Gorman v Health Care Complaints Commission

[2002] NSWCA 396

CITATION:	Gorman v Health Care Complaints Commission & Anor [2002] NSWCA 396
FILE NUMBER(S):	CA 40377/02
HEARING DATE(S):	8 November 2002
JUDGMENT DATE:	10 December 2002
PARTIES :	Dr Richard Gorman Health Care Complaints Commission Medical Tribunal of New South Wales
JUDGMENT OF:	Heydon JA at 1; Hodgson JA at 2; Sperling J at 7

LOWER COURT JURISDICTION :	Medical Tribunal
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Patten DCJ, Dr Donald Grimes, Dr Roy Taylor, Mrs Joan Ellard

COUNSEL:	The Appellant in person Mr T Golding for the Respondents
SOLICITORS:	The Appellant in person Health Care Complaints Commission for the Respondents
CATCHWORDS:	Medical practitioners - appeal from the Medical Tribunal - no question of principle
LEGISLATION CITED:	Medical Practice Act 1992, s36, s61, s90, s91, s92, s93, s94, s94A, s99, s14, s148, s154, s161, s165
DECISION:	1. Appeal allowed in part; 2. Appeal against the conditions imposed on 15 February 2002 on the appellant's right to practise medicine upheld; 3. The order of the Tribunal made on 15 February 2002 imposing conditions on the appellant's right to practise medicine set aside; 4. Appeal otherwise dismissed; 5. Subject to orders 7 and 8 following, the Tribunal's order for costs set aside and the following order substituted: that the appellant pay one quarter of the complainant's costs; 6. Subject to orders 7 and 8 following, no order as to the costs of the appeal; 7. Liberty to apply by written submission for reconsideration of orders 5 and 6 above within two weeks from the present date; 8. In the event of any written submission being made pursuant to order 7 above, the opposite party to have liberty to make any written submission in reply within two weeks thereafter.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

40377/02
Heydon JA
Hodgson JA
Sperling J
Tuesday, 10 December 2002
Gorman v Health Care Complaints Commission
Judgment

1 Heydon JA: I agree with Sperling J.

2 Hodgson JA: I agree with the orders proposed by Sperling J, and generally with his reasons.

3 On the appeal against the finding of unsatisfactory professional conduct, one possible deficiency of the judgment of the Tribunal was the lack of a clear finding that failure to continue with orthodox treatment on 27 and 30 May 1993 involved an unacceptable risk of harm to the patient. The Tribunal’s conclusions in relation to the complaint regarding Mr. Crowe was stated as follows:

Mr Crowe was under Dr Gorman's care for only a few days. He correctly diagnosed glaucoma and prescribed medication to relieve intra-ocular pressure. The criticism in these proceedings is that, having initially acted in a wholly unexceptional manner, he departed from the standard expected of a competent medical practitioner of good fame and repute by manipulating Mr Crowe's cervical spine as an alternative, however temporary, to ensuring through medication, that intra-ocular pressure was maintained at an appropriate level. In the opinion of the Tribunal, the evidence clearly establishes that Dr Gorman's treatment of Mr Crowe did demonstrate a lack of adequate knowledge, skill, judgment and care within the meaning of Sec 36 of the Act. The Tribunal is satisfied that a competent medical practitioner of good fame and repute would not, in the circumstances pertaining to Mr Crowe, have manipulated his spine or advised otherwise than that he continue medication to control his intra-ocular pressure. The Tribunal finds that Dr Gorman has been guilty of unsatisfactory professional conduct.

4 On one reading, that could suggest that Dr. Gorman was found guilty of unsatisfactory professional conduct simply because no other medical practitioner would have acted as he did, which would in my opinion be an error of law. However, those conclusions follow discussions of expert evidence which suggested that Dr. Gorman’s failure to continue orthodox treatment did involve an unacceptable (albeit initially small) risk to the patient, and which the Tribunal can be taken to have accepted; and I think that, on a fair reading of the whole of the judgment, that was the basis of the Tribunal’s finding, so that no error or law was involved.

5 I agree with Sperling J that the condition imposed was not justified. The gravamen of the finding made against Dr. Gorman was that there was unacceptable risk in withholding orthodox treatment, not that there was such risk in applying spinal manipulation. The condition was also inappropriately uncertain, in referring to “controlled trial”, “independent observer”, “peer review journal” and “to the effect that”. Breaching the condition would not be a criminal offence (Medical Practice Act 1992, s.99), but would be unsatisfactory professional conduct (s.36(1)(c)).

6 I have given consideration to whether a different condition should be imposed such as the following:

That he will not withhold or delay orthodox treatment which would be given for visual problems, whether for the purpose of applying spinal manipulation or otherwise, without first clearly explaining to the patient his understanding of that orthodox treatment and the orthodox reasons for providing that treatment, and obtaining the patient’s informed consent to such withholding or delay.

However, essentially for the reasons given by Sperling J, I have come to the conclusion that it would not be appropriate to impose such a condition.

7 Sperling J: Dr Gorman is qualified as an ophthalmic surgeon. He has practised and continues to practise in that capacity and in the capacity of a general practitioner with a special interest in manipulation of the cervical spine. He believes that a variety of medical conditions can be successfully and appropriately treated by manipulation of the cervical spine.

8 On 15 February 2002, the Medical Tribunal of New South Wales found Dr Gorman guilty of unsatisfactory professional conduct in relation to the treatment of a patient, Mr B E Crowe, who had been treated with manipulation of cervical spine for glaucoma by Dr Gorman. The Tribunal reprimanded Dr Gorman. It refused an application by Dr Gorman to remove a condition previously imposed on his practice of medicine. The Tribunal imposed a further condition on Dr Gorman’s practice of medicine.

9 Dr Gorman appeals to this Court against the whole of that determination.

Grounds of appeal

10 Dr Gorman appeals against each of the determinations of the Tribunal which is adverse to him: the finding of unsatisfactory professional conduct in relation to the treatment of Mr Crowe; the penalty of reprimand; the imposition of additional conditions; and the dismissal of Dr Gorman’s application to remove the condition earlier imposed. The grounds of appeal filed by Dr Gorman do not relate differentially to each of these determinations. The grounds are as follows:

1. The Tribunal erred in not clearly separating the evidence pertinent to the Section 92 application from the hearing of the charges against the Appellant.
2. The Tribunal demonstrated bias against the Appellant and his dissenting medical philosophy; and erred in that, in the judgment, it did not record the safeguards which it had applied to eliminate bias, considering the apprehension of bias which the Appellant has consistently expressed and of which the Tribunal would have been aware.
3. The Tribunal could not reasonably make the decisions which it made, considering the evidence which was set before it.
4. The Tribunal erred in not giving due weight to the evidence that the appellant’s peers, according to testimony provided by the prosecution’s witnesses, by other medical witnesses, and by other testimony, were not knowledgeable in the scientific principles under consideration.
5. The Tribunal erred in basing its judgment on the use of spinal manipulation, reference to which had been specifically removed from the charges prior to the hearing.
6. The Tribunal erred in expressing an opinion on the dangers of spinal manipulation prior to the evidence being heard.
7. The Tribunal erred in its decision that further restriction of the appellant’s right [of] practice of medicine would protect the public when no evidence had been given of harm to members of the public as a result of his 25 year career in spinal manipulation therapy.
8. The Tribunal acted capriciously in demanding a controlled scientific trial of the information in question, while at the same time, preventing the appellant from conducting such a trial.
9. The Tribunal erred in that it failed to discriminate between observation and research in the matter of the recovery of vision which occurs when the spine is manipulated in appropriate patients; and to be practical and fair to the appellant, should have qualified its decision, in which it required research to have been done and published, in order to define the nature of the research which it required.
10. The Tribunal erred when it failed to give weight to the evidence, which was presented, and which demonstrated that the vision of persons with glaucoma had been shown to improve consequent on spinal manipulation therapy.
11. The Tribunal erred in that it capriciously added conditions to the Appellant’s licence, when, from the evidence, it was aware that such restrictions would be detrimental to the health and safety of the group of patients in the community with constricted visual fields, of patients taking vigabatrin medication, and could be detrimental to the health and safety of patients suffering from glaucoma.
12. The Tribunal erred in adding further conditions on the licence-to-practice of the appellant, when, at the same time, it asserted that no new information had been brought forward since conditions were applied in 1988 and reviewed 1997.
13. The Tribunal overstepped its powers when it sought to “discourage Dr Gorman in strong terms, from conduct which, while well motivated, has, it believes, having regard to the current state of medical knowledge, the potential to harm the public”.
14. The Tribunal erred in that it did not define the meaning of terms applied in regard to whether they had their ordinary meaning or their technical meaning.
15. The Tribunal erred in that it did not make a detailed order.
16. The Tribunal erred in that it made a decision on a fact, for example, the dangers of spinal manipulation, which did not exist.
17. The Tribunal erred in that it did not disclose its process of reasoning in coming to its determination.
18. The Tribunal erred in that it failed to give weight to a factor of great importance, for instance, the recovery of vision, which occurs when the spine is manipulated, and gave excessive importance, for instance, to the opinions of medical witnesses who had admitted their ignorance of the basic medical principles which are involved.
19. The Tribunal erred in that it failed to give proper, genuine and realistic consideration to matters of importance, for example, the medical science propounded by the defendant.
20. The Tribunal denied the Defendant natural justice by denying a discussion of the dangers of spinal manipulation, and then, subsequently making orders based on the defendant’s application of spinal manipulation.
21. The Tribunal erred in that it failed to make its determination on material which tends to show the logical existence of a fact, for example, the fact that eye conditions are affected by spinal manipulation.
22. The Tribunal erred in that it made a decision on the existence of a fact, for instance, that patient’s visions were liable to come to harm at the hands of the defendant, when that fact did not exist.
23. The Tribunal erred in that no proper exercise of decision-making power had been carried out; and
24. The Tribunal erred in that it acted without jurisdiction in making a judgment in regard to the protection of the public, which is a function of the Medical Board.
25. The Tribunal erred by making decisions about the protection of the public, when it refused to hear testimony from witnesses representing the public as to their opinion of how they should be protected.

11 The Court must do its best to relate the grounds of appeal to the issues arising on appeal.

The scheme of the legislation

12 By s36 of the Medical Practice Act 1992, the phrase “unsatisfactory professional conduct” is defined as meaning any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care by the practitioner in the practice of medicine. The phrase “professional misconduct” is defined as meaning unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practicing medicine or the removal of the practitioner’s name from the register.

13 The legislation provides machinery for making and determination of complaints against medical practitioners. The agency primarily responsible for the prosecution of complaints is the Health Care Complaints Commission.

14 There is a two-tiered structure for the determination of complaints, consisting of the Professional Standards Committee and the Medical Tribunal. It is unnecessary to refer to the powers of the Committee. By s61 of the Act, the Tribunal may, upon a finding of unsatisfactory professional conduct, caution or reprimand the medical practitioner and may direct that such conditions relating to the person’s practising of medicine as it considers appropriate be imposed on the person’s registration.

15 By s90 of the Act, an appeal lies to this Court against a decision of the Tribunal with respect to a point of law concerning a finding of unsatisfactory professional conduct. A general appeal lies in relation to penalty including reprimand and in relation to the imposition of conditions. By s91 of the Act, the Supreme Court may, in determining the appeal, make such orders as it thinks proper having regard to the merits of the case and the public welfare and may exercise any of the powers of the Tribunal under the Act.

16 By ss 92, 93 and 94 of the Act the Tribunal may, on application, review a prior order of the Tribunal that conditions be placed on a medical practitioner’s registration; the Tribunal may dismiss the application or make an order altering the conditions including alteration by way of imposing new conditions. By s94A of the Act, the object of a review of conditions is to determine the appropriateness at the time of review of the conditions concerned, but there is a prohibition against review unless significant fresh evidence is produced that was not previously available for consideration.

17 By ss 147 and 148 of the Act, the Tribunal is constituted by a judge of the District Court, being the Chairperson or a Deputy Chairperson of the Tribunal, two registered medical practitioners appointed by the New South Wales Medical Board and one lay person appointed by the Board from a panel nominated by the Minister. By s154 of the Act, a decision supported by at least three members of the Tribunal is the decision of the Tribunal. In the event that two support and two oppose, the presiding Chairperson or Deputy Chairperson has the casting vote.

18 By s161, the Tribunal is to conduct proceedings as it thinks fit. That means that the Tribunal is not bound by the rules of evidence.

19 By s165 of the Act, the Tribunal is required to provide a written statement of a determination, setting out its findings on material questions of fact, referring to any evidence or other material on which the findings are based, and giving the reasons for its decision.

Earlier proceedings

20 On 6 May 1988, the Professional Standards Committee made a finding of professional misconduct (as it was then termed) against Dr Gorman “on the basis that Dr Gorman [had] demonstrated a serious lack of judgment in performing a potentially dangerous procedure, namely manipulation of the cervical spine under anaesthesia”. The Committee further imposed a condition on Dr Gorman’s registration, namely, that he refrain from manipulation of the cervical spine under anaesthesia. Dr Gorman appealed to the Tribunal. An amended complaint was filed in the Tribunal asserting that, as depicted in a 60 Minutes programme shown in 1986, Dr Gorman demonstrated a lack of adequate knowledge and / or judgment and / or care in his practice of cervical manipulation of patients. The video depicted cervical manipulation under anaesthetic of two teenage girls.

21 The determination of the Tribunal is undated. It appears to have been given in 1988. The Tribunal took a more liberal view of Dr Gorman’s practices than the Committee had done. Notwithstanding a finding that the risks of the treatment were “great”, the Tribunal did not think that adult patients should be deprived of utilising Dr Gorman’s type of treatment if they wished. The Tribunal affirmed the finding of the Committee that Dr Gorman was guilty of professional misconduct, but it reduced the condition to a prohibition against performing spinal manipulation under anaesthetic on persons under the age of 16 years. The Committee’s rationale for that decision was that persons under the age of 16 could not, in the Committee’s opinion, give informed consent for such treatment.

22 This is not an appeal against the condition imposed by the Tribunal in its 1988 determination. As will appear, there is no occasion otherwise arising to examine the rationale for that determination. I would not wish it to be thought, however, that I endorse any implication that a parent or other guardian cannot give informed consent for a medical procedure to be carried out on a child, even where the procedure may involve a serious risk of injury.

23 An application to the Tribunal for a review of the 1988 condition failed in 1997.

The present proceedings

24 On 6 December 1996, the Commission instituted a further complaint against Dr Gorman, charging that he was guilty of unsatisfactory professional conduct, in that he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine, of which charge the following particulars were appended:

1. The practitioner was at all relevant times an ophthalmologist, practising at 7/324 Marrickville Road, Marrickville, NSW, 2204
2. When consulted by Mr Bruce Crowe on 27 and 30 May 1993, the practitioner failed to maintain the intra ocular pressure at an acceptable level to prevent further glaucomatous damage
3. On 27 May 1993 and 30 May 1993, the practitioner inappropriately treated Mr Crowe using spinal manipulation, in that there is no recognised therapeutic benefit in spinal manipulation
4. On 27 May 1993 and 30 May 1993, the practitioner inappropriately treated Mr Crowe using spinal manipulation, in that Mr Crowe’s intra ocular pressure was above an acceptable level
5. On 14 April 1992, the practitioner provided inappropriate and/or inadequate treatment to Mr Frank Baden-Powell in that he:
a) made an unrecognised diagnosis of ‘minimal brain dysfunction’
b) used an unrecognised diagnostic tool, the ‘Milne score’
c) recommended to Mr Baden-Powell that he undergo spinal manipulation under general anaesthetic, during which procedure Mr Baden-Powell died
6. The practitioner inappropriately used the diagnostic tool of static perimetry for Mr Baden-Powell, on the following occasions:
a) on 14 April 1992, the practitioner interpreted the results of static perimetry to make the unrecognised diagnosis of ‘minimal brain dysfunction’
b) on 16 May 1992, notwithstanding the results of static perimetry, the practitioner continued to recommend to Mr Baden-Powell that he undergo spinal manipulation under general anaesthetic
7. The practitioner failed to inform Mr Baden-Powell fully as he failed to provide adequate advice on:

a) the scientific validity of the spinal manipulation procedure
b) therapeutic alternatives available other than spinal manipulation

25 On 5 November 2001, a hearing commenced before the Tribunal. An amended complaint had been filed on 24 October 2001, in which the following particulars were substituted. “Patient A” was Mr Crowe. “Patient B” was Mr Baden-Powell.

1. When consulted by Patient A on 27 and 30 May 1993, the practitioner failed to institute treatment to maintain the patient’s intra-ocular pressure at [a] level to ensure prevention of further glaucomatous damage to the eye.
2. On April 1992, when the practitioner assessed Patient B for treatment, he
a) used an unrecognised diagnostic tool, the Milne Score;
b) used an unrecognised diagnostic tool that he called static perimetry; and
c) made an unrecognised diagnosis of minimal brain dysfunction.

26 On 30 October 2001, a further amended complaint was lodged in which item (c) was deleted from paragraph 2 of the particulars.

27 The essential difference between the original complaint in relation to Mr Crowe and as amended in October 2001 was that the initial allegation that spinal manipulation was inappropriate treatment in itself was omitted. In relation to the patient Mr Baden-Powell, the initial allegation concerning a failure to provide adequate advice concerning spinal manipulation and available therapeutic alternatives was also omitted.

28 The hearing commenced before the Tribunal on 5 November 2001. Mr Craddock of counsel appeared for the Commission. Dr Gorman was unrepresented and conducted his own defence.

The determination of the complaint in relation to Mr Crowe

29 The Tribunal took the facts relating to Dr Gorman’s treatment of Mr Crowe from Mr Crowe’s letter to the Commission dated 7 September 1993. The letter was in evidence. So far as is relevant , the letter reads as follows:

Several months ago (24.5.93) the vision in my right eye was blurred (misty) all day. Driving home in the evening I noticed whilst looking at the street lights a circular fog, with a rainbow ringing it, which I was later told was a “halo” effect.
I went to an Optometrist in Marrickville Road, Dulwich Hill approximately 5.30pm and was found to have a pressure in my right eye of 45.
The Optometrist rang an eye doctor in Marrickville Road, Marrickville who agreed to see me at 6.00pm.
Dr Gorman confirmed a pressure of 45 and sent me to the pharmacy with a prescription of which I took two tablets of Diamox and one drop of Pilocarp every half hour (approx 5 drops). I informed Dr Gorman of glaucoma running in my family (father, aunties, uncles, grandmother) which he thought I possibly had inherited.
I returned, as requested, to Dr Gorman at 9pm that night and the pressure had dropped to 12. The next evening (25.5.93) I returned as arranged and was found to still have a pressure of 12 in my right eye. I returned on 27.5.93 and the pressure in my right eye had increased to 26.
On my next visit 30.5.93, my right eye pressure was up to 32 and my left eye was up also – 38.
During this time I had no medication except to the initial nights treatment. I did however have two neck manipulations by Dr Gorman at this request.
Apart from standard eye chart tests and pressure tests, I had no other eye tests. Dr Gorman had lengthy conversations with me about his theories on neck manipulation curing all sorts of ailments (which he broadly categorised as “migraine”) including possibly glaucoma.
He told me how his peers considered him “eccentric” but was adamant on his views on spinal manipulation cure. Dr Gorman gave me two booklets he had written “New Face of Migraine” and “An Observers View of the Treatment of Visual Perception Deficit by Spinal Manipulation”.
He told me I was “a very interesting case” and wanted to keep trying manipulation. He also said if my eye pressure kept rising he would put me on drops. As I previously stated on my last two visits,
27.5.93 right eye pressure 26
30.5.93 right eye pressure 32
left eye increased – 38
As my next appointment was for 3.6.93 and my pressure was rising I decided to seek more professional help, which I should have previously done but I felt a certain loyalty to Dr Gorman for his concern and his seeing me at inappropriate times. Dr Gorman told me of his appearance on “60 Minutes” and a fatality to a patient of his during spinal manipulation.

30 Dr Gorman did not challenge any part of this evidence in cross-examination of Mr Crowe. The only detail which he challenged at all in the proceedings was the pressure figure of 38 on 30 May 1993. That, he said, was 30.

31 There were, however, discrepancies between Mr Crowe’s medical history as recorded in his letter and other evidence, namely, Dr Gorman’s notes and the history recorded in the report dated 30 May 1994 of Dr M R Delaney, ophthalmic surgeon, one of the expert witnesses called by the Commission.

32 I will come to the details in Dr Gorman’s notes. The history recorded by Dr Delaney was as follows:

On the evening of 24.5.93 whilst driving home Mr Crowe noticed fogging and a halo effect in his right eye which he said had been blurred all day. As a result of this he stopped at an optometrist at approximately 5.30pm and the optometrist took the pressures in his eyes and found the pressure in his right eye to be 45mm Hg. and referred him to Dr Gorman who saw him at 6pm. Dr Gorman’s notes state that his disc was 50% cupped at that time, but gonioscopy (an examination to inspect the filtering angle of the eye) was open and normal. Dr Gorman then prescribed Diamox tablets and Pilocarpine drops and asked Mr Crowe to return at 9pm at which time the pressure in the right eye had dropped to 14m Hg.
Mr Crowe was seen again on 25.5.93 and the pressures were 12mm Hg. in each eye. No further treatment was given after the initial treatment on 24.5.93. Mr Crowe was seen again by Dr Gorman on 27.5.93 and the pressure had risen to 26mm Hg. in the right and 18mm Hg. in the left. On this occasion Dr Gorman carried out a neck manipulation and it appears in the copy of his notes attached that he had a discussion concerning the philosophy of the treatment of glaucoma with Mr Crowe and that he told him that he felt the traction and manipulation was more adequate. It is not clear from the copies attached whether this conversation occurred on 27.5.93 or 30.5.93 as the page with the latter date has been placed over the page dated 27.5.93. Dr Gorman’s notes then indicate that Mr Crowe was seen again on 29.5.93 and the pressures were 31mm Hg. in the right and 30mm Hg. in the left, and on this occasion he made a note that gonioscopy again showed an open angle in both eyes, but the cup to disk ratios were 0.6 in the right and 0.5 in the left. On this occasion Dr Gorman repeated his neck manipulation. Mr Crowe was seen on the last occasion by Dr Gorman on 30.5.93 when the pressures had risen to 32mm Hg. in the right and 38mm Hg. in the left. Mr Crowe’s letter then states that he sought alternative treatment and as a result he was referred to Dr F Bors who saw him on 4.6.93 and immediately diagnosed him as having open angle glaucoma and commenced him on Betopic drops and subsequently added Pilocarpine drops to help control his pressure.

33 Other expert witnesses called by the Commission did not incorporate a detailed medical history in their reports.

34 The following table records the details of history as they appear in the three available sources: Dr Gorman’s notes, Mr Crowe’s letter and Dr Delaney’s letter.

Date	Dr Gorman’s notes	Mr Crowe’s letter 7 Sept 1993	Dr Delaney’s report 30 May 1994
24 May 1993, 6 pm	R 45 L 16	R 45	R 45 L 16
24 May 1993, 9 pm	R 14	R 12	R 14
25 May 1993	R 12	R 12 L 12
27 May 1993	R 26 L 18	R 26	R 26 L 18 Manipulation
29 May 1993	R 31 L 30 Manipulation
30 May 1993	R 31 or 32 L 30 Manipulation	R 32 L 38	R 32 L 38

35 A discussion of the discrepancies and their possible significance follows.

36 Dr Gorman’s notes are likely to be accurate.

37 It is unlikely that Mr Crowe would have remembered the details some four months after the event. Notwithstanding the discrepancies, it is likely that his account of events was provided with the aid - directly or indirectly - of Dr Gorman’s notes. I do not suggest there was anything improper about that.

38 Dr Delaney had been provided with a copy of Dr Gorman’s notes and four letters by Dr Gorman written during 1993 after the treatment. Two of the letters, being dated 22 October 1993 and 4 November 1993, were not in evidence. They may have included details additional to those in the notes. It seems that Dr Delaney took his history, albeit with some discrepancies, from Dr Gorman’s notes and from Mr Crowe’s letter. He may have had further information from the two letters I have mentioned.

39 Mr Crowe’s pressure figure of 12 for 24 May 1993 appears to be an error. The discrepancy is, however, not significant. Dr Delaney appears to have taken the figure 14 from Dr Gorman’s notes.

40 Mr Crowe’s reference to an attendance on 25 May 1993 also appears to be an error. No such attendance appears in Dr Gorman’s notes. Dr Delaney appears to have taken an attendance on that date from Mr Crowe’s letter. This discrepancy is of no importance. There is no significant difference between the figures recorded for that day and the figure recorded for 24 May 1993.

41 Dr Delaney’s history of an attendance on 29 May 1993 also appears to be incorrect. However, his figures for that date correspond with Dr Gorman’s figures for the following day 30 May 1993. So this discrepancy does not appear to matter.

42 From a close examination of Dr Gorman's notes, it appears that Dr Gorman’s figure for the right eye, recorded on 30 May 1993, could be 31 overwritten to 32, or 32 overwritten to 31. Mr Crowe and Dr Delaney have taken 32. The discrepancy, if it be one, is not significant.

43 Mr Crowe and Dr Delaney’s figure of 38 for the left eye on 30 May 1993 is substantially different from Dr Gorman’s 30. On close examination, the figure of 30 in Dr Gorman’s notes could be mistaken for an incomplete 38. The lower figure of 30 appears to be the correct reading. Dr Gorman said in his oral evidence before the Tribunal that the correct figure was 30 (although he mistakenly spoke of the left eye in that regard).

44 Only one manipulation was recorded by Dr Gorman. That was on 30 May 1973. Mr Crowe said in his letter that there were two, without specifying when they were carried out. Dr Delaney recorded manipulations on 27 and 29 May 1993, but (as noted above) there does not appear to have been an attendance of 29 May 1993. The source of Dr Delaney’s data in this respect is unknown. Again, it may have been one of the letters by Dr Gorman which are not in evidence. Again, the discrepancy is not material.

45 The broad picture was as follows. A pressure of 45 mm Hg in the right eye was reduced by medication that night to something under 20. Pressure then built up again in the right eye to something in the mid 20s by 27 May and in the low 30s by 30 May. By 30 May, pressure in the left eye, which had been reduced to below 20 on 25 May, was now at least 30. Pharmacological treatment was suspended as from 25 May, notwithstanding that by 27 May the pressure in the right eye was in the mid 20s and by 30 May in the low 30s; and, notwithstanding that by 30 May, if not before, pressure in the left eye was at least 30. One or two manipulations were carried out after medication ceased as from 25 May.

46 The foregoing analysis discloses only one potentially material discrepancy. That is the pressure figure for the left eye, taken by Mr Crowe and Dr Delaney to have been 38, whereas it appears from Dr Gorman’s notes to have been much lower, at 30.

47 Mr Crowe’s medical history was a question of fact for the Tribunal. The Tribunal found the history to have been as stated by Mr Crowe in his letter. The only potentially material discrepancy related to the pressure figure for the left eye on 30 May 1993. Whether the Tribunal’s failure to resolve that discrepancy was an error of law is a moot point having regard to the way the proceedings were conducted, Mr Crowe not having been challenged in cross-examination with what appears to have been a mistake on his part in that regard. More particularly, any such error on the part of the Tribunal was not an appealable error because – as I will show – it was not critical to the determination against which the appeal is brought and does not appear to have contributed to the result.

48 In his report of 30 May 1994, Dr Delaney was critical of Dr Gorman’s failure to control intra-ocular pressure by medication after 25 May 1993. He said in his report –

The level at which intraocular pressures should be treated to prevent damage to the optic nerve and visual fields is controversial. There is no recognised fixed absolute level of intraocular pressure at which it would be considered mandatory to instigate treatment. The intraocular pressure level should be considered relevant to each case after assessing the other physical findings, ie, evidence of optic nerve damage (cupping) and visual field loss. In addition to this other factors predisposing to glaucoma such as family history must be taken into account.
Whilst there is no defined absolute upper limit of normal pressures it is generally accepted by normal competent practising ophthalmologists and it is accepted in the ophthalmic literature that pressures over 30mm Hg. in an eye will, if prolonged, lead to glaucomatous visual field loss and optic nerve damage, and it is generally accepted that treatment should be commenced. The situation becomes more controversial with pressures in the mid 20s, as patients with pressures above those in the low 20s must be considered as glaucoma suspects, and some will suffer glaucoma damage at these pressures. It is proper in many cases to follow such patients without treatment and to instigate treatment at the earliest signs of glaucomatous damage to the visual fields or optic nerves. This approach is taken as there are side effects and complications from long term glaucomatous therapy (as indeed noted by Dr Gorman), but the correct treatment is to find a balance between the side effects and effects of the medication to lower the pressures and prevent glaucomatous damage to the vision and visual field.
In Mr Crowe’s case his initial pressure was extremely high at 45mm Hg. in the right eye, but this responded to treatment, but then crept up in both eyes to be above 30mm Hg. by 29.5.93, five days after his initial treatment, and it continued to rise with the left eye becoming higher than the right by 30.5.93. Mr Crowe had a strong family history of glaucoma and already had evidence of glaucomatous optic nerve damage, as noted by Dr Gorman in his notes indicating cup to disc ratios of 0.6 in the right and 0.5 in the left, the normal being about 0.25 (except in cases of physiological cupping and this is not the situation in Mr Crowe’s case).
… … …
An adequate standard of treatment in Mr Crowe’s case would have been to lower the intraocular pressure with urgent treatment when he was first seen and then to maintain the intraocular pressure at a level considered acceptable to prevent further glaucomatous damage to the eye. Dr Gorman’s treatment on the night of 24.5.93, as noted above, was adequate and correct in all ways. Dr Gorman’s subsequent treatment however was inappropriate as he allowed the intraocular pressure to become raised again without instituting adequate and proper treatment to prevent further damage to the eye by the raised pressure causing glaucomatous visual field loss. The aims and philosophies of accepted treatment are indicated above, and I believe Dr Gorman departed from an acceptable standard of practice in Mr Crowe’s case. This is particularly so as Mr Crowe already had evidence of glaucomatous field damage; there was proof of rising pressure to levels which are generally accepted as being such that they would lead to glaucomatous field loss, and there was no doubt about the diagnosis and this diagnosis was backed up by a strong family history. Dr Gorman himself stated that he had made a diagnosis of open angle glaucoma.
… … …
In Mr Crowe’s case his pressures continued to rise even after two such treatments to a level which would have certainly led to progressive and severe visual field loss if left untreated.
… … …
… Dr Gorman states that “Mr Crowe was in no jeopardy”. I believe this to be incorrect for the reasons outlined above and in particular for the fact that Mr Crowe had already sustained glaucomatous damage and the pressures were continuing to rise to levels above those accepted as the maximum above which treatment should be instigated.

49 In a subsequent report, dated 13 October 1995, Dr Delaney responded to Dr Gorman’s defence of his management of Mr Crowe’s glaucoma. He rejected the suggestion that Mr Crowe was not at risk when pressure increased after 25 May in the absence of medication. He said,

I believe that Mr Crowe with a cup to disc ratio of 0.6 in the right eye and less in the left would be considered by most reasonable ophthalmologists as being extremely likely to have glaucomatous visual field damage in view of the rest of the other findings at the time that Dr Gorman first saw Mr Crowe.
… … …
Mr Crowe only became symptomatic at extremely high pressures (45mm Hg) but below these he was asymptomatic and he would have had a steady progressive visual field loss without any symptoms and would have been at risk of blindness in the long-term if no other treatment had been sought. In view of this, I would raise my level of criticism of Dr Gorman as he was aware that the pressures had returned to levels of 31mm Hg in the right and 30mm Hg in the left on 29th May 1993 and he showed no further indication of considering conventional treatment but only continuing with spinal manipulation treatment and this treatment did not lower the pressures to an acceptable level.

50 Dr Delaney said, in his report of 30 May 1994 that the efficacy of spinal manipulation for the management of glaucoma was unproven. It was not a justifiable substitute for conventional management by medication.

51 Dr Delaney’s opinion, as provided in his report of 30 May 1994 was based on the history recorded in that report. That history, as I have mentioned, included a number of discrepancies relative to Dr Gorman’s notes and, to a lesser extent, relative to Mr Crowe’s letter. Of these, as I have said, only the pressure figure of 38, rather than 30, for the left eye on 30 May 1993 was potentially material. It is now to be observed, however, that the discrepancy proved to be immaterial to Dr Delaney’s view of Dr Gorman’s professional conduct.

52 Dr Delaney was cross-examined by Dr Gorman on the assumption that the pressure was in the order of 30 (Tr 109):

Q. I’m being criticised because I didn’t institute treatment on 20 and 30 May, when the patient’s pressures were only in the region of 30.
A. That was after the pressure had come down.
Q. After the pressure had come down, that’s correct.
A. But it was withdrawal of the treatment that you had already commenced.
Q. That’s correct, yes.
A. Well, I think there is a very great difference between instituting treatment when a patient has a pressure around 30, compared to withdrawing treatment when a patient, who already had pressure in the high 30s, and the pressure had responded to treatment but was still at a level that we agree one would not rush to get them – see them urgently; but withdrawing treatment is a totally different situation to when one institutes it, especially when the pressure is coming down off a high level.
From that passage, it is clear that Dr Delaney was of the opinion that, assuming the pressures were as recorded by Dr Gorman, medication should have been maintained throughout. The discrepancy made no difference to Dr Delaney’s opinion on that issue.

53 Dr M Steiner was the second specialist ophthalmic surgeon called by the Commission. Although his reasons were different from those of Dr Delaney, he was also of the opinion that Mr Crowe was at risk of damage without pharmacological treatment once intraocular pressure had built up again and reached the 30s. Dr Steiner said in his report of 8 August 1994,

The initial treatment by Dr Gorman was both correct and effective. In his making himself available to review the patient at 9.00pm that same day, Dr Gorman’s treatment and attitude were beyond what would be expected or necessary.
Dr Gorman’s continuing treatment of Mr Crowe however appears to have been both inadequate and inappropriate. The accepted treatment for open angle glaucoma is to maintain the intraocular pressure at a level that is unlikely to cause damage to the optic nerve. Such treatment usually involves the use of various eyedrops, occasionally tablets and may involve laser treatment or surgery.
It is true that in the short term the patient’s vision was not at great risk from glaucoma as long as his pressures were about 30 for a few weeks. Open angle glaucoma in a healthy young person causes visual loss in the longer term … over months and years. However with an intraocular pressure in the 30s the patient is also at a significantly increased risk of retinal vein occlusion which can cause devastating abrupt visual loss.

54 It is apparent that the discrepancy between the pressure figures of 30 and 38 for the left eye on 30 May 1993 was not critical to Dr Steiner’s opinion. A pressure in the 30s was high enough for him.

55 As to manipulation as a substitute for pharmacological management, Dr Steiner said, in his report of 8 August 1994,

I know of no other ophthalmologist who uses spinal manipulation for glaucoma or any other condition. The usual treatment is as I have outlined above, with the patient being regularly monitored re their pressures, disc appearance and visual fields.
There is no place in orthodox ophthalmology for spinal manipulation and ophthalmologists are not trained to use it.

56 Dr M J Creswick was the third expert witness called by the Commission. He is a specialist in physical medicine. Although his evidence related primarily to the Baden-Powell case, it included evidence relevant to the case of Mr Crowe as well. Dr Creswick said, in his report of 28 July 1996, that cervical manipulation was regarded as appropriate treatment for certain conditions of the cervical spine which he specified. He went on to say that the risk of injury was rare, being between 1 in 600,000 and 1 in 6 million for death or stroke. No other complication was mentioned. He said that the risks needed to be balanced against the severity of the patient’s symptoms, taking into account age and other pre-existing conditions.

57 In his oral evidence (Tr 50/50), Dr Creswick referred to studies which found damage to the vertebral artery and emboli of the brain (presumably, what would commonly be referred to as strokes). He also referred to a Canadian study which found that people who had received chiropractic treatment within the last week were five times more likely to have a stroke than those who had not. He described this as a very strong association.

58 There is also mention of what appears to be the same Canadian study in a publication by Professor Terret, chiropractor and Associate Professor at RMIT University, Melbourne, tendered at the hearing. It is entitled, “Current concepts in vertebrobasilar complications following spinal manipulation”. (Again, I take such complications to be strokes.) Three studies are in fact cited (at p14 of the article): Canada, 1: approximately 4,000,000 manipulations; USA, 1: 2,000,000 manipulations; and Denmark, 1: 900,000 upper cervical spine manipulations and 1:400,000 upper cervical spine manipulations which included rotational type techniques. (I gather that Dr Gorman’s method falls within the last category.)

59 There was no suggestion that any patient had suffered complications from spinal manipulation in Dr Gorman’s hands.

60 Dr Gorman’s response to the criticisms made by Dr Delaney and Dr Steiner was that Mr Crowe was not at risk without medication while he was in Dr Gorman’s care, and would not have been for some weeks, notwithstanding the higher pressures recorded after the initial treatment with medication was suspended.

61 Dr Gorman tendered a large body of written and oral evidence. Among others, he called Professor Terret. The evidence was designed to show that spinal manipulation was efficacious in the treatment of a large variety of medical conditions and that health care professionals were ignorant of its efficacy. The objective was to establish that the opinions of the expert witnesses called by the Commission to the contrary and, by implication, any such opinion held by an expert member of the Tribunal should be put to one side.

62 That, however, was not the issue on which the determination in relation to Mr Crowe’s case turned. It was common ground between Dr Delaney and Dr Steiner, on the one hand, and Dr Gorman, on the other, that spinal manipulation was not a justifiable substitute for pharmacological management in Mr Crowe’s case if there was a risk of damage to the patient’s vision at the pressures recorded after medication was suspended. This is apparent from the following extract from Dr Gorman’s evidence.

DR TAYLOR: Q. If he had not moved from your care, how would you have continued your management of him?
A. I would have reviewed his pressures regularly. I would have made my decisions on what the pressures were.
Q. What if you’d treated him with anti-glaucoma therapy?
A. Yes. I mean, I’ve been an ophthalmologist since 1969, anyway, and I’ve had medical coma patients which I’ve treated – totally capable of treating a patient by orthodox methods.
Q. When he left your care he was not on anti-glaucoma medication. I’m wondering what your management would have been; if and when you would have instigated anti-glaucoma medication drops.
A. If you want an answer that protects me in this tribunal, I’d say the same day; if you want an answer that’s reality. I would think, “Well, they’re not going to come to much harm at 30. I can plod on for a week or two.”
Q. Sorry, what do you mean the same day?
A. The same day, if I’m protecting myself from this tribunal, I’d say if he’d come back the next time and still had a pressure of 30, I would have put him on orthodox treatment then and he was supposed to come back in another three days. So the whole time he would have been not on treatment, if you like, it would be, you know, only ten days all up. But if you want reality, what I might have done – we don’t know what I would have done because that situation is totally hypothetical, but my feeling is that he wouldn’t come to any harm with a pressure of only around 30, 28, something like that. You could leave him, really – you could even press for another two week or something like that, without any trouble.

63 Then, having given some evidence about the efficacy of spinal manipulation for a variety of conditions including glaucoma, Dr Gorman said,

Why should I take any notice of what the orthodox medicine does, providing that I’m confident that I’m not hurting the patient. And I don’t believe – and there’s plenty of evidence in the evidence so far, that the doctors say that leaving a patient with a pressure of 30 for a few weeks is not any great problem. And the thing is, some patients, you can leave them for years with a pressure of 30 and it’s no great problem.
Dr GRIMES: Q. If he’d come back and his pressure had gone up to the sort of levels that it was before, would you have used orthodox treatment then?
A. Dr Grimes, I’m not an idiot. Of course I would.”

64 It being common ground that treatment with medication should have resumed at such time as the patient was again at risk again of damage to his vision, the only relevant question for the Tribunal was whether that risk had recurred while Mr Crowe was under treatment by Dr Gorman. If so, his treatment was deficient. If not, not. Dr Delaney and Dr Steiner were of the opinion that the risk had recurred. Dr Gorman was of the opinion that it had not. That was the issue.

65 The Tribunal’s determination of the complaint in relation to Mr Crowe was as follows:

Mr Crowe was under Dr Gorman’s care for only a few days. He correctly diagnosed glaucoma and prescribed medication to relieve intra-ocular pressure. The criticism in these proceedings is that, having initially acted in a wholly unexceptional manner, he departed from the standard expected of a competent medical practitioner of good fame and repute by manipulating Mr Crowe’s cervical spine as an alternative, however temporary, to ensuring through medication, that intra-ocular pressure was maintained at an appropriate level. In the opinion of the Tribunal, the evidence clearly establishes that Dr Gorman’s treatment of Mr Crowe did demonstrate a lack of adequate knowledge, skill, judgment and care within the meaning of Sec 36 of the Act. The Tribunal is satisfied that a competent medical practitioner of good fame and repute would not, in the circumstances pertaining to Mr Crowe, have manipulated his spine or advised otherwise than that he continue medication to control his intra-ocular pressure. The Tribunal finds that Dr Gorman has been guilty of unsatisfactory professional conduct.

66 The only issue in relation to the complaint involving Mr Crowe being as I have mentioned, the gravamen of this finding was not that Dr Gorman manipulated Mr Crowe’s cervical spine on 27 and 29 May 1993, but that he did so instead of maintaining what the Tribunal regarded as a safe level of intraocular pressure by medication. That, it may be observed, corresponded with the particulars in relation to Mr Crowe’s case in the amended complaint, which did not refer to the use of spinal manipulation.

67 As I have mentioned, the Tribunal found Dr Gorman guilty of unsatisfactory professional conduct in that regard and imposed the penalty of a reprimand.

Determination of the complaint in relation to Mr Baden-Powell

68 This complaint was dismissed by the Tribunal. It is unnecessary, therefore, to review the evidence tendered specifically in relation to that complaint. It may be observed in passing, however, that the amended complaint related solely to the diagnostic procedures used by Dr Gorman for a condition which he called minimal brain dysfunction. The amended complaint raised no issue in relation to the referral of that patient for spinal manipulation by other practitioners as occurred, and in the course of which Mr Baden-Powell tragically died due to a complication of the anaesthetic.

Appeal against the finding of unsatisfactory professional conduct

69 A theme that runs through the grounds of appeal and through the submissions in support of them is that the Tribunal was not competent to determine the proceedings because it was ignorant of what Dr Gorman knew about illness processes and about the efficacy of spinal manipulation as treatment for them.

70 An argument along these lines cannot be upheld. The Medical Practice Act is a law of the state. Nothing has been suggested to indicate that the members of the Tribunal who sat on this case, and in particular the medically qualified members, were not regularly appointed according to that law. They came to the Tribunal with their personal understandings of medical knowledge and they were expected to contribute that understanding to the Tribunal’s assessment of the evidence tendered. That is the situation in relation to any expert tribunal. It is a situation arising according to law.

71 A similar argument is advanced in relation to the expert witnesses called by the Commission, in particular Dr Delaney and Dr Steiner. They had their understanding of medical matters, it influenced their assessment of Dr Gorman’s professional conduct, and the Tribunal was entitled to accept their assessment in preference to other expert evidence such as that of Dr Gorman himself. That process was also according to law.

72 An appeal lies against the finding of unsatisfactory professional conduct only on a point of law. It follows that, in relation to that issue, a decision not reasonably open on the evidence is appealable, but this Court cannot uphold an appeal on the ground that the determination is against the weight of the evidence before the Tribunal, even if this Court would have come to a different conclusion.

73 There is no scope for the argument in this case that the finding of unsatisfactory professional conduct was not reasonably open to the Tribunal. It was open on the evidence of Dr Delaney and Dr Steiner, which the Tribunal was entitled to accept and did accept.

74 The only other basis on which the finding is impugned is bias. That cannot be made out on the ground that the Tribunal did not accept Dr Gorman’s understanding concerning the efficacy of spinal manipulation for the reasons I have mentioned. More fundamentally, however, as I have said, the issue of unsatisfactory professional conduct in the case of Mr Crowe turned on whether Mr Crowe’s vision was at risk at the relevant time. Dr Gorman agreed that pharmacological treatment rather than spinal manipulation was necessary if that was so. The Tribunal was entitled to accept the evidence of Dr Delaney and Dr Steiner that it was so, in preference to that of Dr Gorman that it was not. Any pre-conceptions on the part of the Tribunal or on the part of those witnesses concerning the efficacy of spinal manipulation, generally or for the treatment of glaucoma, played no part in that determination.

75 On 25 October 2001, several applications for procedural rulings were made by Dr Gorman to Patten DCJ. The applications were overwhelmingly unsuccessful. That, of course, is no evidence of bias in itself. A reading of the transcript of the submissions and rulings made on that date discloses nothing to indicate bias on his Honour’s part, whether, actual or reasonably apprehended.

76 It was also asserted by Dr Gorman that bias on the part of the Tribunal, or at least on the part of the presiding Deputy Chairman, was demonstrated by the following exchange (Tr 32-33) which occurred prior to evidence being led at the hearing:

Deputy Chairperson: I don’t really see what the relevance of that is to this case. I suspect that probably all of us would be aware of the dangers, even the lay members of the Tribunal.
Dr Gorman: But the procedure is not dangerous, your Honour. So that when you talk about the dangers, you need someone to qualify them, and say, how many people get hurt when they go and have an oesophagoscopy? How many people get hurt when they take penicillin?
It’s comparative dangers that’s important, and spinal manipulation, he will tell you, is a very, very safe procedure; that if something happens to you, your Honour, in the procedure, you’ll be very badly damaged; but that’s with everything.

77 As to that, the assumption made by the Deputy Chairperson cannot have led to a miscarriage of justice because it was consistent with what was established by the evidence led at the hearing. On that evidence, as I have mentioned, there was an incidence of complications arising from manipulation of the cervical spine which, although rare, could be catastrophic.

78 A decision by the Deputy Chairperson concerning a joint hearing of the complaints and Dr Gorman’s application to remove the earlier condition is also relied upon by Dr Gorman as an instance of bias. Such a submission could not be maintainable unless the determination was so patently unfair as to lead to an inference of bias. As will appear from the next section of this judgment, that is not so.

Procedural unfairness

79 On the first day of the hearing, Patten DCJ refused an application by Dr Gorman requesting that his application to remove the earlier condition be heard separately from the complaints in relation to Mr Crowe and Mr Baden-Powell.

80 Dr Gorman says that a relatively simple complaint, the Crowe matter, then became complicated by evidence concerning the efficacy of spinal manipulation, an issue which had been removed by amendment from the complaint. In consequence, Dr Gorman argued, he suffered the disadvantage of being both a plaintiff and a defendant in the same proceedings, and the Tribunal became confused or (it is said) chose to be confused about what evidence related to the Crowe complaint.

81 He also says that he wished to give evidence only in relation to his application to have the earlier condition removed, whereas the joint hearing made him amenable to cross-examination in relation to the Commission’s complaints as well.

82 This ground of appeal is not sustainable. It is commonplace for more than one claim to be heard concurrently, including claims in which the one party is, in effect, both a plaintiff and a defendant. Separate hearings will be ordered where a joint hearing would be prejudicial.

83 It is not shown that Dr Gorman was prejudiced by the ruling that was made. As appears from the Tribunal’s reasons for determination, the Tribunal decided the complaint concerning Mr Crowe on the narrow ground of failure to ensure, by medication, that Mr Crowe’s intra-ocular pressure was maintained at what the Tribunal found to be a safe level. It was common ground that medication was required if the pressure was unsafe. The Tribunal found Mr Crowe’s vision was in fact at risk at the recorded pressures, even if those pressures continued for only a short time.

84 Nothing said by Dr Gorman in cross-examination contributed to that result. In fact, it is likely that the evidence given by Dr Gorman in relation to the Crowe matter resulted in a lesser penalty than might otherwise have been imposed. If Dr Gorman had not given evidence of his belief that Mr Crowe’s intraocular pressure was within safe limits during the relevant period, it would have been open to the Tribunal to infer that Dr Gorman knew that Mr Crowe’s vision was under threat and to find that, notwithstanding that knowledge, he elected to treat the condition by spinal manipulation rather than by medication. Having heard Dr Gorman’s evidence, the Tribunal made no such finding.

85 There is nothing to suggest, in these circumstances, that the Tribunal became confused or chose to be confused about the issue for decision in relation to the Crowe complaint or about the evidence ultimately relevant to it.

86 The appeal against the determination that Dr Gorman was guilty of unsatisfactory professional conduct should, therefore, be dismissed.

Appeal against reprimand

87 There is no ground of appeal specifically directed to the penalty of reprimand which the Tribunal imposed for unsatisfactory professional conduct in relation to the treatment of Mr Crowe.

88 The determination of penalty is a discretionary exercise. Although appeal against penalty is not limited to questions of law, an appellate court will not intervene unless the discretion of the tribunal below has miscarried. That may occur where the tribunal has taken into account some irrelevant consideration or failed to take into account a relevant consideration or where the determination is one which a reasonable tribunal could not have reached on the material before it.

89 No such miscarriage of discretion has been established in this instance. The appeal against the reprimand should, therefore, be dismissed.

Appeal against the dismissal of Dr Gorman’s application to remove the condition previously imposed

90 The condition imposed in 1988 was as follows:

[H] e may not perform on a patient under the age of 16 years a spinal manipulation under general anaesthetic.

91 Dr Gorman’s application to remove that condition was dismissed. The Tribunal gave the following reasons for its decision in that regard:

As a matter of principle, although there is no restriction in Sec 92 on the number of times an application for review may be made, the Tribunal would regard the maker of successive applications for review as carrying a significant onus. In the case of Dr Gorman, as indicated, the Medical Tribunal, as recently as 1997, refused his application for a review of the conditions imposed in 1988. Dr Gorman did not suggest that there is significant evidence available now which was now available in 1997 and, indeed, much of the material upon which he relied was patently available to him in 1997. However, having said that, Dr Gorman is entitled to have his application for review treated on its merits. In that connection, consistently with its finding that his theories have not yet been subjected to a properly controlled scientific evaluation, and the fact that he remains committed to them, to the point of fanaticism, the Tribunal is of the opinion that it would be quite inappropriate to remove or alter in any way the conditions previously imposed. They will also now be subject to the further conditions referred to above. It is plain, in the Tribunal’s view, that children, at least, need to be fully protected from Dr Gorman’s unproven methods of treatment, by way of manipulation under general anaesthetic.

92 It appears that s94A of the Act was not brought to the Tribunal’s attention.

93 Dr Gorman confirmed at the hearing of the appeal that there was not, materially, any evidence before the Tribunal on this occasion which was not previously available and, in fact, actually before the Tribunal on the earlier occasion. That being so, by operation of s94A, the Tribunal had no power to review the 1988 determination imposing the condition. The Tribunal was accordingly precluded from entertaining the application for review on its merits.

94 In these circumstances, Dr Gorman is not in a position to impugn the determination of the Tribunal dismissing the application for review. The appeal against dismissal of the application, accordingly, fails.

Appeal against the imposition of additional conditions

95 In the course of the hearing before the Tribunal, the Commission sought the imposition of additional conditions. The conditions sought were that Dr Gorman not work in general practice at all or, alternatively, only under supervision with various specified controls over the use of spinal manipulation.

96 The context in which the Tribunal imposed additional conditions was as follows. Before making its findings on the Crowe complaint and the Baden-Powell complaint, the Tribunal reviewed the evidence relating to the use of spinal manipulation in the treatment of a variety of medical conditions as propounded by Dr Gorman. The Tribunal quoted the following passage from Dr Delaney’s report of 30 May 1994:

Dr Gorman’s theory that neck manipulation and traction was more appropriate has not been proven and is a departure from the accepted normal standard of treatment. I note the various papers and references in your enclosures, in particular Dr Gorman’s paper “Recurrent Scotoma Disappearing With Pan-Spinal Manipulation” indicated that his treatment is a major challenge to “conventional wisdom”. His conclusion in that paper that spinal manipulation is a treatment which should be considered in the management of glaucoma is unproven. However, such treatment should only be instituted after due consideration of the risks of such manipulations and then after a properly constructed and supervised trial to ascertain the adequacy and effectiveness of his treatment with manipulation. Such treatment should not be given on a one off ad hoc basis as there is no established acceptable standard for such treatment.
… … …
As noted above, spinal manipulation is not considered an accepted standard of practice for the treatment of glaucoma. The questions and theories raised by Dr Gorman may be scientifically valid, but, as noted above, these should then be tested by an appropriate trial which is supervised by independent experts to allow proper evaluation of the treatment. Manipulative treatment as suggested by Dr Gorman could be appropriate in such a trial but not as carried out by Dr Gorman. Dr Gorman’s letter of 21.11.93 confirms this opinion, but states that manipulation should only be carried out when the patient is “in no jeopardy because of the delay”, and Dr Gorman states that “Mr Crowe was in no jeopardy”. I believe this to be incorrect for the reasons outlined above and in particular for the fact that Mr Crowe had already sustained glaucomatous damage and the pressures were continuing to rise to levels above those accepted as the maximum above which treatment should be instigated.

97 The Tribunal quoted the following passage from Dr Steiner’s report of 8 August 1994:

I know of no other ophthalmologist who uses spinal manipulation for glaucoma or any other condition … There is no place in orthodox ophthalmology for spinal manipulation and ophthalmologists are not trained to use it.

98 The Tribunal said:

Over the course of a period in excess of the last twenty years, Dr Gorman has authored publications in support of his theory that, in many patients, spinal manipulation produces immediate improvement in visual perception and widening of visual fields. His theories extend to the treatment of migraine and conditions involving the cerebro-vascular system and to the treatment of visual abnormalities subsequent to head and neck trauma. He has documented many cases and studies which he claims support these theories and several videos depicting the spinal manipulation of patients by, or under the supervision of, Dr Gorman, which purportedly demonstrated marked improvement in their condition, were tendered in evidence. Some patients gave oral testimony to the effect that spinal manipulation had proved of considerable benefit.

99 The Tribunal quoted from Dr Gorman’s own published work in relation to the use of spinal manipulation in the treatment of constricted visual fields. It quoted oral evidence by Dr Gorman concerning the use of spinal manipulation in the treatment of migraine. It referred to the evidence of Dr Bilson, Professor of Ophthalmology at the University of Sydney, who had acknowledged that the spinal manipulation might be effective in improving vision if the patient is hysterical. It referred to the evidence of Dr Beaumont, Ophthalmologist, who had acknowledged that, of the cases presented by Dr Gorman – which Dr Beaumont described as “multi-system disorder sick people” – all had improved to some extent, some with very good improvements; Dr Beaumont had agreed that improvement of vision following spinal manipulation deserved to be investigated.

100 The Tribunal said of Professor Terret’s evidence:

Professor Terret gave extensive evidence in relation to chiropractic procedures and as to the possible contra-indications of chiropractic treatment. He did not, however, as the Tribunal understands his evidence, provide direct support for Dr Gorman’s theories as to the benefit of spinal manipulation in treating a variety of conditions, including visual field reduction.

101 The Tribunal said:

Apart from the oral evidence to which reference has been made, Dr Gorman introduced into evidence a considerable quantity of documentary evidence which included correspondence, learned articles published in medical journals and articles written by him. This material (for instance the article “Glaucoma – Is the Treatment Worse Than the Disease”) undoubtedly established the short-comings in what is regarded as the conventional treatment for glaucoma, but it also establishes that there has been no properly controlled scientific study of Dr Gorman’s theories.

102 The Tribunal then made the following observations under a heading, “The validity of Dr Gorman’s theories”:

Whether or not Dr Gorman’s theories as to the therapeutic benefit of spinal manipulation are valid is not directly in issue before the Tribunal. However, the question is of sufficient relevance to warrant the making of some comment.
In the first place, it is appropriate to say that there is no suggestion that the theories are not honestly held by Dr Gorman and there is equally no suggestion that he is motivated otherwise than by a desire to serve the community. Moreover, it is plain that the symptoms of many people have apparently been alleviated by his treatments, including a number who gave evidence before the Tribunal. However, the fact remains that his theories have never been subjected to properly controlled scientific evaluation. It is, perhaps, not without significance that this is so despite the importuning of Dr Gorman to a variety of authorities and bodies over very many years.
Therefore, while it may be that Dr Gorman’s views have validity, a possibility accepted by the Medical Tribunal as long ago as 1988, nothing has really changed since then. The theories remain unproved and must be treated as such unless, and until, they are by appropriate means shown to be correct.

103 Mr Baden-Powell had consulted Dr Gorman with pain in the dorsal spinal region, chronic tiredness, failing memory, increasing deafness, minor depression, dermatitis of the hands and nocturia. He was also taking amphetamines for narcolepsy. Dr Gorman diagnosed “minimal brain dysfunction” and, as I have mentioned, referred Mr Baden-Powell to others for manipulation of the cervical spine under general anaesthetic. In the course of making the findings which culminated in the dismissal of the complaint in relation to Dr Gorman, the Tribunal said:

Mr Baden-Powell had symptoms in respect of which he consulted Dr Gorman. Those symptoms may or may not have benefited from spinal manipulation. Dr Gorman’s suggestion that his spine be manipulated was certainly not unlawful and there was nothing to prevent Dr Gorman, or any other medical practitioner, from manipulating Mr Baden-Powell’s spine if that course were considered appropriate and Mr Baden-Powell consented. In that circumstance, it seems to the Tribunal, to be of little relevance that Dr Gorman categorised Mr Baden-Powell’s symptoms as constituting “minimal brain dysfunction”.

104 The additional conditions imposed were as follows:

Dr Gorman’s right to practise medicine is further conditioned as follows: “that he refrain from manipulating the spine of any patient by way of treatment for symptoms pertaining to the patient’s visual apparatus or cerebro-vascular systems until publication of the results of a controlled trial, with an independent observer, in a peer review journal to the effect that spinal manipulation is an acceptable treatment for such symptoms”.

105 The Tribunal’s reasons for imposing the additional conditions were as follows:

Dr Gorman’s inappropriate treatment of Mr Crowe was of very short duration and there is no suggestion that Mr Crowe suffered as a consequence. The Tribunal is of the opinion that the appropriate order to make pursuant to Sec 61 of the Act is that Dr Gorman be reprimanded and that conditions be imposed relating to his practice of medicine. In doing so the Tribunal wishes to discourage Dr Gorman, in strong terms, from conduct which, while well motivated, has, it believes, having regard to the current state of medical knowledge, the potential to harm members of the public.
The conditions which the Tribunal will impose are somewhat different from those suggested by the Complainant and will prevent Dr Gorman from using manipulation for the treatment of specific symptoms until a properly controlled trial establishes that the conditions are unnecessary.

106 I would take the Tribunal to have meant an unacceptable risk of harm when it referred to “the potential to harm members of the public”. That must be so, it being common knowledge that many conventional medical procedures involve the risk of damaging complications.

107 It may be seen that the additional conditions imposed by the Tribunal have some relationship to the evidence before the Tribunal. Ailments involving the visual apparatus and the cerebro-vascular systems have a connection with the Crowe case and the Baden-Powell case respectively. The requirement of a controlled trial has its seeds in Dr Delaney’s evidence. But the nexus between the conditions and the evidence is not a logical one. If treatment by spinal manipulation is unacceptably dangerous, there is no logic in limiting the restrictions to the treatment of only two kinds of ailment, that is, ailments relating to the eyes and ailments relating to the brain. If, on the other hand, the treatment is not unacceptably dangerous, there is no logic in restricting its use at all.

108 As I have mentioned, there was evidence that the treatment might be beneficial, if not in every case, then in some cases at least. The critical finding in support of the new conditions was that of “the potential to harm members of the public”. There was no finding, however, that spinal manipulation as such is unacceptably dangerous. Stroke appeared to be the only known complication, with an incidence of 1 in 400,000 to 1 in 6 million, depending on the study. Assuming, as seems appropriate, that the study which produced the figure of 1:400,000 corresponds with the treatment as administered by Dr Gorman, that is still a very low incidence.

109 There was no evidence that any patient had been harmed by the treatment in Dr Gorman’s hands. Mr Baden-Powell died, but, as I have mentioned, as a complication of the anaesthetic. That was a risk associated with any procedure carried out under general anaesthetic.

110 There was no direct evidence before the Tribunal that manipulation of the cervical spine, as administered by Dr Gorman, involved an unacceptable risk of harm, and there was no finding that such an unacceptable risk was to be inferred.

111 In these circumstances, the Tribunal provided no basis for the critical finding that the administration of spinal manipulation by Dr Gorman gave rise to potential harm to members of the public constituting an unacceptable risk.

112 For these reasons, I would allow the appeal against the imposition of the additional conditions imposed on Dr Gorman’s practice of medicine.

Costs

113 No submissions were made in relation to costs. In its reasons for determination, the Tribunal determined provisionally that Dr Gorman should pay one half of the complainant’s costs, reserving to the parties the right to make further submissions in that regard. I proceed on the basis that the order of the Tribunal as to costs was as provisionally made.

114 The consequence of this appeal is that the Commission will have succeeded in relation to the complaint concerning Mr Crowe. It will have failed in relation to its complaint in relation to Mr Baden-Powell and in relation to its application for the imposition of additional conditions. Dr Gorman will have failed in his application to remove the earlier condition. Subject to any further submissions, I would propose that the Tribunal’s order as to costs be varied by substituting an order that Dr Gorman pay one quarter of the Commission’s costs of the hearing before the Tribunal.

115 As to the costs of the appeal, Dr Gorman will have failed in his appeal against the finding of unsatisfactory professional conduct in relation to Mr Crowe, in relation to the penalty of reprimand imposed and in relation to his application to remove the previous condition. He will have succeeded in relation to his appeal against the imposition of additional conditions. The additional conditions imposed were of considerable significance in relation to Dr Gorman’s practice. The Court was informed that, in the course of Dr Gorman’s practice as a general practitioner, he carries out spinal manipulations on six to seven patients per session at the medical practice where he is employed. I apprehend that a large proportion of these treatments would be prohibited by the additional conditions imposed.

116 Subject to any further submissions, I would propose that no order be made in relation to the costs of the appeal, with the intent that each party would bear its own costs.

Orders

117 I propose the following orders:

1. Appeal allowed in part.

2. Appeal against the conditions imposed on 15 February 2002 on the appellant’s right to practise medicine upheld.

3. The order of the Tribunal made on 15 February 2002 imposing conditions on the appellant’s right to practise medicine set aside.

4. Appeal otherwise dismissed.

5. Subject to orders 7 and 8 following, the Tribunal’s order for costs set aside and the following order substituted: that the appellant pay one quarter of the complainant’s costs.

6. Subject to orders 7 and 8 following, no order as to the costs of the appeal.

7. Liberty to apply by written submission for reconsideration of orders 5 and 6 above within two weeks from the present date.

8. In the event of any written submission being made pursuant to order 7 above, the opposite party to have liberty to make any written submission in reply within two weeks thereafter.

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