Bar-Mordecai v Health Care Complaints Commission

[2002] NSWCA 192

CITATION:	Bar-Mordecai v Health Care Complaints Commission [2002] NSWCA 192
FILE NUMBER(S):	CA 40793/00
HEARING DATE(S):	27-28 May 2002
JUDGMENT DATE:	28 May 2002
PARTIES :	Michael Jacob Bar-Mordecai (Appellant) Health Care Complaints Commission (Respondent)
JUDGMENT OF:	Meagher JA at 47; Pearlman AJA at 48; Beazley JA at 1

LOWER COURT JURISDICTION :	Medical Tribunal
LOWER COURT FILE NUMBER(S) :	40021/98
LOWER COURT JUDICIAL OFFICER :	Judge Cooper, Dr Woodford, Dr Richards, Miss Brophy

COUNSEL:	In Person (Appellant) M Joseph SC (Respondent)
SOLICITORS:	In Person (Appellant) D Swain, HCCC (Respondent)
CATCHWORDS:	Medical Tribunal - Appeal - No error of law - Professional Misconduct and Unsatisfactory Professional Conduct
LEGISLATION CITED:	Medical Practice Act 1992 (NSW), ss 36, 37 Poisons and Therapeutic Goods Act 1966 (NSW) Regulations to the Poisons Act 1996, reg 58
CASES CITED:	Bannister v Walton (1993) 30 NSWLR 699
DECISION:	Appeal dismissed with costs

CA 40793/00
MT 40021/98

MEAGHER JA
BEAZLEY JA
PEARLMAN AJA

Tuesday, 28 May 2002

BAR-MORDECAI v HEALTH CARE COMPLAINTS COMMISSION & ORS

JUDGMENT

1 BEAZLEY JA: This is an appeal by Michael Jacob Bar-Mordecai from a decision of the Medical Tribunal constituted by Judge Cooper, Doctors Woodford and Richards, and Miss M Brophy, of 6 September 2000, in which the Tribunal made the following orders:

(i) that Dr Bar-Mordecai be deregistered;

(ii) that an application for review of these orders may not be made until after the expiration of seven years from the date of this judgment;

(iii) that Dr Bar-Mordecai pay the costs of the Health Care Complaints Commission.

2 An appeal from a decision of the Medical Tribunal may only be made on a point of law or against the exercise of any power by the Tribunal under Div 4 of Pt 4 of the Medical Practice Act 1992 (NSW) (the Act). Division 4 of Pt 4 of the Act relates to the orders which the Tribunal may make. The Tribunal had acted upon two complaints made against Dr Bar-Mordecai contained in an amended complaint dated 23 December 1998:

“… Dr Michael Jacob Bar-Mordecai …
COMPLAINT ONE
has been guilty of professional misconduct within the meaning of section 37 of the Act and/or unsatisfactory professional conduct within the meaning of section 36 of the Act in that he:
i) has demonstrated a lack of adequate knowledge, skill, judgment and care in the practice of medicine and/or
ii) has engaged in improper or unethical conduct relating to the practice of medicine.
PARTICULARS
At all relevant times the practitioner was a general practitioner.
1. Between August 1983 and about 25 June 1994 the practitioner treated Patient A whilst at the same time having a personal and sexual relationship with that patient.
2. Between August 1983 and about 25 June 1994 the practitioner, while treating Patient A, obtained financial advantages from the patient.
3. Between August 1983 and about June 1994 the practitioner, while treating Patient A, undertook a course of conduct to obtain financial benefits from his patient on her death including:
a) destroyed or suppressed the 1989 will of Patient A.
b) took videos and photographs of Patient A during her life.
c) acquired financial interests with and from Patient A.
4. On or about June 1994 the practitioner administered 30 mg of morphine to Patient A.
5. On or about 25 June 1994 the practitioner inappropriately signed the medical certificate of cause of death for patient A in circumstances where the practitioner:
a) was treating the patient; and
b) considered himself to be a potential beneficiary from the estate of Patient a; and
c) was at the time engaged in a personal relationship with the patient.
6. The practitioner lied on oath in written or oral testimony in proceedings in the Supreme Court of NSW 12009 of 1994.

7. The practitioner failed to keep a drug register in June 1994 for drugs of addition contrary to Regulation 58 of the Regulations to the Poisons Act 1966.

COMPLAINT TWO
has been guilty of professional misconduct within the meaning of section 37 of the Act and/or unsatisfactory professional conduct within the meaning of section 36 of the Act in that he:
i) has demonstrated a lack of adequate knowledge, skill, judgment and care in the practice of medicine and/or
ii) has engaged in improper or unethical conduct relating to the practice of medicine
PARTICULARS
At all relevant times the practitioner was a general practitioner and treated Patient B and Patient C.
1. In about April 1995 the practitioner whilst treating Patient B disclosed to the husband of Patient B (Patient C) in a consultation confidential information provided to the practitioner by Patient B.
2. In about April 1995 the practitioner in a consultation gave inappropriate advice to Patient C concerning his relationship with Patient B.”

3 In making the orders to which I have referred, the Tribunal reached the decision that the conduct of Dr Bar-Mordecai amounted to improper or unethical conduct of such a degree as to constitute professional misconduct within the meaning of s 37 of the Act and/or unsatisfactory professional conduct within s 36 of the Act. As such, the orders made by the Tribunal were within the powers conferred by that Act.

4 Dr Bar-Mordecai, to whom I shall refer as the appellant, challenges the Tribunal’s decision and the orders made. The grounds of appeal were contained in a document filed on 1 March 2001. There are one hundred grounds alleged. Those grounds should be read as if annexed to this decision. Several amendments to those grounds were made during the course of the hearing and those amendments will be apparent from the transcript. The amendments, whilst important in explaining the precise nature of a particular ground, did not extend the grounds of appeal upon which the appellant relied.

5 The appellant contended that as a result of his challenge to the decision on the grounds of appeal to which I have referred, the following orders should be made:

“1. An Order that the Appeal be allowed.
2. An Order that the Appellant be allowed to be registered to continue the practice of medicine with such conditions seen fit to attach to his reregistration.
3. In the alternative, an Order that the Appellant’s duration of deregistration be varied to a lesser duration, according to the principles involved in relation to ascribing defined periods of suspension for each misdemeanor.
4. That the costs order in favour of the Respondent be varied to reflect the principles that govern cost orders in litigation.
5. A declaration that:
a. The appellant was the de facto husband of the late Eveline Hillston within the meaning of section 32G of the Wills, Probate and Administration Act 1898, as per evidence.
b. That the late Eveline Hillston died intestate.
C That the Appellant did not exert undue influence on the late Eveline Hillston his de facto wife, but that all financial transactions were within the realm of a de facto husband wife relationship.
6. That the Respondent pay the Appellant’s costs of the Appeal and some of the costs relevant to the proceedings in the Court below, according to the principles governing costs
7. Such proper Orders as the Court of Appeal may think proper.”

6 As the appeal to this Court is limited in the manner to which I have referred, it is appropriate in the first instance to refer briefly to the complaints and the findings made by the Tribunal in respect of each complaint. As I have indicated, there were two complaints. In respect of complaint one, there were seven particulars. That complaint might be described in a very general way as arising out of the relationship of the appellant with the late Eveline Hillston between August 1983 and her death on 25 June 1994.

7 The first particular of complaint one was that between August 1983 and June 1994 the appellant treated the late Mrs Hillston whilst at the same time having a personal and sexual relationship with her. The Tribunal found and recorded that it was common ground between the parties before the Tribunal that there was a very close personal relationship between the respondent and Mrs Hillston, and that there was evidence to support the appellant’s contention that at least for some part of the time it was a sexual relationship. The appellant argues forcefully that that finding in effect misstates the nature of the relationship, because the relationship between him and Mrs Hillston was that of de facto husband and wife.

8 For myself, I do not see that having regard to the matters in issue before the Tribunal, that that distinction is either relevant or undermines the finding of fact to which I have referred. This is because the Tribunal correctly identified the question before it as being whether, in all the circumstances having regard to the fact of the relationship, whether described as a very close personal one which included a sexual relationship or which would properly be referred to as a de facto relationship, it was improper or unethical for the appellant to treat her during the currency of the relationship.

9 The Tribunal found that the relationship started and arose out of the doctor patient relationship, and that once it commenced the appellant continued acting as Mrs Hillston’s treating doctor. As to the latter part of that finding, there was no dispute between the parties. What the appellant disputes is that the relationship started and arose out of the doctor patient relationship. That of course is a question of fact and therefore is not amenable to challenge in this Court.

10 The Tribunal determined that on the facts as it had found them, and having regard to the terms of the complaint and the issue which that complaint gave rise to, that the appellant was guilty of improper and unethical conduct relating to the practice of medicine, not only in the formation of the relationship with Mrs Hillston but also in continuing to treat her during the currency of that relationship. No error of law has been identified by the appellant in respect of that determination.

11 Particular 2 of complaint one was that between August 1983 and June 1994, whilst treating Mrs Hillston, the appellant obtained financial advantages from the patient. The appellant conceded that he did receive financial benefits and that they were considerable. That was the essential finding of fact upon which the Tribunal proceeded. The Tribunal then identified the issue before it as whether, given that fact, the Tribunal was satisfied that the circumstances of his receipt of these benefits amounted to improper or unethical conduct relating to the practice of medicine.

12 The Tribunal found that the respondent had received significant financial benefits from this patient, in addition to the normal and proper fees due from a patient to his or her medical practitioner. There was no dispute as to either of these factual assertions. The appellant admitted he had received over $1 million in cash, property and benefits from Mrs Hillston. The appellant conceded that he did charge Mrs Hillston fees. He gave an explanation for that, namely that Mrs Hillston insisted upon it. That makes no difference. In fact, Mrs Hillston’s insistence would seem to be irrelevant, given that it was the appellant’s evidence before the Tribunal that he claimed against Medicare in respect of his treatments of her.

13 The Tribunal concluded that it was this factor, that is, of receiving financial benefits at the same time as charging for providing services, that took the benefits out of the status of gifts by a generous donor and made it improper or unethical conduct relating to the practice of medicine. No error of law has been identified by the appellant in relation to that finding.

14 Particular 3A and particular 6 of the complaint were dealt with together by the Tribunal. Combined, those particulars related to the alleged conduct of the appellant whilst treating Mrs Hillston as a patient in obtaining financial benefits from her on her death. In essence, the complaint related to the destruction or suppression by the appellant of Mrs Hillston’s 1989 will and the appellant’s lying about that matter in Supreme Court proceedings relating to Mrs Hillston’s will.

15 The Tribunal from pages 14 through to 32 of its judgment undertook a detailed analysis of the evidence before it in relation to those two particulars. Having considered that evidence, they reached a conclusion which they set out in eleven numbered paragraphs on pages 32 and 33 of the decision. It is not necessary to specify them during the course of these reasons. They are there for appropriate consideration. Those conclusions contain the findings of fact upon which the Tribunal reached its determination as to whether it was satisfied in respect of the two particulars. Considerable time was spent by the appellant in seeking to challenge the various conclusions to which the Tribunal came in this regard, but he failed to overcome the basic obstacle that those findings were all findings of fact. Being findings of fact they are not subject to challenge before this Court. Accordingly, there being no other challenge to the Tribunal’s determination that the respondent’s conduct as the Tribunal had determined it to be in its findings in paragraphs 1 to 11, constituted improper and unethical conduct relating to the practice of medicine, and was professional conduct within the meaning of s 37 of the Act, it must stand.

16 Particular 3B of complaint one was found in favour of the appellant and accordingly does not need to be considered by this Court, except to the extent that it has any bearing on costs, which is a matter to which I will return.

17 Particular 3C of complaint one was that between August 1983 and about June 1994 the appellant, whilst treating Mrs Hillston as a patient, undertook a course of conduct to obtain financial benefits from her on her death, including acquiring financial interests with and from Mrs Hillston. The Tribunal pointed out in its decision that it was not necessary to go into much detail of the evidence on this particular in light of the findings which had been made in relation to particular 3A. However, the Tribunal made a number of specific findings which went beyond those which were relevant to 3A, including findings relating to the sale of the surgery by Mrs Hillston to the appellant, and the instructions given by the appellant to Mr Freeman, solicitor, in respect of that. According to the solicitor’s diary notes, Mrs Hillston had required the appellant to give her an acknowledgment of indebtedness in the sum of one hundred and ten thousand dollars repayable on thirty days notice. However, a later document came into existence signed by both the appellant and Mrs Hillston, but not in the presence of a solicitor, in which that sum of money was forgiven. In addition, between 1990 and 1993, there was an arrangement whereby the appellant made monthly repayments of mortgage but received this back from Mrs Hillston in a round robin transaction each year. Finally, on 8 July 1993, Mrs Hillston signed a discharge of the mortgage on the surgery property. The effect of these arrangements was that Mrs Hillston transferred the property to the appellant, free of any indebtedness and free of any encumbrance.

18 There was a further finding made by the Tribunal that in November 1993 Mrs Hillston terminated a longstanding retainer of her accountant, Mr Selinger, and engaged the appellant’s accountant, although the effect of the Tribunal’s finding is that Mr Bentwitch, the appellant’s accountant, did not act in any improper manner.

19 The appellant contended during the course of the hearing before this Court that in the period from about 1988 until 1994, he contributed sums of about $1.6 million dollars to Mrs Hillston’s benefit. The Tribunal made no finding to this effect. Senior counsel for the respondent on the appeal says that there was no evidence before the Tribunal to that effect. The appellant contests that assertion, but the fact is there was no finding.

20 The matters to which I have referred, that is the positive findings of the Tribunal, were all findings of fact. Those findings led the Tribunal to a determination that the appellant took steps during the relevant period to obtain financial benefits from Mrs Hillston on her death by acquiring financial interests from her, and that those benefits arose out of the patient doctor relationship then subsisting. The Tribunal’s conclusion was that such conduct amounted to professional misconduct within the meaning of the Act. There has been no error of law identified in respect of that determination.

21 The next complaint relates to particular 4. That is, that on or about June 1994 the appellant administered thirty milligrams of morphine to Mrs Hillston. This allegation arose out of the appellant’s treatment of Mrs Hillston in the minutes immediately prior to her death. There was no factual dispute that the appellant had administered that dosage by way of intramuscular injection, nor that she had become unconscious within about four minutes after administration of the injection, and that she died six minutes after the injection.

22 Mrs Hillston at the time of her death was aged approximately 82 and had for some period of time suffered from significant chronic airways disease associated with asthma. There was a significant dispute before the Tribunal as to whether the administration of a dosage of thirty milligrams to a person of Mrs Hillston’s age and with her medical condition was appropriate. The Tribunal determined that, on the evidence, that dosage was inappropriate. That is a finding of fact.

23 It would be fair to say that the appellant, during the course of the hearing before this Court, continued to protest the appropriateness of his treatment on the night of Mrs Hillston’s death, given the circumstances in which he found himself. But again, that challenge only goes to matters of fact.

24 The Tribunal was satisfied on the findings of fact that it made that the administration of thirty milligrams of morphine in the circumstances then existing proved that he demonstrated a lack of adequate knowledge, skill, judgment and care in the practice of medicine. The Tribunal was further satisfied that that conduct attracted such severe criticism from the appellant’s peers of good standing and repute as to constitute professional misconduct. No error of law has been identified in respect of that finding.

25 Particular 5 of complaint one was that on about 25 June 1994, the appellant inappropriately signed a medical certificate of cause of death for Mrs Hillston in circumstances where the appellant was treating Mrs Hillston, considered himself to be a potential beneficiary of the estate of Mrs Hillston, and was at that time engaged in a personal relationship with her. Again, the essential factual matters in relation to this complaint were not in dispute. Mrs Hillston was a patient of the appellant and he continued to treat her right up to the time of her death. There was no dispute that the appellant did consider himself to be a beneficiary under the 1989 will or, if there was no such will, as the de facto spouse of Mrs Hillston, and it went without saying, on the appellant’s case, that he was engaged in a personal relationship with her which he himself described as a de facto relationship.

26 There is no legal impediment to a person in the appellant’s circumstances, as I have just outlined them, signing a certificate of cause of death. That is a matter upon which the appellant places particular reliance. That, however, was not the point of the complaint. The point of the complaint was that for the appellant to have done so was inappropriate, having regard to the very fact of the relationship between the appellant and the deceased.

27 The Tribunal’s concern was with the appellant’s blindness to the difficulties in which his conduct placed him. They quoted his evidence from page 732 of the transcript:

“No, because I think ethics have very little to do with anything. Ethics is like an ethic of being a husband and not signing a medical certificate. The ethics can say you shouldn’t do it but if you do it for the right reason and you have nothing to hide, as was in this case, then it is perfectly acceptable, it is legally acceptable for me to sign her medical certificate of cause of death. That is might be unethical is a different issue but had I done anything wrong, I certainly wouldn’t have buried her. I would have wanted to cremate her as her wish was but I buried her because it is our Jewish custom and I discussed it with her.
So you can have ethics that say you cannot sign a death certificate but I wouldn’t maintain that because I’m honest and I haven’t done anything untoward to her to expedite her death or to kill her.”

28 The failure to appreciate the lack of appropriateness of the conduct caused the Tribunal considerable concern. It found that such conduct demonstrated a lack of adequate judgment in the practice of medicine such as to amount to unsatisfactory professional conduct within the meaning of s 36 of the Act. The appellant’s challenge to the determination remained his different view as to the appropriateness of his conduct.

29 Particular 7 of complaint one was that the appellant failed to keep a drug register in June 1994 for drugs of addiction, contrary to reg 58 of the Regulations to the Poisons Act 1996. There was no dispute that the appellant failed to keep a drug register. He said he had a conscientious objection to keeping such a register and that he maintained his own register which was a computer generated register which he believed was superior to that required by the Poisons and Therapeutic Goods Act 1966 (NSW).

30 The Tribunal recognised that the appellant “has immense faith in his computerised record system”, but it observed that that record system was unequipped with an audit trail. The importance of that is obvious. The Tribunal also noted that the appellant had difficulty accepting that as a registered medical practitioner, he was required to obey the law in regard to the keeping of a drug register. The Tribunal also noted in its consideration of this complaint that the appellant had given an undertaking to the Tribunal in December 1999 to keep such a register but had breached that undertaking. No error of law was identified by the appellant in relation to the Tribunal’s finding that the failure to keep the register amounted to improper conduct relating to the practice of medicine.

31 The second complaint related to the disclosure by the appellant of confidential information provided to him in a consultation with two patients identified in the complaint as patient B and patient C. Patient B and patient C were a married couple. During the course of consultation with each, the appellant had revealed information about their marital difficulties. The appellant then gave advice to each of them in relation to their marital situation, including circumstances relating to their children and to the husband’s financial circumstances.

32 The Tribunal considered this material in considerable detail between pages 60 and 69 of its judgment. The Tribunal’s review of that evidence and its findings in relation to it constitute findings of fact. The appellant challenged some of those findings. That challenge of course was not open to him. The Tribunal found there was a disclosure of patient information. It also considered that the advice given was inappropriate, that the advice that he gave was not the function of a medical practitioner, and that he had incorrectly asserted there was little or no patient confidentiality between medical practitioner and patient. As a result, the Tribunal found that complaint two was also found out.

33 I have stated during the course of the reasons thus far that there has been no error of law identified by the appellant in respect of the specific findings made by the Tribunal. That comment has to be made subject to the following matters.

34 The appellant did complain that the Tribunal applied the incorrect standard of proof, that is, the balance of probabilities, when in fact a higher standard was required. That is not so. The appropriate standard of proof before a disciplinary tribunal such as the Medical Tribunal is the balance of probabilities, and on each occasion the Tribunal was astute to state that that was the basis upon which it made its finding.

35 In his submissions from time to time, the appellant also alleged that the Tribunal was biased. That might arguably give rise to an error of law. The bias which seems to have been identified in the submissions is that the Tribunal failed to prosecute various of the witnesses before it for perjury, thus illustrating what at one stage was described as gross bias. I refer, for example, to submission 25, subpara 5, and submission 30.

36 A tribunal’s preference for one witness’s evidence over another cannot be the basis for any allegation of bias. That is the function of fact finding by a tribunal. Accordingly, that error of law, should it exist, has not been made out.

37 Some of the submissions of the appellant also seem to indicate that he considers that the Tribunal failed to take into account a number of relevant considerations, in particular that he and Mrs Hillston were in a de facto relationship, and also by failure to take into account certain matters in mitigation. I will deal with those matters when I deal with the orders.

38 In relation to the question of the de facto relationship, I have already referred to this in the course of these reasons. The findings of the Tribunal of the close personal relationship of a sexual nature were sufficient for it to proceed as it did, identifying the real issues as to being whether there had been inappropriate behaviour arising out of the doctor patient relationship, given those matters.

39 On the basis of those findings, the Tribunal made the orders to which we have referred. This Court, of course, can, as a result of the combination of ss 90 and 91 of the Act, deal with that complaint.

40 In reaching its determination that the appropriate order in this case was that the respondent be deregistered, the Tribunal took into account not only the findings it made in respect of each particular of the complaints, but also the fact that the appellant had failed to keep his drug cabinet locked as required by the regulations, and also had taken into account his sexual relationship with other patients. The appellant complains that those matters were not made the subject of any complaint either by the respondent to the appeal or by the Tribunal itself.

41 It is clear from this Court’s decision in Bannister v Walton (1993) 30 NSWLR 699, that when determining the appropriate penalty the Tribunal is able to take into account matters other than those specifically subject of the complaint. In this case, the appellant’s conscientious objection to having a locked drug cabinet and his insistence that it was appropriate for him to have sexual relationships with patients in parameters which he defined, were matters relevant for the Tribunal when determining the penalty. No error of law has been demonstrated by the fact that those matters were taken into account.

42 The appellant also complains that in considering penalty, the Tribunal failed to take into account his own alleged significant contribution to medicine, including his development of a computerised patient record system, and the fact that the complaints which were before the Tribunal related to three patients only amongst a significant patient load. The appellant submitted that it was not open to the Tribunal to treat its primary findings on the complaints dating back to mid-1994 to mid-1995 in isolation, and that the ultimate weight to be given to those findings could only be properly determined after the Tribunal had regard to a variety of factors, including the appellant’s underlying qualities. The Tribunal had, he contended, failed to consider his past behaviour and his conduct since.

43 It is correct that the Tribunal did not specifically refer to the appellant’s long period in practice. It did refer to the computerised patient record system. However, I do not consider that any error has been made by failing to document in detail the appellant’s professional medical history. He came before the Tribunal as a medical practitioner of a certain number of years standing. The Tribunal had before it complaints which were serious. It also had before it evidence of the other matters to which I have referred, namely his failure to keep a locked drug cabinet and his attitude to that, and his attitude to having sexual relationships with other patients, so that the decision to which it came, in my opinion, was not impugned by the failure to mention his professional life from the date he commenced practice. I think what is more significant, and as the Tribunal pointed out, is that unfortunately since 1983 his behaviour had been far from exemplary. I do not consider that those alleged errors of law have been made out.

44 The appellant also complained that the costs order was unfair, given that he was successful on one issue and one issue was withdrawn. The respondent’s response to that submission was that the evidence which went to each of those matters was relevant to the entirety of the proceedings. The one matter where that might be debatable relates to the evidence in relation to the videos, a complaint in respect of which the appellant was successful. However, it does seem that the video was relevant to the Tribunal’s determination of the relationship between the appellant and Mrs Hillston, including the extent to which she may or may not have been vulnerable.

45 Accordingly, even though the appellant was successful in part in relation to the complaints brought against him, I do not consider that the Tribunal’s discretion miscarried in its award of costs against him. Accordingly, in my opinion, the appellant has failed to satisfy this Court that the Tribunal made any error of law and has also failed to satisfy this Court that it ought to interfere with the orders made by the Tribunal in any way.

46 I should only add one final matter, and that is that in respect of the orders sought by the appellant in his amended notice of appeal, many of those go to the issues which are relevant only to the probate proceedings and are not matters with which this Court could deal. Accordingly, in my opinion, the appeal should be dismissed with costs.

47 MEAGHER JA: In this matter I think Mr Bar-Mordecai has treated us to a most interesting discussion of the facts which concerned the Tribunal, but since we cannot adjudicate on disputes of fact, and despite the circumstance that from time to time Mr Bar-Mordecai gave cogent reasons for doubting various findings of fact, there is no question of law which invites our intervention. I therefore agree with what has fallen from Beazley JA.

48 PEARLMAN AJA: In this matter I also agree with the reasons that have been given by Beazley JA and Meagher JA, and I have nothing further to add.

49 MEAGHER JA: The order of the Court therefore is appeal dismissed with costs.

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