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 2007JUDGMENT 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 5CASES 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 279PARTIES: Health Care Complaints Commission - Appellant
Dr Richard Wingate - RespondentFILE NUMBER(S): CA 40265/07 COUNSEL: C.E. Adamson SC/G.A. Farmer - Appellant
A. Katzmann SC/M. LynchSOLICITORS: 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]…
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- AGLC
- Health Care Complaints Commission v Wingate [2007] NSWCA 326
- Case
- [2007] NSWCA 326
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the Medical Tribunal had adequately considered the protective purpose of disciplinary sanctions when imposing conditions on Dr. Wingate's registration, and whether the Tribunal had correctly applied the principles regarding a medical practitioner's character and their obligation to provide accurate information to the Medical Board. Specifically, the court had to determine the scope of the appellate jurisdiction under section 90 of the *Medical Practice Act 1992* (NSW) and the relevance of controls under child protection legislation to the disciplinary process.
The Court of Appeal, with Basten JA and Harrison J forming the majority, varied the Tribunal's original order. They imposed a condition on Dr. Wingate's registration prohibiting him from attending, treating, or performing operations on patients under 18 years of age. McColl JA agreed with this outcome, though she expressed no concluded view on whether a professional obligation of full and frank disclosure extended to the process initiated by the Medical Board. The majority reasoned that the protective purpose of disciplinary orders necessitated a more stringent restriction given the nature of the offence, even if Dr. Wingate had not directly offended against children in his professional capacity. They considered the concept of "good character" and the implications of Dr. Wingate's failure to provide complete information to the Medical Board.
Orders
Orders of the court
(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. (per Basten JA, Harrison J agreeing, and McColl JA agreeing with the exception that she expressed no view as to whether a professional obligation of full and frank disclosure extends to the process instituted by the Medical Board)
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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