In Re Mr John Bannister

[2007] NSWMT 13

New South Wales

Medical Tribunal

CITATION:	In Re Mr John Bannister [2007] NSWMT 13
TRIBUNAL:	Medical Tribunal
PARTIES:	Mr John Bannister NSW Medical Board
FILE NUMBER(S):	40009 of 2007
CORAM:	Rein, SC DCJ - Glover, Prof W - - Glass, Assoc Prof A
CATCHWORDS:	Application to be restored to the register of medical practitioners following deregistration for fraud in 1992 (fourth such application since deregistration) - Whether practitioner has overcome defect in character that led to deregistration - Whether otherwise appropriate for practitioner to be restored to the register - Application for re-registration (by majority) refused
LEGISLATION CITED:	Medical Practice Act 1992 (NSW)
CASES CITED:	Bannister v Walton (1993) 30NSWLR 699 ; Bannister v Walton (unreported, Court of Appeal, 1 April 1996); Zaidi [2006] NSWMT 6; Zaidi [1996] NSWMT; Zaidi v Health Care Complaints Commission [1998] NSWSC 335 (17 July 1998); Briginshaw v Briginshaw (1938) 60 CLR; Refjik v McElroy (1965) 112 CLR 517 336; Ex parte Tziniolis Re The Medical Practitioners' Act (1966) 67 SR (NSW) 448; Dawson v Law Society of NSW NSWCA 21 December 1989
DATES OF HEARING:	26, 27 November 2007
DATE OF JUDGMENT:	19 December 2007
LEGAL REPRESENTATIVES:	Mr Williams Q.C. (Mr Bannister) Mr Ginters (Medical Board)
ORDERS:	1. Mr Bannister's application for re-registration is dismissed (by majority).; 2. Mr Bannister is to pay the costs of the NSW Medical Board of these proceedings.

JUDGMENT:

JUDGMENT

ORDERS

The Tribunal orders:

1. Mr Bannister’s application for re-registration is dismissed.

2. Mr Bannister is to pay the costs of the NSW Medical Board of these proceedings.

1 This is an application by John Herbert Bannister pursuant to s.92 of the Medical Practice Act 1992 (“the Act”) that the Tribunal review an order made by the Tribunal on 28 April 1992 that he be removed from the register of medical practitioners. Mr J. Williams Q.C. appeared for Mr Bannister. Mr Ginters of Counsel appeared for the NSW Medical Board (“the Board”).

2 The 1992 Tribunal in making the order for deregistration was satisfied:

1 That Dr Bannister (as he then was) demonstrated a lack of adequate skill, judgment and care in the practice of medicine in that he failed to administer prophylactic antibiotics pre and or peri-operatively, failed to appreciate that the patient had a deep wound infection or that a superficial wound could and probably would develop into a deep wound infection, failed to prescribe an appropriate form of treatment and went overseas without first delegating her care to an orthopaedic surgeon, and had inadequate notes of treatment and that as a result of these matters his conduct was professional misconduct, although of itself this conduct would not, the 1992 Tribunal indicated, have led to deregistration

2 That Dr Bannister had deliberately set up a billing system containing a large number of defects of which he well knew. Dr Bannister charged for attendance in his own name when he knew he had not attended and, in respect of those days, in respect of which he claims that Dr Deutsch attended he did not check whether Dr Deutsch had in fact seen the patients on those days. Indeed the system, established by the Respondent was such that it was based upon a presumed attendance by Dr Deutsch on certain days of the week rather than by actual reference as to whether or not such attendances were made;

3 That, as to the Respondent’s evidence that he believed that he was quite entitled to charge for attendances at a lower rate for Dr Deutsch in an account submitted under his own name, the Tribunal comfortably found on the balance of probabilities that the Respondent held no such belief.

3 In the course of its reasons for determination, the 1992 Tribunal stated:

The conduct of Dr Bannister in relation to the system of charging which this Tribunal has found to have existed comprises deliberate deceit. It is a deceit involving the representation to recipients of his accounts that he had personally provided services in the form of hospital attendances when he well knew that he had not in fact provided those services. It is a deceit perpetrated for the motive of financial gain.

4 The persistence of deceitful conduct over a continuous period of about 5 years from 1986 to 1990 left the 1992 Tribunal comfortably satisfied on the balance of probabilities that his conduct indicated within his character a marked degree of moral turpitude. There was an appeal to the Court of Appeal by Mr Bannister but it was rejected, see Bannister v Walton (1993) 30NSWLR 699 and see pp.705-711 where Mahoney JA summarises the factual matters and details the findings of the 1992 Tribunal. Special leave to the High Court was refused: (1993) 22 Leg Rep P.SL.1. There was an application to quash the 1992 Tribunal determination on the basis of lack of impartiality of one of the members of the 1992 Tribunal; that application was dismissed with costs: Bannister v Walton (unreported, Court of Appeal, 1 April 1996).

5 Mr Bannister subsequently made applications to be reinstated in 1995, 1998 and 2003. Each of the applications was dismissed respectively by decisions of 14 August 1996 (“the 1996 Tribunal decision”), 27 May 1999 (“the 1999 Tribunal decision”) and 8 October 2003 (“the 2003 Tribunal decision”).

6 The 1996 Tribunal was not satisfied that Mr Bannister had overcome the defect of character that had led to his removal. The 1996 Tribunal further found that Mr Bannister had been reckless in the prescription of drugs of addiction and toward compliance with the law concerning the prescription of drugs of addiction: JB1 to Mr Bannister’s affidavit, Exhibit A, Tab C, p.27.2

7 The 1999 Tribunal was not satisfied that Mr Bannister had overcome the defect in his character which had led to his removal or that he had rehabilitated himself to the extent that he was now of good character.

8 The 2003 Tribunal found that Mr Bannister had not demonstrated frankness before it, and that Mr Bannister had not satisfied the onus cast upon him that he had overcome the defects in character which led to the earlier dishonest conduct and was a person of good character.

9 The matters that the 1999 Tribunal took into account were:

(a) it was not persuaded that Mr Bannister had made a genuine admission as to his deliberate dishonesty over a 5-year period motivated by financial gain.

(g) Mr Bannister had not rehabilitated himself to such an extent that he was a person of good character for the purposes of practising medicine: affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “d”, p 21 – 22.

(h) In its reasons for decision the Tribunal concluded that Mr Bannister had “deliberately, and at every significant opportunity, minimised the findings of the 1992 and 1996 Tribunals” and that he had “misled overseas authorities” in relation to his credentials, to the point where the Tribunal described correspondence from Mr Bannister to the Hospital Board of the LBJ Hospital in American Samoa as being “deceitful and misleading”: affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “d”, p 9 – 16.

10 The matters that the 2003 Tribunal took into account were that:

(a) Mr Bannister had not demonstrated frankness before it.

(b) Mr Bannister has not demonstrated the onus cast upon him that he has overcome the defects in character, which led to the dishonest conduct, resulting in his removal from the Register.

(c) Mr Bannister had not rehabilitated himself so that he was a person of good character for the purpose of practising medicine, qualified and entitled to be restored to the Register: affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “e”, p 30 – 31.

11 In reaching the findings set out in [10], the 2003 Tribunal had regard to the following:

(a) Despite the Tribunal’s criticism in its 1996 decision of Mr Banister’s failure to make reparation for the overpayments he received he took no effective steps to ascertain what he owed and to make reparation for some years. To this extent the Tribunal held that that:

conduct was hardly consistent with some marked reformation of the Applicant’s character and a reflection of a genuine recognition that payments were received by him, as a result of his fraud
: affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “e”, p 20.

(b) The fact that Mr Bannister described himself as a “surgeon” and “doctor” when completing immigration cards on leaving and entering Australia: affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “e”, p 20 – 21.

(c) The (continued) use by Bannister of the post-nominals, MB, BS, FRCS on his letterhead. In relation to this particular matter the Tribunal concluded:

“Whatever else might be said of the Applicant he is neither unsophisticated nor unintelligent and it would have been perfectly apparent to him that the use of a letterhead bearing the Post Nominals MB, BS, FRCS, was a clear representation to anyone unaware of his deregistration back in 1992 that he was a person entitled to practise medicine, or at least that he was of good standing in the medical profession.

There is no evidence that the Applicant sought to capitalise upon any such impression by practising medicine in this State, however this is yet a further incidence of his lack of frankness, his lack of patency and his refusal to fully recognise the fact that not only had he no entitlement to practise medicine but that he had no right to maintain the pose that he possessed such entitlements”
: affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “e”, p 24.7 – 25.2.

The 2003 Tribunal’s findings included the following:

“The Tribunal gained the overwhelming impression that the Applicant persistently demonstrated a lack of frankness in his conduct and in his evidence.

When this is combined with his concession that he had advanced descriptions of his admitted fraud as a secretarial error and had pressed defences which he knew to be inaccurate, it is difficult to conclude that he is now telling the truth when he claims reformation.

His good character as found by his supporters who point to his long held religious principles and his charitable actions over the years is to be considered in the light of the fact that contemporaneously with the practice of his religion and the performance of laudable charitable acts, he was prepared to continue to make misleading and deceptive statements in declarations and correspondence and knowingly advance false defences.”
: affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “e”, p 26.4 - .8.

The 2003 Tribunal went on to conclude:

“This Tribunal considers it of fundamental importance that there has to be clearly established a marked reversal in the traits of character previously demonstrated and he has insuperable difficulty in this endeavour if he is unable to persuade this Tribunal that he has been frank. Lack of frankness is entirely destructive of the proposition that he is a person so changed, so ready to recognise his dishonesty and to accept that his gross breach of the trust placed in him as a medical practitioner was deserving of de-registration as the only appropriate measure to protect the public …the Applicant has failed to prove that he is now such a truthful and reliable person that his word should be accepted when he asserts that he is now different. Transformed from the cheat that he was to a person in who trust can be reposed and his word accepted. He has not provided clear proof that he has established that he is a different man”.
:affidavit of Bannister filed 27 June 2007, exhibit “JB1”, tab “e”, p 29.9 – 30.6.

The 2003 Tribunal did not believe the applicant when he said that he was not reapplying because of the status attached to the title of doctor: see Exhibit B, Tab E, p.25.9-26.1

12 S.94 of the Act provides:

Powers on review

(1) The appropriate review body is to conduct an inquiry into an application for review and may then do any of the following:

(a) dismiss the application,

(b) by its order terminate or shorten the period of the suspension concerned,

(c) make a reinstatement order,

(d) make an order altering the conditions to which the person’s registration is subject (including by imposing new conditions),

(e) by its order terminate or shorten the period of a prohibition order or alter the conditions to which the person is subject under a prohibition order (including by imposing new conditions).

(2) A "reinstatement order" is an order that the person be registered subject to the same conditions and limitations (if any) to which the person’s registration was subject immediately before the person ceased to be registered. The appropriate review body may also impose conditions on the person’s registration or alter the conditions to which the person’s registration is to be subject under the reinstatement order.

(3) The Board is to cause such recordings to be made in the Register as may be necessary to give effect to a reinstatement order.

(4) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.

13 S.94A of the Act provides:

Inquiry into review application

(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.

(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered.

The principles relevant to reinstatement

14 It was agreed by Mr Williams and Mr Ginters that the principles set out in Zaidi [2006] NSWMT 6 at [42] (themselves extracted from Zaidi [1996] NSWMT) and implicitly approved in the NSW Court of Appeal in Zaidi v Health Care Complaints Commission [1998] NSWSC 335 (17 July 1998)) were the appropriate principles to be applied. The principles are:

”1. The purpose of the jurisdiction which is exercised by the Tribunal is not for punishment or further punishment of the former practitioner. Instead the Tribunal’s jurisdiction is for the protection of the public which deals with medical practitioners on the basis that they are members of an honourable profession who can be expected without reservation to conduct the affairs of their patients with honour and in whom the patients can place unbounded confidence. What is in question in an application for reinstatement to the Medical Register is whether an applicant is fit and proper to be held out to the rest of the profession, to patients and to the whole of the community as a person worthy of their confidence.

2. An applicant who seeks to establish fitness to have his name restored to the Register having been earlier removed from it bears the onus of proving the case. It is a heavy onus and the question whether the applicant is a fit and proper person, is one to be trusted to exercise the high responsibilities of the profession is one to be determined on solid and substantial grounds and as an applicant for reinstatement to the Medical Register he is in a more disadvantageous position than an original applicant. He must in effect displace the decision for deregistration which has been made. That decision involves the judgment that the applicant is probably permanently unfit to have his name on the Register. As a consequence, presumptions of fitness which might arise otherwise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.

3. The ultimate issue is whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the medical profession, what is at stake is not so much the reputation of the applicant but the Tribunal's assessment of his character, uprightness, honour and trustworthiness. In the case of some offences committed over an extended period with deliberate intent and resulting in serious distress to patients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the Register.

4. It is not a question of what an applicant has suffered in the past. It is a question of his worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession. It is difficult to decide what a man will do in the future and the decision in a particular case is to a greater or lesser extent dependant upon the Tribunal’s assessment of the applicant. In making that assessment, it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Register. An understanding of that may assist the Tribunal to determine what are his standards and his understanding of a practitioner’s responsibility, and from this, what he is apt to do in the future. Where what has been done in the past has been sufficient to indicate his probably permanent unfitness the Tribunal will require solid and substantial grounds for the conclusion that his standards have changed, his character has been reformed and that he will act honourably.”

15 As is noted in the above extract, the onus of proving that the applicant is now of good character lies upon the applicant. If there is new material establishing or pointing to bad character that must be established on balance of probabilities but having regard to the seriousness of the conduct alleged: see Briginshaw v Briginshaw (1938) 60 CLR; Refjik v McElroy (1965) 112 CLR 517 336; Ex parte Tziniolis Re The Medical Practitioners' Act (1966) 67 SR (NSW) 448

16 The Board relied particularly on the passage from Dawson v Law Society of NSW NSWCA 21 December 1989 at p.16:

“In the case of some offences, committed over an extended period, with deliberate intent and resulting in severe losses by clients it will be very difficult to contemplate any circumstances in which the name of the offender will be restored to the role. But where the offences are isolated, where there is no evidence of prolonged deliberate conduct, and where, to the full extent possible in the circumstances, the funds of clients have been restored so that there is no eventual pecuniary loss, the public interest which this Court protects includes the public interest, certain matters being affirmatively proved, in the restoration of the name of the practitioner to the role” per Kirby P.

17 Mr Bannister’s grounds for review are found in paragraph 4 of the summons:

(a) That the Applicant has overcome the defect of character which led to the conduct requiring his removal from the Register

(b) That the Applicant has now rehabilitated himself to such an extent that he is now a person of good character for the purpose of practising medicine

18 In support of the application, Mr Bannister relies on:

(1) his own affidavits of 27 June 2007 and 31 October 2007

(2) affidavit of Dr Joseph Patrick Nicholas, a general practitioner of 18 July 2007
(3) affidavit of Mr Peter Allan Pearson, an officer of the Salvation Army of 10 May 2007

(4) affidavit of Major Errol Woodbury, retired Salvation Army officer of 8 July 2007

(5) affidavit of Mr Colin Victor Linguard, an officer the Salvation Army of 15 January 2007

(6) affidavit of Major Brian Waters, an officer of the Salvation Army of 5 August 2007

(7) affidavit of Dr Frederick Ehrlich, medical practitioner of 16 August 2007

(8) affidavit of Mr Barend Nieuwstraten, physiotherapist of 12 August 2007

(9) affidavit of Major Hilton Harmer, Chaplain and officer of the Salvation Army of 17 August 2007

(10) affidavit of Mr Trevor John Carter, solicitor of 16 August 2007

(11) affidavit of Mr Bruce Percy Hocking, solicitor of 27 June 2007

(12) affidavit of Mrs Mascot Blake, deceased (undated)

(13) affidavit of Dr Veronika Jakovac, general practitioner of 4 September

(14) affidavit of Dr Nirmal Taluja, general practitioner of 4 September 2007

(15) affidavit of Ms. Abigail Bianca Bannister, solicitor of 21 September 2007

(16) affidavit of Charles John Bannister, company director of 19 September 2007

(17) affidavit of Honor Francesca Northam (nee Bannister) of 12 October 2007

(18) affidavit of Dr Justine Natasha Bannister, clinical psychologist of 11 October 2007

(19) affidavit of Dr Peter Lauvao, medical practitioner of 14 September 2007

(20) affidavit of Dr Medhat Gurgis of 22 November 2007

19 Mr Bannister was born in 1942 and is now 65 years of age. He graduated in Medicine in 1964 and became a Fellow of the Royal College of Surgeons in Edinburgh in 1970. He held a number of Registrar positions until 1973 and in 1974 he commenced practice in Macquarie Street, Sydney with hospital appointments until 1974. From 1975 to 1992 he practised from Macquarie Street with an emphasis on spinal surgery – performing 3-4 spinal operations per week and he performed approximately 4000 surgical operations. His Counsel described him as an ‘eminent’ surgeon (see opening T2.25), for which we do not think there is any warrant given his lack of work in public hospitals and lack of publications: T93.40 although we do not doubt that he was a successful and well-known surgeon up to 1992.

20 Following deregistration, Mr Bannister worked in a Saudi Arabian hospital for approximately 2 months and in an American Samoan hospital for about 12 months. He has done some work for a marketing business, but what he did is unclear. According to the 1999 Tribunal Mr Bannister obtained those hospital positions after he had failed to fully disclose the reasons for his deregistration in NSW.

21 Mr Bannister has earned money in connection with the care of a brain damaged quadriplegic man, whom we shall refer to as PB. Mr Bannister says that he was paid initially $50 per hour and then $750 per week (gross) to help coordinate medical attention and nursing care of that person. What hours this involved and why precisely he was being paid this on a weekly basis was unclear. PB’s mother, apparently had a very positive view about Mr Bannister (see draft affidavit annexed to the affidavit of Mr Hocking) and included him as a beneficiary in her will but he has or may have been removed in a later will and she having passed away, her grandson has indicated that he does not wish Mr Bannister to continue with any involvement in the care of PB.

22 Mr Bannister was brought up with a Salvation Army orientation. He has always been involved with the Salvation Army and continues to have a strong association – playing piano on Sundays and is involved in much of the Army’s activities including the Red Shield Appeal.

23 In more recent times he has been attending the Booth Institute, run by the Salvation Army, and lecturing on drugs and drug addiction and other issues of a non-medical nature to men with dependency issues. He has also attended Alcoholics Anonymous meetings, although he himself has never drunk.

24 There was substantial support for Mr Bannister in the affidavits tendered, attesting to a positive change in his character.

25 Mr Bannister’s evidence was that his involvement in Booth and working with homeless people had an effect on him and led him to see the error of his past ways: T13. At T32.32-46 there was this question and response in his evidence in chief:

Q. What do you say other than the passing of time has changed to warrant the tribunal concluding that you are now of good character?
A. Justice Mahoney said that the - I think in Bannister v Walton that it was part of the general practitioner not only to practice his skills but also to protect the public against bad character. I have been working with homeless men and men of addiction and I’ve been to AA meetings where the whole issue of reform is about character. I’ve also undergone a transfiguration or a reformation of my character. I now accept things that I wouldn’t have accepted ten years ago. The John Bannister of now is a very different person to the John Bannister when I was in full flight in practice. I’m a very different person, almost not recognisable of the person that I used to be.

26 As we have noted previous Tribunals had been aware of Mr Bannister’s long involvement with the Church and his expressions of faith which had coexisted with the conduct in which he was found to have engaged – this was proffered as an explanation for a change in attitude quite separate from his professed religious beliefs.

27 Mr Bannister had initially refused to accept the findings of the 1992 Tribunal at the 1996 Tribunal and was found not to have made a genuine admission at the 1999 Tribunal hearing. Mr Bannister said a number of times before this Tribunal that he now does accept these findings: T11.10. He said that he was a changed man who would never repeat his previous errors. He said he could now feel the shame and embarrassment of what he did: T20.

28 Mr Bannister wants to be re-registered as a medical practitioner. He said he wants to be able to work as an orthopaedic surgeon doing what he is good at, spinal surgery: T19-T22, T87.7-12 and see Exhibit 1, Tab 1. He set out a list of what he submitted were appropriate conditions upon which he could be registered: see Exhibit 7.

29 The Board’s position is that the Tribunal ought not accept that Mr Bannister should be readmitted as a practitioner because the Tribunal could not be satisfied that he has reformed and overcome his defect in character and because even if he has, he is not now fit to practise medicine. Its secondary position is that if, contrary to the Board’s primary position, the Tribunal is persuaded that he ought be readmitted then the conditions proposed by Dr Holman, an expert retained by the Board whose report was tendered in evidence and who was cross examined (see Annexure E to Dr Holman’s affidavit of 3 November 2007), should be imposed. Dr Holman was of the view that if Mr Bannister wishes to practice as a specialist surgeon or as a specialist orthopaedic surgeon he:

“would have to retrain and apply for an accredited training post as required by the Royal Australasian College of Surgeons. If successful in completing surgical training, Dr Bannister would then have to successfully sit for the final fellowship examination of the Royal Australasian College of Surgeons in the appropriate discipline in which he wishes to practice. That is to sit for the final fellowship examination in orthopaedic surgery if he wishes to recommence practice as an orthopaedic surgeon”.

30 In support of his case that the conditions proposed by him are appropriate Mr Bannister relied on the evidence of Emeritus Professor Ehrlich and Dr Gurgis. Professor Ehrlich described Dr Holman’s recommended conditions as “outrageous” and “pretty crazy”. Professor Ehrlich said he had ceased work as an orthopaedic surgeon after 15 years’ practice and then returned to it after 10 years in administration and had no difficulties, and he believed Mr Bannister would be able to do the same: paragraph 4 of his affidavit of 16 August 2007. Dr Gurgis felt that Mr Bannister had been well qualified and that he would still be able to apply much of his knowledge without being required to sit for specialist accreditation. Dr Gurgis did however think, given Mr Bannister’s age and the fact that he had largely been out of practice for 15 years, that a career as an orthopaedic surgeon now was unrealistic. He thought that the most that Mr Bannister could be engaged in was minor surgery of which he gave correction of “carpal tunnel syndrome” as an example: T119.5-T121.11 and he said that if he was Mr Bannister he would not even consider surgery: T122.40. He did not think that 35 per day was a realistic number of patients: see T123.35-40. Dr Taluja, a general practitioner who much admired Mr Bannister’s level of concern for patients in the past and his abilities as an orthopaedic surgeon, and who gave evidence on behalf of Dr Bannister, thought that surgery was no longer appropriate: T98.47.

31 The Tribunal, by a majority, has come to the view that Mr Bannister should not be re-registered as a medical practitioner. One member of the Tribunal, Associate Professor Glass, has come to the view that Mr Bannister ought be re-registered. We set out at [32]-[34] the views of the majority and at [35]-[36] the views of Associate Professor Glass.

1.

32 The reasons that have lead the majority to conclude that Mr Bannister should not be re-registered have two separate components. The first relates to his assertion of reformation. Whilst there is evidence that Mr Bannister has engaged in good and positive works and that he has the respect and support of a large number of friends and family and it has to be borne in mind that what originally lead to his deregistration happened long ago, the following matters leave us unpersuaded that he is a different person of reformed character:

(1) The nature of the conduct which led to deregistration persisted over a five year period and involved deliberate deceit.

(2) Given that at both the 1996 and 1999 hearings, Mr Bannister maintained his innocence in the face of the 1992 Tribunal findings and given that it was Mr Bannister’s evidence that he now fully accepted the correctness of the 1992 findings see T2.47, T26.51-53 it is of some significance, that he still attempted to minimise his conduct at various points in the evidence: T25.21-30, T27.1-16, T30.12-15.

(3) Similarly, although he said that he accepted as correct the findings of the 1999 and 2003 Tribunal: T29-30 he appeared to resist the findings to some degree: T31.40-55

(4) Even when it came to the amounts involved there were inconsistencies. Mr Williams said in opening that Mr Bannister’s solicitor had previously calculated the amount which had been improperly billed as $15,000: T2.15. Mr Williams said that when the HCCC started its enquiries the insurance companies who had received the bills froze their payments so that only $1400 has actually been obtained but it might have been more than that. At 27.30-33 Mr Bannister said that the error was only a couple of hundred dollars that he “failed to recognise” and then said it was between that amount and a thousand dollars. Further enquiry at T27.55 led to him saying it was in the vicinity of $200 to $500: T28.20. At T35.25 Mr Bannister said that the actual wrong charging was “somewhere between up to $4000”. Even accepting that $15,000 was not all improperly billed we were left with the impression that Mr Bannister was unreliable and that he had attempted again to minimise his wrongdoing.

(5) Notwithstanding that in the 1999 and 2003 Tribunals he had been taken to task about his inadequate description of his past conduct to third parties (and his daughter’s evidence at paragraph 14 of her affidavit):

(a) in 2004 he wrote to the College of Surgeons Edinburgh and said, inter alia :

“After a very lengthy court case commencing in 1992, I lost my licence to practice due to a financial matter and despite numerous applications to be reinstated I have been unsuccessful”. (Exhibit 2) (Our emphasis)
which Mr Bannister agreed was less than frank, and misleading: T37.42.

(b) In 2005, in a letter to the College of Surgeons Edinburgh (Exhibit 3) he said that his attempt to regain registration had failed “mainly because of my use of FRCS on a letter to a friend”.

(c) In a letter of 10 February 2007 to the College of Surgeons Edinburgh Mr Bannister said:

“You will recall that in front of the Medical Tribunal in NSW, it found that in one letter to another professional, I used the post nominal FRCS, which suggested a character issue to the Tribunal. In fact this was the major reason that I was not reinstated ”. (Our emphasis).

(6) In cross examination Mr Bannister was asked if he regarded his trustee in bankruptcy as a friend and he said he did not: T42.35 When confronted with Exhibit 3, he said he did regard his trustee in bankruptcy as a friend and had almost qualified his answer earlier on: T44.24-T45.2.

(7) We did not find that description of his trustee as a friend at all convincing and we find that his use of it was yet another deliberate minimisation of Tribunal findings. Although it was not put to him, in Exhibit 2 he did not describe his trustee as a friend. We think that his description in that later letter of the use of post-nominals as the major reason he was not reinstated was a further inaccuracy.

(8) We note that previously Mr Bannister had said that he estimated that he had used post-nominals of six occasions, but now he says he can find evidence of only one occasion.

(9) Mr Bannister in his correspondence with the College of Surgeons Edinburgh never informed the College of the fact that he had been deregistered for fraud: T47-48.

(10) In considering whether Mr Bannister has reformed it is necessary to have regard not only to the conduct established at the 1992 Tribunal but also to subsequent conduct established at later Tribunals, which includes a finding that he made misleading statements designed to assist him to obtain employment overseas. We regard that as a significant matter. It is also a matter far more recent in time than the conduct leading to the deregistration.

(11) Mr Bannister said that he had arrangements in place to enter into a partnership with his solicitor, Mr Bruce Hocking, for the conduct of his practice. Mr Bannister said that the reason for the arrangement was to ensure that he met all restrictions on his practice: T75-76 and see T90.55-91.10. He did not mention on either occasion that one of the reasons is that he needs money from Mr Hocking to set up the practice, a matter which we were informed Mr Hocking would say if called: T101.45.

(12) Whilst it is of very limited significance, Mr Bannister was very vague as to what he did in marketing: T76, T79.

(13) We have serious concern about Mr Bannister’s honesty in regard to his intentions if readmitted to practice. He said that he hopes to be permitted initially to perform joint manipulations and injections and then to move to open surgery including spinal surgery: T17-18 and see his statement, Exhibit 1, Tab 1. He said in oral evidence that if he were restricted in NSW to injections and manipulations he would be able to perform surgery in American Samoa: T22.10. He said he would hope to build up to seeing 35 patients a day, 5 days a week and to establish practice in two locations. However, when questioned about the need for a position in a public hospital as a part of retraining at T51.5 he said it was not warranted: “well, if I was going back to surgery maybe it would be warranted, but I anticipate not going back to surgery” and see T72.15, T73.40 and T87.7-12.

33 The views of the majority of the Tribunal in relation to the issue of reformation of character are sufficient to lead to rejection of the application but there is an important second matter. Even had the Tribunal been satisfied that Mr Bannister had overcome the defect in character which lead to his deregistration and the findings of the 1996, 1999 and 2003 Tribunal, we are of the view for the reasons which we shall outline below that it would not be appropriate to now order Mr Bannister’s re-registration quite apart from the issue of character:

(1) Mr Bannister has not practised as a surgeon for 15 years, apart from two brief periods overseas.

(2) The brief periods themselves were more than 8 years ago. As to one of those periods there is an affidavit from the Deputy Director or Clinical Services at the LBJ Hospital, Mr Lauvau, who does not appear to have any medical qualifications and who gives no explanation for Mr Bannister’s departure from the hospital but there is no independent reliable evidence as to, or from which the content and quality of his work overseas can be determined.

(3) Mr Bannister has not practised general medicine for more than 35 years

(4) We have referred to the conflicting evidence of what Mr Bannister says he wants to do if re-registered. In the context of his expressed aim of returning to perform major spinal surgery here or overseas, Mr Bannister sees his return to work as an orthopaedic surgeon with him seeing up to 35 patients a day and running two practices as an almost smooth continuation of his earlier practice, driven by his view of himself as having “a God-given gift for spinal surgery”: T19.10, and his assessment of himself as having “unquestioned excellence”: T63-64. These matters coupled with Mr Bannister’s limited consultation in the past with other surgeons: T65.40 (although see T85.55, T92), and his robust view of the absence of complications (bar one): T19.8-16 and the finding of the 1992 Tribunal of professional misconduct unconnected with deceit, are themselves of concern but more importantly Mr Bannister in his application appeared to have no insight as to the limitations which are placed upon him because of his age, his lack of practice and lack of involvement in medicine over a long period. His experience for many years when practising has been very focussed on orthopaedic surgery. He is not now a young surgeon in his 40s but a man of 65, an age at which many surgeons of his age have retired from surgery or at least full-time surgery.

(5) Questions asked of him at the hearing did at least elicit some recognition of these difficulties. In an answer to a question from Dr Harbison about training, Mr Bannister said (T90.5) “do you expect me to go back and do the examinations [at] my age. I don’t have the memory or the capacity to do that” (or the capacity to absorb material, as Mr Bannister acknowledged at T50.18). Medicine is a constantly changing field of knowledge and although anatomy remains constant there is much that is new in procedures and related matters. Mr Bannister gave evidence of downloading 40,000 pages of medical information and having access to journals and articles but downloading material does not equate to knowledge, and in cross examination he indicated the difficulty of absorbing so much material: T92.55 in answer to a question from Professor Glover. As Dr Holman points our, Mr Bannister “has had virtually no experience of general medicine in the last fifteen and a half years”.

(6) Dr Gurgis (who was called by Mr Bannister and who has had only social contact with Mr Bannister in recent times) supported the view that it is unrealistic to think that Mr Bannister could return to major surgery. It is true that Dr Ehrlich said otherwise but he was extrapolating from his own experience many years ago in different circumstances and he himself had given no thought to what conditions were appropriate (he was not retained as an expert witness) or why he thought Mr Bannister could easily resume his practice other than by reflecting on his own case. He had had limited contact with Mr Bannister many years ago as a tenant of Mr Bannister and did not have a detailed knowledge of the Tribunal’s earlier decisions. He gave no evidence of the type which Dr Holman has had: see Annexure to Dr Holman’s CV dated 20 November 2007. Dr Holman’s independent and objective view was that if Mr Bannister was to be re-registered he would need retraining in a form that Mr Bannister said he did not think was appropriate. Dr Gurgis thought that would be demeaning to Mr Bannister and we can see that that might well be so.

(7) Dr Gurgis thought that Mr Bannister could perform minor operations such as operations to correct carpal tunnel syndrome now without the need for retraining, although Dr Taluja seemed to think that surgery was not a realistic option and Dr Gurgis seemed to hold that view to some degree: T122.40. Whilst it is possible that Mr Bannister could do some minor operations without any retraining, it is not feasible or practical for an orthopaedic specialist to be so severely restricted, and even if it were possible, the Tribunal could not permit registration without an assessment both practical and knowledge-based being made of his current fitness to perform any form of surgery. Such practical assessment would be difficult to arrange in circumstances where Mr Bannister is not working and has not worked in this country for 15 years. We recognise that any requirement for Mr Bannister to undergo supervised training before he could be permitted to practice again as a surgeon and indeed the regime that Dr Holman advanced as appropriate, which is the only approach that in our view would ensure protection of the public, may be impractical because it involves Mr Bannister being given a place in a hospital when realistically none would be provided there being so many more appropriate candidates.

(8) We think that Mr Bannister’s assertion of bias on the part of Dr Holman: T66.16, T67.20, (which Mr Williams did not press: see T139.45-49) itself shows a lack of insight into the real problems of his resuming practice.

(9) If Mr Bannister was precluded from performing surgery or any kind of operation that would leave him a role as a consultant orthopaedic specialist. The work that might be included in that role would include medico-legal reporting but that is not something Mr Bannister wishes to do: T73.15. So far as any other consulting role it is difficult to see how he could provide any such advice without full familiarity with current procedures, risks, advantages and disadvantages and diagnostic tools following a training period and testing of his knowledge. Mr Bannister does not want to undergo such training and testing even if it were able to be provided.

34 In coming to the view that it has, the Tribunal is fully conscious of how significant this application is to Mr Bannister but it is not persuaded that he is a changed man who has now demonstrated he is of sufficient good character to now be permitted to practise medicine or that he is now competent to be re-admitted to the register, even with conditions.

35 The dissenting member of the Tribunal is of the view that Mr Bannister has reformed and has now overcome the defect of character which led to his de-registration in 1992. In coming to this view he found persuasive the evidence of Mr Bannister (in particular, his evidence at T20, T32-3 and his affidavit of 27 June 2007) and the extensive supporting material (as set out at [18] above). While the dissenting member was troubled by some of the matters discussed above at [32] he was still comfortably satisfied that Mr Bannister had made out his case for re-registration.

36 However, in view of Mr Bannister’s absence from medical practice for over 15 years the dissenting member would have imposed strict conditions upon any future re-registration. The precise detail of these conditions is now not relevant in the light of the majority view that Mr Bannister should not be re-registered. However, in general terms these conditions would have been far more restrictive than those proposed by Mr Bannister in Exhibit “7”. They would have limited Mr Bannister initially to non-operating orthopaedic work confined to spinal conditions. It would then have been a matter of crafting conditions that would open up to Mr Bannister, progressively, supervised and assessable work while he retrained. As can be seen from the conditions suggested by Dr Holman, it is not easy to devise conditions that allow Mr Bannister, at his age, a realistic opportunity of working and retraining as a doctor in NSW while protecting the public from someone whose competence has not been tested and assessed for over 15 years.

37 Accordingly, the Tribunal (by a majority) rejects Mr Bannister’s application for re-registration and orders that he pay the costs of this application.

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