Edelsten v Medical Practitioners Board of Victoria
[2000] VSC 565
•11 December 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 6113 of 2000
| GEOFFREY WALTER EDELSTEN | Plaintiff |
| v | |
| MEDICAL PRACTITIONERS BOARD OF VICTORIA | Defendant |
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JUDGE: | Nathan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2000 | |
DATE OF JUDGMENT: | 11 December 2000 | |
CASE MAY BE CITED AS: | Edelsten v Medical Practitioners Board of Victoria | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 565 | |
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Tribunal bound to consider new and undecided facts – contrition, admission and remorse for past wrongdoing.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Appeared on his own behalf | |
| For the Defendant | Ms P. Tate | Victorian Government Solicitor's Office |
HIS HONOUR:
Geoffrey Edelsten, a one time medical practitioner and entrepreneur, has appealed the decision of the Victorian Civil and Administrative Tribunal (VCAT), which affirmed a decision of the Medical Practitioners Board of Victoria, refusing his application to be re-registered as a medical practitioner in this State. That decision was based upon a finding that his character rendered him unfit to practise.
No person is beyond redemption. To hold otherwise would be the ultimate counsel of despair. Indeed, both parties to this appeal agree with that proposition.
The appeal comes before me by way of s.148 of the Victorian Civil and Administrative Tribunal Act 1998, that is, it must be based upon a question of law. This matter is not a re-hearing and is not to be heard de novo. The question of law before me has gone through some permutations, but now may best be recited as follows.
Did the Tribunal, that is, the Victorian Civil and Administrative Tribunal, fall into error in failing to take into account or analyse the evidence of Dr Edelsten in his affidavit sworn 3 May 2000, which sought to explain the inconsistencies allegedly implicit in the evidence he presented to the Tribunal in 1999? Or, did the Tribunal fall into error in not finding that Dr Edelsten had expressed remorse for his previous conduct, thereby making his character such as to render him fit to be registered as a medical practitioner and not in the public interest to exclude him?
Registration as a medical practitioner in this State is governed by the provisions of the Medical Practice Act 1994, in particular s.7. Section 7(1) requires the Medical Board to grant general registration if certain thresholds of qualifications are met, such as education. At one stage, Dr Edelsten was registered as a medical practitioner in both Victoria and New South Wales.
Sub-section (2) allows the Board to refuse to grant registration to an applicant on any one or more of the following grounds:
(a)that the character of the applicant is such that it would not be in the public interest to allow the applicant to practise as a registered medical practitioner;
(c)that the applicant has been found guilty of an indictable offence in Victoria or an equivalent offence in another jurisdiction; or
(d)that the applicant has been found guilty of an offence where the ability of the applicant to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the applicant to practise because of the finding of guilt.
I observe that paragraphs (a) (c) and (d) of sub-s.(2) are disjunctive. However,
the facts which might support a finding based upon the ground stipulated in
paragraph (a) may also support findings based upon the other grounds.
In this case, the Tribunal has found:
(1)That the character of Dr Edelsten is such that it would not be in the public interest to allow him to practise as a medical practitioner.
(2)That he has been found guilty of an indictable offence, in this instance, in New South Wales.
I interpolate that those offences comprised one count of attempting to procure an assault and one count of perverting the course of justice.
(3)That the applicant has been found guilty of the above offences, whereby his ability to practise is likely to be affected because of that finding of guilt, and it is not in the public interest to allow the applicant to practise.
The Tribunal did not descend into any detail as to findings based upon the various alternatives which are implicit in the paragraphs rehearsed above. However, it is apparent from the Tribunal's decision, when read as a whole, that Dr Edelsten was considered unfit to practise insofar as his character displayed flaws which established that it would not be in the public interest to permit him to become registered as a medical practitioner.
It is necessary, at this point, to recite some of the tedious legal history which has preceded the application before me. I shall do so in truncated form because, as I proceed, the key issue for dispatch will become apparent. That is, whether the new material which Dr Edelsten said he presented to the Tribunal in 2000 was properly or fairly addressed by the Tribunal. If not, it becomes necessary to determine how that defect should be remedied.
In April 1988, the New South Wales Medical Tribunal found that Dr Edelsten was not of good character and guilty of misconduct in a professional respect in relation to six separate complaints. In November of that year, the New South Wales Medical Tribunal ordered that his name be removed from the Medical Register and that he not be eligible to be reinstated for ten years.
The six separate complaints related to procuring over-servicing of patients, permitting unqualified persons to perform medical procedures and the like. The over-servicing related to a period spanning from 1978 to 1984. The New South Wales Medical Tribunal found that the over-servicing consisted of a repeated series of events, designed to defraud the public and to enrich Dr Edelsten. The Tribunal found that it did not constitute a single or one-off offence but, rather, a series of professional misconducts which brought the profession into disrepute. I might observe that it undoubtedly did. In relation to permitting unqualified staff to perform operations including laser surgery, this arose in cases where people had mutilated themselves by being tattooed on various parts of the body. Dr Edelsten was engaged in a process of attempting to rectify that mutilation.
On 3 August 1990, Dr Edelsten was found guilty of two indictable offences by a New South Wales Supreme Court jury, namely, soliciting a known standover merchant and murderer, Christopher Flannery, to assault a man called Evans and perverting the course of justice by performing an operation upon Flannery to remove a tattoo, so that he would be unfit to stand trial on the day fixed and thereby be granted an adjournment.
In August of 1990, he was sentenced to six months imprisonment for each of those counts, the terms of which were to be served cumulatively. His appeal to the New South Wales Full Court was dismissed, as were three petitions of mercy brought to the Attorney General of that State. On 3 August 1991, he was released from prison. Nine days later, the Medical Practitioners Board of Victoria commenced to inquire as to whether Dr Edelsten's convictions provided a foundation for deregistering him in this State. During the course of that inquiry, Dr Edelsten challenged various rulings of evidence made by the Board in the Supreme Court of Victoria.
However, it was not until 16 months later that he was removed from practice by the Medical Board of this jurisdiction. Therefore, he practised for a period of 16 months in this State. I observe and interpolate that Dr Edelsten has referred to this period before me as a two year period. It was not. This is an example of the extrapolation of a fact which, it is said, has characterised Dr Edelsten's evidence in other judicial proceedings. Namely, he said two years when, in fact, it was for a period of 50 per cent less then that.
On 2 December 1992, Justice Hayne of this court ordered that Dr Edelsten's name be removed from the Register of Medical Practitioners. On the following day, Dr Edelsten made the first of four applications to the Registrar of the Medical Board to be re-registered, all of which have been unsuccessful. It is the VCAT decision of 2000, which is the subject matter of the appeal before me.
Two categories of matter concerned the various tribunals up until the VCAT 2000 decision and were again ventilated before that Tribunal. They were:
(1)Whether or not there had been any contrition or remorse disclosed in respect of the criminal offences for which he served a year's imprisonment.
(2)Whether or not the various explanations he had offered to the various medical boards and tribunals were themselves untrue, or else constituted a massaging of the truth in such a way that the telling of the exculpatory stories in the face of the convictions indicated not only a lack of contrition, but a preparedness to manipulate the truth for his own advantage, thereby displaying a defect of character, failure to face the facts and failure to deal with them, as well as a preparedness to tell lies, the effect of which justified his exclusion from the Medical Register.
So, the issue of contrition became the central issue to be dispatched by VCAT 2000. Although it was submitted by Ms Tate that Dr Edelsten's VCAT 2000 hearing was nothing more than an attempted appeal from the VCAT 1999 decision, it did, in my mind, raise a new issue. In my view, this new issue compelled the attention of the Tribunal. I refer to the case of re The Medical Practitioners Board of Victoria v. McGoldrick [1999] VSCA 215, particularly the judgment of Justice Buchanan which recited the earlier law and dealt with the obligations of tribunals to deal with the issues of fact bound to be taken into account.
I turn now to those issues of fact and to the Board's findings. Before VCAT 2000, there was a statutory declaration and an affidavit sworn by Dr Edelsten. In his statutory declaration, Dr Edelsten said this: "I appreciate that I cannot keep trying to justify the behaviour which led to the findings of the Medical Tribunal of New South Wales and my criminal conviction. I acknowledge those findings were open upon the evidence, notwithstanding my explanation. I no longer seek to contest those findings. I accept my conduct as found by the Medical Tribunal of New South Wales and the jury was unacceptable. I accept that it was open to VCAT to so find. I unreservedly express contrition and remorse". In his affidavit, Dr Edelsten deposed in identical terms.
I need to spell out some of the facts surrounding these expressions of contrition and remorse. Conversations between Dr Edelsten, his receptionist and, I think, some other person as to the hiring of Flannery to dispose of Evans, who apparently had been standing over him demanding money with menaces, had been taped. There was further material relating to cooperating with the New South Wales Police or acting at their request to treat Flannery, so that he would be unfit to stand trial before a certain New South Wales judge.
Dr Edelsten offered implausible, one might say absurd reckonings as to these tape recordings, in an attempt to exculpate himself. He put forward these ridiculous explanations on a number of occasions and adhered to them.
The various boards and tribunals found that they were implausible and incredible. Dr Edelsten then changed his ground somewhat and said that his judgment in relation to his behaviour had been impaired by virtue of a brain tumour, which was subsequently surgically removed. The evidence before the various boards and tribunals was that the brain tumour could not and would not have affected his judgment and that it was merely being proffered as a latter day excuse.
Dr Edelsten had submitted to the effect that he had no independent recall of these matters, nor the deepness of his complicity in these crimes and that he could not be contrite about something which he could not say had occurred. Dr Edelsten indicated that he could not make an admission about something of which he had no recollection and, therefore, could not be contrite. He then said that his explanations should be examined in the light of those facts.
Dr Edelsten adhered strenuously to this position right up until the VCAT 2000 hearing. His previous position had been dispatched by the VCAT 1999 decision on the ground that he compounded his unfitness and flaws of character by continuing to adhere to explanations which were not only unacceptable, but which established the fact that he could not be contrite.
Therefore, an essential issue for determination by VCAT 2000 concerned the genuineness or otherwise of the new statements of contrition.
It was submitted by Ms Tate, and very admirably so, that these latter day confessions of contrition were contrived, superficial, inadequate and should be summarily rejected. Accordingly, in 2000, Dr Edelsten remained in the same position he had been in in 1999 and the years before, that is, manifestly unfit to be restored to the Register because of his unpreparedness to admit and confront his own wrongdoing.
Therefore, it becomes essential to consider the decision of VCAT 2000 to see how the Tribunal dealt with the issue of the alleged new material and contrition. That the Tribunal was cognisant of the central feature of this new material is apparent from the decision. In fact, on p.2 of the decision, so much is stated. Under a subheading entitled "Fresh material", Dr Edelsten's confession was rehearsed viz -
"I've reviewed my conduct in respect of the matters currently before the board. I appreciate that I cannot justify the behaviour which lead to the findings of the Medical Tribunal of New South Wales and my criminal conviction. I acknowledge those findings were open upon the evidence notwithstanding my explanation. I no longer seek to contest those findings. I unequivocally accept my conduct as found by the Medical Tribunal of New South Wales, and the jury was unacceptable. I accept that it was open to VCAT to so find and express contrition and remorse."
Now I come to consider how the Tribunal dealt with this matter, (Exhibit 3). The Tribunal referred to the oral evidence given by Dr Edelsten and made reference to his explanations as to why he did not express contrition or remorse in 1992, namely, because he was still trying to have the convictions set aside up until 1994.
I interpolate another matter here which is adverse to the credit of Dr Edelsten. He produced before the Tribunal in 2000 a purported transcript of the remarks made by Justice Sharp at the time of his original convictions. The copy tendered was deficient in that it lacked two pages which dealt unfavourably with Dr Edelsten's character.
There were various submissions relating to the prior evidence concerning Dr Edelsten's adherence to the absurd stories, which I need not re‑canvass, except to say that the 2000 Tribunal reiterated the 1999 Tribunal decision, namely, that the evidence of Dr Edelsten was false. In 1999, he gave false evidence. Yet, he asked to be admitted as a person of good character.
The VCAT 2000 decision went on to state the following at paragraph 34:
"It was submitted that in assessing the applicant's character it can be tested by asking whether the remorse and regret he now expressed was genuine, or was it done purely because of the legal obstructions which face him should he persist in failing to express remorse or regret. It was submitted that what had occurred was that following the Court of Appeal decision last year, the penny finally dropped with the applicant that he would have to start being contrite and remorseful if he was going to get anywhere with his applications. It was further submitted that he was not genuine and that one gets some inkling of that from the material that Dr Edelsten lodged with the board in the statutory declaration of 3 June 1999."
The Tribunal went on to refer to Dr Edelsten's statement: "I cannot keep trying to justify my behaviour which lead to the findings of the Medical Tribunal of New South Wales and my criminal conviction". However, up until that time, that is exactly what he had been doing. In relation to paragraph 8 of the VCAT 2000 decision where he expressed contrition and remorse, it was submitted that this was the first time in all these years that Dr Edelsten had done so. It was contended that it occurred in the face of him having failed before this Tribunal and in the Court of Appeal.
Therefore, the Tribunal properly set up for itself the questions of fact which it was required to decide. It recited the submissions which were at the core of the dispute before it.
In my view, the Tribunal then failed to come to grips with the essential questions which it had defined and I refer to paragraphs 51 and 52. This is what VCAT 2000 said:
"We have outlined at some length the evidence and submissions on the question of remorse. The applicant stated in his evidence before us that he did not demonstrate any remorse or contrition in 1992 and that in 1994 he was still trying to have the conviction set aside. In his written submissions to the Board in August 1999 he asserted that 'in the 20 months since my last application for registration there had been a most significant change in my position'.
We had the benefit of seeing and hearing from the applicant in the witness box. We do not consider that we are in a position to find, as Mr Lacava submitted, that the applicant's expressions of remorse and contrition are not genuine. We are, however, equally not in a position to find that these expressions are genuine. We are not in a position to discount the possibility that the stated expressions of remorse and contrition flow from a view by the applicant that a failure to do so would be unhelpful to his attempts to be re-registered".
Now, peering through the opacity of these remarks, it is apparent that the Tribunal simply backed away from making any positive finding one way or the other as to contrition and remorse. That is, whether the same was genuinely motivated or was, in fact, contrived or manufactured. Rather, the Tribunal specifically says that it makes no finding. These matters were the only new matters which were before that Tribunal. The Tribunal was entitled to refer to the findings of the previous tribunals concerning Dr Edelsten's handiness with the truth, his inability to face reality and his coyness in dealing with his own criminality. However, it was also obliged and bound to deal with his present day expressions of remorse and contrition.
Remorse and contrition can only be founded upon admission - an admission of the wrongdoing. Nevertheless, the essential issues of contrition and remorse as the position presently stands were raised. They were not dealt with by the Tribunal. In my view, these issues were critical to the dispatch of the whole case.
Under s.148(7) of the Victorian Civil and Administrative Tribunal Act 1998, I am entitled to remit a matter to the Tribunal to deal with issues which it should deal with in order to make findings of fact, and I can do so under such terms as may be appropriate.
I consider the present state of Dr Edelsten's morality vis‑à‑vis his contrition to be the central issue to be disposed of. No man is beyond redemption. His previous criminal behaviour is something which might ultimately be overcome. The fact of lying to tribunals of fact in transit might be something which can be overcome. Where the applicant has laid out, at least at prima facie level, the platform upon which it can be said that contrition, resolution and ultimately restoration of licence might be founded, it must be thoroughly examined by the Tribunal as an issue of fact.
In his submissions to the Tribunal, Dr Edelsten raised the issue of contrition. Although the onus is upon him to establish such, that submission must be dealt with by the Tribunal. It should be noted that even if Dr Edelsten discharges the onus, restoration to the Register does not automatically follow.
The Tribunal has to consider whether the contrition and remorse expressed adequately addresses the wrong; whether, in fact, it would cure what are said to be character deficiencies so as to entitle Dr Edelsten to re-registration; whether, in fact, there arises an entitlement to registration should contrition be so found. Genuine contrition may be the first step towards registration, almost certainly it will not be the last.
These issues of fact must be dispatched by the tribunal of fact. The Tribunal failed in its legal obligation to deal with that which it was bound to do, that is, address the state of Dr Edelsten's character. Dr Edelsten's character must be tested before a public tribunal so that any findings will have the benefit of public examination and ventilation, thereby leading to confidence in the proper administration of the registration of medical practitioners.
I wish to make one final point. There is an enormous amount of authority dealing with fitness of character. One need only refer to Ciechanowski v Pharmacy Board of Victoria, Nathan J, unreported, 5 May 1995; Domburg v Nurses Board of Victoria [2000] VSC 369 and all the cases cited therein, particularly those referred to in McGoldrick. A rehearsal of them serves no further purpose. Once I had defined the issue which VCAT was bound to consider in this case, remittance had to follow.
I will allow both parties to call any new evidence relating to the issues in dispute. I adjourn this matter sine die.
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