HCCC v Dr Alex Simring
[2010] NSWMT 7
•29 April 2010
New South Wales
Medical Tribunal
CITATION: HCCC v Dr Alex Simring [2010] NSWMT 7 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dr Alex Amadeus SimringFILE NUMBER(S): 40019 of 2009 CORAM: Ainslie-Wallace, DCJ - Anderson, Dr P - Sammut, Dr J - Ettinger, Ms G CATCHWORDS: Child pornography convictions - Failure to advise the NSW Medical Board of criminal convictions - Professional miscondict and unsatisfactory professional conduct - Reprimand - Conditions placed on practice - 'In the practice of medicine' - relationship between conduct constituting an offence and the provision of professional services - "prohibited person " classification places restriction on the practice of medicine which is conduct relating to the practice of medicine - good character - defect of character LEGISLATION CITED: Medical Practice Act 1992 ss 127B , 39(a), 64(1)(c), 36 & 37
Crimes Act 1900 (NSW) s91H(3)
Criminal Code Act 1995 (Clth) s474
Child Protection (Offenders Registration) Act 2000 (NSW)CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 362;
Diretor-General, Department of Community Services; re Sophie [2008] NSWCA 250;
In re Dr Abraham Stephanopoulos [2006] MPBV 12;
A Solicitor v Council of the Law Society refer to judgment of the High Court [2004] HCA 1 @ para 33;
Ziems v The Prothonotary of the Suprme Court of NSW (1957) 97 CLR 279;
HCCC v Wingate [2007] NSWCA 326;
Roylance v The General Medical Council [1999] UKPC 16;
Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 QB 1;
NSW Bar Association v Cummins [2001] NSWCA 284;
In re James Benedict Anton Provan [2005] PRBD (Victim) 3;
ex parte Tziniolis: re Medical Practitioners Act (1966) 67 SR(NSW) 448;
HCCC v Karalasingham [2007] NSWCA 267;
McBride v Walton (unreported NSWCA 15th July 1994);
In the matter of Roderick Doyle Motum; Medical Tribunal of NSW 4013 of 1999DATES OF HEARING: 22.3.2010 to 23.3.2010 DATE OF JUDGMENT: 29 April 2010 LEGAL REPRESENTATIVES: G Farmer of Counsel
R Lewis Solicitor - Health Care Complaints Commission
G Butler
D Brown Solicitor - Browns Legal and ConsultingORDERS: 1.The respondent be subject to a reprimand; Practice Conditions; 2.The respondent's registration as a medical practitioner be subject to the following conditions; (i)the respondent must not attend, treat or perform procedures on patients under 18 years of age.; (ii)The practitioner may provide treatment to a person under the age of 18 years in the event of a medical emergency and where it is not possible or reasonable to have a patient with a serious or life-threatening or urgent condition treated by another medical practitioner or transferred to the nearest hospital. If any such even occurs, the practitioner must notify the NSW Medical Board with 7 days and provide details of the event to the NSW Medical Board and any other information as requested by the NSW Medical Board; (iii)To obtain the approval of the NSW Medical Board prior to commencing practice or changing the nature or place of practice; 3.Within 14 days of these orders, the respondent nominate a psychiatrist with expertise in sexual offending and dysfunction and will attend for treatment at a frequency to be determined by the psychiatrist. The respondent to authorise the nominated treating psychiatrist to notify the NSW Medical Board in the event that the respondent fails to attend for treatment as arranged, terminates treatment or if there is a significant change in the respondent's health; 4.The respondent to attend a psychiatrist nominated by the NSW Medical Board for risk assessment prior to any Board interview or as directed by the NSW Medical Board. The NSW Medical Board to bear the expense of the respondent's attendance on the psychiatrist; 5.The NSW Medical Board may notify the respondent's employer/s of any issues arising in relation to his compliance with these conditions; 6.The respondent to authorise the NSW Medical Board and consents to any exchange of information between it and Medicare Australia where the exchange is necessary to facilitate the monitoring of compliance with these conditions; 7.The respondent authorises the NSW Medical Board to provide a copy of the Medical Tribunal Reasons for Determination to any treating practitioners and any reports that the NSW Medical Board considers appropriate; 8.The respondent provide a copy of the Practice Conditions signed by his employer within 7 days of these orders and within 7 days of the commencement of any employment; 9.The NSW Medical Board to be the review body in relation to these conditions; 10.The respondent to provide a copy of the Medical Tribunal's reasons for Determination in this matter to his employer and/or employees; 11.The respondent pay the costs of the hearing
JUDGMENT:
THE MEDICAL TRIBUNAL Thursday 29th April 2010
OF NEW SOUTH WALES
AT SYDNEY
No. 40019 of 2009
BETWEEN
Health Care Complaints Commission
Applicant
Dr Alex Amadeus SIMRING
Respondent
Deputy Chair: Judge A M Ainslie-Wallace
Members: Dr Peter Anderson
Dr John Sammut
Ms Geri Ettinger
1 1 By a Notice of Complaint dated 29th May 2009, the Health Care Complaints Commission (the ' complainant ') brings three complaints against the respondent. The complaints relate to the respondent's conviction in June 2008 of two charges of possessing and accessing child pornography.
Complaint 1
The practitioner has been convicted of offences:
Particulars:
- On 5th June 2008 in Sydney, the practitioner was convicted of two offences namely:
(a) one count of possession of child pornography on 2nd March 2007 contrary to section 91H(3) of the Crimes Act 1900 and;
(b) one count of using a carriage service to access child pornography on 2nd March 2007 contrary to section 474.19(1)(a)(i) of the Criminal Code Act (Cth) 1995.
Complaint 2
The practitioner has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Medical Practice Act in that he has:
(i) demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
(ii) contravened a provision of the Act; and/or
- (iii) engaged in improper or unethical conduct relating to the practice of medicine.
Particulars:
1. on 2 March 2007 the practitioner possessed child pornography;
2. on 5 June 2008 the practitioner was convicted of one count of possession of child pornography contrary to section 91H(3) of the Crimes Act 1900 and one count of using a carriage service to access child pornography contrary to section 474.19(1)(A)(i) of the Criminal Code Act (Cth) 1995.
3. the practitioner contravened section 127B of the Medical Practice Act 1992 in that the practitioner failed to notify the Medical Board in writing within seven days of 5 June 2008 that the practitioner had been convicted of two offences and the penalties that had been imposed upon him for those offences.
Complaint 3
The practitioner is not of good character
(the complainant relies on the respondent's convictions as particularising this Complaint.)
Standard of Proof
2 The Tribunal must be satisfied as to the matters complained of on the balance of probabilities. In approaching the proof of the complaints, the Tribunal applies the " Briginshaw " test. While this does not mean that some higher test than that applicable to other matters where proof is to be found on the balance of probabilities, the Tribunal is required to have regard to:
"The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the Tribunal". (1)
3 In Director-General, Department of Community Services; re Sophie [2008] NSWCA 250, the court considered the balance of proof where the " Briginshaw test " applies and said at paragraph 68:
"As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly."
Child pornography convictions
4 On 5th March 2007 police executed a search warrant at the respondent's home and a computer, hard drive and other media storage devices were seized. Police found approximately 30,000 images and hundreds of video files of a pornographic nature. " All images depicted teenage girls in various sexual poses and performing sexual actions with sex toys or with other females or adult men. "(2) Of that number 2,500 images and 150 videos formed the basis of a charge of possessing child pornography contrary to section 91E of the Crimes Act NSW and 11,500 images and multiple videos formed the basis of the Commonwealth charge of using a carriage service to access child pornography contrary to section 474.19(1)(a)(i) of the Criminal Code Act (Cth) 1995 .
5 A scale has been created for classifying child pornography. COPINE (Combating Paedophile Information Networks in Europe) classifies child pornography into 10 categories. Category 1 applies to images of children in non-erotic, non-sexualised poses in normal settings but which through organisation or context indicates inappropriateness. Category 10 relates to images of children involved in situations of a sadistic or bestial nature.
6 In setting sentence the magistrate found (and it was not disputed between the parties) that 80% of the images comprising the criminal charges fell within categories 4,5 and 6 of the COPINE scale and 20% within category 7. (3)
7 7 The 2,500 images and videos concerned with the possession charge (which included animated images) depict a person (in this case female) who is or who appears to be under the age of 16. The 11,500 images and many videos comprehended in the Commonwealth charge depict females who are or who appear to be between 16 and 18 years. The magistrate noted that amongst these images was a small number of images in which two girls apparently aged between 16 and 18 are engaged in fellatio and penis-vaginal intercourse with adult men.
8 None of the images depicted girls under the age of 12.
9 On the State charge of possessing child pornography, the respondent was sentenced to 9 months imprisonment and on the Commonwealth charge, a sentence of 4 months imprisonment. Each sentence was suspended. On being convicted, the respondent became a " registrable person " (4) and his name is included in the Register of people in respect of whom a conviction of a " Child Protection Offence " has been recorded. The effect of his inclusion on the Register means that the offender is prohibited from engaging in " child related employment ". (5) Child related employment is extensively defined in the Act (6) and means any employment that:
"...primarily involves direct contact with children where the contact is not directly supervised by a person having the capacity to direct the person in the course of the employment".
10 The respondent was charged in July 2007, entered a plea of guilty in April 2008 and was sentenced on 5th June 2008.
Response of the Medical Board
11 The first the NSW Medical Board (the ' Board ') knew of the respondent's conviction was on 6th July 2008 through an enquiry from the press. On 15th July 2008 the Board contacted the respondent who confirmed the fact of convictions. The next day an article appeared in the Sydney Morning Herald. On the 16th July 2008 the State Crime Command of the NSW Police notified the Board of the respondent's conviction and that he was, as a result, on the Child Protection Register.
12 The Board convened an inquiry pursuant to section 66 of the Medical Practice Act . Before the Inquiry was convened the Board required the respondent to attend its nominated psychiatrist, Dr Stephen Allnutt. The respondent attended as directed and Dr Allnutt made a number of reports on his contact with the respondent.
13 The Section 66 Inquiry took place on 19th August 2008. At the conclusion the delegates determined that it was appropriate for the protection of the public interest that the respondent be permitted to continue practising with conditions.
14 The conditions required (inter alia) that the respondent not provide treatment as a medical practitioner to persons under the age of 18 years; that he nominate and meet with a clinical supervisor; attend for treatment by a psychiatrist nominated by him and expert in the treatment of sexual offenders and attend a Board nominated psychiatrist.
Respondent's background
15 The respondent was born on 16th July 1972. He is the eldest of four children, three of whom are medical practitioners. He describes his family as one in which hard work and academic achievement was encouraged.
16 The respondent graduated MB BS from the University of NSW in 2001 and was first registered in January that year as an intern. He worked as an intern and resident at Concord Hospital in 2001 and 2002 and completed physician training at that hospital. In 2004 he was admitted as a Fellow of the Royal Australian College of Physicians. Between 2005 and the end of 2007 he worked as Gastroenterology Registrar at two hospitals. The respondent finished his training in Gastroenterology in January 2008. He stopped working then and did not re-commence work until 19th August 2008. He conducts his practice as a gastroenterologist from a number of places in Sydney and his work involves clinical consultation and endoscopic procedures. In accordance with the conditions imposed by the Board, he is supervised by Dr George Daskalopoulos and Dr Don Paddison at present. His practice treats adults only.
17 The respondent said that he was first exposed to pornography at 14 through what he described as "hard core" pornography collected by his father. He described the content as being " teen " pornography. He did not regard this as unusual. He has maintained an interest in pornography from that time.
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The psychiatric evidence
22 After being charged the respondent consulted Emma Collins, a psychologist specialising in sexual offending. He saw her on a number of occasions both before and after the criminal proceedings. Her treatment plan for him was to introduce behavioural controls, address cognitive distortions and develop victim empathy. The respondent was responsive and compliant with the therapy.
23 She believed that the respondent's access to pornography during his adolescence had normalised access to pornography for him. He had used the internet to access pornography as a means of dealing with anxiety and symptoms of depression.
24 Ms Collins said that over the therapy sessions the respondent's depression reduced, he developed insight into his behaviour and learned techniques to reduce triggers that might lead to his accessing pornography.
25 The respondent also consulted Dr Olaf Nielssen a psychiatrist with expertise in sexual offending and dysfunction. Dr Nielssen said that the respondent did not have a psychiatric condition. He said his offending was behavioural.
26 The respondent told Dr Allnutt that he continues to fantasise about teenaged girls and Ms Collins believed that his interest in young teens waxes and wanes.
27 All experts said that the respondent represented a low risk of re-offending by accessing child pornography. Dr Neilssen said that while he may maintain an interest in young teen girls, the respondent was unlikely to re-offend because he had engaged in treatment and had experienced the catastrophic personal and professional consequences of his behaviour. He believed that this has and will continue to deter him from acting on his interest in accessing child pornography. Essentially any risk of the respondent re-offending depends on whether he can curb his behaviour in the future.
28 The expert opinion is that the respondent does not have a psychiatric illness but has a hebephilic interest, an interest in pubescent girls. The Tribunal accepts that the respondent's attraction to and interest in pubescent girls is behavioural rather than reflective of a psychiatric illness.
29 There is evidence that leads the Tribunal to the view that the respondent himself realises the destructive and abusive nature of the images to the victims. When asked about Dr Nielssen's report in which he was said to have categorised the images as "nudity and fashion shots", the respondent denied he had used those words and said that that description:
"...lowers the impact of what this is....I think that completely minimises what my images were....they're clearly sexual images....involve material which is abusive." (7)
30 The Tribunal finds that the respondent's acceptance of the gravity of his conduct, the acknowledgement that the images themselves are abusive, the therapy and the consequences of the conduct to him are such as to deter him from re-offending by accessing child pornography.
31 No expert considered that the respondent was at risk of escalating his conduct to actual, abusive conduct against a child.
32 Dr Nielssen suggested that the respondent should continue to see a psychiatrist with expertise in sexual dysfunction and offending. He thought it would be prudent in light of the respondent's history of depression and vulnerability and could also serve as a reminder to him of the consequences of a lapse in self-control.
Complaint 1
The practitioner has been convicted of offences
33 Section 39(a) of the Act provides that a complaint may be made that a medical practitioner has been convicted of a criminal offence. Section 64(1)(c) provides that a Tribunal, on being satisfied that the practitioner has been convicted of a criminal offence, may suspend or deregister the practitioner if satisfied:
"That the person has been convicted of...an offence...and the circumstances of the offence render the person unfit in the public interest to practise medicine."
Nature of the offence
34 34 The determination of this issue requires a consideration of the conduct behind the conviction not merely the conviction itself. The respondent had accessed pornography at least since becoming an intern in 2001. Over years he became more and more attracted to young adolescent girls.
35 The respondent purchased and down-loaded images, saved them, in effect, as a collector and would, from time to time, go over the collection and review the images.
36 The respondent accessed internet pornography sites at least once a week, sometimes more, and purchased down-loads from sites. When he purchased images as down-loads he would receive a folder of images as a zip file which would not necessarily indicate the contents on its face. However, when the file was opened it would display an image, or images, with a description of the content. The respondent said that the descriptions were fairly accurate and at the time he opened the zip file he had a good idea of what was in the file. He was asked:
"So it wasn't as though the contents of those zip files somehow surprised you by including in them material which was clearly of children under the age of 16?
to which he answered:
"that's true". (8)
37 It appeared to the Tribunal that the respondent's concession of knowing the images he downloaded were illegal came slowly.
38 38 He was asked when he came to accept that the images he had been buying and viewing were of girls apparently under 16. He said:
"I think I might have thought at that stage that there could be people under the age of 18 but not under 16."(9)
Later in his evidence he said that at the time he was viewing the images he:
"...hoped that they were 18 years old". (10)
He said that he had a sense of disquiet that some of the images were of girls under 18 and said that he was:
"...well and truly addicted to using the internet. I'd lost perspective in what I was doing..." (11)
39 Before the respondent pleaded guilty to the charges he sought expert advice about the apparent ages of the girls depicted in a selection of the images. The expert advised that the selection contained images of children who he thought definitely appeared to be under 18: " probably between 16 to 18 ". After receiving this advice the respondent offered to plead guilty.
40 The respondent's solicitor and the prosecutor then considered all of the images the respondent downloaded. They agreed that amongst the images not shown to the expert were girls clearly under 16. The respondent said that his solicitor said to him:
"look they're clearly under 16 to me".
The respondent was asked:
"How far under 16 do you say they were?"
he said:
"I would say that they were probably as young as 14 years old."
41 It is to be observed that this opinion was not from an expert but was the joint view of the respondent's solicitor and the prosecutor. The Tribunal finds it difficult to imagine that the respondent was not well aware that some of the images he was accessing were of children apparently under 16.
42 The agreed facts on which the respondent was sentenced on the charge of accessing child pornography were that of the 33,000 images stored on his computer, 2,500 were of children apparently under the age of 16. The respondent accepted that he had accessed and viewed images of children apparently under the age of 16.
43 The Tribunal finds that there was ample information available to the respondent that if it did not alert him to the fact that he was accessing images of children apparently under 16, it ought to have. Perhaps the respondent preferred not to think about it, as he said: (12)
"And so I thought, I sort of hoped that they may, in fact turn out to be legal images."
44 The Tribunal finds that the respondent well knew at some level that the images he accessed were not all of young looking 18 years olds, but in something of a triumph of self delusion, perhaps with some distortion of view coming from long term use, he nevertheless continued to access it shutting his eyes to the gravity of his conduct.
45 The respondent was aware that his conduct could have serious implications on his professional life, yet chose to continue.
46 The conduct was not an isolated incident or passing occurrence. It stopped when he was arrested and charged.
47 The Tribunal finds that the nature of the respondent's criminal offending was of a serious order.
48 It is important too to consider the crime itself. It might be argued that in the realm of these types of offences, the respondent's conduct fell towards the lower end of the scale of objective gravity. However, at whatever level of criminality, possession and accessing child pornography involves the facilitation and encouragement of the violation and exploitation of children. The children in the images are the victims of abuse as much as those who are preyed upon in other circumstances. Each viewing of a child is considered an act of abuse. The public rightly regard this crime as reprehensible. The maximum penalties attending this type of offence reflect the Legislature's view of its seriousness.
49 The Tribunal accepts the professional opinion that there seems to be minimal risk that the respondent will escalate his interest in young, adolescent girls and commit what has been described as a " contact " or " hands on " offence.
50 The Tribunal further accepts the opinions that although the respondent still fantasises about young, adolescent girls, he is unlikely to re-offend by accessing child pornography.
51 The evidence is to the effect that the nature of the respondent's professional speciality and interest and future plans make it unlikely that he will be treating young adolescent women.
52 The question of whether the respondent will or will not re-offend is not the only question in determining fitness in this context. Equally that the respondent's practice may not bring him into contact with young girls is not determinative.
53 The respondent said that his conduct was shameful, disgraceful and reflected a defect in his character at the time. The description of the respondent's conduct is apt and of itself has the effect of diminishing the reputation and standards of the profession in the public view. The public is entitled to know that the trust reposed in medical practitioners is not misplaced. Maintenance of standards and reputation is important in giving the public that confidence. Both are important aspects in considering the respondent's fitness to practise.
54 In Re Dr Abraham Stephanopoulos (13) the Panel of the Medical Practitioners Board of Victoria considered whether the practitioner was unfit to practise by reason of his conviction for possessing and accessing child pornography. The Panel referred to the matter of Pritchard in which the practitioner's fitness was considered by the General Medical Council (14) and where it was said that the practitioner's conduct:
"...undermines public confidence in the medical profession and damages its reputation. The public are entitled to expect that a registered medical practitioner will conduct himself or herself in a professional manner, even when the doctor's actions do not directly affect patients....
Dr Pritchard has demonstrated conduct that is fundamentally incompatible with being a registered medical practitioner. Any conviction for child pornography against a registered medical practitioner is a matter of grave concern because it involves such a fundamental breach of patient's trust in doctors."
55 The concept of qualities incompatible with professional practice was expressed by the Court of Appeal in A Solicitor v Council of the NSW Law Society .(15) In Ziems the court regarded a practitioner to be unfit if he has a defect incompatible with membership of a self-respecting profession. (16)
56 The Tribunal must consider whether the circumstance of the commission of the offence and the other matters to which we have referred, lead to a finding that, in the public interest, the respondent is not fit to practise medicine.
57 The respondent conceded that his conduct, a sexual interest in pubescent girls, represented a defect in his character. It was this that led to his criminal offending. It is not necessarily the fact of a defect in character which determines fitness but whether the respondent is likely to act on it in criminal or antisocial ways in the future.
58 Although the evidence supports a finding that there is a low risk of the respondent re-offending by accessing pornography and a minimal risk of him committing an act of abuse against a young person, the Tribunal will impose a condition on his right to practise that he not treat any person under the age of 18 years.
59 The Tribunal is of the view that this is a course that will maintain public confidence in the profession. While professional opinion in this matter assesses the risk of further offending as being low, a member of the public being aware of the respondent's convictions but not being aware of the background details of the case may not feel as confident.
60 The condition will reinforce the statutory prohibition imposed on the respondent by reason of his becoming a " prohibited person" .
61 In all of the circumstances, the Tribunal finds that, subject to the interest of the condition that restricts his access to patients over 18 years, the respondent is not unfit to practise in the public interest.
Complaint 2
62 Complaint 2 alleges that the respondent has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of section 36 and 37 of the Medical Practice Act . The particulars are that he has:
(i)demonstrated that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or
(iii) engaged in improper or unethical conduct relating to the practice of medicine.(ii) contravened a provision of the Act; and/or
63 Despite criticism by the Court of Appeal of the way in which complaints are drawn by the complainant, (17) the particulars asserted some want of knowledge, skill or judgment possessed or care exercised by the respondent in the practice of medicine. No argument was addressed to this particular. The focus of the argument was that the respondent had conducted himself in an improper or unethical way relating to the practice of medicine and as to his breach of a regulation.
(iii) engaged in improper or unethical conduct relating to the practice of medicine
64 The complainant argued that the respondent's conduct, although wholly concerned with his private life, was of a character and seriousness sufficient to bring it into the realm of his professional practice.
65 This issue was agitated in Wingate (18) where the practitioner had been convicted of possession of child pornography. The Tribunal in that case was urged to find that he was guilty of professional misconduct. The Tribunal rejected the submission finding that the conduct was neither in nor relating to the practice of medicine and so did not fall within any part of section 36 of the Act . (19)
66 There has been discussion in the authorities about the point at which personal behaviour can amount to professional conduct. In Roylance (20) the court considered the observation of Lord Parker CJ: (21)
- "But if conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession..."
67 In Childs v Walton (22) the court considered the term " in the practice of medicine ". Samuels JA said that the term:
It need not be conduct which occurs in the course of treating a patient. The only requirement is that it must demonstrate one of the specified deficits. It is often risky to construe by paraphrase, but in this case I think it is accurate to say that (the section) contemplates conduct by a practitioner that demonstrates his or her lack of one or more qualities indispensable to the practitioner of medicine.""...does not circumscribe the period during which the conduct impugned must occur if it is to be capable of satisfying the prescription; it is its nature. The conduct must be such as to demonstrate the lack of a quality (eg adequate knowledge) necessary in the practice of medicine. The conduct is the vehicle by which a specified defect is revealed. Hence the act of omission constituting the conduct...need not occur while the relationship of doctor and patient exists between a complainant and the practitioner. It may occur at any time.
68 In A Solicitor v Council of the NSW Law Society (23) the High Court considered the line between personal and professional conduct and said that conduct not directly engaged in the course of professional practice may be so connected to that practice as to amount to professional misconduct. The court held that the commission of acts of indecency on two young girls by the solicitor did not occur in the course of his profession and had no connection with that practice. (24)
69 Spiegelman CJ in NSW Bar Association v Cummins (25) discussed the extent to which personal conduct can be said to reflect on professional conduct:
- "There is authority in favour of extending the terminology "professional misconduct" to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of "professional misconduct" overlaps with and, usually it is not necessary to distinguish it from, the terminology of "good fame and character" or "fit and proper person".
70 70 In re James Benedict Anton Provan (26) a psychologist had been convicted of possession of child pornography. The Disciplinary Panel found that his conduct was attended by a " high level of immorality, outrageousness and disgracefulness " and, because it concerned children, was particularly serious. The Panel considered that the psychologist's offending although conducted privately was:
"...regarded sufficiently seriously within the community and by the courts as to constitute conduct with professional ramifications".
71 Clearly minds may differ and have, as to the point at which private conduct can amount to conduct in a professional sense.
72 In the appeal in Wingate , when discussing the issues raised, Basten JA (27) noted that on being convicted of the offence the practitioner became a " prohibited person " and was thus affected by the various laws regulating the conduct of prohibited persons. (28)
73 In his analysis of the effect of the various laws on Dr Wingate, his Honour found two conclusions to flow; there is a presumption that a prohibited person "poses a risk to the safety of children" and that the very extensive definition of "child-related employment" involves the provision of personal services to children. He concluded: (29)
- "Accordingly, there is presumed to be a relationship between conduct constituting an offence of a relevant kind and the provision of professional services in health, education, transport, child protection, recreation and 'other support services'."
74 74 Although not necessary to the determination of the appeal in Wingate, his Honour said:
"One consequence which might have followed from that understanding was that the conduct resulting in the conviction should have been treated as improper conduct "relating to" the practice of medicine so as to constitute unsatisfactory professional conduct within s36(1)(m) of the Medical Practice Act. That might have resulted in the first complaint being upheld."
75 The Tribunal is of the view that the conduct of the respondent in accessing and possessing child pornography, while done in his private life, by reason of its seriousness and reprehensible nature demonstrates an absence of qualities compatible with professional practice.
76 The Tribunal further finds that the terms and effect of the legislative conditions by which the respondent is now bound place restrictions on his practice of medicine and is therefore conduct " relating to the practice of medicine ".
77 The Tribunal finds that the nature of the offence and the consequences of convictions is conduct that falls within s36(1)(m) of the Act .
78 It is not an answer to assert that the respondent's particular type of practice is one in which his professional contact with children will be rare. The qualities necessary to good professional practice obtain whatever the particular nature of the practice.
79 The Tribunal finds that this conduct is unsatisfactory professional conduct of such a seriousness that it amounts to professional misconduct and finds this complaint made out.
(ii) contravened a provision of the Act
80 This particular relates to the respondent's obligation to comply with section 127B of the Act .
81 Section 127B is in the following form:
- "(1) A registered medical practitioner must notify the Board in writing within 7 days after:
(a) the practitioner is convicted of an offence or made the subject of a sex/violence criminal finding for an offence....giving details of the conviction or criminal finding and penalty imposed for the offence...."
82 There was no dispute that the respondent failed to comply with his responsibilities pursuant to section 127B of the Act and failed to notify the Board of his convictions.
83 The respondent knew in January 2008 that he was obliged to notify the Board of his criminal convictions. He said that he did not know that he had to notify within 7 days of being convicted.
84 84 The respondent had discussed his obligation to notify the Board with his solicitor and others and had a plan about when he would do that. He said:
"One of the issues that I was attempting to deal with was how to repair my life and one of the things was that I did plan ultimately to try to return to practising medicine and I knew before I did that that I would need to notify the Medical Board." (30)
85 He said he needed to be ready to face the Board and he did not know when that would be. He was not "psychologically ready" to notify the Board. (31) He undertook no enquiry as to whether he had some positive obligation to tell the Board within a particular time.
86 Whatever plan the respondent had to notify the Board of his convictions, nothing was done by him or on his behalf to give notice and the Board first became aware of his convictions through press enquiries.
87 The respondent applied to be re-registered in August 2007. The application form asked the following questions:
1. Have you been convicted of an offence other than an excluded offence?
2. Has a criminal finding for a sex/violence offence been made against you?
3. Has a criminal finding been made against you for an offence committed in the course of the practice or purported practice of medicine (other than an excluded offence)?
4. Are any criminal proceedings pending against you for a sex/violence offence alleged to have been committed in the course of the practice or purported practice of medicine?"
88 To each of these questions the respondent answered: "no".
89 At the time that the respondent completed this application he had been charged with the offences to which he ultimately pleaded guilty. He said that he considered the questions and believed that the offences did not arise in the " practice of or purported practice of medicine " and so was not obliged to disclose the charges in answer to question 4. He sought no legal advice nor any advice from the Board or colleagues about the correctness of his interpretation.
90 His contemplation of these questions and the deliberation with which he answered them must have left the respondent in no doubt that the Board was interested in criminal convictions.
91 91 The respondent's failure to notify the Board was considered by the Section 66 Inquiry. The reasons for decision of the Inquiry observe that the respondent said that he did not know he was legally required to notify the Board and:
"...his responsibility to the Board was not in his immediate thoughts for he has not been practicing since January 2008. However he had told his lawyer and his psychologist that he would be notifying the Board." (32)
The Delegates accepted the respondent's explanation why he did not inform the Board and said:
"we do not consider that this oversight has any significance for our deliberations."
92 This comment was called in aid of a submission by the respondent that the breach of section 127B was considered by the Board as being of no moment and the Tribunal should approach it in the same way.
93 First, the purpose of the Section 66 Inquiry was of a different nature and focus than that which concerns the Tribunal. Secondly, the Delegates made it clear that the failure to inform was not significant to their deliberations, not insignificant in a general sense. Thirdly, the Tribunal had more information about the respondent's view and approach to his obligations to notify than the Delegates to the Inquiry.
94 The Tribunal does not regard the breach as either trifling or merely technical.
95 The Tribunal finds that the respondent knew he had an obligation to notify but did not inform himself of the extent of that obligation. The Tribunal does not consider it a matter of little significance. There are many obligations imposed on a medical practitioner concomitant with the very significant rights and privileges which also attend that role. The Tribunal is satisfied that it was within the respondent's contemplation that the Board would be interested in knowing that he had been convicted of these very serious offences. That he proposed to put off notifying the Board until some time when it suited him is not, in the Tribunal's view, insignificant.
96 The Tribunal is satisfied to the requisite standard that the particular is proved and in this regard the respondent is guilty of unsatisfactory professional conduct.
Complaint 3
The practitioner is not of good character.
97 The complainant alleges that the respondent is not of good character. The particulars in support of the complaint are his convictions.
98 The appropriate starting point for a consideration of good character lies in the oft-quoted passage from Ex parte Tziniolis; re Medical Practitioners Act (33) where the NSW Court of Appeal determined whether the applicant was a person of good character sufficient to be registered as a medical practitioner.
99 It was held (34) that in deciding the question of good character the court is required to:
"...consider matters affecting the moral standards, attitudes and qualities of the applicant and not merely his general reputation...we are entitled to enquire into what may be described as personal misconduct as distinct from professional misconduct in determining...whether or not the applicant is a man of good character while recognising that there may be some kinds of conduct deserving of disapproval which have little or no bearing on the question whether...an applicant for registration as a medical practitioner is a person of good character."
100 In Bannister v Walton Mahoney JA (Court of Appeal, unreported, 30th April 1992) said of good character:
"The right to practise [medicine] affords to a practitioner privileges and opportunities which are not available to others. He is expected to maintain a relationship with patients who are affected by his character. The relationship is one which touches matters such as trust, confidence, confidentiality and right conduct. Clinical capacity is by no means the only consideration to which regard is to be had in determining whether a person is appropriate to practise medicine. It is necessary that the public be protected against those who, though having the appropriate skills do not have the character for the opportunities and privileges which the right to practise gives."
101 The determination of good character was considered in McBride v Walton (unreported, NSWCA 15th July 1994). It was held that:
"To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider:
(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character;
(b) the intrinsic seriousness of the misconduct qua fitness to practise medicine;
(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character;
(d) the motivation which may have given rise to the proven episode of misconduct;
(e) the underlying qualities of character shown by previous and other misconduct; and
(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner."
102 The question of good character is to be determined at the time of the hearing. ( Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR (NSW) 448). It has no special or technical meaning but the words bear their ordinary meaning. ( HCCC v Karalasingham [2007] NSWCA 267 at 45 per Basten JA).
103 Reputation, while important is neither the sole nor principal determinant.
104 Of particular importance in this matter is that which was said by the Tribunal in Motum: (35)
"The Tribunal considers that for a person to be of good character for the purposes of the practice of medicine as a registered medical practitioner, it is imperative that his or her character be such that he or she will not deliberately do any harm to another person...."
105 Friends and colleagues of the respondent submitted affidavits to the Tribunal to the effect that they regard the respondent as being a person of good character, professional in his attitudes and practice. The Tribunal accepts that he is regarded by these people, and no doubt others, as being a person of good character. However the very nature of his offending was that it was clandestine, committed in private and not openly discussed. In those circumstances, opinions about public conduct carry less weight than they might in other cases.
106 The Tribunal is satisfied that at the time of offending the respondent had an awareness, perhaps not as complete as he does now, that child pornography is an abuse of the children portrayed and does them harm. It is clear that through counselling and reflection, he now understands the caustic harm caused to children by child pornography of all types, not merely that at the worst level.
107 The respondent's conduct in accessing and possessing child pornography was not an isolated incident, it persisted over years and only ceased when he was arrested. It could not properly be said to arise from a lapse in judgment, rather it was driven by the respondent's sexual interest in young adolescent girls; as he conceded a defect in character.
108 The Tribunal is satisfied that apart from this criminal offending, the respondent has not been shown to have engaged in misconduct in the past.
109 The conduct was of a very serious order. There could be little argument in the Tribunal's view that the respondent was not a person of good character. The issue to be resolved by the Tribunal is whether he has reformed himself to the extent that he could properly regarded as a person of good character sufficient to have reposed in him the trust and confidence associated with the practice of medicine.
110 In all of the circumstances of this case, the Tribunal finds that the respondent is a person of good character sufficient to permit him to continue to practise medicine. The reformation of character is continuing and all of the evidence demonstrates that the respondent has embraced therapy and is demonstrating an understanding of the nature and effect of his offending towards rehabilitation.
111 The Tribunal does not find this complaint made out.
Discussion
112 The jurisdiction of the Tribunal is a protective not a punitive one. The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in protection of the community and also to protect the good standing and reputation of the profession. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way.
113 In determining how to give effect to the Tribunal's protective functions appropriate to the matters found made out, the Tribunal is of the view that in relation to Complaint 2, having found the respondent guilty of professional misconduct the respondent should be subject to a reprimand and will impose conditions on his right to practise. In respect of his breach of the obligations imposed by section 127B, the Tribunal will order the respondent be reprimanded.
Orders
Having found the respondent guilty of professional misconduct and unsatisfactory professional conduct, the Tribunal orders:
1. The respondent be subject to a reprimand
Practice Conditions:
2. The respondent's registration as a medical practitioner be subject to the following conditions:
(i) the respondent must not attend, treat or perform procedures on patients under 18 years of age.
(ii) The practitioner may provide treatment to a person under the age of 18 years in the event of a medical emergency and where it is not possible or reasonable to have a patient with a serious or life-threatening or urgent condition treated by another medical practitioner or transferred to the nearest hospital. If any such even occurs, the practitioner must notify the NSW Medical Board with 7 days and provide details of the event to the NSW Medical Board and any other information as requested by the NSW Medical Board.
(iii) To obtain the approval of the NSW Medical Board prior to commencing practice or changing the nature or place of practice.
3. Within 14 days of these orders, the respondent nominate a psychiatrist with expertise in sexual offending and dysfunction and will attend for treatment at a frequency to be determined by the psychiatrist. The respondent to authorise the nominated treating psychiatrist to notify the NSW Medical Board in the event that the respondent fails to attend for treatment as arranged, terminates treatment or if there is a significant change in the respondent's health.
4. The respondent to attend a psychiatrist nominated by the NSW Medical Board for risk assessment prior to any Board interview or as directed by the NSW Medical Board. The NSW Medical Board to bear the expense of the respondent's attendance on the psychiatrist.
5. The NSW Medical Board may notify the respondent's employer/s of any issues arising in relation to his compliance with these conditions.
6. The respondent to authorise the NSW Medical Board and consents to any exchange of information between it and Medicare Australia where the exchange is necessary to facilitate the monitoring of compliance with these conditions.
7. The respondent authorises the NSW Medical Board to provide a copy of the Medical Tribunal Reasons for Determination to any treating practitioners and any reports that the NSW Medical Board considers appropriate.
8. The respondent provide a copy of the Practice Conditions signed by his employer within 7 days of these orders and within 7 days of the commencement of any employment.
9. The NSW Medical Board to be the review body in relation to these conditions.
10. The respondent to provide a copy of the Medical Tribunal's reasons for Determination in this matter to his employer and/or employees.
11. The respondent pay the costs of the hearing.
Endnotes
1 Briginshaw v Briginshaw (1938) 60 CLR 362
2 Reasons for sentence page 2; page 47 Ex A
3 Category 4. posing (deliberate posing suggesting sexual content), 5. Erotic posing (deliberate sexual or provocative poses), 6. Explicit erotic posing (emphasis on genital area) and 7 Explicit sexual activity not involving an adult.
4 Section 3A Child Protection (Offenders Registration) Act 2000
5 Commission for Children and Young People Act 1998 (NSW) as amended in 2007
6 section 33(1)(a)
7 transcript 23.3.10 page 106.20
8 transcript page 13.30
9 transcript page 17.48
10 transcript page 32.21
11 transcript 22.3.10 page 12.9
12 23.3.10 transcript page 11.19
13 [2006] MPBV 12
14 unreported Fitness to Practice Committee 6th May 2005
15 ref in judgment of High Court [2004] HCA 1 at paragraph 33
16 Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 per Kitto J at page 298
17 HCCC v Wingate [2007] NSWCA 326 and HCCC v Karalasingham [2007] NSWCA 267
18 [2007] MSWMT 2 and considered but not decided in HCCC v Wingate [2007] NSWCA 326
19 at paragraph 53
20 Roylance v The General Medical Council [1999] UKPC 16 at paragraph 43
21 Marten v Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1QB 1
22 unrep CA 4025/90 delivered 13th November 1990
23 [2004] HCA 1 paragraph 20
24 at paragraph 31
25 [2001] NSWCA 284 at paragraph 56
26 [2005] PRBD (Victim) 3
27 [2007] NSWCA 326 at paragraph 71 ff
28 It was accepted in the appeal and appears to be the case in this matter, that the respondent will remain a " prohibited person " unless an order is made to the contrary.
29 at paragraph 72
30 22.3.10 transcript page 26.13
31 transcript page 27.9
32 Exhibit A page 79
33 (1966) 67 SR (NSW) 448
34 per Walsh JA at 451 and 452
35 In the Matter of Roderick Doyle Motum, Medical Tribunal of NSW 4013 of 1999
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