Gorman v Health Care Complaints Commission

[2011] NSWCA 400

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Gorman v Health Care Complaints Commission [2011] NSWCA 400

Hearing dates:

9 December 2011

Decision date:

09 December 2011

Before:

Macfarlan JA

Decision:

The five Notices of Motion filed by Dr Gorman on 25 November 2011 are dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - tribunals and commissions - four notices of motion filed by applicant seeking orders relating to principles of law and medical science - not appropriate to consider the issues in advance of the hearing

APPEAL - tribunals and commissions - notice of motion seeking order staying applicant's deregistration as a medical practitioner - order refused as a matter of discretion - no issue of principle

Legislation Cited:

Health Practitioner Regulation National Law (NSW) No 86a
Medical Practice Act 1992

Category:

Principal judgment

Parties:

Richard Francis Gorman (Appellant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
Appellant in person
K Richardson (Respondent)
Solicitors:
Appellant in person
Health Care Complaints Commission

File Number(s):

CA 2011/278022

 Decision under appeal 

Citation:

Health Care Complaints Commission v Gorman [2011] NSWMT 7

Date of Decision:

2011-08-17 00:00:00

Before:

Johnstone DCJ; Mr R Smith; Dr K Ilbery; Dr H Pedersen

File Number(s):

40027/10 (consolidated with 40010/11)

Judgment

1. MACFARLAN JA : Dr Frank Gorman has appealed against a decision dated 17 August 2011 of the Medical Tribunal of New South Wales ("the Tribunal") ordering, inter alia, that pursuant to s 54(1) of the Medical Practice Act 1992 Dr Gorman be deregistered as a medical practitioner and pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) that Dr Gorman's registration as a medical practitioner be cancelled. The appeal is not yet ready for hearing. The red appeal book has been filed but other steps necessary to prepare the appeal for hearing have not been taken.

1. Before the Court today for hearing are five Notices of Motion filed by Dr Gorman.

1. The orders sought in the Notices of Motion other than that which Dr Gorman has described as the "Stay Motion" are as follows:

(1) "Philosophy Motion":

"The Appellant moves that the failure of medical scientists, notably those of the Royal Australian and New Zealand College of Opthalmologists, to address (meaning cogitate and ponder, confirm or negate) the science of the recovery of vision as a result of spinal manipulation therapy, has harmed more people worldwide than any other catastrophe in the history of humanity."

(2) "Briginshaw Motion":

"The Appellant moves that the Briginshaw 'Principle' is not 'all or none', but rather the onus lies with the Court to be certain: to be absolutely sure, that its decision is the correct one, increases in keeping with the overall ramifications of the said decision, not only those which affect the parties to the dispute, but also those which affect the community as a whole."

(3) "'Moving on' Motion":

"The Appellant moves that science and practice of health care 'moves on' as a result of change in the knowledge base: What was previous 'best medical practice' is superseded by the uptake of scientific innovations and discoveries, which demonstrate that a new approach, to the respective medical problems or procedures, is mandatory."

(4) "Whistle blower Motion":

"The Appellant moves that he is a whistle-blower of incompetent and incomplete medical practice affecting patients in Australia and elsewhere, which follows from the dereliction of duty, by the medical profession in Australia to acknowledge and elucidate the phenomenon of the recovery of vision, which occurs, in appropriate patients, when the spine is manipulated. This dereliction of duty followed the categorical demonstration of this phenomenon on the 60 Minutes program in 1986 and by publication of many subsequent articles in reputable, peer reviewed, scientific journals, which confirmed the reality of the occurrence."

Further the appellant moves that, as a whistle-blower, he is entitled to especial protection by the Court, first, under the 'Briginshaw Principle' of Australian Case law; second, under Article 10 of the Universal Declaration of Human Rights; third, under the spirit of the recently legislated, 'Protection for whistle-blowers who report incidents of medical malpractice' and suchlike under the mandatory reporting regulations; and fourth, under the laws of 'commonsense'."

1. None of these orders are appropriate to be made or considered in advance of the hearing of the appeal as none of them are in the nature of interlocutory orders designed to facilitate the hearing and disposition of the appeal, or to protect the rights of either party pending that occurring. Whether the topics with which the orders deal are ones relevant to be considered at the hearing of the appeal will be a matter for the bench as then constituted. These four Notices of Motion should be dismissed with costs.

1. The "Stay Motion" is in a different category. It seeks an order staying Dr Gorman's deregistration as a medical practitioner to enable him to "gain access" to the parents of a severely disabled child ("AT") with a view to obtaining their consent to Dr Gorman resuming treatment of AT. Dr Gorman alleges that he previously treated AT with a degree of success but that AT's condition regressed once Dr Gorman's treatment stopped.

1. The following paragraphs from the Tribunal's judgment are indicative of the seriousness of the findings that it made against Dr Gorman:

"422 Having regard to the totality of the Respondent's conduct, and its cumulative effect, in particular his rigid and deeply-held views and his disdain for conventional general practice, the Tribunal is deeply concerned as to the serious nature of [the] Respondent's misconduct, and as to the risk of recurrent misconduct, including the improper administration of drugs of addiction. As the Commission submitted, the Respondent has effectively 'checked out of general practice'. The Tribunal therefore considers that the only appropriate order is for the deregistration of the Respondent with a significant period restricting his ability to make an application for restoration of his name to the Register.

423 The Respondent's name should be removed from Register. The Tribunal considers that a period of 3 years restricting him from applying for restoration of his name to the Register is appropriate."

1. In light of the Commission's opposition to the stay order sought by Dr Gorman, the views expressed by the Tribunal concerning the inappropriateness of Dr Gorman practising as medical practitioner, and the fact that Dr Gorman's appeal against the Tribunal's decision is yet to be heard and determined, I do not consider it appropriate to grant the stay order that Dr Gorman seeks. Whilst the order in itself would not permit Dr Gorman to treat AT or otherwise act as a medical practitioner, it is plainly designed to be a step towards that occurring. For the reasons that I have given that is not appropriate unless and until he is successful on his appeal. As I would refuse the order sought as a matter of discretion, it is unnecessary to deal with the Commission's submission that the Court has no power to make the order sought.

1. I accordingly order that the five Notices of Motion be dismissed with costs.

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Decision last updated: 15 December 2011