lack of accountability of health administrators is a significant deficiency of our quality assurance mechanisms. The phenomenon of removal of people from a work-place is more prevalent
than the threats and inappropriate challenge to medical registration.
The problem is … a lack of a culture of medical administrative accountability, which includes the medical board, and requires that medical treatment, adverse events and complaints are taken out of the legal argument arena; that we put in place performance criteria related to staff welfare at the hospital level, and professional welfare should be expected to be achieved by the medical board and the health department.
Three actions that could be taken are:
- an investigation into dismissals of doctors from public hospitals and natural justice (not the smoke-screen of procedural fairness);
- an audit of the outcomes for complaints handled by the medical board, including those found both guilty and not guilty, including seeking input from the “accused”;
- a review of VCAT appointees and the outcomes of the collective of cases heard.
A medico-legal lawyer put it very succinctly recently when responding to my assertion that the system is broken. He vehemently retorted, “No, that is not true. It is working very well. It’s just …”.
I didn’t argue about semantics, and he is not alone in his view.
And what does Helen want to happen now? The last word goes to her.
‘I want a judicial review of my case. It goes without saying that I also want my human rights to earn a living in the country that I was born and to feel safe without harassment and threats to my life by government bodies.’
(Next week in IA, eminent paediatric urologist Professor Paddy Dewan outlines his own struggle against the Medical Board to retain his registration in Australia. If you know of a similar case to Helen’s please contact Independent Australia.)
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