Health Care Complaints Commission v Kristin Scott Stoker
[2011] NSWSC 960
•25 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Kristin Scott Stoker [2011] NSWSC 960 Hearing dates: 25/07/2011 Decision date: 25 July 2011 Jurisdiction: Common Law - Administrative Law Before: Brereton J Decision: Set aside decision of Chiropractors Tribunal of New South Wales.
Upon Kristin Scott Stoker undertaking to the court that he will agree to the imposition by the Chiropractor's Board on his entitlement to practice of a condition for a period of two years from 25 August 2010, that when assessing or treating any female patient under 45 years of age there must be present in the treatment room for the duration of the visit an adult female person, unless the patient is accompanied by any person or guardian who is male and the patient consents to that person being present, dismiss the appeal from the Chiropractor's Tribunal of New South Wales decision on Complaint One.
Dismiss the appeal from the Chiropractor's Tribunal of New South Wales decision on Complaint Two.
Uphold the appeal from the Chiropractors Tribunal of New South Wales decision on Complaint Three. In lieu thereof, pursuant to (NSW) Health Practitioners Regulation National Law (NSW) No 86a, s 162A, substitute a finding that in that respect Kristin Scott Stoker was guilty of unsatisfactory professional conduct. Determine that it would be inappropriate to exercise any power under Chiropractors Act , s 50 and s 51, in respect of that finding.
Order that the Health Care Complaints Commission pay Kristin Scott Stoker's costs of the appeal.
Catchwords: MEDICAL PROFESSION - Appeal from decision of Chiropractors Tribunal on point of law - powers of Tribunal conditional upon finding chiropractor convicted of a criminal offence and circumstances of offence such as to render chiropractor unfit in the public interest to be registered - Tribunal did not find chiropractor so unfit - no power to impose condition - error of law - conditions imposed on professionals - conditions do not necessarily entail professional unfit to practice - conditions may be imposed to secure and maintain public confidence in the profession
MEDICAL PROFESSION - Whether chiropractor not of good character - error of law established only if tribunal bound to conclude on facts chiropractor not of good character of if it misapprehended its task - failure by chiropractor to notify Board of conviction within requisite time - notification only one working day late - cannot inform judgment not of good character - impact of criminal convictions - convictions do not necessarily mean professional unfit to practice - crime committed at lower end of scale of criminal wrongdoing - failure of chiropractor to admit wrongdoing before Local and District Courts and Tribunal - many reasons people do not admit wrongdoing - Tribunal took matter into account - no error of law.
MEDICAL PROFESSION - Unsatisfactory professional misconduct under (NSW) Chiropractors Act s 25 - notification to Chiropractors Board of criminal conviction one day late - technical breach of Act constituting professional misconduct - triviality of breach entails no need for consequential order.Legislation Cited: (NSW) Chiropractors Act 2001, s 21, s 25, s 26, s 50, s 51
(NSW) Crimes (Sentencing Procedure) Act 1999, s 10
(NSW) Health Practitioner Regulation National Law (NSW) No 86a, s 162, s 162A, cl 4(3) Sch 5A
(NSW) Health Practitioner Regulation Amendment Act 2010
(NSW) Summary Offences Act 1988, s 5Cases Cited: A Solicitor v Council of the Law Society of New South Wales (2002) 216 CLR 253
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Ex parte Tziniolis; Re The Medical Practitioners Act (1967) 84 WN (NSW) (Pt 2) 275
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Care Complaints Commission v Stoker [2010] NSWCHT
Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323
Hope v The Council of City of Bathurst (1980) 44 CLR 1
In the Matter of Alger Hiss (1975) Mass 333 N.E.2d 429
McBride v Walton [1994] NSWCA 199
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
Smith v New South Wales Bar Association (1992) at 176 CLR 256
Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279Category: Principal judgment Parties: Health Care Complaints Commission (plaintiff)
Kristin Scott Stoker (defendant)Representation: Ms S McNaughton (plaintiff)
Mr K Dailly (defendant)
Ms Karen Mobbs (plaintiff)
Collins and Thompson Solicitors (defendant)
File Number(s): 2010/316872
Judgment (ex tempore)
HIS HONOUR: The defendant Kristin Scott Stoker ('the Chiropractor'), is a registered chiropractor against whom, on 12 October 2009 the plaintiff Health Care Complaints Commission ('the Commission') made a complaint to the Chiropractors Tribunal ('the Tribunal') containing three counts, with corresponding particulars, as follows:
Complaint One
The practitioner has been convicted of an offence and the circumstances of the offence are such as to render the chiropractor unfit in the public interest to be registered as a chiropractor:
Particulars
On 18 May 2007 in Sydney, NSW, the chiropractor was convicted of one count of exposing his person in or within view from a public place contrary to (NSW) Summary Offences Act 1988 , s 5 .
Complaint Two
The practitioner is not of good character:
Particulars
1. On 18 May 2007 the practitioner was convicted of one count of exposing his person in or within view from a public place contrary to Summary Offences Act, s 5 .
2. On 17 May 2007 at the Downing Centre Local Court, whilst giving evidence under oath at the hearing of the prosecution of himself for the offence of wilfully and obscenely exposing his person within view from a public place, in contravention of Summary Offences Act, s 5, the practitioner falsely denied that he had so wilfully and obscenely exposed his person on 26 September 2006 at North Sydney.
3. Contravened (NSW) Chiropractors Act, s 21(1)(a), by failing to notify the Board (being the Chiropractors Registration Board ('the Board') as constituted under (NSW) Chiropractors Act 2001, Pt 7) in writing within 7 days after conviction;
a. On 18 May 2007 the practitioner was convicted of one count of exposing his person in or within view from a public place contrary to Summary Offences Act, s 5;
b. On 28 May 2007, the Board received a letter dated 27 May 2007, from Ian Byrne lawyer for the practitioner advising the Board of the conviction.
Complaint Three
The practitioner has been guilty of unsatisfactory professional conduct contrary to Chiropractors Act, s 25 Act in that he has:
(i) contravened Chiropractors Act, s 21(1)(a) by failing to notify the Board in writing within 7 days after conviction.
Particulars
1. On 18 May 2007 the practitioner was convicted of one count of exposing his person in or within view from a public place contrary to Summary Offences Act, s 5 ;
2. On 28 May 2007, the Board received a letter dated 27 May 2007, from Ian Bryne lawyer for the practitioner advising the Board of the conviction.
After a hearing on 1 June 2010, the Tribunal on 25 August 2010 decided as follows:
1. The Tribunal is satisfied that Kristin Scott Stoker (the Chiropractor) was on the 18 th of May, 2007 in Sydney convicted on one count of exposing his person in or within view from a public place under the provisions of Summary Offences Act, s 5 , and Complaint One is therefore proven to the extent of the conviction. However, the Tribunal is not satisfied that the Chiropractor is unfit in the public interest to be registered as a Chiropractor.
2. The Tribunal does not find Complaint Two proven, but does find Particulars 1, 2 and 3 of Complaint Two proven. In the circumstances, and taking into account relevant considerations, the Tribunal does not find that the Chiropractor is not of good character.
3. The Tribunal does find that the Chiropractor failed to notify the Chiropractors Registration Board within 7 days after conviction but in the circumstances the Tribunal does not find Complaint Three proven that he is guilty of unsatisfactory professional conduct in relation to that failure.
4. The Tribunal imposes the following condition of registration in the interests of public safety and confidence: For a period of two years from this date the Chiropractor when assessing or treating any female patient under the age of 45 years there must be present in the treatment room for the duration of the visit an adult female person unless the patient is accompanied by a parent or guardian who is male and the patient consents.
By its summons in these proceedings, the Commission appeals to this Court alleging that the Tribunal's conclusions are wrong in law in the following respects:
1. The Chiropractors Tribunal erred in law in not finding the first complaint proved, that is, that [the Chiropractor] had been convicted of an offence, the circumstances of which rendered him unfit in the public interest to practise as a chiropractor within the meaning of Chiropractors Act, s 26(2)(a), (Repealed), because the Tribunal took into account an irrelevant consideration, that is, if the Tribunal imposed a condition upon his practice requiring him to be supervised, he was fit to practice.
2. The Chiropractors Tribunal erred in law in not finding the second complaint proved, that is, that the Chiropractor was "not of good character" within the meaning of Chiropractors Act 2001, s 26(2) (Repealed) because the Tribunal failed to take into account a relevant consideration, namely, that the Chiropractor had lied to a court under oath.
3. The Chiropractors Tribunal erred in law in not finding the third complaint proved, that is, that the Chiropractor was guilty of unsatisfactory professional conduct pursuant to Chiropractors Act, s 25(b) (Repealed) in that he failed to notify the Chiropractors Board within 7 days that he had been convicted of an offence pursuant to Chiropractors Act, s 21(a) (Repealed) when the primary facts as found by the Tribunal required that it find that the third complaint had been made out.
As Ms McNaughton, appearing on behalf of the Commission, has pointed out in her helpful submissions, the appeal is brought pursuant to (NSW) Health Practitioner Regulation National Law (NSW) No 86a, s 162, which is in a form very similar to the provisions that have applied for many years in respect of appeals from the Medical Tribunal and other disciplinary tribunals in the health sector. It relevantly provides as follows:
(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against -
(a) a decision of the tribunal with respect to a point of law; or
(b) the exercise of a power by the tribunal under subsection (6) of division 3.
In this appeal, it is chiefly, if not exclusively, subparagraph (a) of s 162 that is relevant, although during the course of argument a question about the Tribunal's exercise of power in imposing the chaperone condition referred to in paragraph 4 of its reasons has arisen.
As Ms McNaughton also points out in her submissions, the original complaint was brought under the Chiropractors Act , which Act was repealed by the (NSW) Health Practitioner Regulation Amendment Act 2010, with effect from 1 July 2010. Clause 4(3) of schedule 5A of the Health Practitioner Regulation National Law provides:
After the relevant matter has been decided under the repealed Act, any further proceedings or appeal in relation to the matter the subject of the relevant matter is to be dealt with under this Law as if the relevant matter had been decided under this Law.
The original complaint was made under the Chiropractors Act , s26, which relevantly provided as follows:
(1) A complaint may be made under this Act concerning:
(a) the professional conduct of a registered chiropractor, or
(b) the provision of a chiropractic service by a registered chiropractor
(2) Without limiting the generality of subsection (1), a complaint may be made that a registered chiropractor:
(a) has, either in or outside New South Wales, been convicted of or made the subject of a criminal finding for an offence, and the circumstances of the offence are such as to render the chiropractor unfit in the public interest to be registered as a chiropractor, or
(b) is guilty of unsatisfactory professional conduct or professional misconduct, or
(c) is not competent to practise chiropractic, or
(d) suffers from an impairment, or
(e) is not of good character.
(3) A complaint need not be made in terms that are strictly in accordance with the terminology of this section.
(4) In determining for the purposes of this Act whether a chiropractor is of good character regard may be had to conduct of the chiropractor before becoming registered as a chiropractor.
Ground 1 - Complaint 1
I turn to the first ground of appeal, which pertains to Complaint 1. It will be seen, from s 26(2)(a), that the subject matter of a complaint within that provision has two elements: first, conviction of an offence, and secondly, that the circumstances of the offence are such as to render the chiropractor unfit in the public interest to be registered.
On 18 May 2007, the Chiropractor was convicted in the Downing Centre Local Court of an offence against Summary Offences Act , s 5, of "exposing his person in or within view from a public place". The Chiropractor pleaded not guilty, and gave evidence before the Magistrate to the effect that he had not wilfully and obscenely exposed his person on 16 September 2006 as alleged, but that such exposure as had occurred was unintended and accidental.
The complainant's evidence, accepted by the Magistrate, whose decision was upheld on appeal to the District Court, was that prior to entering a jewellery shop in which the complainant (a young woman of about eighteen years of age) was working, the Chiropractor had been staring at her from outside the shop, making her feel uncomfortable. He then entered the shop, and she again felt uncomfortable. He was looking at some display cases. She picked up a piece of jewellery that had fallen to the floor, he moved, and as she was getting up she was faced with his fully exposed penis. She was shocked and fairly shortly thereafter gained the attention of a security guard.
The Chiropractor's account, not accepted by the magistrate, was that he did not stare at the complainant; that he was some four or five metres away from her, and noticed that she was looking at his groin. He said that he then apprehended that there was something awry, and realised that a small part of his penis was protruding from his trousers. He said that he did not wear underwear. He attempted to rectify the situation in the shop, and left the shopping centre in a hurried fashioned, losing his wallet on the way. Returning to the shop later to collect his wallet, he was recognised and apprehended. He said that the zipper in his trousers was faulty and had come apart from the bottom. The defect in the zipper was apparently confirmed by police when they examined his trousers later that day.
As I have said, the Chiropractor's version was not accepted by the magistrate or the District Court judge as raising a reasonable doubt. The Tribunal was bound by the conviction, and there is nothing in its reasons to indicate that it did not regard itself as so bound, nor that it endeavoured to go behind the conviction in any relevant way. The first element of the complaint was therefore established.
But the second element of the complaint - whether the offence was one that rendered the Chiropractor unfit to practice - was a matter for the Tribunal, in respect of which the conviction was far from conclusive. While conviction for some offences may not admit of doubt as to their impact on fitness, even serious offence such as manslaughter are not unambiguous in this respect. As was said by Kitto J in the context of the legal profession in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, (at 298):
A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task.
The Tribunal referred to the judgment of the Court of Appeal in Ex parte Tziniolis; Re The Medical Practitioners Act (1967) 84 WN (NSW) (Pt 2) 275, and in particular to the often cited passage in the judgment of Holmes JA (at 300-301):
Medical practitioners occupy positions of trust. An inability to withstand the importunings of the evilly disposed would disqualify, as would the propensity to exploit the gullible. These and other defects in moral fibre may not be part of a man's reputation, but evidence of these traits must be weighed in estimating character. Even these characteristics cannot be looked at in isolation. The judgment as to character must be arrived at by giving due weight to all features. Finally, the judgment must be made at the time when the court is asked to consider the application ... "Good character" is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.
In considering whether a practitioner is, within the meaning of the Chiropractors Act, "unfit in the public interest to be recognised as a chiropractor", similar considerations to those referred to by Holmes JA apply.
In forming that judgment, the Tribunal took into account the Chiropractor's background, education, work history and practice history. It also took into account that the District Court judge had found that he was of prior good character, as attested to by a significant number of witnesses. The Tribunal referred at length to the report of an eminent psychologist, Dr Lennings, who concluded that the Chiropractor had good impulse control, was in the "moderately low risk category" on a test that was a predictor of sexual recidivism, and was "a low risk" under a dynamic risk assessment. The Tribunal concluded that, while the offence was committed on 26 September 2006, the Chiropractor had been practicing as a chiropractor since that time; that the offence was an isolated incident and that the Chiropractor had not come under notice from any authority nor was there any evidence of him committing any offence of a like nature prior to or since the offence; that the District Court judge had found that the Chiropractor was otherwise of good character; and that there was no evidence before the Tribunal to suggest that, apart from the offence, the Chiropractor was not of good character.
At paragraph 30 of its judgment, the Tribunal concluded:
The Tribunal finds that Complaint One proven to the extent of the Chiropractor having been convicted of an offence, however, with a condition on practice, finds that the practitioner is able to remain registered.
In other words, the Tribunal was not satisfied that the second element of the complaint was satisfied, as referred in paragraph 1 of its reasons, already set out, where the Tribunal found that it was not satisfied that the Chiropractor was unfit in the public interest to be registered as a chiropractor.
However, that conclusion appears to have been influenced by the view expressed in paragraph 30 that it could impose a condition on his practicing, as a risk mitigation strategy. The Commission challenged this on two grounds: first, that the Tribunal had no power to impose such a condition in the absence of a finding that the complaint was proved; and secondly, that the perceived need for such a condition bespoke unfitness.
As to the first of those matters, the powers of the Tribunal to impose a condition are the same as those of the Chiropractors Board, and are contained in and conferred by Chiropractors Act, s 51(1)(d). That provision allows the Board to "direct that such conditions relating the person's practice of chiropractic as it considers appropriate be imposed on the person's registration". Section 50 of the Act makes explicit that the powers reposed in the Board or the Tribunal by s 51 are conditional upon the Board or the Tribunal, as the case may be, having found the subject matter of a complaint of the kind referred to in s 26(2) proved.
The Tribunal did not find a complaint of that type to have been proved. What it said in paragraph 1 of its reasons is entirely to the contrary of such a finding. In those circumstances, it had no power to impose the condition that it imposed. On the other hand, in reaching the conclusion that the Chiropractor was not unfit, it took into account the circumstance that it proposed to impose that condition. In that way, I think the Commission's contention that the Tribunal's decision was infected by error of law is established.
As to the second matter, the Commission contends that the perceived requirement for a chaperone condition is inherently inconsistent with a conclusion that the Chiropractor remains fit to be registered as such, referring for that purpose to the judgment of the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, in which the following view was expressed (at 639):
The majority thus found that the appellant could not be trusted to observe proper professionals standards of his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect, the necessity for imposing such conditions on the appellant's jurisdiction demonstrated he was unfit to practise medicine. In those circumstances the only appropriate order is one dismissing his appeal.
As Ms McNaughton accepts in her submissions, it is important not to over-generalise from that statement in Litchfield . Conditions are imposed for a variety of reasons, as the Court of Appeal subsequently explained in Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323, where Basten JA said (at [62]):
In relation to the Health Care Complaints Commission v Litchfield , care must be taken, as the Commission recognised in its written submissions, in deriving a principle of over-general application from the circumstances of a particular case. It might be argued from Health Care Complaints Commission v Litchfield that a condition ought only be imposed to provide necessary protection to the patients of a practitioner, but that if such a condition is reasonably necessary, the practitioner must lack a pre-condition to entitlement to continued practise and accordingly the need to impose a condition demonstrates unfitness to practise. Clearly that reasoning is, when stated at that level of generality, fallacious. Conditions may be imposed in varying circumstances and for various purposes. The circumstances and purposes will always be important, in part because of the need for the Tribunal to be satisfied that the condition will be effective. In the present case, the practitioner had committed no misconduct of a "hands-on" kind; there had been no inappropriate conduct of a sexual kind with any patient or indeed with any non-patient.
The relevant conduct in that case was the private viewing of pornographic material involving persons under sixteen years of age. The Court of Appeal dismissed the appeal from the Tribunal's refusal to find the practitioner unfit, but imposed a restriction that he not attend, treat or perform operations on patients under eighteen years of age.
Conditions are not necessarily imposed because of a finding that there is, in their absence, a probability, or even an unacceptable risk, of inappropriate behaviour. They are often imposed as a means of securing and maintaining public confidence in the profession when the slightest doubt arises. The imposition of a condition of this kind does not necessarily bespeak that there is otherwise an unacceptable risk in allowing the practitioner to continue to practise. In this case, it is clear from the Tribunal's reasoning that it was satisfied that there was a low risk of recidivism. The Tribunal referred, in particular, to Dr Lennings' evidence that the Chiropractor presented as a low risk, but also that in the working environment of a chiropractor (which necessarily involves being alone with people and engaging in legitimate physical touching), the opportunity for recidivism was enhanced. It was to guard against that possibility - albeit one it regarded as remote - that the Tribunal imposed the chaperone condition. It reflected the Tribunal's perception that notwithstanding the low risk of recidivism, in this particular work environment, more abundant caution suggested the presence of a chaperone condition be required. To my mind, that process of reasoning does not bespeak a conclusion that the practitioner lacked the necessary quality of fitness to practise, and I therefore do not accept that the Tribunal erred in this respect.
I shall return to the consequences of the conclusion that the Tribunal erred in law in imposing a chaperone condition when it did not have power to do so, and in taking into account its ability to impose such a condition in connection with the conclusion that the chiropractor was not unfit after dealing with the other grounds of appeal.
Ground 2 - Complaint 2
I turn then to the second ground of appeal, which pertains to the second complaint. As the Commission accepts, the appeal is limited by Health Practitioner Regulation National Law, s 162, to a question of law. To show that the Tribunal erred in law in failing to find that the Chiropractor was not of good character, it must be shown that the Tribunal either was bound to conclude on the proved facts that the Chiropractor was not of good character, or that it misapprehended its task. In an appeal from a decision limited to one on point of law, an appellate court is not entitled to reach its own conclusion on the facts. It can intervene only if upon comparing the primary facts found with the ultimate conclusion reached, it is demonstrated that the Tribunal must have applied an incorrect test [see Hope v The Council of City of Bathurst (1980) 44 CLR 1; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; McBride v Walton [1994] NSWCA 199]. Essentially, this ground amounts to a contention that the Tribunal's conclusion that it was not established that the Chiropractor was not of good character is necessarily inconsistent with the primary facts found by the Tribunal. In a comparable setting, the Court of Appeal recently, in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, explained that if facts inferred from the evidence are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision will be wrong in law.
Both McBride v Walton and Health Care Complaints Commission v Karalasingham concerned the statutory phrase "not of good character", in the context of decision by a Medical Tribunal. In Karalasingham, the Court of Appeal held that those words did not bear a special or technical meaning but were used in their ordinary meaning, and that although determining the ordinary meaning of a word had traditionally been identified as a question of fact, there was no clear distinction between ascertaining the ordinary meaning of a word and the construction of a term the meaning of which was established. Hence, the construction of a statutory provision would usually involve a consideration of its words, the context in which they appear and the underlying purpose of the statute, and this process would usually involve a question of law. However, as Basten JA (with whom Giles JA and Bergin J agreed) pointed out (at [55]), in order to establish error on the part of the Medical Tribunal, it would be necessary to establish that the Tribunal misunderstood the nature of the task on which it had embarked: the mere fact that another decision maker might have made a different factual finding in a matter of evaluative judgment would be insufficient to demonstrate error of law.
Karalasingham concerned a medical practitioner who had provided false medical certificates to three non-citizens who held study visas, for the purpose of justifying their non-attendance at university classes, so that they could maintain the requisite 80% attendance record. Basten JA (at [69]), observed that dishonesty in medical practice was a matter of some seriousness, but that there were degrees of dishonest conduct. Ultimately, no relevant error was demonstrated in the manner in which the Tribunal assessed the circumstances that led to its dismissal of the complaint that he was not of good character.
McBride v Walton, another case concerning complaints against a medical practitioner to the Medical Tribunal, demonstrates how in the circumstances of a particular case different minds may evaluate facts differently: while Kirby P found that it was not open to the Tribunal to reach a conclusion of want of good character, Handley and Powell JJA were of the opposite view. The significance of this is that, in the context of an evaluative judgment as to whether the proved particulars establish an absence of good character, an appellant - whether an unsuccessful practitioner or an unsuccessful complainant - bears a considerable burden.
In this case, three matters were relied on by the Commission by way of particulars of want of good character. The first was the conviction to which I have referred; the second was the giving of false evidence by the Chiropractor before the Magistrate in the prosecution for the offence; and the third (which overlaps with Complaint Three, to which I shall in due course come) was the failure to give timely notice to the Board of his conviction.
As to the third matter, at this stage it suffices to say that having been convicted on 18 May 2007, his solicitor sent a letter to the board on 27 May 2007 informing it of the conviction. The Board received the letter on 28 May 2007. The Act required that notice be given within seven days. On the most adverse view, this was three days late. To my mind, it is impossible to see how that particular bears any relevance to the Chiropractor's character.
As to the conviction, the impact of criminal convictions on practitioners in the context of an assessment as to their character will vary widely. This is demonstrated by a wide range of cases, including Wingate , to which I have already referred. In Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320, which concerned a solicitor who had become addicted to heroin and subsequently was convicted of importing cocaine from South America to Australia when returning from a vacation there. The solicitor had pleaded guilty to importing cocaine to Australia and was sentenced by a District Court judge to six months imprisonment. In the ensuing disciplinary proceedings for her removal from the roll, the Court of Appeal, having regard to character evidence adduced in her case, concluded that she was not shown to be unfit to remain on the roll at the time of the hearing before it. In A Solicitor v Council of the Law Society of New South Wales (2002) 216 CLR 253, a solicitor had pleaded guilty to four counts of aggravated indecent assault on persons under the age of sixteen years with whom he stood in a step parental relationship. In subsequent disciplinary proceedings, the High Court allowed an appeal from the Court of Appeal's order that he be struck off the Roll of Practitioners, and substituted an order that he be suspended from practice for five years, which had expired by the time of the hearing before the High Court - notwithstanding that it was also found by the Court of Appeal that the solicitor had been less than frank with his professional association and had committed a breach of candour in that respect. In the well-known case of Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, the appellant barrister had been convicted of manslaughter and sentenced to two years imprisonment with hard labour, and subsequently removed by the Full Court of the Supreme Court from the roll of barristers on account of his conviction and sentence. The High Court substituted an order that he be suspended from practise during the continuance of his present imprisonment, but did not find him unfit to remain on the roll once he returned to liberty.
The above cases demonstrate, if demonstration be required, that convictions for quite serious offences do not necessarily mean that a professional practitioner is deprived of the quality of good character required as a condition of fitness to practise. In the scope of things, the crime of which the Chiropractor here was convicted is towards the lower end of the scale described by the cases to which I have just referred.
So far as the second particular to Complaint Two is concerned, the Tribunal characterises this at paragraph 31 of its reasons as "the ongoing reluctance of the Chiropractor to admit the facts of wilful and indecent exposure as proven and upheld at appeal". Significantly, that very statement answers the Commission's submission that the Tribunal failed to take into account the circumstances that he must have given untrue evidence in answer to the charge.
There are many reasons why persons find it difficult to admit wrongdoing after the event and persist in denying it even in courts. No doubt it is generally regarded as a good indication for rehabilitation that a person who has committed an offence admits guilt and repents. However, embarrassment, pride, shame and all manner of human factors also tell on whether men and women are prepared to do so. Although, like the Tribunal, I do not for a moment attempt to go behind the findings of the District Court, it must also be recognised that persons who have been found guilty of misconduct can honestly believe that the tribunal that convicted them was wrong.
An eloquent statement of the difficulties that arise if too stringent a view is maintained in this respect is to be found in the judgment of the Supreme Judicial Court of Massachusetts in In the Matter of Alger Hiss (1975) Mass 333 N.E.2d 429. Alger Hiss was struck off the roll of Massachusetts lawyers in August 1952 having been convicted in 1950 of two counts of perjury on an indictment by a Federal Grand Jury, following the sensational testimony of former Communist Party member and Soviet spy Whittaker Chambers before the United States House of Representatives Committee on Un-American Activities. Chambers had testified that Hiss, a former clerk to Holmes J of the US Supreme Court and employee of the US State Department, was a committed communist and had been involved in espionage activities on behalf of the Soviet Union from the late 1930's. The relevant grounds on which the grand jury had found that Hiss had falsely testified were 1) that he or his wife had never turned over any documents of the US State Department or any other US government organisation to Chambers, or made copies of such documents and turned over such copies to Chambers; and 2) that he definitely had not seen Chambers after 1 January 1937. Hiss appealed his conviction, which was affirmed on appeal [ United States v Hiss (1950) 185 F.2d 822]. A subsequent application for a writ of certiorari before the US Supreme Court was refused [ United States v Hiss (1951) S.Ct 532]. Hiss served a term of imprisonment for three and a half years. Throughout his trial and subsequent appeals and during his petition for reinstatement on the roll of Massachusetts lawyers, Hiss continued to protest his innocence. In 1974 he filed a petition for reinstatement as an attorney. A central issue for the Court was whether statements of repentance or recognition of guilt were prerequisites to reinstatement. Hiss came before the court as a convicted perjurer. The relevant professional board who had prepared a report for the court in relation to Hiss' readmission had noted, according to Tauro CJ who delivered the judgment of the Court (at 435):
... the task of a petitioner such as Mr Hiss, who continues to assert his innocence, to satisfy this Board of his present good character, becomes logically impossible ... So long as Mr Hiss' conviction stands, and so long as he continues to deny his guilt of an offence of which he was convicted ... the petitioner has not satisfied us that his readmission would not be detrimental to the standing of the Bar, the administration of justice or to the public interest.
Tauro CJ observed (at 436) that "mere words of repentance are easily uttered and just as easily forgotten." His Honour continued (at 436-437):
The continued assertion of innocence in the face of prior conviction does not, as might be argued, constitute conclusive proof of lack of the necessary moral character to merit reinstatement. Though we deem prior judgments dispositive of all factual issues and deny attorneys subject to disciplinary proceedings the right to relitigate issues of guilt, we recognise that a convicted person may on sincere reasoning believe himself to be innocent. We also take cognizance of Hiss' argument that miscarriages of justice are possible. Basically, his underlying theory is that innocent men conceivably could be convicted, that a contrary view would place a mantle of absolute and inviolate perfection on our system of justice, and that this is an attribute that cannot be claimed for any human institution or activity. We do not believe we can say with certainty in this case, or perhaps any case, what is the true state of mind of the petitioner. Thus, we cannot say that every person who, under oath, protests his innocence after conviction and refuses to repent is committing perjury.
Simple fairness and fundamental justice demand that the person who believes he is innocent though convicted should not be required to confess guilt to a criminal act he honestly believes he did not commit. For him, a rule requiring admission of guilt and repentance creates a cruel quandary: he may stand mute and lose his opportunity; or he may cast aside his hard-retained scruples and, paradoxically, commit what he regards as perjury to prove his worthiness to practice law. Men who are honest would prefer to relinquish the opportunity conditioned by this rule: "Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt may be rejected - preferring to be the victim of the law rather than its acknowledged transgressor - preferring death even to such certain infamy"... Honest men would suffer permanent disbarment under such a rule. Others, less sure of their moral positions, would be tempted to commit perjury by admitting to a nonexistent offence (or to an offence they believe is nonexistent) to secure reinstatement. So regarded, this rule, intended to maintain the integrity of the bar, would encourage corruption in these latter petitioners for reinstatement and, again paradoxically, might permit reinstatement of those least fit to serve. We do not consider in this context the person who admits committing the alleged criminal act but honestly believes it is not unlawful.
In this case, the matter relied on in the particulars to Complaint Two is the putting forward of a defence to the initial prosecution in the Local Court, which the Court has been told that the Chiropractor did so again in the District Court, which might be implicit in the fact that there was an appeal, it is not apparent that he actually gave evidence in the District Court; in any event, it is not the subject of a particular and it would be inappropriate in those circumstances to take it into account.
The Court was also informed that the Chiropractor maintained his innocence before the Tribunal. This can well be inferred from paragraph 20 of the Tribunal's reasons. However, this was not relied on by the Commission before the Tribunal as a particular going to the Chiropractor not being of good character. If it were to be relied upon, an amendment - or at the very least notice of some sort - would have been required [see Smith v New South Wales Bar Association (1992) at 176 CLR 256; and McBride v Walton, which also reaffirmed that reliance by a disciplinary tribunal upon dishonesty outside particulars provided, including any conduct before the tribunal, amounts to procedural unfairness, at least unless those matters are charged and particularised].
In my view, the Tribunal took into account the relevant considerations on forming an ultimate conclusion as to whether or not the Chiropractor was shown to be not of good character. The proven facts did not dictate that the only possible outcome was that he was not of good character. The Tribunal's approach, far from demonstrating that it did not understand or misconceive its task, in fact (at [18]) referred to the relevant test enunciated by Holmes JA in Ex parte Tziniolis, and took into account all that was known about the Chiropractor to form its conclusion, including the conviction and his ongoing reluctance to admit the offence. That others might have reached a different view does not mean that the Tribunal erred in law in that respect.
Ground 3 - Complaint 3
Chiropractors Act, s 21(1)(a) provided at the relevant time as follows:
A registered chiropractor must notify the Board in writing within seven days after:
(a) the chiropractor is convicted of an offence ... in this State or elsewhere, giving details of the conviction or criminal finding and any penalty imposed for the offence.
As I have already recorded, having been convicted on 18 May 2007, the Chiropractor's solicitor sent a letter to the Board on 27 May which was received on 28 May. The complaint appears to be then that the Chiropractor was, at worst, two or three days late in providing that notice.
Chiropractors Act, s 25(b), defines "unsatisfactory professional conduct" to include "a contravention by the chiropractor of a provision of this Act or the regulations or of a condition of the chiropractor's registration". Technically, even one day's delay in complying with s 21(1)(a) is, by definition, unsatisfactory professional conduct.
The Tribunal said (at [33]):
The circumstances in relation to the Chiropractor failing to notify the Registration Board within 7 days of his conviction as required by Chiropractor's Act, s 21(1)(a), are such that the Tribunal finds that the breach has been committed but does not find that he is guilty of unsatisfactory professional conduct. The Chiropractor was represented by a solicitor, a Mr Bryne. The conviction was recorded on the 18 th May, 2007. The Board should have received notification on Friday the 25 th May, 2007, but did not receive it until Monday the 28 th May, 2007. The Tribunal is of the opinion that the Chiropractor was aware of his obligation to notify the Board and relied upon his solicitor whose letter was in fact only one working day late. The Tribunal therefore finds that the Chiropractor is not guilty of unsatisfactory professional conduct in relation to Complaint Three.
For my part, I cannot understand why this complaint was brought. As the Tribunal points out, the conviction having been recorded on 18 May 2007, the Chiropractor should have informed the Board by 25 May, which was a Friday, and the Board received the notice only one working day late, on Monday 28 May. Although I cannot pretend to know all the factors that might have informed an exercise of the prosecutorial discretion to bring it, it is, of course, well-established that just because of an offence under the criminal law might be capable of being established does not mean that it is always appropriate to prosecute it, and the same principle applies in the disciplinary jurisdiction. I am even more mystified as to why one working day's delay has attracted so vigorous a response, when - having been notified of the conviction in May 2007 - it took the Commission until 12 October 2009 to institute proceedings in the Tribunal - although, of course, I do not know the total of the investigative procedures that were undertaken in the interim.
Mr Dailly, for the defendant, has conceded that there is an error of law in this respect, in that upon a proper application of the definition contained in the Chiropractors Act , a conclusion that the Chiropractor was in that respect guilty of unsatisfactory professional conduct was inevitable, on account of even one day's delay. Having reached that conclusion, it remains to consider what the outcome should be.
Consequential Orders
It follows that Ground 1 succeeds in part, and Ground 3 succeeds. In such circumstances Health Practitioner Regulation National Law, s 162A, provides as follows:
162A Powers of Supreme Court on appeal [NSW]
(1) In deciding the appeal, the Supreme Court may-
(a) dismiss the appeal; or
(b) make the order it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Law.
(2) If the Supreme Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal's order is to be taken to include provision that an application for its review under Subdivision 3 of Division 6 may not be made until after a specified time.
As to Complaint 3, in my view, no disciplinary order is called for, and it would be entirely inappropriate to exercise any disciplinary power in respect of it. In effect, I approach it as one might in a criminal matter apply (NSW) Crimes (Sentencing Procedure) Act 1999, s 10, which allows a court upon finding a person guilty of an offence to order that the relevant charge be dismissed where the court is satisfied that it is inexpedient to inflict any punishment on the person having regard, amongst other things, to the trivial nature of the offence .
I return now to Complaint One. As I have said, I have found that the Tribunal erred in law in the approach that it took. On the other hand, my conclusion that the Tribunal did not err in law by concluding that it was not established that in respect of Complaint Two the Chiropractor was other than of good character, and that a finding of unfitness was not the only conclusion open on the primary facts found, informs a conclusion as to whether he was shown to not be a fit and proper person to remain in the public interest on the Register of Chiropractors.
It needs to be borne in mind that, while it is true - as Ms McNaughton has submitted - that the conduct of the Chiropractor in this case took place in the presence of a person (as distinct from Wingate, where it was the reading of material), there was no physical contact. It did not take place in the context of the Chiropractor's professional practice, and there was, as I have said, powerful evidence to suggest that it was a one-off, isolated incident.
Although it seems to me that the Tribunal was not entitled to impose the condition of practise that it imposed, the Chiropractor has offered an undertaking to this Court, in the same terms as that condition. In Prothonotary v P , to which I have referred, while dismissing the Prothonotary's application, the Court took into account that the solicitor offered to the Court to agree to have attached to her practising certificate any reasonable condition considered appropriate by the Law Society to the effect that she undergo regular urinalysis or other regular medical examination to ensure that she had not taken any illicit drugs.
In my view, in this case I can proceed on the basis that while this Court, in place of the Tribunal, will not exercise a power to impose a condition, it can and will accept the undertaking that has been proffered, which provides comfort to the Court, as the condition did to the Tribunal, that no unacceptable risk to the public interest is involved in his remaining registered.
Accordingly, I am not satisfied that the Chiropractor is unfit in the public person to be registered as a chiropractor. It follows that, although I have found that the Tribunal's decision is in some respects affected by error of law, the ultimate outcome will not differ, in substance from the orders of the Tribunal. While I sympathise with the view that errors need to be corrected, I do not think too many issues will arise from an error of the kind made in the Chiropractor's Tribunal. It seems to me that the Commission has, in practical terms, not succeeded in substance in improving its position before this Court, whereas the Chiropractor has been put to the expense of defending an appeal, which he has done successfully.
My orders are as follows:
In respect of Complaint 1:
1.1 Order that paragraph 4 of the order of the Chiropractors Tribunal of New South Wales in the matter of Health Care Complaints Commission v Stoker [2010] NSWCHT made on 25 August 2010 be set aside.
1.2 Upon Kristin Scott Stoker undertaking to the court that he will agree to the imposition by the Chiropractor's Board on his registration, of a condition for a period of two years from 25 August 2010, that when assessing or treating any female patient under 45 years of age there must be present in the treatment room for the duration of the visit an adult female person, unless the patient is accompanied by any person or guardian who is male and the patient consents to that person being present, otherwise dismiss the appeal from the Chiropractor's Tribunal of New South Wales decision on Complaint One.
In respect of Complaint 2:
2. Dismiss the appeal from the Chiropractor's Tribunal of New South Wales decision on Complaint Two.
In respect of Complaint 3:
3. Allow the appeal from the Chiropractors Tribunal of New South Wales decision on Complaint Three.
4. Pursuant to Health Practitioners Regulation National, s 162A, I substitute a finding that Kristin Scott Stoker was guilty of unsatisfactory professional conduct as alleged in Complaint Three.
5. Decline to exercise any power under Chiropractors Act , s 50 and s 51, in respect of that finding of unsatisfactory unprofessional conduct.
Costs
6. Order that the Health Care Complaints Commission pay Kristin Scott Stoker's costs of the appeal.
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Decision last updated: 26 August 2011
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