AHV v NSW Commission for Children and Young People

[2012] NSWADT 263

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AHV v NSW Commission for Children and Young People [2012] NSWADT 263
Hearing dates:	7 and 8 May 2012
Decision date:	13 December 2012
Jurisdiction:	Community Services Division
Before:	P H Molony, Judicial Member
Decision:	The Tribunal refuses AHV's application for a declaration under s 33I of the Commission Act.
Catchwords:	Commission for Children and Young People Act - prohibited person - refusal to make a declaration that Part 7 of the Act does not apply to a protected person
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Commission for Children and Young People Act 1998 Child Protection (Working with Children) Act 2012 Crimes (Sentencing Procedure ) Act 1999 Health Practitioner Regulation National Law (NSW)
Cases Cited:	ADV v Commission for Children and Young People [2012] NSWADT 8 Commission for Children and Young People v FZ [2011] NSWCA 111 Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476 L v Commission for Children and Young People & anor [2008] NSWIRComm 195 R v Commission for Children and Young People [2002] NSWIRComm 101 RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10] RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15]
Category:	Principal judgment
Parties:	AHV (Applicant) NSW Commission for Children and Young People (Respondent)
Representation:	M Lynch (Applicant) V A Hartsein (Respondent) Browns Legal & Consulting (Applicant) Crown Solicitors Office (Respondent)
File Number(s):	114047
Publication restriction:	S126 of the Administrative Decisions Tribunal Act applies

REASON FOR DECISION

Introduction

1. COMMUNITY SERVICES DIVISION: (P H Molony, Judicial Member): Due to the sensitivity of these proceedings, in these reasons for decision the applicant is referred to by the pseudonym AHV (also see section 126 of the Administrative Decisions Tribunal Act 1997 (ADT Act)).

1. AHV has made an application to the Tribunal seeking an order under section 33I of the Commission for Children and Young People Act 1998 (the Commission Act) declaring that Division 2 of Part 7 of that Act is not to apply to him in respect of offences of which he was convicted, in the August 2010. The offences for which AHV was convicted on 18 August 2010 were six counts of indecent assault on a male (three counts relating to each of his two victims) contrary to section 81 of the Crimes Act. The offences were alleged to have occurred 1976.

1. For the purposes of this application these offences are referred to as the 'index offences' as they are offences that bring AHV within the terms of the Commission Act.

1. As a consequence of the index offences, AHV is a 'prohibited person.' He is prohibited from applying for or obtaining 'child-related employment' (see sections 33B and 33C of the Commission Act), unless he obtains an order under section 33H or 33I of the Commission Act.

1. AHV is a medical practitioner who practices in a sole general practice in an isolated NSW community. The Medical Council of NSW was notified of his conviction on 25 August 2011 and convened a hearing under s 150 of the Health Practitioner Regulation National Law (NSW), to determine whether his registration should be suspended. or made subject to conditions in order to protect the public interest. The Medical Counsel determined to impose both practice and health conditions on AHV These included a requirements that: (a) a chaperone be present when consulting, treating or interviewing any person under 18; (b) AHV provide the Medical Council each month a report detailing the persons under 18 that he has seen, including details of the chaperone and the chaperone's signature; (c) "in the event of a medical emergency if it is not practical to obtain the services of a chaperone, a chaperon is not required, however" the patient must be recorded in monthly report to the Medical Council; and (d) a medical condition that AHV attend his treating psychiatrist. AHV says that chaperone conditions mirrored those imposed with his bail.

1. Similar conditions, among others, were imposed on AHV's registration as a medical practitioner by the Medical Tribunal of NSW when it heard complaints brought by the Health Care Complaints Commission against AHV following his convictions. The conditions imposed by the Medical Tribunal are as follows -

Medical Treatment

The practitioner must:

1.Attend for treatment by a psychiatrist of his choice at a frequency to be determined by the treating Psychiatrist. The practitioner is to notify the Medical Council of NSW of the name of his treating Psychiatrist within 2 weeks and is to authorise the treating Psychiatrist to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status.

2.Attend for review by the Council-appointed Psychiatrist, within six months, and subsequently as directed by the Medical Council of NSW, at the Medical Council of NSW's expense.

3.Attend any Review Interview at the Medical Council of NSW, as directed by the Medical Council of NSW.

4.Authorise the Medical Council of NSW to forward copies of the Decision upon which these Conditions are based and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment, to the Council-nominated practitioners and his treating practitioners. He is to notify the Medical Council of NSW immediately of any change in treating practitioner, so that copies of the Decision may be provided to them.

5.The practitioner authorises the Medical Council of NSW to provide a copy of the Medical Tribunal Reasons for Determination, and any reports that the Medical Council of NSW considers appropriate, to any treating practitioners.

Mentoring

1.Within 21 days of the date of receipt of this Decision the practitioner is to provide for approval by the Medical Council of NSW the name and professional address of a registered medical practitioner who has agreed to act as his professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Medical Council of NSW Guidelines for Mentors (Policy PCH 10). The mentor is to be provided with a copy of Policy PCH 10 and a copy of this Decision and these Orders.

a)The practitioner is to authorise the mentor to report, in an approved format, to the Medical Council of NSW every six months about the fact of contact, and to inform the Medical Council of NSW if there is any concern about his professional conduct, health or personal wellbeing.

b)The practitioner is to authorise the mentor to notify the Medical Council of NSW of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate.

c)The practitioner will meet with the mentor for an initial period of 18 months from the date of the first consultation and thereafter for such period as the Medical Council of NSW may determine.

d)In the event that the approved mentor is no longer willing or able to continue as mentor, the practitioner is to nominate another mentor for approval by the Medical Council of NSW within 28 days of the cessation of the original mentor relationship.

e)The meetings should include discussion of Dr A's personal and professional development as a registered medical practitioner, as well as personal issues as they arise and initially the issues highlighted in this Decision.

f)In the event that the approved mentor is no longer willing or able to continue as mentor, he/she is to nominate another mentor for approval by the Medical Council of NSW within 28 days of the cessation of the original mentor relationship.

g)The practitioner is to be responsible for any costs associated with the mentoring process.

Practice conditions

1.Dr. A is not to invite patients to reside at his home nor agree to requests from his patients that they or their children reside at his home.

2.Within 60 days of the date of this order, the practitioner will use all reasonable endeavours to seek accreditation as a GP practice, with a recognised accredited organisation.

3.Within 90 days from the date of this order, the practitioner is to report to the Medical Council of NSW the steps taken by him to pursue such an application.

4.The doctor is to notify the Medical Council of NSW if he changes the address of his general practice.

Chaperone

1.The practitioner will not consult, treat, interview or examine any person under the age of 18 years, whether in his surgery rooms, hospital, nursing home or house calls, unless a chaperone (an adult third person) is continuously present.

2.Prior to any such consultation, examination, treatment or interview he must inform each parent or other adult carer of each child patient of the necessity for a third person/chaperone to be present at all times.

3.The chaperone must be acceptable to the patient and may be a spouse, or other family member who is over the age of 18 years, or a guardian/carer of the patient.

4.The chaperone may not be a member of the practitioner's family. In the absence of a spouse or family member or guardian/carer of the patient, the chaperone must be a registered nurse, registered enrolled nurse or nurse practitioner.

5.While the practitioner is employed in general practice, he must:

i) notify the principal of the practice and any other practitioner who may be working on site with him of these Practice Conditions; and

ii)forward to the Medical Council of NSW within seven days of the date of receipt of these Conditions, or of commencing new employment, a copy of these Practice Conditions signed by each one of these practitioners.

iii)within seven days of the date of receipt of these Conditions, send to the Medical Council of NSW for its approval, a list of possible chaperones except in the circumstances where the chaperone is a spouse or family member of the patient. Any chaperone that is not included on this list must be notified to the Medical Council of NSW and approved by the Medical Council of NSW prior to undertaking that role. Any approval shall be in accordance with the current version of the Medical Council of NSW's protocol concerning chaperones (Policy PCH C13.3)

iv)forward to the Medical Council of NSW within seven days of the end of each calendar month a report listing all patients as described in this Condition, who have been examined/consulted, treated or interviewed by him during the calendar month, showing in respect of each patient the date of every examination and the name or names of the person or persons present throughout that examination. This report must include:

printed notation of the names of each patient and the chaperone;

contemporaneous signature of the chaperone;

date and time of each examination;

where applicable, the relationship of the chaperone to the patient.

All reports must be in the format set out in Annexure 'A' to this decision.

6.If, in the event of a medical emergency, it is not practical to obtain the services of a chaperone, a chaperone is not required; however, any such event must be notified to the Medical Council of NSW and recorded in the list of patients referred to in Condition 5(iv). A medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life threatening or urgent condition seen by another medical practitioner or transferred to the nearest hospital.

7.Dr A is to authorise the exchange of information between Medicare Australia and the Medical Council of NSW where required in order to facilitate monitoring of compliance with these Conditions.

Review of conditions

The Medical Council of NSW is to be the appropriate review body in relation to these conditions.

1. AHV has brought this application as he wishes to be able to provide medical services to people in accordance with the conditions imposed by the Medical Tribunal. He initially asked to Tribunal to make a declaration subject to conditions that effectively mirrored those by the Medical Tribunal.

1. However, when writing this decision I drew the parties' attention to the provisions of the Child Protection (Working with Children) Act 2012 While all of the provisions of that Act are not yet in force, they will, when they commence, render any order subject to conditions made by this Tribunal nugatory, and not allow conditional orders or declarations to be made in the future. As a consequence, AHV no longer presses for a declaration subject to conditions, but seeks an unconditional order

1. The Commission for Children and Young People (CCYP) opposes any order (including an order subject to conditions) being made in favour of AHV under the Commission Act.

Relevant legislation

1. Part 7 of the Commission Act is concerned with child related employment. Section 33C of that Part contains a statutory prohibition on 'prohibited persons' applying for, undertaking or remaining in 'child-related employment'. Section 33E prohibits an employer from employing a 'prohibited person' in 'child-related employment'. Section 33D requires an employer to ascertain whether an employee is a 'prohibited person' if employing that person in 'child-related employment.'

1. The term 'prohibited person' is defined in section 33B of the Commission Act. Insofar as it is relevant, subsection 33B(1)(a) provides that a 'prohibited person' means a person 'convicted of a serious sex offence' (i.e. an index offence). The word 'convicted' is defined in section 33(1) to include 'a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.'

1. The term 'serious sex offence' is defined in subsection 33B(3) of the Commission Act. It relevantly means 'an offence involving sexual activity or acts of indecency that were committed in New South Wales and that were punishable by penal servitude or imprisonment for 12 months or more.' In this application, there is no dispute that the index offences of which AHV was convicted fall within this definition and therefore are 'serious sex offence(s)'.

1. The term 'child-related employment', is broadly defined in section 33(1) of the Act. It relevantly provides as follows:

child-related employment:

(a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment:

...

(xiv) employment involving the direct provision of child health services,

..., and

(a1) means (without limiting paragraph (a)) any employment of the following kind:

...

(vii) employment as a self-employed person or as a subcontractor (by or on behalf of or in a relevant agency) if that employment involves direct contact with children and the contact is not directly supervised by a person having capacity to direct the self-employed person or subcontractor in the course of his or her work,

...

1. The word 'employment' is also broadly defined in subsection 33(1) to include 'performance of work under a contract of employment' and 'as a self-employed person or as a subcontractor.' The word 'children' is defined in section 3 of the Commission Act to mean a person under the age of 18 years. Consequently, the word 'child' in Part 7 has been given the same meaning.

1. As a medical practitioner in general practice AHV is a self-employed person whose work involves direct contact with children. There is an issue, which AHV chose not to argue before me, as to whether as a result of the conditions imposed by the Medical Tribunal AHV is directly supervised by a person having the capacity to direct him in the course of his work. Rather, the matter proceeded on the basis that he is in child-related employment.

1. The statutory prohibition in section 33C does not apply where the 'prohibited person' obtains an order under section 33H or 33I of the Commission Act declaring that Part 7 does not apply to the index offence(s) of which the person has been convicted (including a finding of guilt) (see subsection 33B(2)). The Tribunal has jurisdiction to make such an order under section 33I of the Commission Act (see subsection 33I(1)). It also has the power to make an order subject to conditions (see 33I(6)).

1. Section 33I of the Commission Act provides:

33I IRC and ADT may make declarations concerning prohibited persons

(1) On the application of a prohibited person, a relevant Tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence.

(2) A relevant tribunal is:

(a) the Industrial Relations Commission, or

(b) the Administrative Decisions Tribunal.

(3) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.

(4) An applicant must fully disclose to the relevant tribunal any matters relevant to the application.

(5) If the relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 33H in respect of that until after the period of five years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of the refusal.

(6) Orders under this section may be made subject to conditions.

(7) The following applies to proceedings before the Administrative Decisions Tribunal under this section:

(a) the Tribunal may not award costs, and

(b) an appeal lies on a question of law to the Supreme Court of any party to the proceedings.

1. Subsection 33G prescribes a number of offences for which a 'prohibited person' is not entitled to make an application for an order under section 33H or 33I. The index offence of which AHV was convicted is not an offence of this kind.

1. Section 33J of the Commission Act sets out the matters that are to be considered by the Tribunal in determining an application by a 'prohibited person' under section 33I. Importantly, it provides that no order is to be made unless the Tribunal is satisfied 'that the applicant does not pose a risk to the safety of children.' There is a statutory assumption that the applicant does poise such a risk, "unless the applicant proves to the contrary.' It is for the prohibited person to prove to the contrary. The section says:

33J Matters to be considered in determining review applications

(1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children.

(2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.

(3) In deciding whether or not to make an order in relation to a person, the Commission or a relevant tribunal is to take into account the following:

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(b) the period of time since those offences were committed,

(c) the age of the person at the time those offences were committed,

(d) the age of each victim of the offences at the time they were committed,

(e) the difference in age between the prohibited person and each such victim,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the prohibited person's present age,

(h) the seriousness of the prohibited person's total criminal record,

(i) such other matters as the Commission or tribunal considers relevant.

1. Section 32 of the Commission Act provides that 'the safety and welfare of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of' Part 7.

1. The Court of Appeal has confirmed that the exercise of the Tribunal's jurisdiction under section 33I of the Commission Act is protective and not punitive in nature: see Commission for Children and Young People v FZ [2011] NSWCA 111 per Young JA at [61]. The purpose of this Act is not to impose additional punishment on a prohibited person, but to eliminate possible risks to children. The repealed Child Protection (Prohibited Employment) Act 1998 (Repealed Act) had a similar purpose: see R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].

1. The meaning of the word 'risk' was considered by Young CJ (in Equity) in Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42]. His Honour's consideration was made in the context of subsection 9(4) o the Repealed Act. That subsection was in similar terms to subsection 33J(1) of the Commission Act, in that the Tribunal's discretion to make an order only arose where the Tribunal 'considered' the applicant did not pose a risk to children. However, the Repealed Act did not contain a statutory presumption of a risk of harm, or an express onus on the applicant to prove that he or she did not pose a risk of harm as found in subsection 33J(2) of the Commission Act. Nor did the Repealed Act contain a provision in the terms of section 32 of the Commission Act.

1. Nevertheless, His Honour's remarks in regard to the meaning of risk have continued to be cited, with approval, since the commencement of the provisions in Division 2 of Part 7of the Commission Act: see ADV v Commission for Children and Young People [2012] NSWADT 8, RD v Commissioner NSW Commission for Children and Young People [2011] NSWADT 140 at [10], RV v Commission for Children and Young People [2007] NSWADT 299 at [13] to [15], L v Commission for Children and Young People & Anor [2008] NSWIRComm 195 at [31], FZ (supra) at [60],

1. In Commission for Children and Young People v V, after citing with approval remarks made by Peterson J in L v Commission for Children and Young People [2001] NSWIR Comm 134 and Haylen J in R v Commission for Children and Young People [2002] NSWIRComm 101, Young JA said the following at [42]:

'42 ...[what] one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child. One, however, must link the word "risk" with the words that follow, namely, "to the safety of children" ...'

1. At [43], his Honour rejected the contention of the respondent that 'children' in subsection 9(4) of the Repealed Act meant children generally. That is, he rejected the proposition that the subsection should be read to mean that where an applicant is found to pose a risk to a section of children (i.e. female teenage children), there is a risk to children generally. Rather, Honour said the subsection should be read to mean:

'43 ...a risk to the safety of children bearing in mind all the circumstances in which the prohibited person is likely to be employed. If a person is going to be employed amongst boy children, then the fact that he might be a risk to girl children may be quite irrelevant.

44 As against this, there is the fact that under the section a prohibited person is either declared to be a person to whom the Act does not apply, or else no declaration is made. The answer ... to this is that the power under s9(9) can be brought into play. That is, for instance, a declaration can be made subject, for instance to the condition that the declaration will cease to have effect if the person changes his or her current employment or if he or she commences to work with different types of children.'

1. The essence of the remarks of Young CJ, is that when considering risk, the ability to impose conditions should not be disregarded. That is, subsection 9(9) of the Repealed Act was held to mean 'the imposition of relevant conditions [that] may make an applicant who would otherwise pose some risk to children into an applicant who does not pose a real unacceptable risk to children': see RV (supra) at [16].

1. Subsection 33I(6) of the Commission Act has been construed to have the same effect. However this provision must be read together with the provision that presumes the applicant to be a risk to children by reason of the index offence and the onus on applicants to establish that they do not pose a risk to children. Accordingly, if an applicant seeks an order subject to conditions, the onus remains on the applicant to establish that, with the imposition of conditions, he does not pose a risk to children.

Section 33J(3) factors

1. AHV is now 62 years old. He is a self-employed medical practitioner in general practice in a remote NSW town with a significant indigenous clientele. He is the sole medical practitioner practicing in the immediate vicinity. He has been practicing there since October of 1998. He graduated with his medical degree 1989, having studied as a mature age student. He first sat for his HSC in 1976. From 1968 to 1972 he studied to be a Catholic priest, but found that the life was not for him. In late 1972 he joined the Police, as a probationary constable, but left a year later being disillusioned with the work. At this time he was drinking heavily. He then worked in various labouring jobs and as a taxi-driver, before joining the Ambulance Service in 1975. He worked there until 1982, when he left to embark on studies with the aim of qualifying in medicine. These studies involved him undertaking his HSC again, and then undertaking the first year of a degree in Architecture, as his HSC marks were not high enough to get into medicine. At the end of that year he transferred to medicine. AHV married after he completed his medical degree and has five children.

Index offence

1. The six counts of indecent assault on a male of which AHV was convicted took place between 1976 and 1977. The victims were two of his younger adopted brothers, who I will refer to as A and B. A was aged 13 to 14 at the time. B was 13. AHV was 26 years old and was working for the Ambulance Service. The assaults took place in the family home, where each of the boys had their own bedroom. AHV acknowledges that as their older brother he was in a quasi-parental position of trust and responsibility with respect to them.

1. AHV was first interviewed by Police about the offences in August 2009. A had made a statement to Police in January 2007. AHV made candid admission with respect to the offences against A. He volunteered the offences against B. He was charged with six offences: three counts with respect to each bother, and pled guilty to them in the District Court at Penrith. He was convicted before Her Honour Judge English on 18 August 2010 and:

• Sentenced to 18 months imprisonment in respect of each of the three counts of indecent assault against A, to be served concurrently, with the sentences suspended on AHV entering into a bond to be of good behaviour under s 12 of the Crimes (Sentencing Procedure) Act 1999 for 18 months subject to guidance by the probation service and direction by them as to appropriate psychiatric care.
• In respect of each of the three counts of indecent assault against B, directed to enter a good behaviour bond under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 for 18 months subject to guidance by the probation service and direction by them as to appropriate psychiatric care.

1. The agreed facts on sentence before the Court alleged that each assault took place in the evening when AHV entered the boys' bedrooms when they were in bed in pyjamas. In each case AHV fondled their genitals and bottoms. In one case, AHV pulled A to the end of the bed, then pulled down his pyjama pants and fondled his genitals, causing A to cry. AHV then unsuccessfully tried to comfort him.

1. The agreed facts also stated that -

• AHV, of his own volition, admitted to having assaulted both A and B in a similar manner for up to a dozen times each between 1976 -1977. The counts with which he was charged were agreed not to be "isolated incidents."
• AHV, of his own volition, volunteered to assaults against B.
• AHV did not reveal the above offences to anyone before telling his wife of them in 2000.

1. On sentencing AHV Her Honour Judge English accepted that at the time he committed the offences he was drinking heavily and had a sexual attraction to young males. He himself had been the victim of sexual abuse at young age. She noted that he had told the Court that he had realised what he was doing was wrong, and had stopped. He publicly apologised to A and said that he had apologised to B before his death. Judge English considered a report from Dr O'Dea which diagnosed AHV with paedophilia and assessed AHV's risk of re-offending as low. That report is among the material before me.

1. Her Honour found that AHV's offences were part of a course of conduct, but did not involve violence or force, with the exception of the one count against A "which may fall into a slightly different category." She considered them "opportunistic offences" rather than planned. She thought them serious, "although not the most objective serious examples of their kind." She accepted that AHV had take steps to rehabilitate himself and that, "he carried the guilt of his offending forward with health information aware that at some stage the knock would come upon his door." She found that, "He is aware of the impact his offending behaviour has had upon his family at large." He had taken steps over the last 30 years to rehabilitate himself "and that bodes well for his continuing rehabilitation". She accepted that he had done what he could to repay his debt to society by practicing medicine in an isolated community. She thought it "highly unlikely" that he would reoffend.

1. I agree with the Commission that the offences of which AHV was convicted are serious offence and constitute a serious breach of the trust. Nevertheless, I accept that they are not the most serious offences of the kind and that, the one incident with A aside, they did not involve violence or a threat of violence. I am unable to reach the same conclusion with respect to the incident in which AHV pulled A to the end of the bed and then pulled down his pants. This incident involves an element of force and compulsion. AHV was a grown man forcefully imposing his sexual desires on a boy in his early teens, whom he had quasi-parental responsibility for.

The age of AHV and his brothers at the time the offence was committed

1. At the time of the offences, AHV was 26 to 27 years of age and his brothers were 13 to 14 years old. The difference in age between AHV and them was 13 to14 years.

Whether AHV knew, or could reasonably have known, that his brothers were children

1. The Commission Act defines a child to be person under the age of 18 years. There can be no doubt that at all times AHV knew the age of his brothers and that they were children at the time.

AHV's present age

1. AHV is now 62 years of age. 34 years have passed since the index offences were committed.

AHV's total criminal record

1. The index offences are the only offences for which AHV has been convicted.

Other matters

1. Both AHV and the Commission raised matters that they argued were relevant to an assessment of risk. These include -

• The high regard with which AHV is held in his local community, among his patients, and by fellow medical practitioners as illustrated by numerous references and testimonials.
• The valuable medical services that AHV supplies to an isolated and disadvantaged community.
• That community's need for AHV's medical services.
• Community knowledge of AHV offending behaviour in the area in which he practices.
• The trust and confidence placed in AHV by those who are aware of his convictions.
• The determination of the Medical Tribunal
• The evidence of his sister concerning two events that occurred when she was approximately 16 and AHV was still living at home.
• The expert evidence containing assessments of the likelihood of AHV re-offending.
• Whether AHV has an ongoing attraction to pre and post pubescent children.
• Allegations that AHV has shown a disregard and disrespect for the law.
• The applicant's truthfulness.
• The changes in AHV' personal circumstances since the offences occurred.

1. I do not think it necessary to traverse all of these matters in great detail. I accept that all of them, except for the community's need for the medical services provided by AHV, are relevant considerations. I agree with the Commission that the need for the provision of medical services does not affect the assessment of whether AHV poses a risk to children. It is not a relevant consideration.

1. High regard and valuable medical services. Among the testimonials produced by AHV is a petition signed by 54 members of the local indigenous community referring to AHV's practice as "first class" and stating that "whenever a child is seen by him a parent always accompanies them." There are numerous testimonials from other patients of AHV and from members of the community if which he lives. These confirm the contribution he has made to the community as its only local doctor. The authors of the vast majority of these testimonials state that they are aware of AHV' convictions. This includes a reference from principal of a local school that says, "There has never been a suggestion of impropriety.

1. There are also a series of references and testimonials from other members of the medical profession which confirm that AHV has an enviable professional reputation. He is recognised for the contribution he has made in providing medical services to an isolated and disadvantaged community. This includes references from two doctors who have some contact with the community in which AHV works, one as a medical officer in sexual assault and child sexual assault, both of whom are not aware, as they believe they would be, of any matter which would give them concern with respect to AHV.

1. Community knowledge of offending behaviour. On 22 August 2010 AHV published an announcement in a newsletter put out by his practice the essential facts of the charges against him, and the fact of his conviction and sentence. That newsletter included the following passage -

This aberrant and offensive behaviour ceased in early 1977. I have never assaulted any other person. These offences have never been repeated since that time. I have made numerous apologies to the victims and have attempted to make amends at considerable cost over the years and had thought matters had to rest but received further demands. I refused to be blackmailed and was later charged by Police after allegations form one of the victims. I pleaded guilty ...

1. In addition AHV said that the conditions imposed on his practice were well known in the local area and are the subject of a prominent notice at his practice. His inability to treat children has caused some difficulty within the local community.

1. The evidence of AHV's sister. One of AHV's younger adopted sisters provided a statement and gave sworn evidence before the Tribunal, with respect to events that occurred when she was approximately 16 and living in the family home. This would have been in 1975 or 1976. Her evidence related to the conduct of AHV on two separate occasions, when he was also living at the family home. At that time he would have been 25 or 26 years old.

1. On the first occasion she was asleep in her own room with the door open, when she was woken by her bed covers moving. She said that when she woke AHV was kneeling beside the centre of the bed, with his hand resting on the bed clothes. She asked what he was doing and he said, "Don't worry I was just looking for my shoes. I thought they might be under your bed." She said she had asked why would the shoes be in my room and could not recall the reply.

1. The second occasion occurred not long later. AHV entered her bedroom and stood close beside her -

It felt like he was going to kiss me. I took a step back and moved away and said: "You need to get yourself a girlfriend."

He replied to me: "Would it bother you of I was more than brother to you?

I said: "What? Boyfriend girlfriend?"

He said: "Yes".

I said, "No".

1. When AHV was asked about these matters he said he could recall going into her room one night, and looking under her bed, when trying to retrieve shoes that he had taken off earlier in the day, when retrieving a ball that had become stuck in the bull nose gutter of the house. The gutter could be easily accessed from her bedroom window. When this was put to his sister, she denied it, commenting that the roof was too steep. A photograph of the house, however, demonstrates relatively easy access to the gutter from her bedroom window.

1. With respect to the "boyfriend girlfriend" conversation, AHV said he could remember it. He said he and his sister had been to a cinema to see a film called "Summerfield." He said it was about an incestuous relationship. He believed that in the context of discussing he film he had asked his sister about a boyfriend girlfriend relationship, without intending the question to be a proposal.

1. When this was put to his sister she denied going to the movies with AHV, she denied seeing Summerfield, and denied the context he placed on the conversation. She agreed that she had been the subject of sexual abuse as a child at the hands of another person, and that she was furious when she discovered that AHV had indecently assaulted her brothers.

1. A statement made by the sister to Police in 2007 is broadly consistent with her current evidence concerning these events. The earlier version of the second events has AHV kissing her and him suggesting that they could have more "than what it is now, because you are adopted."

1. A matter than has caused me considerable difficulty is the clarity and detail provided by AHV in his responses to his sister's allegations. This impresses me as remarkable after more than 30 years.

1. In submissions the Commission submitted that AHV's evidence did not have the ring of truth to it and that an implication should be drawn that AHV was attempting to touch his sister in the same way he touched his brothers. "The modus operandi is too similar for this to be mere coincidence." I am not prepared on the evidence to draw that implication. The evidence in my view does not justify it. At the same time I am not persuaded that AHV's explanation is correct.

1. The Expert Evidence. I have had regard to a number psychiatric reports and assessments.

1. The first is from Dr Jeremy O'Dea, Forensic Psychiatrist dated 18 August 2010. This was written at the request of AHV solicitors and tendered at his sentencing hearing. Dr O'Dea wrote it having read his letter of instructions, the Agreed Fact on Sentence, and having interviewed AHV for two hours. The report was written before practice conditions were imposed on AHV's registration as a medical practitioner. It narrates AHV's personal, developmental, medical and psychiatric history, and his history of alcohol use. It then sets out AHV's psychosexual history as told to Dr O'Dea, and notes that AHV identified with an adult heterosexual orientation. AHV told him that he realised in his late twenties that -

... his sexual attraction to adult females was much stronger than to male children. He told me that he therefore made a conscious decision at the time to focus on his sexual attraction to adult females and control and focus away from his sexual attraction to male children. He told me that he had considered that he had done this very successfully since the time of the index offences.

...

He acknowledged to me an ongoing awareness of an attraction to male children, and to a certain extent female children, passing through puberty, describing, "...that certain innocence ...not just the sexual thing ... it's a great age ... the enthusiasm the youthfulness ...they're not yet cynical [they are] hopeful [with] great dreams ... [and] looking to the future..." However, he again re-iterated that he had these attractions under tight control since the time of the index offences and felt no concerns that he would act on them.

1. Dr O'Dea did not diagnosed AHV with a major psychiatric illness. He noted that he had a history of obsessive thoughts and compulsive behaviour in his teens and one of depression and alcohol abuse in his twenties, from which he had "apparently recovered."

However, [AHV] did acknowledged, particularly in his teenage years and early twenties, a specific but not exclusive sexual attraction to peri and post pubescent male children in particular, that would satisfy the psychiatric diagnostic classification of Paedophilia, sexually attracted to males, not limited to incest, non exclusive type (homosexual paedophilia), and that despite some awareness of an ongoing attraction to male children of these stages, has reportedly kept these attractions under good control for over 30 years since the index offences of 1976 and 1977.

From a full clinical psychiatric risk assessment and risk management perspective, (and as judged by actuarial risk assessment instruments, such as the STATIC-99, the widely used actuarial risk assessment instrument aimed at estimating future risk of recidivism of sex offenders), [AHV's] risk of engaging in further sex offending behaviours in the community in the long term would be considered low.

It would seem reasonable to assume that his history of alcohol abuse, depression, sexual naivety and sexual confusion during his teenage years and early twenties, may have made it more difficult for him to control his homosexual paedophiliac urges at the time. and that with his circumstances evidently significantly different and better in these regards at the present time, his ability to continue to control these homosexual paedophilic urges is likely to be much greater.

That being said, it would also seem prudent and reasonable that [AHV] take the opportunity to explore in further detail with a suitably qualified and experience psychiatrist or psychologist, his sexuality in general and his history of homosexual paedophilia in particular, with the aim of assisting him to continue to manage these issues In a more formal setting. Formal reference to his history of alcohol abuse, depression and OCD style symptoms of the past should be a part of this process.

1. Secondly, there are two reports from Dr Anthony Samuels, Psychiatrist which were prepared for the Medical Council of NSW. They are dated 4 May 2011 and 2 November 2011. AHV was required by the Medical Council to see a Council appointed psychiatrist on a six monthly basis as part of his medical conditions. Dr Samuels is that psychiatrist.

1. In his first report Dr Samuels noted that he had been provided with a number of documents including the sentencing decision, relevant decisions made by the Medical Council and Dr O'Dea's report. Dr Samuels took a detailed history form AHV during which AHV told him that he now only saw patients under 18 who are chaperoned. Dr Samuels noted that -

... He said when he was 28 he decided to make a conscious decision to be more focussed on the opposite sex and he thought that he would "just turn that off" (meaning his feelings of attraction to young boys). He tells me that he has absolutely no attraction to males now and it's like that's part of his life that has disappeared. He said he disagrees with Dr O'Dea's report. He said there was one instance years ago when he had a patient who was 13 who presented with gynaecomastia and he had a fleeting moment of attraction but quickly banished the thoughts. He said he has absolutely no thoughts of attraction to males now and, in fact, it fills him with revulsion.

...

He spoke a lot about turbulent upbringing, his confusion about sexual identity, the way in which he virtually stopped having any homosexual thoughts when he made a conscious decision to do so at the age of 28. Perhaps I did not give him the opportunity to express any remorse in relation to his victims but he certainly didn't volunteer any concerns about the 2 brothers who were victims of sexual abuse. He described one as having a personality disorder and the other as having significant drug problems. He certainly tried to defend his parents throughout the interview, constantly saying things like "they tried to the best of their ability, having a disability'.

1. Dr Samuel's concluded his first report by expressing the following opinion-

At the present time I can find no evidence of a significant affective, anxiety or psychotic disorder. [AHV] does meet criteria for Paedophilia non-exclusive type. He has an extremely defended personality style and I suspect his sexual thoughts and feelings are markedly repressed. He has managed to maintain an adult heterosexual relationship with his wife but the quality of the relationship is difficult to ascertain. He implies that in his late twenties he just switched off homosexual paedophilic thoughts and now states he is repulsed by such thoughts. It is highly likely that latent thoughts and fantasies remain and he in fact admitted to being aroused by a 13 year old male patient some years ago but managed to contain these feelings. If he were to become depressed, or his social or life situation were to markedly change, I would see some risk of these thoughts re-surfacing and that there might be some risk of him acting on these thoughts if appropriate safe-guards were absent.

...

At this stage I would see [AHV] as being at low risk of sexual offending against a patient. He is well aware of the consequences for him and his family if he were to behave in an inappropriate manner within his practice or in any other setting within his community. From his self report it is a long time since he has sexually offended against any young person. It does seem that this offending occurred in the context of extreme confusion about his sexuality. He has tried to convey the impression that after the age of 28 he managed to just turn off these sexual feelings and, apart from a flickering sexual thought towards a 13 year old some years ago, he believes that his feelings are under control and have disappeared and, in fact, he describes "being repulsed by such thoughts.

I think it is likely that [AHV] is extremely defended, in a psychological sense, from these sexual thoughts and feelings and has essentially blocked them out. I think he finds it very difficult to look at what happened with his brothers and the fact that he does not spontaneously express any remorse for these offences but, instead, chooses to defend his parents who, from his self report, provided a manifestly unsafe and traumatic environment for their children is, I think, in keeping with a pattern of blocking out and repressing uncomfortable thoughts and emotions. He made it very clear to me that he tries to only think about positive things from his childhood. At one level this is a little concerning and it could be construed as a factor that might place him at risk of further offending in the future. I concur, however, with the view of Dr O'Dea that his risk of offending, particularly against a young male person or any other person, is quite low.

1. Dr Samuels concluded that he thought the risk of AHV offending, "in the context of his medical practice as being very low particularly if he is chaperoned." He recommended AHV have ongoing consultations with his own treating psychiatrist, and that he continue to see a Council appointed psychiatrist every six months "as yet another safeguard".

1. In Dr Samuel's report of 2 November 2011 he reviewed AHV's present situation and concluded that AHV was "very stable." AHV assured him that he was adhering to his practice conditions. He noted that AHV had raised with him his comments about AHV's lack of remorse in his first report -

... he told me that the reason why I perhaps did not see him as expressing remorse was that "I don't like talking about it. It's upsetting but if there was anything I could do I would, I would give everything that I own excepting my children. I would give up my wife, my practice but unfortunately it cannot be done." He went on to say that in many ways he had pleaded guilty despite advice to the contrary because he realised that his brother needed to have a public apology, it was the right thing to do and he feels that it was part of the reparation that he had to make. He stressed to me that had he not pleaded guilty he would have made life much easier for himself and his family.

He went on to say that this whole process has, in many ways, brought up his own issues of childhood sexual abuse that occurred between the age of fifteen and seventeen and left him with a feeling of having no power and control. He said that he had tried to make reparation to his brother; he had given him a house which was "not enough I gave him money" and made a public apology.

He also, in regard to the comment I made about his defence of his parents, said "My parents did the best they could. It was not enough but they need to be acknowledged for that".

1. AHV also told him he did not see himself as a paedophile. Dr Samuels explained that the did meet the definition in DSM-IV-TR, despite the fact that AHV "had successfully controlled these urges, either by suppression, repression, will power, or even through a process of 'neuroplasticity' as he outlined." Dr Samuels' diagnostic perspective remained unchanged -

I accept what he says in terms of the paedophilic sexual fantasies no longer being present but there remains at least a theoretical risk that, under particular conditions of stress or adversity, such thoughts or feelings could re-emerge. I nevertheless continue to regard him as being at an extremely low risk of repeating his offences particularly in the context of his medical practice at the present time.

...

I would see his conditions as being appropriate and I would see them as needing to remain in place for the foreseeable future.

1. Thirdly, there are two reports from Dr Stephen Allnutt, Forensic Psychiatrist. The first is a very detailed report dated 12 March 2012, prepared for the Commission in these proceedings. Dr Allnutt took a comprehensive history from AHV and considered a large number of the documents that are in the material before the Tribunal. In assessing risk Dr Allnutt adopted both a clinical and an actuarial approach. He considered that AHV did not present with any current psychiatric illness.

1. In conducting his clinical assessment Dr Allnutt had regard to The Risk for Sexual Violence Protocol (RSVP)-Structured Professional Guideline for Assessing Risk of Sexual Violence Hart, S. D., Kropp, R., Laws, D, R., Klaver, .1., Logan, C. and Watt, K. A. Simon Fraser University, Mental Health, Law and Policy Institute. 2003. He identified as present the following factors which increase the risk of sexual recidivism -

• Problems resulting from child abuse (he was brought up in a significantly physically and sexually abusive environment and it is possible that these experiences made some contribution to his offending behaviour).
• He would be diagnosed with a paraphilia, namely paedophilia inclusive, intra familial homosexual type (he thus manifests an underlying propensity to sexual arousal to prepubescent children, in particular male children but females cannot be excluded).

1. He considered "problems of self awareness" as an ambiguous factor associated with AHV increased risk of sexual recidivism. He explained that AHV, "is somewhat reluctant to accept that his underlying propensity to paedophilic arousal probably persists."

1. He identified the following risk factors associated with sexual recidivism as absent -

■ There is no evidence of chronic, diverse or escalating sexual violence (the offending occurred over a period of one year but there is no evidence of persistence or escalation since then; the offences involved males of similar age and relationship to him).

■ There was no physical coercion.

■ He was not engaging in extreme minimisation or denial of his offences (he plead guilty to the charges on this own accord).

He did not manifest attitudes that supported or condoned sexual offending.

■ He appeared to be a person who was coping adequately with stress and had capacity to cope adequately with stress at the time that I saw him.

■ He had discontinued the use of substances decades ago.

■ He was not experiencing any persistent violent or suicidal ideation.

■ He did not have ongoing problems with capacity for intimate relationships (he continued to have an intimate relationship with his wife of many years).

■ He denied any problems with non-intimate relationships (although he was relatively isolated, he had social supports).

■ He maintained capacity to engage in employment (although he is limited in applying that capacity due to legal circumstances).

■ There was an absence of a history of non-sexual criminality.

■ He presents as a person with capacity for planning.

■ He has capacity to engage in treatment and is engaging in treatment at the time that he saw me.

■ There were no significant problems with supervision.

■ There is some evidence to suggest that he has previously experienced depressive symptoms potentially to the extent that he would be regarded as suffering a depressive disorder in the past (his past offending occurred in the context of probably depression to at some degree).

1. As a consequence Dr Allnutt concluded that AHV "manifested a low loading of clinical factors associated with increased risk of sexual recidivism."

1. In undertaking his actuarial assessment Dr Allnutt used the Static 99, an instrument for the prediction of sexual recidivism in sex offenders ( Harris A, Phenix A. Hanson RK, Thornton D: Static 99 Coding Rules Revised: of the Solicitor General of Canada, Ottawa). This tool had also been used by Dr O'Dea in his assessment of AHV Dr Allnutt noted that there was some controversy concerning the accuracy of the instrument vis a vis clinical risk assessments, and that it was developed for use in Canada and the United Kingdom. He concluded that it could "act as a guide but should be cautiously and judiciously applied." He said that AHV's Static 99 score indicated that, "if he had been a subject of a study on which the Static 99 was based he would have fallen into the low risk group for future sexual recidivism as compared to other sex offenders."

1. Dr Allnutt offered the following synthesis -

...

The offending occurred within the home during a period of time that he was abusing substances and had a substance dependence disorder and probably depressive symptoms; he described that he felt trapped at the time, somewhat lonely and isolated and that he had a loving relationship with the boys that became sexualised and that the motive for offending was the pursuit of affection; the offending stopped some time in 1977 and he denied engaging in any further behaviour of a similar nature since.

His history suggests that prior to the offending and since the offending that he has had ongoing sexualised thoughts about male underage children although the history in regard to this is somewhat vague; in my view that given a diagnosis of a paedophilia it is probable that through his life he has continued to experience an underlying propensity to sexual interest in regard to male children (female children cannot be excluded); but in the absence of any complaints, charges or convictions or evidence for any form of inappropriate sexual behaviour with children over a period of decades; it would be reasonable to draw the conclusion that despite this underlying propensity he has, to date, demonstrated a capacity to manage this; it is likely that his propensity will continue and fluctuate, but with time to gradually decline along with a reduction in age related sexual drive.

Overall, he would be regarded as falling into a group of sex offenders at low risk of future sexual recidivism; categorisation into a low risk group would be in regard to both serious physical and serious sexual harm to both male and female children under the age of 18; however given his prior offending history and choice of prior victims, his preference would probably be more in regard to males than females if he did offend again.

I note that some witnesses have raised some concerns about the reliability of his report, this is a factual matter for the court.

1. Dr Allnutt's second report is dated 26 April 2012. It considers the impact of certain additional information that was not made available to him when he wrote his first report. This included some evidence that AHV had consulted child patients without a chaperone. This led to write -

I would alter my opinion in my original report under "factors associated with increased risk of sexual recidivism that are ambiguous would include" to add problems with supervision in that he has, on frequent occasions, breached legal orders, however, these have been in the context of clinical ambiguity.

1. He also noted an affidavit from AHV's sister in which she made certain allegations of sexually inappropriate conduct by AHV towards her when she was 16. He commented that that these allegations had not been established as fact and required adjudication.

1. Before Dr Allnutt gave his evidence at the hearing he heard AHV's sister give her evidence concerning those matters This did not lead him to add anything to his opinion.

1. In his evidence Dr Allnutt stressed that an assessment of low risk did not equate to no risk. He said that the majority of persons identified as low risk are unlikely to re-offend. He had factored into his assessment the fact that AHV's registration is subject to practice and health condition, on the assumption of compliance with them. He thought suitable chaperone conditions could elevate the confidence one might have in AHV not re-offending in his practice. He said that if the parents of children were cognitively impaired, they would be at risk of being "less vigilant" than other parents. He said that in his view one could have more confidence in an objective risk assessment.

1. Finally, there is a report from AHV's treating psychiatrist, dated 28 March 2012. When he wrote the report he had had ten forty-five minute consultations with AHV. He said that he was convinced by AHV self-reporting and thought "that he has truly transcended his paedophilic urges." He considered those urges "very much a function of his early chaotic childhood."

The focus of my treatment of [AHV] has been to explore the nature of his homosexual, paedophilic offences, understand them in a contextual light and to enquire as to whether he might continue to pose a risk to the safety of young people.

I am inherently mistrustful of patients referred to me under a forensic order. Deceit may be central to 'their lives and presentations. Uncovering or refuting the possibility of deceit was my goal in relation to [AHV].

Throughout my contact with [AHV] he revealed, quite candidly, that he no longer has any paedophilic urges. Quite the opposite.

He has matured over the last 30 odd years to the extent that he has been able to publicly disclose to the rural community where he works that he has had convictions in relation to indecent assaults.

He has been able to convince me that his concerns for his community, and in particular the children and young men within it, for whom he has responsibility, are simply and entirely altruistic.

He is, in my opinion, a worthy Doctor and worthy of a review of the restrictions placed on his practice.

I believe that the impact of the offences to which [AHV]pleaded guilty has caused continuing regret, agony and guilt since the time of the offences. His convictions for the offences have allowed him to take absolute responsibility for his past paedophilic urges.

I think he has redeemed himself and transcended his past and the negative impact of his own childhood. his alcohol abuse, his depression and his obsessional symptomatology are now long since in the past.

It is my opinion that [AHV] does not pose a risk to the safety of young people if be is to be permitted to provide medical services to them. I think he is extremely contrite as regards his behaviours towards his brother's. It is with a very real sense of moral repugnance that he views his behaviours. He recognises that such behaviours are totally incompatible with a medical role. I believe him.

It is my opinion that [AHV]is entirely fit and entirely suitable to work as a Medical Practitioner. I understand the nature of his general practice in a remote area ... As such, he frequently has to deal with young people and that, in emergency situations, a chaperone may not be possible. I could find no underlying deficits in his character that would mean that he should not be regarded as a suitable person to practice medicine. Quite the opposite. I found him to be affable, sincere and truly dedicated to his isolated patients.

1. The treating psychiatrist gave evidence at the hearing. He considered that after a period of struggling with his offending behaviour, and with the guilt of it, AHV had matured to the point that he now poses no risk to children. He regarded him as a consistent and accurate historian. He thought AHV's career of service to an isolated community to be part of AHV's reparation for his offences. Similarly, he thought his public disclosure of his offending conduct and convictions showed his maturity. When it was put to him that the disclosures did not show maturity, but a desire to manage harmful disclosures, the treating psychiatrist acknowledged that this may have been part of the reason for AHV's disclosures. He made the point, however, that AHV had already acknowledged his guilt.

1. He was asked about the attraction to a young man with gyneocomastia that AHV had told Dr O'Dea and Dr Samuels about. He considered it a "fleeting sexual attraction, and just that." It was not a paedophilic urge, but well within the framework of normal.

1. Has AHV shown a disregard and disrespect for the law? When the Medical Council initially imposed practice and health conditions on AHV's registration on 16 November 2010, it drew attention to the fact that the Commission Act may impact on his ability to practice and recommended that he obtain legal advice. On 6 April 2011 he told a Corrective Services Officer that he was seeking legal advice on the issue. He told me that he believed at the time that he could see children. He was informed by his own legal advisors that he may be prohibited from treating children on 3 November 2011. Hs subsequently applied to the CCYP and then sought a stay in this Tribunal, which was refused.

1. Despite this AHV agreed that he has continued to treat children in accordance with the conditions imposed by the Medical Council, and in what he considered medical emergencies. He has maintained records of all consultations as required by the Medical Council.

1. An issue that arises is whether of not AHV knew that in treating children he was breaching the prohibition in his engaging in child employment. I accept that in his circumstances whether or not he was actually engaged in child related employment does have some grey areas; e.g. is he supervised under s 33B(3)(vii) when a parent is present. My view is that the criticism to be made of AHV is that he failed to require clear legal advice on the issue, and continued to see children in accordance with his practice conditions, despite the clear warning given by the Medical Council. In my view, at least until the stay was refused, it was a matter of him not wanting to know about the issue, and not finding out about, rather than deliberately flouting a known prohibition. It is not an attitude that inspires confidence in future compliance.

1. A considerable period of time was spent during the hearing examining the instances in which he did so. I do not intend to go through them one by one. The CCYP submits that in seven of these instances there was no medical emergency that justified AHV treating the children. AHV said that he regarded all of them as medical emergencies, but in reaching that conclusion it is clear that he also took into account matters relating to the children's personal circumstances, that he considered justified his treatment of them as emergencies. An example of this is prescribing depoprovera for a 16 year old girl. AHV said of this, ""Preventing a pregnancy in a 16 year old who is going through a stupid season with a hopeless bloke. I think that does constitute an emergency." Other examples include cases where he had no confidence that the children would receive treatment, or adequate treatment, unless he provided it. Indeed, the CCYP submitted that the real reason AHV treated them was because "their parents were unwilling or incapable of taking" them for treatment. His provision of treatment, it submitted, demonstrated a disregard for the law.

1. Dr Allnut in his review of the evidence concerning AHV's treatment of these children described them as occurring in circumstances of "clinical ambiguity." I agree. What is clear is that AHV treated a number of children with conditions that would not usually be regarded as emergencies, but whose personal circumstances were such that he regarded them as emergencies, because if he did not treat them, no one would. That fact, and the consequences to the children if no treatment was provided, constituted the emergencies in his view.

1. In my opinion the conclusion to be drawn from these instances is not that pressed by the CCYP, that AHV has little regard for the law. I accept the explanations given by AHV for providing treatment to these children, and think that they point to real and potential difficulties in imposing practice conditions such as those imposed by the Medical Council. The reality is that AHV is the sole doctor in an isolated community He has a disadvantage patient community whose personal circumstances, and geographic isolation, gives rise to social and economic issues that, in his view, elevate relatively normal medical conditions to one's requiring emergency treatment by him. In a practice such as AHV's, where there are no other local doctors to whom a patient requiring treatment can be referred, his view is that the need for treatment can elevate a simple condition to an emergency. While I accept that will be the case in some instances, the issue is not clear cut. It requires a careful exercise of judgment. Under the conditions imposed on AHV he is the person who makes that judgment, subject to later oversight by his professional body. In the context of the Commission Act it involves the prohibited person determining circumstances where the prohibition does not apply. Given the intent and objects of the Act this is undesirable.

1. Mention should also be made of a number of comments AHV has made concerning the conditions imposed on his practice. These are essentially dismissive comments, such as telling patient's that the chaperone register is ""about the legal people." My view is that these comments are not dismissive of or contemptuous of the law, but evidence of the frustration AHV feels at the restrictions the conditions create.

1. AHV's Honesty - In submissions the CCYP pointed to ten instances which it submitted demonstrated that AHV is prepared to lie, not give a fulsome and complete answer, or allow someone else to advance an incorrect proposition on his behalf. Once again, I do not intend to go through each of those ten items one by one.

1. I am not persuaded that in any of those ten instances that AHV deliberately lied. I do accept that there are a number of occasions he has failed to provide full information in the course of providing information to others, or has made statement of general application, without noting exceptions. An example is that he did not tell Dr O'Dea all the details of the sexual assault he suffered as a child, because of his desire not to explore that issue. Similarly, while he told the Medical Council that he has never seen children alone, there is evidence of a few explained circumstances where that has not occurred.

1. I do not regard these matters as evidence of active dishonesty on AHV's part. Rather, they impress as relatively common and understandable omissions.

Consideration

1. A declaration under 33I(1) of the Commission Act attaches to a person in respect of the index offence which brought him or her under the terms of the Act. It exempts the applicant from the operation of the Act in respect of the index offence. As a consequence, as Haylen J pointed out in R v Commission for Children and Young People [2002] NSWIRComm 101 at [105], the Tribunal, "is to be satisfied that the person is an appropriate person to engage in all child-related employment, including the performance of work as a volunteer for an organisation."

1. Accordingly, although AHV's application is based on a desire to be able to continue to work as doctor in own practice, his application must be considered in the broader context as to whether he has discharged his onus that he is an appropriate person to engage in all child-related employment. That onus is discharged if AHV satisfies the Tribunal that he does not pose a risk to the safety of children. Risk in this context means 'no real or appreciable risk' in the sense of a risk that is no greater 'than the risk of any adult preying on a child. Is there ""a likelihood of harm or a recognized potential" to cause harm": R v Commissioner for Children and Young People and Commissioner for Children and Young People v FZ.

1. I am asked to make that order without conditions.

1. The index offences were committed 34 years ago. AHV has produced substantial and impressive evidence that demonstrates that he is now a very different man to the confused and anxious individual who committed those offences. He is now a well respected doctor, in a long term marriage with five children. He operates a sole practice in an isolated country area, and provides valuable medical services to a community that includes a large percentage of indigenous persons. His community is aware of his past and nonetheless strongly supports AHV, and wishes him to continue as their doctor. The numerous community references he has provided demonstrate how highly regarded he is. He is held in similar regard by his fellow medical practitioners, and those who know him vouch for him and his conduct in his practice. I do accept that that he is a substantially different man to the man who committed the index offences. Like the Medical Tribunal and Judge English, I accept that he deeply regrets those offences, and has borne the burden of that guilt for many years.

1. AHV's evidence is that after he committed those offences he realised the harm he had caused, and made a conscious effort to set as aside his interest in boys and, instead, to focus on and pursue his interest in adult females. His evidence is that he has done so successful, whether through force of will or as a result of neuroplasticity as he suggested to Dr Samuels. There certainly is no evidence of his having engaged in similar behaviours or committing further offences since 1977. AHV says he no longer has any thought or desires relating to a sexual interest in children.

1. The weight of expert evidence before me however, points to a different conclusion. Dr O'Dea, Dr Samuels and Dr Allnutt all think it probable that he has such thoughts, and actively represses them. Dr Samuels thought that "It is highly likely that latent thoughts and fantasies remain." Dr Allnutt thought it "probable that through his life he has continued to experience an underlying propensity to sexual interest in regard to male children," but demonstrated an ability to manage those interests. Moreover, Dr Samuels cautioned that if AHV became "depressed, or his social or life situation were to markedly change" there was a risk of those thoughts resurfacing and of "him acting on these thoughts if appropriate safe-guards were absent."

1. Dr O'Dea reported that AHV acknowledged an "ongoing awareness of an attraction to male children, and to a certain extent female children, passing through puberty, describing, "...that certain innocence ...not just the sexual thing ... it's a great age ... the enthusiasm ... the youthfulness ...they're not yet cynical [they are] hopeful [with] great dreams ... [and] looking to the future..." In his evidence to me AHV said that Dr O'Dea had misunderstood what he had meant by this: he said he was not expressing a sexual interest, but had been explaining the qualities displayed by children that attracted him. Dr O'Dea's report was accepted by Judge English at the sentencing hearing.

1. The only expert who expressed a different view was AHV's treating psychiatrist, who accepts AHV's word that he no longer has thoughts relating to a sexual interest in children. He did so because, as he made clear, he believes AHV entirely with respect to these issues. He was the only psychiatrist who was of the view that AHV presents no risk. His is a clinical opinion from a doctor with a therapeutic relationship with AHV.

1. All the others assessing psychiatrists, whether they considered the issue on a clinical or actuarial basis, or both, assessed AHV as presenting a low or very low risk. As Dr Allnutt pointed out, low risk does not mean no risk. Indeed, in reply to a question from me, Dr Alnutt said the lowest actuarial risk was "low'.

1. It can be seen that the weight of expert evidence is that AHV does have ongoing thoughts with respect to his interest in children, that he is able to control, and presents a low risk of reoffending. I accept that is the case. The fact that AHV is unable to acknowledge those thoughts is a matter of some concern, as it points to chink in his armour, and his continued reliance on a firm will and self-control.

1. The Medical Tribunal imposed continuing chaperone conditions on AHV. It explained (HCCC -v- Dr. A [2002] NSWMT 11 at [51-52] -

... The Tribunal, in the application of its protective jurisdiction, must ensure the trust and confidence of the public and not just that minimum standards of conduct are maintained. The medical profession aspires to the highest of ethical standards.

In that context, the doctor has sought psychiatric support. Further, he has publicly revealed his circumstances and put in place a chaperone arrangement during his clinical consultations with children. The chaperone arrangement has been endorsed by the Medical Council. The Tribunal is of the view such conditions should be continued to give assurance to the public, if there was a perception of concern or expressed concern based upon his long past conduct, of the absolute ethical manner in which the doctor conducts a skilled practice.

1. Those conditions have the further benefit of reducing the risk of AHV being in a position in which he could reoffend, although the isolated and sole nature of his practice creates implicit difficulties in him complying with those conditions. This is clearly how Dr Samuels sees them.

1. I was originally asked to make a declaration under s 33I that would allow AHV to engage in child related work subject to conditions similar to those imposed by the Medical Tribunal. That request, for reasons already given, has been withdrawn. The issue now is whether I should make an unconditional order declaring that Part 7 of the Commission Act does not apply to AHV with respect to the index offences.

1. I am not prepared to do so, despite the fact that AHV is presently practicing subject to health and practice conditions Having considered all the evidence I am not persuaded the AHV poses no risk to children. In my view his history of offending, and his ongoing and, thus far, successfully repressed sexual interest in children, result in him posing a greater risk to the safety of children than that created by a normal adult.

1. AHV's demonstrated willingness to treat as emergencies situations with a high degree of clinical ambiguity, and the isolated and sole nature of his general practice, reduces my confidence in the efficacy of his practise conditions in reducing that risk. So too does the fact that, for a considerable time, he turned a blind eye to the issue of whether he was prohibited from seeing children by the Commission Act.

1. While I accept that the conditions imposed by the Medical Tribunal provide a degree of surety in creating circumstances designed to deny AHV an opportunity to re-offend should he wish to do so, the sole and unsupervised nature of his practice is such that their efficacy is predicated on his compliance with them. This is a cause for real concern when assessing risk. Importantly, the conditions are subject to review and variation by the Medical Council. There is no guarantee they will remain in place while AHV remains a prohibited person. It follows that those conditions do not have the same effect as conditions imposed under s 33I(6).

1. Further, it is my view that relying on conditions imposed by a professional body such as the Medical Council, or the Medical Tribunal, to fulfil the role that conditions under s 33I(6) presently enable this Tribunal to impose, is contrary to the intention and object of the Commission Act.

1. As a consequence I have decided to refuse AHV's application for a declaration under s 33I of the Commission Act.

Orders

1. The Tribunal refuses AHV's application for a declaration under s 33I of the Commission Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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Decision last updated: 13 December 2012