To the Editor: Gerber’s article1 about the case Royal Women’s Hospital v Medical Practitioners Board of Victoria raises important issues but contains significant errors.

The Medical Practice Act 1994 (Vic) states that the main purposes of the Act are “to protect the public by providing for . . . investigations into the professional conduct . . . of registered medical practitioners” — Section 1(a). Section 22(1) makes it clear that any person may notify the Board if they believe a person may have engaged in unprofessional conduct. Section 25(1) states that the Board must investigate notifications unless they meet certain criteria, which the Board did not believe were met in this case.

Gerber is not correct in stating that the Board made no attempt to question the medical practitioners involved. In the absence of the patient’s consent, all but one of the doctors refused to provide any information in response to the complaint.

Gerber’s statement that the subcommittee of the Board that conducted the preliminary investigation concluded that the complaint was “frivolous and vexatious” is wrong. The subcommittee recommended that the matter be closed. Later, the full Board chose not to accept this recommendation, as the investigation had been hampered by lack of information, including access to the original hospital records.

While formal hearing panels have the power to subpoena documents or persons, this power does not extend to the Board’s preliminary investigations. The Board does have the power to apply to a magistrate for the issue of a search warrant.

Gerber refers to the powers of the Board under Section 48 and Section 49 of the Act. These powers only come into play if the Board has determined that it will conduct a formal hearing. He is also incorrect when he states that the Board can compel medical practitioners to appear before the Board. This power is not available during preliminary investigations.

The considerable delay in the matter being finalised was due to the legal appeals mounted by the Royal Women’s Hospital against the decision of the Magistrate to allow the Board access to the hospital records.

Another issue raised by Gerber requires clarification: the Board does not currently have the power to conciliate disputes or conduct mediations.

The Board did not ultimately dismiss the matter as frivolous and vexatious. When the subcommittee, having been provided with the records, reported to the Board that it did not find evidence of unprofessional conduct, the Board closed the investigation.

I trust that this information will correct the public record on this important matter.

In reply: Flynn points to some minor technical differences in my historical recount of the handling, by the Medical Practitioners Board of Victoria, of the complaint against the medical specialists involved in a late-term abortion.1 None requires a reply, save for Flynn’s assertion that “the Board does not currently have the power to conciliate disputes or conduct mediations”.

The Board does not require statutory power to approach a hospital in a conciliatory manner so as to explore whether an impasse, involving confidentiality, can be resolved without recourse to litigation. Was the Board’s only remedy to raid the hospital, trawling for evidence to decide whether there were grounds for the possible suspension or cancellation of registration of the doctors involved in the complaint?

We both agree that the relevant legislation mandated the Board, on the material before it, to investigate the charge of serious professional misconduct. Where we disagree is that, having overruled its own subcommittee’s recommendation that the matter be closed, the Board failed (I maintain) in its statutory duty to promptly institute a formal hearing. Had the various specialists been subpoenaed, this would have cleared them of professional misconduct, thereby preventing the considerable and unnecessary stress to these witnesses over a period of 5 years.