Health Care Complaints Commission v Wingate

[2007] NSWCA 326

Reported Decision: 70 NSWLR 323

New South Wales

Court of Appeal

CITATION:

HEALTH CARE COMPLAINTS COMMISSION v WINGATE [2007] NSWCA 326

HEARING DATE(S):

26 October 2007

 
JUDGMENT DATE: 

20 November 2007

JUDGMENT OF:

McColl JA at 1; Basten JA at 2; Harrison J at 81

DECISION:

(1) Vary order (1) made by the Tribunal on 5 April 2007 so that it now reads:

(1) Impose on the practitioner’s registration a condition that he not attend, treat or perform operations on patients under 18 years of age.

(2) Otherwise dismiss the appeal.

(3) Order the Appellant to pay the Respondent’s costs of the appeal.

CATCHWORDS:

DISCIPLINARY ORDERS – taking account of criminal penalty – protective purpose – imposing conditions on right to practise – relevance of controls under child protection legislation

MEDICAL PROFESSION – unsatisfactory professional conduct – professional misconduct – conviction for a criminal offence – possession of child pornography

MEDICAL PROFESSION – not of good character – failure to provide Medical Board with accurate information of circumstances of offence – privilege against self-incrimination

PROFESSIONAL DISCIPLINE – formulation of complaints – scope of appellate jurisdiction – Medical Practice Act 1992 (NSW), s 90

WORDS & PHRASES – “good character” – “not of good character”

LEGISLATION CITED:

Child Protection (Prohibited Employment) Act 1998 (NSW), s 5
Commission for Children and Young People Act 1998 (NSW), ss 33, 33B, 33C, 33H, 33I, 33J
Crimes Act 1900 (NSW), s 578B
Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
Health Care Complaints Act 1993 (NSW), ss 16, 28, Part 2
Medical Practice Act 1992 (NSW), ss 36, 37, 39, 51, 62, 64, 66, 90, 91, Part 4, Div 3, Schedule 2, cl 5

CASES CITED:

Bannister v Walton (1993) 30 NSWLR 699
Bowen-James v Walton (NSWCA, 5 August 1991, unrep)
Edelsten v Richmond (1987) 11 NSWLR 51
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
House v The King (1936) 55 CLR 499
Ibrahim v Walton (NSWCA 23 April 1991, unrep)
In re Davis (1947) 75 CLR 409
MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304
Police Service Board v Morris (1985) 156 CLR 387
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Part 1) 136
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
Ziems v The Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279

PARTIES:

Health Care Complaints Commission - Appellant
Dr Richard Wingate - Respondent

FILE NUMBER(S):

CA 40265/07

COUNSEL:

C.E. Adamson SC/G.A. Farmer - Appellant
A. Katzmann SC/M. Lynch

SOLICITORS:

Health Care Complaints Commission - Appellant
Ebsworth & Ebsworth Lawyers - Respondent

LOWER COURT JURISDICTION:	Medical Tribunal of NSW
LOWER COURT FILE NUMBER(S):	40001 of 2006
LOWER COURT JUDICIAL OFFICER:	Judge N G Rein (Deputy Chairperson); Dr M. Giuffrida; Dr J. Ng; Dr L. Napier
LOWER COURT DATE OF DECISION:	5 April 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007] NSWMT 2

CA 40265/07
Medical Tribunal 40001/06

McCOLL JA
BASTEN JA
HARRISON J

20 November 2007

HEALTH CARE COMPLAINTS COMMISSION v WINGATE

Headnote

The Appellant, the Health Care Complaints Commission, made three complaints to the Medical Tribunal against the Respondent, Dr Wingate.

The Appellant complained, first, that the Respondent was “guilty of unsatisfactory professional conduct and/or professional misconduct”; secondly, that he was “not of good character”; and thirdly, that he “has been convicted of an offence, the circumstances of which render him unfit in the public interest to practise medicine”.

The conduct forming the basis of the complaints was the possession of child pornography, for which the Respondent was convicted on 3 February 2005. The conviction related to 66 images which were discovered when, upon execution of a search warrant on 26 September 2004, the Respondent informed police of the presence of the images on the external hard drive of his home computer. Subsequently, some 10,000 additional images were located on the internal hard drives of the Respondent’s computers, which he had failed to bring to the attention of police. The late discovery of this material did not lead to any further charges.

The Medical Tribunal found that the relevant conduct did not fall within the definition of unsatisfactory professional conduct in s 36 of the Medical Practice Act and therefore could not constitute professional misconduct under s 37 of the Act. The Tribunal dismissed the complaint that the Respondent was not of good character. The Tribunal was not satisfied that the circumstances of the conviction rendered him unfit in the public interest to practise medicine and upheld the third complaint on a limited basis only.

The Tribunal ordered that the Respondent must not attend upon a person of less than 18 years of age without the presence of a chaperone; that he continue treatment with a clinical psychologist or psychiatrist; and that he be reprimanded in respect of his downloading of the pornographic images of children and failure to provide the Medical Board with accurate information relating to the circumstances of the offence.

The issues for determination on appeal were:

(i) whether the Tribunal erred in dismissing the complaint that the Respondent was not of good character;

(ii) whether the Tribunal misdirected itself by taking account of the fact that the Respondent had been “dealt with by the criminal law”; and

(iii) whether there was error in permitting the Respondent to continue to treat persons under 18 years of age whilst requiring a “chaperone”.

The Court held, allowing the appeal in part:

In relation to (i)

(per Basten JA, McColl JA and Harrison J agreeing)

1. The Appellant identifying no error in the statement by the Medical Tribunal of the legal principles relating to want of good character, the orders made did not reveal error in point of law: [51].

2. The privilege against self-incrimination does not entitle a practitioner to make untruthful or misleading statements nor, if the practitioner declines to answer particular questions, will it prevent the Medical Board or a tribunal taking steps in order to protect a relevant public interest: [45].

(per Basten JA, Harrison J agreeing, McColl JA not deciding)

3. There may be a doubt whether a professional obligation of candour overrides the general law privilege against self-incrimination, absent an express statutory provision or a necessary implication arising from statute to that effect. [50].

In re Davis (1947) 75 CLR 409; Police Service Board v Morris (1985) 156 CLR 387; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Part 1) 136; Edelsten v Richmond (1987) 11 NSWLR 51; Bowen-James v Walton (NSWCA, 5 August 1991, unrep); MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304 considered.

(per Basten JA, McColl JA and Harrison J agreeing)

In relation to (ii)

4. It cannot be said as a matter of general principle that a professional disciplinary tribunal should disregard any penalty imposed under the criminal law. The fact that disciplinary orders are commonly characterised as “protective” does not deny that they have punitive effects, nor does it require that the fact of criminal punishment must be disregarded. The Tribunal, having acknowledged the criminal punishment, appropriately held that a further recognition of the seriousness of the misconduct was necessary: [54]-[56].

Ziems v The Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279; Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 referred to.

In relation to (iii)

5. The imposition of a chaperone condition could reasonably have been in the contemplation of the Commission at the time it addressed the Tribunal. The claim of procedural unfairness must be rejected: [58].

6. The fact that a condition should only be imposed to provide necessary protection to patients does not mean that imposing a condition demonstrates unfitness to practice. Conditions may be imposed in varying circumstances and for varying purposes: [62].

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 considered.

7. Legislation imposing controls on employment of persons convicted of child pornography offences create statutory presumptions that such persons pose a risk to the safety of children and that there is a relationship between conduct constituting such an offence and the provision of professional services in health and various other support services: [72].

8. Although the Tribunal was not required to determine whether, under the legislation relating to controls on employment of persons convicted of child pornography offences, the practitioner was prohibited from supplying health services to patients under 18 years, it should have treated the legislative scheme as part of the legal background against which the exercise of its discretion in making orders was to be considered. The Tribunal should have considered whether it was satisfied that the provision of services to young patients “posed no risk” to them and, if not so satisfied, there should have been a reasoned justification for not imposing a condition which would have the same effect as the statutory prohibition: [73].

9. As it was agreed by both parties that a condition prohibiting the practitioner from treating patients under 18 years of age would not infringe Health Care Complaints Commission v Litchfield, the Tribunal should have imposed such a condition, absent some justification for not doing so: [75]-[76], [78].

CA 40265/07
Medical Tribunal 40001/06

McCOLL JA
BASTEN JA
HARRISON J

20 November 2007

HEALTH CARE COMPLAINTS COMMISSION v WINGATE

Judgment

1 McCOLL JA: I have had the benefit of reading in draft Basten JA’s reasons. I express no view as to whether a professional obligation of full and frank disclosure extends to the process instituted by the Medical Board (Basten JA at [50]). Subject to the above I agree with his Honour’s reasons and with the orders he proposes.

2 BASTEN JA: The appeal in this matter arose out of proceedings in the Medical Tribunal involving three complaints against Dr Wingate (“the practitioner”) made by the Health Care Complaints Commission (“the Commission”) pursuant to s 39 of the Medical Practice Act 1992 (NSW). The conduct which formed the basis of the complaints was the possession of child pornography on 26 September 2004 and a subsequent conviction for possession of child pornography, the conviction being entered at Sutherland Local Court on 3 February 2005.

3 The practitioner’s possession of a significant number of pornographic images on his home computer was discovered upon the execution of a search warrant on 26 September 2004. Following the discovery of the images, the practitioner was interviewed by police and charged on the same day with one count of possessing child pornography, which was particularised by reference to 66 images. The images were chosen from a total of some 600 images contained on an external hard drive to the practitioner’s computer. The images chosen were those considered by police most clearly to fall within the definition of “child pornography” in s 578B of the Crimes Act 1900 (NSW), which provision (since repealed) was the source of the offence with which the practitioner was charged.

Issues

4 The first issue raised by the Commission involves a challenge to the dismissal of a complaint that the practitioner was not of good character. The basis of the challenge was that the only complaint upheld was a complaint that he had been convicted of a criminal offence but that the orders, which included two reprimands, went beyond the terms of the conviction and therefore indicated that the Tribunal had implicitly held the practitioner to be not of good character. This issue is addressed at [25]-[51] below.

5 The second issue concerned the orders made by the Tribunal which are set out at [20] below. The Commissioner asserted that the Tribunal had misdirected itself by taking account of the fact that the practitioner had been “dealt with by the criminal law”. That error, it was contended, resulted in the Tribunal imposing a less severe sanction than was appropriate in the circumstances of the case. This issue is dealt with at [52]-[56].

6 The third issue concerned order (1), the complaint being that it was made in breach of the rules of procedural fairness, the parties not having been given an opportunity to address its terms. Although the third issue was identified in this limited way by senior counsel for the Commission in opening the appeal, in fact the argument in relation to order (1) extended beyond the procedural fairness question to the substantive issue of the propriety of the order: see, eg, appeal Tcpt, 26/10/07 at p 52(5)-54(5). Order (1) imposed a condition on the registration of the practitioner requiring the presence of a third person when the practitioner attended upon a person of less than 18 years of age. The Commission submitted that, if the character complaint were not upheld and the practitioner could not be deregistered, the relevant condition should have involved an unqualified prohibition against treating persons under 18 years of age. This issue is dealt with at [57]-[78] below.

7 In my view the appeal should be rejected so far as the first two issues are concerned but should be upheld in relation to the third issue, though not on the basis that there had been failure to accord procedural fairness.

Complaints under the Medical Practice Act

8 On 6 October 2004 the police notified the Medical Board (“the Board”) that the practitioner had been charged with the possession of child pornography. On 21 October, Dr Andrew Dix, the Registrar of the Board, made a complaint by way of a statutory declaration to the Commission stating that the practitioner “may be guilty of unsatisfactory professional conduct and/or professional misconduct”. The Board also took steps, on 29 October 2004, to impose conditions on the practitioner’s registration, to which further reference will be made below.

9 On 18 November 2004 the practitioner pleaded guilty to the criminal charge and on 3 February 2005, he was convicted, fined $6,000 and placed on a good behaviour bond for three years, subject to supervision by the Probation and Parole Service.

10 It is not necessary to identify the various powers of the Commission and the manner in which it is required to deal with complaints, pursuant to Part 4, Division 3 of the Medical Practice Act and Part 2 of the Health Care Complaints Act 1993 (NSW). Pursuant to s 51 of the Medical Practice Act, it is apparent that the Commission may either deal with the complaint made to it by referring it, for example, to the Medical Tribunal, or it may make a complaint of its own, which it can then refer to the Medical Tribunal. Which it did in the present case is of no consequence, although the third complaint which related to the conviction appears to have been a complaint made by the Commission and not by the Board.

11 The Commission is required to give written notice of the complaint to the practitioner: Health Care Complaints Act, ss 16 and 28. Whether that was done does not appear from the material before this Court. Rather, the complaints are identified in a notice, signed by the Director of Proceedings, Health Care Complaints Commission, advising the practitioner that “the Medical Tribunal has received a complaint from the Health Care Complaints Commission”. If, as the Court was advised, that form of notice is common practice, the practice is unfortunate. It suggests, quite wrongly, that the Commission is an agent of the Tribunal for the purpose of giving notice. The Tribunal is, and should be seen to be, a body independent of the Commission.

12 The first complaint alleged that the practitioner:

“Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the [ Medical Practice ] Act and/or professional misconduct within the meaning of section 37 of the Act in that he has:
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
engaged in improper or unethical conduct relating to the practice of medicine.
Particulars
On 26 September 2004, at Woolaware, New South Wales the practitioner possessed child pornography.”

13 The Court has recently commented on the indiscriminate use of statutory language in such complaints: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]-[28]. As might have been expected, there was no case presented before the Tribunal to suggest that the private possession on a home computer of child pornography said anything about the knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of medicine. Rather, the case presented was that the possession of child pornography constituted improper or unethical conduct “relating to” the practice of medicine. The complaint should properly have been limited in that way.

14 When the Medical Tribunal came in due course to consider this complaint, it formed the view that the relevant conduct did not fall within the definition of “unsatisfactory professional conduct” in s 36 of the Medical Practice Act and therefore could not constitute professional misconduct under s 37 of the Act. The reasoning of the Tribunal in that respect was that s 36 did not deal with “a matter that is unconnected in any way with the practice of medicine”, and that the practitioner’s conduct “is not professional conduct at all”: Tribunal Reasons at [50] and [51]. Although the definition of “unsatisfactory professional conduct” included conduct that results in the practitioner being convicted of certain specified offences, the Tribunal correctly noted that the offence in question was not one of those specified in s 36(1)(d) of the Medical Practice Act: indeed no crime specified in the Crimes Act fell within that part of the definition.

15 It will be necessary to return to aspects of this complaint in considering the orders made, but no further consideration is necessary at this stage, because there is no appeal pursued by the Commission against the dismissal of the first complaint.

16 The second complaint, also based on the conduct being possession of child pornography, was that the practitioner was “not of good character”, within the meaning of that phrase in s 39(e). That complaint was also dismissed, and the Commission seeks to appeal against that order.

17 The third complaint was identified in the following terms in the document dated 15 December 2005:

“[The practitioner] has been convicted of an offence, the circumstances of which render him unfit in the public interest to practise medicine.
Particulars
On 3 February 2005 at Sutherland Local Court the practitioner was convicted of one count of possession of child pornography under section 578B(2) of the Crimes Act 1900, being 66 images of boys apparently under the age of 16 years.”

18 The Medical Practice Act permits a complaint to be made that a practitioner has been convicted of an offence: s 39(a). So much was admitted. However, the Tribunal was not satisfied that the circumstances of the conviction rendered the practitioner unfit in the public interest to practise medicine and hence upheld the complaint on a limited basis only. The notice of appeal originally challenged the failure of the Tribunal to accept the third complaint, with the consequential characteristic that it rendered him unfit to practice. Although, that ground of appeal was abandoned prior to the hearing, the Commission did pursue at the hearing of the appeal a challenge based on the failure of the Tribunal to deregister the practitioner. However, there is a statutory limitation on deregistration and suspension expressed in the following terms:

“ 64 Tribunal can suspend or deregister in certain cases
(1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person):
(a) that the person is not competent to practise medicine, or
(b) that the person is guilty of professional misconduct, or
(c) that the person has been convicted … and the circumstances of the offence render the person unfit in the public interest to practise medicine, or
(d) that the person is not of good character.”

19 Having abandoned its challenge to the failure to characterise the conviction as falling within the terms of s 64(1)(c), the Commission could only succeed in obtaining an order for deregistration if it made good its complaint that the practitioner was not of good character, within s 64(1)(d). (It was not suggested that paragraph (a) was engaged and no appeal was brought against the dismissal of the first complaint, which might have engaged paragraph (b).)

20 The remaining two challenges which arise on the appeal concern the orders made by the Tribunal. Those orders were as follows:

“(1) that Dr Wingate’s practice be restricted in that he must not attend upon a person of less than 18 years of age without the presence of a nurse or other person approved by the Medical Board;
(2) that Dr Wingate continue in treatment with a clinical psychologist or psychiatrist of his choosing at a frequency determined by the therapist and for Dr Wingate to consent for the therapist to notify the Board of termination of treatment. Such treatment is to continue until it is reviewed by the Board;
(3) that Dr Wingate be reprimanded in respect of his downloading of pornographic images of children in the period 1998-2004;
(4) that Dr Wingate be reprimanded for his failure to provide the Medical Board with accurate information concerning his sexual orientation and the nature of the offences which he committed;
(5) that Dr Wingate pay the costs of the hearing.”

21 Although some reliance was placed upon orders (3) and (4) in relation to the challenge to the dismissal of the character complaint, they were not challenged as to their terms. The only order which was challenged, on the assumption that the dismissal of the character complaint was not disturbed, was order (1). The Commission sought a blanket prohibition on attendances upon a person of less than 18 years of age. It complained that the Tribunal denied the parties procedural fairness in failing to indicate an intention to make some other order and provide them with an opportunity to address in relation to it. Secondly, the Commission asserted error on the part of the Tribunal in apparently taking into account as a mitigating factor that the practitioner had been subjected to punishment under the criminal law.

22 The jurisdiction of this Court is invoked pursuant to s 90 of the Medical Practice Act which relevantly provides:

“ 90 Appeal against Tribunal’s decisions and actions
(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 any power of the Tribunal under Division 4 (Disciplinary Powers of Committees and Tribunal) of Part 4.”

23 The first matter challenged on the appeal was the decision of the Tribunal to dismiss the character complaint. It was accepted that this ground might be established by demonstrating an error of law on the part of the Tribunal which materially affected its conclusion: see Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [82] and Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [11]-[19].

24 With respect to the challenge to the orders made by the Tribunal, the Commission is, of course, entitled to identify an error of law in the strict sense, but it may also rely upon the broader power conferred by paragraph (b) of sub-s 90(1), which is not confined to circumstances where an error of law has been identified. However, a challenge to the orders may not extend to “question the acceptance by the Tribunal of the facts comprising proof of the complaint” those facts not being otherwise open to scrutiny: see Bannister v Walton (1993) 30 NSWLR 699 at 734C (Priestley JA) and 735A-B (Clarke JA) and see Karalasingham at [23]. Subject to that constraint, the appeal is one to which s 75A of the Supreme Court Act 1970 (NSW) applies and is by way of a rehearing. Nevertheless, because the orders involve the exercise of a discretionary power, this Court will only intervene in accordance with the well-established principles set out in House v The King (1936) 55 CLR 499 at 504-505: see Prakash [2006] NSWCA 153 at [85] and [89]; see also Karalasingham at [23]-[24].

Dismissal of character complaint

25 The Tribunal set out the legal principles relating to a complaint that a practitioner was “not of good character” in terms which met with no criticism in point of law from the Commission: see also Karalasingham at [45]-[54]. Rather, the error in the Tribunal’s decision was said to be disclosed by the making of orders (3) and (4). The terms of the two reprimands went, it was contended, well beyond the scope of the conviction complaint which the Tribunal upheld. Whilst that may have cast doubt upon their validity (which was not challenged by the practitioner), the Commission argued that they revealed implicit factual findings which could only have been relevant to the character complaint and were only consistent with a finding that the practitioner was not of good character. Further, when the first order, requiring a ‘chaperone’ when attending a patient of less than 18 years is taken into account, the inference is irresistible, so the Commission contended, that the Tribunal considered the practitioner not to be “a suitable repository of the trust that the public is entitled to repose in medical practitioners”.

26 Whilst the reasoning relied on by the Commission was kept distinct in relation to the rejection of the character complaint and the making of order (1), it is convenient to note that the challenge to order (1) included the proposition that the need to impose such a condition demonstrated a lack of faith in the practitioner’s character and future conduct which was inconsistent with his continuing entitlement to practice medicine: see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 639B-C.

27 In order to evaluate this challenge it is necessary to have regard to the findings of primary fact concerning the practitioner’s conduct. First, although the criminal conviction related to a reasonably small number of pornographic images, reprimand (3) reflected a finding that the practitioner had been downloading pornographic images of children for some six years between 1998 and 2004. The Tribunal found that he downloaded images “over an extended period”, starting in 1998, and involving “in excess of 10,000 images”: at [61] (5) and [87] (2). Although the number of images was an extraordinarily high figure, the actual number of occasions on which images were downloaded was more likely to be reflected by the number of sub-folders in the computer memory, which was in the order of 270: [61] (5).

28 The pornographic images which became the subject of the criminal charge, were, following information provided by the practitioner, located on an external hard drive of his computer. Nevertheless, the police confiscated two computers in addition to the external hard drive. It appears that, prior to his conviction, no steps were taken to view the contents of the hard disk drives in the two computers. The evidence as to when they were viewed by police was not the subject of any specific finding by the Tribunal, but it was prior to the return to the practitioner of the computers on 11 September 2005. It seems likely that they were viewed on 3 August 2005 by an Australian Federal Police officer who was invited to copy the disks before they were returned. It appears that the disks were also wiped of the offending material before they were returned. However, no steps appear to have been taken by New South Wales police to view the contents of the disk until mid-2006. In August 2006, Senior Constable Royan inspected the contents of the copied disks: Statement, 22 August 2006.

29 In relation to the discovery of the further images, the Tribunal commented at [55]:

“The late discovery of further images has not led to any further charges, but the existence of such material has significance in relation to this inquiry in a number of respects. First, it means that the offence of which Dr Wingate was convicted was not reflective of the full extent of his conduct in relation to child pornography so far as this Tribunal is concerned. Second, it is linked to a question of Dr Wingate’s conduct after he was charged with the offence.”

30 One relevant aspect of his conduct arose from the exercise by the Board of powers conferred on it under s 66 of the Medical Practice Act, in the following terms:

“ 66 Suspension or conditions to protect the public
(1) The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person:
(a) by order suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or
(b) impose on a registered medical practitioner’s registration such conditions, relating to the practitioner’s practising medicine, as it considers appropriate.
(2) The Board may take such action:
(a) whether or not a complaint has been made or referred to the Board about the practitioner, and
(b) whether or not proceedings in respect of such a complaint are before the Tribunal or a Committee.
(3) The Board is to give written notice of any action taken under this section to the practitioner concerned.”

31 The Board took steps under s 66 by delegating its power to an inquiry consisting of two persons who conducted a hearing with the practitioner. As the delegates emphasised in their report of 30 November 2004, it was not their role “to determine the truth of the allegations made by the police, or to consider issues relating to Dr Wingate’s character”. Rather, their role was “to identify whether there is sufficient evidence to conclude that Dr Wingate constitutes a risk to the public so as to warrant action being taken in relation to him pursuant to s 66 of the Act”: Report, p 8.

32 No transcript was taken of the statements made by the practitioner to the inquiry, but their effect was summarised by the delegates in their report. Based on that material, the Tribunal was satisfied that the practitioner misled the delegates in a number of respects relating to the circumstances of the offence: at [61]. That caused the Tribunal to issue a reprimand in the form of order (4).

33 There is no challenge to the Tribunal’s findings, but there were a number of factors relating to the information supplied to the delegates and the degree to which it was misleading, which were relevant to the course taken by the Tribunal in formulating its orders.

34 The first factor was that no complaint was laid in respect of the misleading statements to the delegates of the Board, although no doubt either the Board or the Commission could have laid a complaint prior to the hearing before the Tribunal. The Board’s inquiry was first conducted on 29 October 2004 whereas the hearing before the Tribunal did not commence until 20 November 2006; there had been ample time for either body to consider whether a further complaint should be laid. None was. Indeed, had it wished to deal with the matter in this manner, the Tribunal itself had power to deem an additional complaint to be before it: see Medical Practice Act, Schedule 2, cl 5. That power was not invoked.

35 The practitioner was cross-examined about this material without objection. However, because the three complaints already before the Tribunal were being heard together (pursuant to Schedule 2, cl 5(1) of the Act) including a general charge of possessing child pornography on 26 September 2004, (pursuant to complaint 1) and not being of good character (pursuant to complaint 2) an objection might have been hard to justify. In any event, it is not the practitioner’s challenge which brings this material to the fore, but rather the Commission’s appeal. The fact that the delegates of the Board considered the broad-ranging discussion in relation to the practitioner’s sexuality and possession of pornographic material to be relevant at a time when there had been no conviction, does not mean that the material is not also relevant to the orders to be made even though the only complaint upheld by the Tribunal related to the conviction.

36 The second factor was the absence of any transcript of the hearing before the Board’s delegates. Thus the relevant summary in the report of the inquiry was headed “Alleged Criminal Activity”. It commenced with the statement:

“The delegates questioned Dr Wingate in relation to the alleged crime of possessing illegal child pornographic material.”

It is not clear to what extent the delegates questioned him in relation to matters going beyond the subject matter of the charge.

37 Given that the material downloaded extended well beyond that which was the subject of the single criminal charge, care should no doubt have been taken by the fact-finder in assessing the degree to which the practitioner misled the delegates. However, this was a matter which was explored in cross-examination with him and was no doubt taken into account by the Tribunal. For example, the practitioner was asked why he had told the delegates that he had accessed only one site. He replied (Tcpt, 21/11/06, p 100):

“Because I understood incorrectly but I understood that they wanted to know what my criminal activity was. … At that time in October 2004 what I understood the Board to be concerned with was the criminal offences, or the criminal offence, for which I was being prosecuted and for which I was subsequently convicted, which was the possession of 66 images. That is why that interview and subsequently I referred to that and not to the greater corpus of images that you’ve been referring to during this interview.”

38 A third factor which was addressed in this context, was the extent to which the practitioner could properly be criticised for not volunteering to the Board the commission of further criminal activity with which he had not been charged. Before addressing that matter, it is convenient to note the findings made by the Tribunal.

“61. Dr Wingate misled the delegates of the Section 66 Inquiry in a number of respects relevant to the circumstances of the offence:
(1) whilst admitting his homosexual interest he implied that he still saw himself as bisexual, and more importantly said nothing about his hebephilic interest;
(2) he said that he had downloaded the offending images ‘out of curiosity’; he admitted to this Tribunal that in fact he downloaded the images as a means of sexual arousal;
(3) he denied that he was sexually excited by images of children but did not admit that he was sexually aroused by images of ‘children’ as defined by s 578B ie under 16 years of age;
(4) his statement that the images involved post-pubescent children was not true – there were photos of pubescent and pre-pubescent children;
(5) he had not downloaded images from one site over a short period – his downloading started in 1998 and continued until the time of his arrest … ; there was evidence that he had approximately 270 sub-folders;
(6) he said that he used the internet to look for images of young men when, as we have noted, his interest included males less than 16 years of age;
(7) he described the images as involving children doing child-like things. This was a misleading description of the images on the hard drive … .”

39 This summary of the respects in which the practitioner had misled the Board drew attention to two related distinctions which the Tribunal had identified in the following passage:

“57. The term ‘paedophilia’ is used by the medical profession to indicate sexual interest in children who do not have secondary sexual characteristics, ie who are pre-pubescent … . That condition is a recognised psychiatric disorder in the DSM-IV categorisation. The term ‘hebephilic’ describes a sexual interest in pubescent and post-pubescent young males and females. Hebephilia is not categorised as a psychiatric condition but a psychologist may describe the interest (provided it is acted upon) as a dysfunctional disorder … . … The legislation relating to ‘child pornography’ in this state does not focus only on pre-pubescent children but rather focuses on children who are or appear to be less than 16 years of age. It follows that a person with a hebephilic interest who downloads pictures of children apparently less than 16 years of age is not a paedophile in the technical sense of the word, yet is engaging in conduct that its prohibited in this state. A person with a hebephilic interest may also have a paedophilic interest … .”

40 If the issue had arisen as to whether, on a complaint of criminal activity based upon a conviction alone, the Tribunal would be entitled to fashion its orders by reference to other criminal activity which did not fall within the scope of the conviction, a number of issues would have arisen, which do not arise in the present case, because neither party challenges the orders on that basis. Nor is there any doubt that the Tribunal made factual findings which would support the scope of those orders. In other words, the Tribunal was clearly satisfied that the practitioner did download pornographic images of children in the period 1998-2004 and that he failed to provide the Board (through its delegates) with accurate information concerning his sexual orientation and the nature of offences which he had committed. In these circumstances, there can only be a relevant inconsistency between the orders made and the rejection of the character complaint if the findings of fact on which the orders were based reasonably led to only one conclusion, namely that the practitioner was not of good character.

41 It could not be said, for example, that the Tribunal did not take these matters into account in addressing the complaint relating to character. It expressly did so, stating:

“84. The Tribunal in forming a view as to Dr Wingate’s character is entitled to consider the facts of the offences and the wider circumstances not forming part of the offences with which he was charged and to which he pleaded guilty in addition to the other matters relevant to character.
85. Another matter to which we have had regard is the failure of Dr Wingate to honestly describe to the delegates and Dr Allnutt [a psychiatrist to whom he was referred by the Board] the nature of his offending, and his failure to honestly describe his sexual proclivities, as reflecting adversely upon him.”

42 There were further inferences drawn by the Tribunal for the purpose of formulating orders (3) and (4) and in particular the reprimand with respect to the failure to provide accurate information to the Board. In that regard, the Tribunal made two additional findings:

“90. Looking at the lack of truthfulness, this was clearly motivated by a desire to minimise his conduct in the eyes of the Medical Board, its delegates and this Tribunal, but in our view that motive does not excuse his conduct. …
…
93. We think that his failure to provide a frank account of his proclivities and the nature of his offending is a matter of concern for which he ought also be reprimanded. We are anxious to ensure that practitioners who have transgressed understand that failure to provide honest and frank accounts of matters relevant to the manner in which the Board deals with them may well impact upon an assessment of their character, quite apart from the Tribunal’s views of the original offending.”

43 At a general level, these comments may be said to reflect the duty of full and frank disclosure of misconduct which applies both to members and applicants for membership of professions such as law and medicine. However, the scope of this obligation requires more detailed attention as to its application in particular circumstances. One well-known example is the case of In re Davis (1947) 75 CLR 409, involving an applicant for admission as a barrister who many years before, as a young man, had been convicted of house-breaking for the purpose of theft. His application was refused at least in part upon the basis that he had failed to disclose the conviction to the Barristers Admission Board. Dixon J, after noting the difficulty of establishing good character in the light of such a crime, stated at p 426:

“But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.”

44 A further well-known example of the obligation may be found in Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Part 1) 136 at 141 where the Court (Heron CJ, Sugerman and McLelland JJA), after noting that the solicitor had not filed an affidavit or offered to give oral evidence, described the course as “irregular” and continued:

“The respondent is an officer of the court. The Full Court of the Supreme Court held in November 1965 that on the material presented to it by the Law Society a prima facie case of misconduct was made out and called upon the respondent to show cause why he should not be dealt with. The matter arises within the disciplinary jurisdiction of the Court and if the respondent after consideration declines to give his account on oath of the matters charged he cannot complain if the Court holds against him that the facts as deposed to … are substantially true. … The jurisdiction is a special one and it is not open to the respondent when called upon to show cause, as an officer of the Court, to lie by and to engage in a battle of tactics, as was the case here, and to endeavour to meet the charges by mere argument.”

45 It may be noted that neither of these examples involves any suggestion that the obligation of candour overrides the general law privilege against self-incrimination. Absent an express statutory provision, or a necessary implication arising from statute, to that effect, the privilege will generally be available. On the other hand, the privilege does not entitle a practitioner to make untruthful or misleading statements nor, if the practitioner declines to answer particular questions, will it prevent the Board or a tribunal taking steps in order to protect a relevant public interest.

46 In Police Service Board v Morris (1985) 156 CLR 397 at 403, Gibbs CJ accepted that the privilege might apply in relation to a penalty imposed in disciplinary proceedings against a police officer. In Bowen-James v Walton (NSWCA, 5 August 1991, unrep) (Samuels, Meagher and Handley JJA) Morris was distinguished on the basis that the power to discipline a medical practitioner was entirely protective. Their Honours noted that Parliament had expressly provided in the Medical Practitioners Act 1938 (NSW) that disciplinary proceedings might be pursued despite the existence of uncompleted criminal proceedings: see Edelsten v Richmond (1987) 11 NSWLR 51. However, in Edelsten the conflict of interests created in that situation had not lead the Court to conclude that the privilege against self-incrimination was overridden. As noted by Hope JA (Clarke JA agreeing) at 61D:

“The discretion given to the Tribunal involves a balancing of the public interest in the investigation of the complaint with the public interest in the observance of the right to silence. This involves, among other things, a consideration of the nature and gravity of the complaint and of the criminal charge, and of the circumstance that while the medical practitioner cannot be required to give a self-incriminating answer, he may be embarrassed in his defence to the complaint if he does not do so, and, if he does give evidence, he may be prejudiced in relation to the criminal proceedings.”

(Priestley JA made a similar point at p 65F-G.)

47 In Bowen-James, after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued:

“In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim . There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts.”

48 To the extent that there was an attempt to distinguish Morris from disciplinary cases involving the protective jurisdiction of the Court, the comments in Bowen-James may need to be followed with caution in the light of Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at [28]-[32] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ). Further, although the Court in Bowen-James spoke in terms of there being no applicable privilege against self-incrimination, that was not the approach adopted in Edelsten, set out above, nor in Veron.

49 The issue in Bowen-James involved an objection by the practitioner to an order that he file a statement of his evidence in response to the complainant’s evidence. His challenge to the order was rejected. However, what approach would be adopted today in that regard might need to be considered in the light of the recent decision in MacDonald v Australian Securities and Investments Commission [2007] NSWCA 304, dealing with a question as to whether a person subject to civil penalty proceedings brought by ASIC could be required to file a defence.

50 A point raised in the course of this appeal was that the Medical Practice Act did not appear to provide for any hearing prior to an exercise of powers by the Board under s 66. It would follow that the delegates could not, on any view, have compelled the practitioner to answer their questions: he must have done so voluntarily and not on oath. The Court’s attention was not directed to any statutory provision which would have overridden, either expressly or by necessary implication, his privilege against self-incrimination. Accordingly, it must at least be doubted whether a professional obligation of full and frank disclosure extended to the process instituted by the Board. The Tribunal was no doubt correct to say that neither the pending criminal proceedings nor the possibility of disciplinary proceedings conferred any licence to make false or misleading statements. However, there is a distinction to be drawn between misleading statements and a refusal to answer questions or to expand on answers already given. In this respect, it is arguable that the Tribunal adopted criticisms which went beyond those reasonably available in the circumstances. However, the matter need not be taken further because there is no challenge to the scope of the reprimand, nor the findings upon which it was based. So far as the challenge to the dismissal of the second complaint was concerned, the Commission was content to rely on the adverse findings made by the Tribunal.

51 That being so, and the Tribunal having otherwise considered and expressly applied correct principles, one is left with a decision in relation to the character complaint which cannot be challenged in point of law, unless it can be said that only one conclusion was reasonably open on the facts as found. There are clearly two views open, but that is not good enough for the Commission and it does not contend that the view taken by the Tribunal was not reasonably open. The challenge to the rejection of the character complaint as being erroneous in point of law, based upon inconsistency with orders (3) and (4), has not been made out.

52 The second issue raised by the Commission on the appeal derives from the following statement by the Tribunal in the course of considering what orders should be made:

“92. We think his conduct in committing the offence of possessing child pornography is a serious matter. Dr Wingate has been dealt with by the criminal law, but we believe this Tribunal should recognise the seriousness of the offence by reprimanding him for that conduct and for downloading the many other images of similar content with which he was not charged.”

53 The specific complaint concerns the express recognition given to the penalty imposed by the Local Court for the offence in mitigation, it is contended, of an order having any further punitive effect. The criminal penalty imposed contained two limbs. The first was a bond to be of good behaviour for a period of three years pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which provided for such an order “[i]nstead of imposing a sentence of imprisonment on an offender”. A specific condition was included in the following terms:

“To accept the supervision and guidance of the New South Wales Probation Service for such of the period as that Service deems sufficient, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the Sutherland Probation Service within 7 days.”

In addition, a fine of $6,000 was imposed.

54 There are a number of difficulties with this ground of challenge. First, it cannot be said as a matter of general principle that a professional disciplinary tribunal should disregard any penalty imposed under the criminal law. Thus, where the penalty imposed under the criminal law is a period of imprisonment, there may be an incongruity between the status of the practitioner as a prisoner and his or her continued right to practise: see Ziems v The Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279 at 290 (Fullagar J). Further and more specifically, although no power is conferred on the Tribunal to impose a fine unless it is satisfied that there has been unsatisfactory professional conduct or professional misconduct, even in those cases a fine is not to be imposed if another court has imposed a fine or other penalty: Medical Practice Act, s 62(2).

55 Although the exercise of professional disciplinary powers may be seen as protective and not as involving punishment (see Ziems at 286 (Dixon CJ) and at 289 (Fullagar J, quoting Jordan CJ) there is undoubtedly a degree of overlap between the purposes served by each in their respective contexts. That a fine will have a punitive effect, whether imposed by a criminal court or a disciplinary tribunal, is expressly recognised in s 62(2). The fact that disciplinary orders are commonly characterised as “protective” does not deny that they have punitive effects, nor does it require that the fact of criminal punishment must be disregarded: compare Rich v Australian Securities and Investments Commission (2004) 220 CLR 129 at [30]-[32]. In particular circumstances, it may be important to recognise that disciplinary orders other than fines also have punitive effects and to take those effects into account in ensuring that the necessary protective purpose is achieved without unnecessarily imposing a degree of punishment exceeding that thought appropriate by the criminal court.

56 Finally, the challenge should be rejected because it is clear that the Tribunal did not refer to the criminal punishment inappropriately. Although the Tribunal might in appropriate circumstances have sought to mould its orders so that, when taken with the criminal punishment, they did not have a disproportionate punitive effect, that is not what it did. Rather, having acknowledged the criminal punishment, it held that a further recognition of the seriousness of the conduct, by an order of the Tribunal, was necessary. This challenge must be rejected.

Failure to foreshadow order

57 The third matter of challenge is that, before imposing a so-called ‘chaperone condition’ as a qualification to order (1), the Tribunal ought to have sought submissions from the parties as to the propriety of such an order. The formulation of such a ground in terms of procedural unfairness is curious. It was not necessary for the Commission to establish an error of this kind to engage the powers of this Court to vary the order made by the Tribunal. As will be seen below, the matters which should have been addressed by the Tribunal in this context and may not have been were all raised in the course of the hearing before it. The substantive issues were of importance and were raised in both written submissions and oral argument before this Court and must be addressed.

58 Turning first to the question of procedural unfairness, to suggest that such a condition could not reasonably have been in the contemplation of the Commission at the time it addressed the Tribunal defies reality. First, the delegates of the Board imposed a chaperone condition in exercising powers under s 66 of the Medical Practice Act. Secondly, as the Commission acknowledged, the Tribunal invited the parties to consider a condition that the practitioner “not be permitted to see patients under 18 years of age”: Reasons, [94]. If there had otherwise been any doubt about the matter, it was clear then that the Commission was considering orders other than suspension or deregistration. Thirdly, counsel appearing for the Commission before the Tribunal questioned Dr Baron (a clinical psychologist) as to the need for a chaperone (Tcpt, 22/11/06, pp 221-222) on the second last day of the hearing. Accordingly, this ground of appeal must be rejected.

59 The claim of procedural unfairness may also be tested by inquiring what submission the Commission would have made had it been offered the opportunity. The submission would have been that, despite the apparent inconsistency with the concession in relation to an unqualified prohibition, the chaperone condition made the order inconsistent with Litchfield. Additionally, it seems that there might also have been some further consideration of the operation of the statutory prohibitions on employment, as there was in this Court.

60 The strength or otherwise of the Commission’s position in relation to order (1) must turn on the appropriateness of the order, rather than the absence of discussion of these matters before the Tribunal. The concern which the Tribunal expressed to the parties was that a prohibition on seeing young patients might be inconsistent with the principles identified in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (Gleeson CJ, Meagher and Handley JJA). Litchfield involved inappropriate sexual contact with female patients; as the Court noted at p 638D:

“Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise.”

61 In those circumstances, the Court considered that a general condition requiring the practitioner to have a chaperone present whenever seeing a female patient indicated a conclusion that he could not be trusted in relation to a fundamental aspect of proper professional conduct. It concluded that the Tribunal should properly have removed his name from the register, a course which the Court itself then took in exercise of powers conferred by s 91 of the Medical Practice Act. In reaching that conclusion, it rejected a submission for the practitioner that the Tribunal, in imposing the condition, should have been understood as finding that the doctor was not likely to reoffend.

62 In relation to 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 Litchfield that a condition should 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 precondition to entitlement to continued practice and accordingly the need to impose the condition demonstrates unfitness to practice. 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.

63 Whether private viewing of pornographic material involving persons under 16 years of age gave rise to a risk of any form of inappropriate conduct with patients was a matter about which the Tribunal received evidence from a psychologist and a psychiatrist. The Tribunal referred to the evidence of Dr Baron (a clinical psychologist) and Dr Allnutt (a psychiatrist) in the following terms:

“83. Dr Baron did hold to his view that Dr Wingate was not a risk to his child patients but he did indicate that the revelations which had been made during the hearing would prompt him to want to examine a number of matters further if he were to engage in therapeutic treatment. Dr Allnutt and Dr Baron were of the view that caution was required in making any assessment of the likelihood of Dr Wingate committing hands-on offences.”

Further, the Tribunal noted:

“88. … The offence and the extent of downloading over a long period of time was serious, and the motive was sexual gratification.
89. We think however, that Dr Wingate appreciates the seriousness of his conduct, and as we have said, is unlikely to repeat the offence. We also accept the evidence of Dr Allnutt and Dr Baron that he is unlikely to commit a hands-on offence in the context of his medical practice, although the risk of this will be reduced even further by maintaining the steps to which we shall refer below.”

The Tribunal continued:

“94. We are of the view that the restrictions imposed by the court in which sentence was passed should be maintained to ensure that the very small risk of any reoffending is reduced even further as a protection to the public, and that the Dr Wingate be required to continue with treatment in relation to his hebephilia.”

64 There was no specific consideration of whether there should be a total prohibition on seeing patients under 18 years of age (as to which the Tribunal had invited submissions) or whether the prohibition could be qualified in the form permitted by order (1) (with the chaperone condition).

65 A number of points were relevant to the approach adopted by the Tribunal in relation to this order. First, the practitioner’s professional work was as an ophthalmologist. He had a particular speciality in macular degeneration and neuro-ophthalmology, as a result of which almost all his patients were adults and many were “elderly”: Reasons at [76]. He has practised both in Sydney and in Mudgee and has assisted once a month in a pro-bono scheme providing medical services to Aboriginal patients in the Dubbo area. Secondly, the question of reoffending needed to be considered separately from the question of inappropriate conduct towards patients, which had not occurred. Thirdly, there was an express finding as to the low risk of inappropriate conduct towards patients. Finally, during submissions on the last day of the hearing the Deputy Chairperson expressly raised with counsel for the practitioner, after there had been some discussion of the effect of statutory constraints on employment:

“If that’s right, then there’s no – in a way it cuts both ways, doesn’t it? It means that if we were not to deregister him but to impose a condition, it would be a condition that in effect is already in place?”

66 The purpose of imposing a condition in circumstances such as these, requires analysis. Thus, the lower the risk of inappropriate conduct in a professional setting, the greater the likelihood that a condition is being imposed for purposes other than actually preventing such misconduct. One legitimate purpose is maintenance of confidence of the public, both in the particular doctor and in the profession generally. As Dr Baron was at pains to point out in the course of his evidence, he might have a high degree of confidence in sending a six year old son to see the practitioner, but that confidence might not be shared by other members of the public who did not have his knowledge of the nature of the risk or the character of the practitioner. Relevant public concerns may thus justify the imposition of a condition where the risk is thought to be minimal.

67 Public concerns as to the safety of young patients may be reasonable or irrational. They may be reasonable in the sense that possession of pornographic material may, for a group of people having particular characteristics, correlate with hands-on offences. The concerns may also be reasonable in that the offence of which the practitioner was convicted potentially covers both young (pre-pubescent) children and pubescent or post-pubescent teenagers. An indication of a true paedophilic interest might be treated more seriously than a hebephilic interest, but the public who knew of the conviction would have no way of knowing which was involved. On the other hand, there may be views held by members of the public concerning the risks in such circumstances, which views have no basis in the scientific or medical literature. The Tribunal may well need to exercise caution in imposing conditions on a practitioner designed to meet views which are truly irrational prejudices. It might have little or no inhibition in imposing a condition which flowed from a rational concern, even though based on ignorance of the particular circumstances.

68 Other factors might also be taken into account by the Tribunal. These would include the nature of the practitioner’s practice and the circumstances in which he or she sees patients. To take an example remote from the present facts, it may be normal practice for dentists to have an assistant in the surgery whilst treating patients. In such circumstances the imposition of a condition requiring the presence of a third person might be seen as a minor variation from usual practice. Returning to the present case, Dr Baron gave the following evidence (Tcpt, 22/11/06, p 222):

“Q. Doctor, don’t you see that a need to have someone chaperon[e] juveniles whilst they’re in treatment with Dr Wingate as a problem? In itself.
A. My answer to that is no because my understanding is that it’s best professional practice across the board now with most practitioners.”

69 An assessment of the reason for imposing the condition in the present case must also take into account the fact that the delegates of the Board had imposed a condition in similar terms on 30 November 2004. Although the Tribunal did not follow the terms of that condition, it is convenient to set it out in full:

“(a) That whenever Dr Wingate examines, treats or interviews any child under the age of 16 years of age (‘the patient’), an adult third person must be present at all times and such person may be a family member of the patient.
(c) That Dr Wingate send to the Board (within seven days of these orders) for its approval, a list of possible chaperones except in the circumstances where the chaperone is a family member of the patient. Any chaperone who is not included in this list must be notified to the Board and approved by the Board prior to undertaking that role. The chaperone must not be a relative of Dr Wingate. Any approval must be in accordance with the Board’s protocol concerning chaperones.
(d) That if in the event of a medical emergency it is not practical to obtain the services of a chaperone, a chaperone is not required, however, any such event must be notified to the Board and recorded in the list of patients referred to [below]. A medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life-threatening or urgent condition, seen by another medical practitioner or transferred to the nearest hospital.”

70 Further conditions required that the practitioner forward to the Board a list of all patients under the age of 16 years, on a monthly basis. The report was to include a contemporaneous signature of the chaperone. (The condition as set out above did not include a sub-paragraph (b).)

71 A further factor relevant to the condition imposed on the practitioner’s practice involves the operation of legislative controls on employment of persons convicted of child pornography offences. These controls were originally enacted in the Child Protection (Prohibited Employment) Act 1998 (NSW) (“the Prohibited Employment Act”) but are now contained in the Commission for Children and Young People Act 1998 (NSW) as amended by Act No. 108 of 2005, the relevant provisions of which commenced on 2 January 2007. Under the Prohibited Employment Act, an offence under s 578B of the Crimes Act as then in force was defined as a “serious sex offence” with the result that the practitioner became a “prohibited person” upon conviction, pursuant to s 5. It was accepted for the purposes of argument, that the practitioner was and remained a “prohibited person” for the purposes of Part 7 of the Commission for Children and Young People Act, following the 2005 amendments: see now ss 33(1) and 33B. The effect is that the practitioner is prohibited, pursuant to s 33C, from undertaking “child-related employment”. The term “employment” is given a wide meaning, including “performance of work as a self-employed person” and performance of work “as a volunteer for an organisation”: see s 33(1). The phrase “child-related employment” is also defined and includes employment in “wards of public or private hospitals in which children are patients” and “employment involving the direct provision of child health services”. The phrase “child health services” is not defined and there may be some argument as to whether it covers each occasion on which a self-employed practitioner provides health services to a child. These prohibitions, contained in Division 2 of Part 7 will not apply if the Commission for Children and Young People or another tribunal (being the Industrial Relations Commission or the Administrative Decisions Tribunal) declares that they do not apply: ss 33H, 33I and 33J.

72 It is not necessary to determine for present purposes whether the practitioner would, subject to the operation of any declaration of non-application, commit an offence if and whenever he provides health services to a person under 18 years of age. Rather, it is sufficient to note the scope and purpose of the legislation and its application to persons who have committed an offence in a class which includes that committed by the practitioner. This inquiry leads to two conclusions. First, there is a statutory presumption that a prohibited person “poses a risk to the safety of children”: see ss 33H(7), 33J(1) and (2). Secondly, although not all forms of employment which may involve or affect children are covered by the definition of “child-related employment” it appears that very many forms of work which involve the provision of personal services to children, whether in an institutional setting or otherwise, are covered. 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”.

73 Although the Tribunal was not required to determine whether the statutory scheme prohibited the practitioner from supplying health services to patients under 18 years of age, it should have treated the legislative scheme as part of the legal background against which the exercise of its discretion in making orders was to be considered. It should have considered whether it was satisfied that provision of services to young patients “posed no risk” to them and, if not so satisfied, there should have been a reasoned justification for not imposing a condition which had the same effect as the statutory prohibition, if it operated. Early in its reasons, the Tribunal noted the conviction and two “legislative consequences of significance arising out of his conviction”: Reasons at [15]. The Tribunal continued:

“The first is that as a result of conviction for the offence, Dr Wingate was required to become registered on the Child Protection Register for a period of eight years. The second is that the offence under s 578B is one the conviction for which rendered Dr Wingate a ‘prohibited person’ within the meaning of the relevant legislation, which has the effect that he is not permitted to be employed or even apply for employment (and employment includes performance of work as a self-employed person: see s 3) in a position involving the direct provision of child health services or employment in the wards of public or private hospitals in which children are patients.”

74 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 s 36(1)(m) of the Medical Practice Act. That might have resulted in the first complaint being upheld. However, there was no appeal in relation to the rejection of the first complaint because, as explained by senior counsel for the Commission, the case had not been run on that basis before the Tribunal.

75 When the Tribunal came to consider its orders, and noted the invitation to counsel to consider a condition “that he not be permitted to see patients under 18 years of age” the Tribunal summarised the response it received in the following terms at [94]:

“It was agreed by both parties that such a condition would not infringe Litchfield , particularly given that a very similar regime is already in place by reason of the Child Protection (Prohibited Employment) Act 1998, and now the Commission for Children and Young People Act 1998.”

76 Having adopted that approach, the appropriate course was to impose such a condition, absent some justification for not doing so. No justification was given by the Tribunal, nor was any proffered on the appeal for the practitioner, who rather accepted that the legislation made it “inevitable that such a condition would apply, whether or not the Tribunal imposed it”: written submissions, par 11. The submissions further noted:

“The imposition of the chaperone condition merely reinforced the operation of s 33C of the Commission for Children and Young People Act . On one view it was redundant.”

77 The “chaperone condition” did not reinforce the statutory prohibition: rather it assumed that the statutory prohibition did not operate. Nor would the prohibition have been redundant: as the Commission pointed out, the statutory prohibition could be lifted by the Commission or a tribunal, without any requirement that the Commission or the Board be informed of the application. Further, as with the reprimand, it would have demonstrated a concern specifically reflecting appropriate medical professional standards.

78 The Tribunal was, in the circumstances, in error in making the prohibition conditional. Order (1) should be varied so that it reads:

“(1) Impose on the practitioner’s registration a condition that he not attend, treat or perform operations on patients under 18 years of age.”

Conclusions

79 Subject to the variation of order (1), the appeal should be dismissed. Although the practitioner sought to uphold order (1) in its present form, he (and the Commission) agreed that it might be varied so as to permit a more refined operation, of the kind imposed by the Board. Given the practitioner’s position in relation to the statutory prohibition, as set out in his written submissions, it would seem that maintenance of order (1) as made by the Tribunal was not a matter of great practical significance and it was not a matter to which his counsel devoted significant time in the course of the appeal. Accordingly, the Commission having been substantially unsuccessful in the appeal, it should pay the practitioner’s costs in the Court.

80 Accordingly, I would propose the following orders:

(1) Vary order (1) made by the Tribunal on 5 April 2007 so that it now reads:

(1) Impose on the practitioner’s registration a condition that he not attend, treat or perform operations on patients under 18 years of age.


(2) Otherwise dismiss the appeal.

(3) Order the Appellant to pay the Respondent’s costs of the appeal.

81 HARRISON J: I agree with Basten JA.

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