Re Dr Richard Wingate - [2007] NSWMT 2

New South Wales

Medical Tribunal

CITATION: Re Dr Richard Wingate [2007] NSWMT 2

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission
Dr Richard Wingate

FILE NUMBER(S): 40001 of 2006

CORAM: Rein, SC DCJ - Giuffrida, Dr M - Ng, Dr J - Napier, Ms L

CATCHWORDS: Medical practitioner found guilty of possession of child pornography as defined by and in breach of s 578B Crimes Act - whether circumstances of offence rendered practitioner unfit to practise medicine - whether not of good character - whether commission of offence was "professional misconduct"

LEGISLATION CITED: Child Protection (Prohibited Employment) Act 1998
Commission for Children and Young People Act 1998
Commission for Children and Young People Amendment Act 2005
Crimes Act 1900, s 578B
Crimes Act 1958 (Vic), s 70
Health Care Complaints Act 1993
Medical Practice Act 1992, ss 2A, 36, 37, 39, 64, 154
Medical Practice Act 1994 (Vic)

CASES CITED: A County Council v W (Disclosure) [1997] 1 FLR 574;
A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1;
Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911);
Childs v Walton (unreported, NSWCA, 13/11/90, BC9001755);
Collins v Medical Practitioners Board [2003] VCAT 1755;
Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408;
Dental Board of Queensland v Cullen [2006] QHPT 004;
Dilworth v Stamps Commissioner [1899] AC 99;
Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30;
Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357;
Gayed v Walton (unreported, NSWCA, 31/7/1997, BC9708087);
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630;
Law Society of South Australia v Rodda (2002) 83 SASR 541; [2002] SASC 274;
McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907);
Medical Board of Queensland v Fitzgerald (Queensland Health Practitioners Tribunal, 27/04/06);
Myers v Elman [1940] AC 282;
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284;
New South Wales Bar Association v Hamman (1999) 217 ALR 553; [1999] NSWCA 404;
Qidwai v Brown [1984] 1 NSWLR 100;
R v Fellows [1997] 2 All ER 548;
R v Stroempl (1995) 105 CCC (3d) 187;
Re A Solicitor [1960] VR 617;
Re Anthony York (Nurses Tribunal of NSW, 12/08/98);
Re Davis (1947) 75 CLR 409;
Re Dr Abraham Stephanopoulos [2006] MPBV 12;
Re Dr Motum (Medical Tribunal NSW, 4013/99, 2/08/00);
Re Dr Richard Byron Collins [2003] MPBV 10 ;
Re James Benedict Anton Provan [2005] PRBD (Vic) 3;
Re Mueller (Psychologists Tribunal of NSW, 6/09/05);
Re Woolcock (NSW Medical Tribunal, 14/09/95);
Reyes v Dental Board of South Australia (2002) 83 SASR 551; [2002] SASC 239;
Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798;
Roylance v General Medical Council (No 2) (1999) 47 BMLR 63; [2000] 1 AC 311;
Roylance v The General Medical Council [1999] UKPC 16;
Van Lan Ha v Pharmacy Board of Victoria [2002] VSC 322; BC200204549;
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

DATES OF HEARING: 20-23 November 2006

DATE OF JUDGMENT: 5 April 2007

LEGAL REPRESENTATIVES: G Farmer (HCCC)
M Higgins (Dr Wingate)

ORDERS: The Tribunal orders: (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.

JUDGMENT:

JUDGMENT

1 The Tribunal has been constituted to consider three complaints brought against Dr Richard Wingate.

2 On 3 February 2005 Dr Wingate pleaded guilty to one count of possession of child pornography under s 578B(2) of the Crimes Act 1900 “being 66 images of boys apparently under the age of 16 years”.

3 Section 578B of the Crimes Act made it an offence for a person to have in his or her possession any child pornography, for which offence the maximum penalty is two years imprisonment or 100 penalty units (equivalent to $11,000) or both.

4 “Child pornography” was defined at the time of the offence (26/09/04) in s 578B(1) of the Crimes Act :

“ child pornography means a film, publication or computer game classified RC, or an unclassified film, publication or computer game that would, if classified, be classified RC, on the basis that it describes or depicts, in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.”

5 On 3 February 2005 Dr Wingate was convicted of the offence by his Honour Magistrate Clugston. Magistrate Clugston fined Dr Wingate $6000, and ordered him to pay court costs. He placed Dr Wingate on a good behaviour bond for a period of three years, with which he was to accept the supervision of the NSW Probation and Parole Service.

6 In due course, the fact of Dr Wingate’s conviction came before the NSW Medical Board. A Section 66 Committee was established and it considered the question of whether restrictions should be placed on Dr Wingate’s right to practise. It imposed the following restrictions and conditions, inter alia:

“ Employment Conditions

2. 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.

…

3. That Dr Wingate shall forward to the NSW Medical Board within seven days of the end of each calendar month a report listing all patients under the age of 16 years examined by him during the calendar month, showing in respect of each patient the date of every examination and the name or names of the person or persons present throughout that examination. This report must include:

Printed notation of the patient’s names and chaperone;

The contemporaneous signature of the chaperone;

The date, and the time of the examination.

…

Health Conditions

That Dr Wingate attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist to inform the NSW Medical Board of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
That Dr Wingate continue taking any medication prescribed by his treating psychiatrist.”

7 The HCCC, which is the authority responsible for deciding whether to bring complaints and for bringing such complaints to the Tribunal, makes the following three complaints:

“… Dr Richard Wingate … being a medical practitioner registered under the Act:

COMPLAINT ONE

Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the 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.

COMPLAINT TWO

Is not of good character.

Particulars

On 26 September 2004 at Woolaware, New South Wales the practitioner possessed child pornography.

COMPLAINT THREE

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.”

8 We shall refer to Complaint One as the “Unsatisfactory Professional Conduct/Professional Misconduct Complaint”; Complaint Two as the “Not of Good Character Complaint”; and Complaint Three as the “Circumstances of the Offence Complaint”.

The Legislative Framework

9 Section 39 of the Medical Practice Act 1992 (“the MPA ”) sets out the “complaints” with which the Act is concerned. They are:

(a) criminal conviction or criminal finding;

(b) unsatisfactory professional conduct or professional misconduct;

(c) lack of competence;

(d) impairment;
(e) character (ie a complaint “that the practitioner is not of good character”).

10 Section 36 sets out what is included in the phrase “unsatisfactory professional conduct”, namely conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, contravention of the MPA itself or regulations made under it, contravention of conditions of registration, criminal convictions and criminal findings for any of a number of specified offences (s 36(1)(d) does not include in those offences s 578B of the Crimes Act ), contravention of requirements of the Health Care Complaints Act 1993 , accepting a benefit for a referral or recommendation to a health service provider, accepting a benefit for recommendation of a health product, offering a benefit for a referral or recommendation, failing to disclose a pecuniary interest, in giving a referral or recommendation, engaging in overservicing, permitting an assistant who is not a registered medical practitioner to perform certain work, assisting unregistered practitioners to carry out medical procedures or obtain documentation to that end, failing to render urgent attention, and finally “Any other improper or unethical conduct relating to the practice or purported practice of medicine ” (emphasis added).

11 Section 37 provides that “professional misconduct” means “unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register”.

12 If the conduct in question does not fall within s 36 it cannot fall within s 37. If it falls within s 36 it will fall within s 37 only if it is of a sufficiently serious nature to justify suspension or removal.

13 There are two other sections of the MPA to which reference should be made:

“ 2A Object of Act

(1) The object of this Act is to protect the health and safety of the public by providing mechanisms designed to ensure that:

(a) medical practitioners are fit to practise medicine, and

(b) medical students are fit to undertake medical studies and clinical placements.

(2) The Board must exercise its functions under this Act in a manner that is consistent with this object.

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 of or made the subject of a criminal finding for an offence, either in or outside New South Wales, 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.

(2) An order that a person be deregistered is an order that the person’s name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered.
(3) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time.”

14 There is no dispute by Dr Wingate that the Offence Complaint is made out. He was convicted of the offence under s 578B(2) on 3 February 2005.

15 We have made reference to the conviction under s 578B of the Crimes Act . In addition to the fine and good behaviour bond, which requires Dr Wingate to remain under the supervision of the NSW Probation and Parole Service (including attending at its direction a psychologist), there are two other legislative consequences of significance arising out of his conviction. 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: see Commission for Children and Young People Act 1998 and the former Child Protection (Prohibited Employment) Act 1998 .

Unsatisfactory Professional Conduct/Professional Misconduct Complaint

16 So far as the Unsatisfactory Professional Conduct/Professional Misconduct Complaint is concerned, Dr Wingate disputes that his conduct could as a matter of law fall within the category of professional misconduct, because the activities which led to him being charged with the offence to which he pleaded guilty could not be either a lack of knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine or improper or unethical conduct relating to the practice of medicine . As the issue raised involves a question of law, s 154(1) of the MPA applies to it.

17 It seems clear that each and every matter in s 36 is a matter relating to the practice of medicine either in respect of the diagnosis, treatment or advice provided (or that should be provided) or the circumstances surrounding the consultation, or matters relevant to registration of practitioners, or the investigation of complaints or specific offences listed in s 36(1)(d). The one general provision “Other improper or unethical conduct” (s 36(1)(m)) is qualified by the words “relating to the practice or purported practice of medicine”.

18 On its face, s 36 (and hence s 37), has no concern with conduct of a practitioner outside the practice of medicine unless the conduct falls within s 36(1)(d).

19 The HCCC nevertheless argues that Dr Wingate’s conduct amounts to unsatisfactory professional conduct and to professional misconduct for the following reasons:

(1) the objects of the Act are broadly stated and the interpretation contended for advances those objects;

(2) section 36 does not define unsatisfactory professional conduct in an exclusive way but uses the word “includes”;

(3) the nature of the offence here indicates a lack of concern for the welfare of children and such concern is part of a doctor’s role;
(4) the issue has been determined authoritatively by the NSW Court of Appeal in Childs v Walton (unreported, NSWCA, 13/11/90, BC9001755).

20 In relation to the argument centred on the objects of the Act, it is important to bear in mind that s 64 provides that conviction for an offence may, if the circumstances of the offence render the person unfit in the public interest to practise medicine, lead to removal from the register, as can a finding that the practitioner is not of good character. In the Tribunal’s opinion, the objects of the Act are sufficiently catered for by these provisions.

21 The use of the word “includes” in s 36, indicates that the definition of unsatisfactory professional conduct was not intended to be exhaustive, ie “is not meant to prevent the word from receiving its ordinary popular and natural sense whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to some things to which it would not ordinarily be applicable” per Lord Selborne in Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798 at 801. There is some scope for the argument here that the extent of the detail and the use of a catch-all at the end is such as to indicate that the legislature was attempting to exhaustively state what the words “unsatisfactory professional conduct” were to mean (see Dilworth v Stamps Commissioner [1899] AC 99 at 106, but see the discussion in “Statutory Interpretation in Australia”, 5th ed, Pearce & Geddes, para 6.58), but whether that is so or not, the phrase “professional conduct” would not be understood in a popular normal sense as including conduct of a medical practitioner at home or completely divorced from the surgery.

22 Section 36(1)(l), which relates to refusing or failing to attend a medical emergency, deals with the doctor’s conduct outside the normal doctor/patient role, but is of very limited scope.

The Case Law on Professional Misconduct

23 The following cases were cited as relevant to the issue of construction: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; New South Wales Bar Association v Hamman (1999) 217 ALR 553; [1999] NSWCA 404; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Reyes v Dental Board of South Australia (2002) 83 SASR 551; [2002] SASC 239; Re James Benedict Anton Provan [2005] PRBD (Vic) 3; Re Dr Abraham Stephanopoulos [2006] MPBV 12; Roylance v The General Medical Council [1999] UKPC 16; Medical Board of Queensland v Fitzgerald (Queensland Health Practitioners Tribunal, 27/04/06); Re Anthony York (Nurses Tribunal of NSW, 12/08/98); Dental Board of Queensland v Cullen [2006] QHPT 004 (Queensland Health Practitioners Tribunal, 16/06/06); Childs v Walton (unreported, NSWCA, 13/11/90, BC9001755), only some of which deal with medical practitioners.

24 In A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1, the solicitor had pleaded guilty to aggravated indecent assault on persons under the age of 16 years, contrary to s 61M of the Crimes Act 1900 , for which he was originally sentenced to three months imprisonment, but on appeal was required to enter into a recognisance to be of good behaviour, the appeal judge accepting that subjective factors made imprisonment inappropriate. The aggravation involved the fact that the two victims were persons with whom the solicitor had a relationship of trust and the victims were under the age of 16. The solicitor was subsequently charged with two further offences involving one of the victims and although he denied the charges he was convicted of those offences. The convictions were however quashed on appeal. Whilst the Law Society was considering what action to take in relation to the first set of offences (the four offences to which the solicitor had pleaded guilty), the solicitor did not reveal the existence of the subsequent set of two charges and his conviction for them.

25 The Court of Appeal treated the solicitor’s conviction on the first four counts and the failure to disclose the second conviction as professional misconduct and ordered that his name be removed from the roll.

26 The High Court held that the conviction for the four offences had not occurred in the course of his practice as a solicitor and had no connection with that practice. The breach of trust reposed in the solicitor was reposed solely in his parental-like role and the circumstances of the breach “were so remote from anything to do with professional practice that the characterisation of the appellant’s personal misconduct as professional misconduct was erroneous”. The High Court accepted that professional misconduct may extend beyond acts closely connected with actual practice, even though not occurring in the course of such practice “if it manifests the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice” per Spigelman CJ in NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at 298 [56]. Cummins was a case in which a barrister was removed from the roll following non-compliance with revenue laws affecting earnings from those activities.

27 The HCCC relies on Childs v Walton (unreported, NSWCA, 13/11/90, BC9001755). That case involved a psychiatrist who was deregistered following proceedings before the Tribunal constituted under the Medical Practitioners Act 1938 . Samuels JA (with whom Meagher and Priestley JJA agreed) rejected the practitioner’s appeal. The complaints were that she had been guilty of professional misconduct with RS in that she had, after termination of the doctor/patient relationship, initiated sexual encounters indicating an interest in him based upon her knowledge gained through the consultations that he had been a victim of incest, that she had engaged in a personal relationship with another ex-patient not long after he had been a patient of hers, and thirdly that she had divulged confidential information about other patients to RS. In the 1938 Act professional misconduct was relevantly defined to mean:

“any conduct that demonstrates a lack of adequate:

(i) knowledge;

(ii) experience;

(iii) skill;

(iv) judgment; or

(v) care
by the practitioner in the practice of medicine.”

28 Samuels JA noted that it was argued that the words “in the practice of medicine” set boundaries to the period within which it was possible for a practitioner to behave to or concerning a patient in such a way as to be guilty of professional misconduct, and rejected the argument saying:

“The phrase ‘in the practice of medicine’ does not have a temporal meaning, but rather a qualitative or descriptive character. It does not circumscribe the period during which the conduct impugned must occur if it is to be capable of satisfying the prescription; it describes its nature. The conduct must be such as to demonstrate the lack of a quality (eg adequate knowledge) necessary in the practice of medicine. The conduct is the vehicle by which a specified defect is revealed. Hence the act or omission constituting the conduct (see the definition of ‘conduct’ in s 27(1)) need not occur while the relationship of doctor and patient exists between a complainant and the practitioner. It may occur at any time. It need not be conduct which occurs in the course of treating a patient. The only requirement is that it must demonstrate one of the specified deficits. It is often risky to construe by paraphrase, but in this case I think it is accurate to say that s 27(1)(a) contemplates conduct by a practitioner that demonstrates his or her lack of one or more qualities indispensable to the practice of medicine; or, in the case of lack of adequate experience, to the particular procedure undertaken.”

29 We do not think that Childs provides support for the HCCC’s argument.

30 In Roylance v General Medical Council (No 2) (1999) 47 BMLR 63; [2000] 1 AC 311, the Privy Council upheld the General Medical Council’s Professional Conduct Committee’s findings that a medical practitioner who was the Chief Executive Officer of a Healthcare Trust whose operations included the Bristol Royal Infirmary (and at which the practitioner also carried out one session per week as a consultant radiologist), had been guilty of serious professional misconduct. The Privy Council identified two classes of professional misconduct: clinical misconduct, and misconduct outside of clinical misconduct where that misconduct may constitute professional misconduct, noting: “But there must be a link with the practise of medicine”. The abuse of a patient’s confidence or making some dishonest financial gain were referred to. Their Lordships held that there was “a sufficiently close link with the profession of medicine in the case of the appellant as Chief Executive of a hospital in respect of patients at the hospital”: at 150. There is nothing in the ratio decidendi of the case that assists the HCCC. However, the Privy Council, in the course of discussing other matters, did refer to what seems to be a third category saying:

“… serious professional misconduct may arise where the conduct is quite removed from the practice of medicine, but is of a sufficiently immoral or outrageous or disgraceful character. An example can be found in A County Council v W (Disclosure) [1997] 1 FLR 574, where a question arose whether the alleged sexual abuse by a father of his daughter, the father being a medical practitioner, could constitute serious professional misconduct. It was argued that any sexual abuse was too remote from the father’s occupation as a doctor since it was unconnected with any medical treatment of a child. But Cazalet J held (at page 581) that ‘it seems to me that this doctor can be said, if he has sexually abused his daughter, to have demonstrated conduct disgraceful to him as reflecting on his profession and/or indeed conduct disgraceful to him as a practising doctor’. What is important here is not only the fact that disgraceful behaviour remote from the carrying on of a professional practice may constitute serious professional misconduct, but also that the duty of a doctor to himself, if not to his profession, exists outwith the course of his professional practice. One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced.”

31 In Re James Benedict Anton Provan [2005] PRBD (Vic) 3, a case concerning a psychologist who had been convicted of an offence under s 70 of the Crimes Act 1958 (Vic) (a very similar provision to s 578B save that 18 years is the apparent age, not 16 years), the Psychologists Registration Board deregistered the psychologist.

32 In Provan , Dr Ian Freckelton gave the decision of the Board and noted that the case “raises the issue of when conduct engaged in within the private realm should nonetheless be regarded as ‘professional’”: at [26]. He cited the passage of Roylance to which we have referred, Qidwai v Brown [1984] 1 NSWLR 100 at 105; Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30; Myers v Elman [1940] AC 282 at 288-9; and Re A Solicitor [1960] VR 617 at 622 per Dean J. The Board said:

“[34] The Panel is of the view that Mr Provan’s conduct in this matter, when objectively viewed, is of a high level of immorality, outrageousness and disgracefulness. Because it involves criminal offending in respect of children, it is particularly serious. [See eg R v Smart [2005] VSCA 226.] The possession of child pornography involves facilitation and encouragement for the corruption and violation of children. The preparedness of persons such as Mr Provan to purchase child pornography creates a market which encourages the further exploitation and abuse of children’s innocence. The offence created by section 70 of the Crimes Act is intended, among other things, to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it. [See R v Coffey [2003] VSCA 155 at [30] per Callaway JA. Compare R v Liddington (1997) 18 WAR 394 at 403.] As the Ontario Court of Appeal put it in R v Stroempl (1995) 105 CCC (3d) 187:

‘The possession of child pornography is a very important contributing element in the general problem [of] child pornography. In a very real sense, possessors … instigate the production and distribution of child pornography – and the production of child pornography, in turn, frequently involves child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place.’ [(1995) 105 CCC (3d) 187 at 191 per Mordern ACJO.]

Similarly, Evans LJ in Fellows [[1997] 2 All ER 548] commented:

‘There is enormous public disquiet at the potential which the internet offers for the international transmission of pornography, in particular for those whose perverted tastes include collecting and viewing indecent photographs of children. Add to this the public revulsion against paedophilia in all its forms and it becomes clear, in our judgment, that heavy deterrent sentences must be imposed when serious offences, which are not always easy to discover, come to light.’ [See too Jones (1999) 108 A Crim R 50.]

[35] We are satisfied therefore that the offence of possession of child pornography, albeit in a personal capacity away from the workplace, is regarded sufficiently seriously within the general community and by the courts as to mean that it can constitute conduct with professional ramifications. In addition, it is incompatible with the Australian Psychological Society Code of Ethics, which mandates members to ‘have ultimate regard for the highest standards of their profession’, to ‘refrain from any act which would tend to bring the profession into public disrepute.’ Accordingly, we find that by paying for, storing and downloading onto his computer hard disk 114 child pornography images, Mr Provan had engaged in unprofessional conduct of a serious nature, namely professional misconduct, and unprofessional conduct constituted by being found guilty of the commission of an indictable offence.”

33 In Dental Board of Queensland v Cullen [2006] QHPT 004, a dentist pleaded guilty to a charge of attempting to unlawfully procure a child under 16 to commit an indecent act, and there were two further counts of attempting to entice away a child under 16 for the purpose of unlawfully and indecently dealing with the child, all offences being committed on the one day. The dentist was sentenced to a term of imprisonment wholly suspended but with, effectively, a bond. The Tribunal was of the view that a two year suspension should be imposed. The Tribunal regarded the dentist as unlikely to re-offend but was of the view that conditions should be imposed that would ensure that he did not see any person under 16 without an adult present and that he attend regular consultations with a psychiatrist or psychologist approved by the Dental Board.

34 In Re Dr Abraham Stephanopoulos [2006] MPBV 12, the practitioner was found to have downloaded and stored large amounts of child pornography which it was held “constitutes professional misconduct and unprofessional conduct of a serious nature”. The Panel chaired by Dr Freckelton said at 3:

“These are very serious adverse findings. The conduct of Dr Stephanopoulos is abhorrent from the perspective of contemporary community values. Although he did not pay for the images that he collected and although he procured them from free sites on the Internet, by his addiction to such material between March and June 2003 he provided encouragement to the producers and purveyors of illegal material that violates the innocence of children. As a consumer of their product, he has taken his place in the chain of their criminality.”

35 The Panel indicated that “It would be only in rare circumstances that a Panel of this Board would contemplate permitting a medical practitioner convicted of possession of child pornography to return to practice”, but held that such circumstances had been established and did not deregister Dr Stephanopoulos, saying that there was compelling evidence that Dr Stephanopoulos was not a paedophile and that there was a very low risk of him re-offending. The Panel said that his misconduct occurred in the context of “dysfunctional responses to stress and work pressure”, that Dr Stephanopoulos had satisfied the Panel that “he has a sophisticated insight into what brought about his criminal behaviour, its seriousness, its ramifications for child victims and the damage that he has done to the standing of his profession by his conduct”: at 3. The Panel regarded it as inappropriate for Dr Stephanopoulos to be working as a medical practitioner during the period that his sentence of imprisonment was suspended (15 months) and imposed a further period of time with restrictions on treating persons under the age of 18.

36 In the course of its judgment the Panel said:

“[163] It is tempting for a panel of a regulatory body to emulate the censoriousness of the criminal courts when what they are dealing with essentially is criminal conduct. This is especially so when the conduct falls into the categories of being abhorrent and perverted as was the offending by Dr Stephanopoulos. However, for panels to approach their task in this way is to misconceive their function and to lapse into impermissible and retributive judgmentalism.

[164] It is the responsibility of a panel to reflect in a sophisticated and balanced way about considerations that are relevant to regulatory bodies, as against those that are within the purview of the criminal courts. Part of that responsibility includes applying community expectations and values, as best it can. A panel must endeavour to achieve the difficult balance between on the one hand protecting the community and upholding the standards and reputation of a profession and, on the other hand, enabling the community, where appropriate, to draw upon the potential contributions of a practitioner who in the past has made serious errors of judgment. Inevitably this involves characterisation of the behaviour, evaluation of what has caused it, and assessment of the likelihood of its being repeated.

[165] It is not the function of a panel to be punitive, but it is its task to mete out robust determinations where necessary - on occasions to draw lines in the sand in relation to when a practitioner’s conduct is such that he or she has forfeited the right to enjoy the benefits and privileges of registration. A component of this declaratory role for panels is to articulate standards, which in one context or another cannot be transgressed without the most serious of consequences. This is an aspect of protecting the community, and the profession. Such statements must be backed up by actions by panels to do that which is necessary to deter other practitioners who might contemplate behaving in a similarly unacceptable way.”

37 That views may differ over what is the appropriate consequence for significant infringement of the criminal law is evidenced by comparing the result in Stephanopoulos on the one hand with Van Lan Ha v Pharmacy Board of Victoria [2002] VSC 322; BC200204549 and Collins v Medical Practitioners Board [2003] VCAT 1755 on the other. In Van Lan Ha a pharmacist indecently assaulted two young female interviewees applying for a pharmacy assistant position, pretending to examine them for needle marks. The Board suspended him from practice for three months and reprimanded him, as well as imposing conditions on his return and ordering that he pay costs. On appeal Gillard J held that suspension, which would have led to financial ruin, was not appropriate and imposed a fine instead. In Collins a pathologist who had been convicted of five counts of obtaining money by deception and four counts of falsely swearing statutory declarations in respect of those matters, none of which had any connection with the practise of medicine or his work as a forensic pathologist, appealed in respect of the decision of the Medical Practitioners Board of Victoria to suspend him from practice for three months. The VCAT upheld the appeal, relying on the decision in Van Lan Ha .

38 In Re Anthony York (Nurses Tribunal of NSW, 12/08/98), a nurse was found to have possessed and published child pornography and to have possessed films with that content with the intention of selling or exchanging them. He sought to excuse his activities on the basis that they were for research, which the Nurses Tribunal rejected. The Tribunal was of the view that trading in pornography was inconsistent with the philosophy and ethics of any caring profession and that the circumstances of the offence rendered him unfit to practise as a nurse. The Tribunal also found him to be closely associated with exploitation of children in a particularly degrading and damaging way and to be someone who was prepared to “offer patently false excuses as a veil for this activity”, and hence to be someone not of good character.

39 In Re Mueller (Psychologists Tribunal of NSW, 6/09/05) the NSW Psychologists Tribunal cancelled the registration of a psychologist who had on a number of occasions over a two month period indecently assaulted a 22 year old care patient suffering from schizophrenia, Asperger’s Syndrome and epilepsy. He had been sentenced to two and a half years periodic detention. The Tribunal explicitly referred to the need for general deterrence, relying on Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408. The assaults occurred in the course of the psychologist’s work.

40 In Medical Board of Queensland v Fitzgerald (Queensland Health Practitioners Tribunal, 27/04/06), the Queensland Health Practitioners Tribunal (the judicial member of which was Richards DCJ) had to deal with a general surgeon who had pleaded guilty to three offences of accessing, downloading and copying child pornography from the internet, for which he was convicted and fined $2000. Dr Fitzgerald agreed to stringent restrictions on his right to practise, and to undergo treatment. The Tribunal rejected the complainant’s contention that a three month suspension should be imposed, after having said:

“There is no doubt that the offences for which the Registrant was convicted were serious offences; they are offences which are difficult to detect or stop; they involve the exploitation of children in very serious ways and constitute seriously disgraceful behaviour.

General [deterrence] in this type of offence is important in sentencing in the criminal courts, however, in this jurisdiction the considerations are somewhat different. This jurisdiction is protective rather than punitive and the Act requires the Tribunal to consider the protection of the public, the maintenance of standards for the profession, and the maintenance of public confidence with the profession. So the question is really will the public confidence in the profession be maintained without a suspension and will three months’ suspension deter other from committing like offences?”

41 In Reyes v Dental Board of South Australia (2002) 83 SASR 551; [2002] SASC 239 a dentist’s inappropriate conduct, including hugging a young female receptionist and making advances to her, and similar conduct with another employee, was held to be unprofessional conduct. There were further offences including assaulting a police officer and driving whilst disqualified, and these together with the unprofessional conduct demonstrated, it was held, that he was not a fit and proper person to be a dentist.

42 In Re Dr Motum (NSW Medical Tribunal, 4013/99, 2/08/00), a medical practitioner who had shot and wounded a male prostitute over an insult and who had threatened a witness, and had been convicted of malicious wounding and firing a firearm in a manner likely to injure a person, was deregistered.

43 In Re Woolcock (NSW Medical Tribunal, 14/09/95), a medical practitioner who had violently assaulted his wife on a number of occasions, including to the point of committing a life threatening offence, was deregistered.

44 In A County Council v W (Disclosure) [1997] 1 FLR 574, the court was concerned with whether or not documents in Family Proceedings could be obtained by the General Medical Council. Cazalet J held that as the doctor, in care proceedings had been found to have abused his own daughter, the doctor had demonstrated conduct “disgraceful to him as reflecting on his profession and disgraceful to him as a practising doctor” and therefore the General Medical Council had jurisdiction to consider the doctor’s conduct even though the abuse took place outside any professional involvement with the child (we take this from the headnote). The conclusion that the General Medical Council was entitled to investigate the conduct of the doctor is hardly surprising.

45 In Law Society of South Australia v Rodda (2002) 83 SASR 541; [2002] SASC 274, a solicitor had been struck off following his conviction for indecent assaults on a schoolgirl above the age of 12 years whose friendship he had been cultivating and who was one of a group of girls who waited at the bus stop outside his office. The assault involved kissing the girl and briefly touching her breast on the outside of her clothing. He pleaded guilty and was sentenced to 18 months imprisonment. The South Australian Legal Practitioners Board had also based itself on the solicitor having acted on several occasions as a solicitor even though he no longer held a practising certificate (due to non-payment of fees). The Court of Appeal rejected the appeal. Doyle CJ noted that the relevant legislation defined unprofessional conduct to include “an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law”, and hence the offences fell within that definition. He was also of the view that the offences and conduct “are clearly capable of leading to the conclusion that Mr Rodda is not a fit and proper person to be a legal practitioner”. He went on to say:

“[24] In the present case the Court is concerned with criminal conduct that did not arise in the course of Mr Rodda's professional practice. The fact that the offences were committed in his office is a mere accident. There is no indication in the material before the Court that Mr Rodda's status as a practitioner had anything to do with his relationship with MT. The case is one in which a mature man has taken advantage of the immaturity and vulnerability of a young female for his sexual gratification.

[25] In a case like this, where the Court's concern is with criminal conduct unconnected with the practitioner's profession, and with the defects of character or personality that are revealed by that conduct, issues of professional competence in the narrow sense do not arise. Nevertheless, the Court must still consider whether the conduct and the convictions affect Mr Rodda's capacity to act as a practitioner, and how that conduct and those convictions would reflect on the legal profession were Mr Rodda permitted to remain a member of it. Two points were made in Ziems that are worth bearing in mind. First, as Fullagar J said (at 290), professional misconduct will usually have ‘a much more direct bearing on the question of a man's fitness to practise’ than personal misconduct. And, Kitto J said (at 298), while a conviction may ‘carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails’, nevertheless, there will be many kinds of convictions ‘which do not spell unfitness for the Bar ...’.

[26] The offences in question do not reflect directly on Mr Rodda's capacity to act as a practitioner. They do not reveal any lack of competence, or any lack of understanding of the law.

[27] But the offences are of a kind that damage the ability of Mr Rodda to maintain the relationship with other members of the profession that is an essential aspect of being a practitioner. Other practitioners would not readily place trust and confidence in a practitioner who has committed such a serious offence. Another practitioner could not assume that Mr Rodda accepts the high standard of conduct which membership of the legal profession requires. In the words of Dixon CJ in his dissenting judgment in Ziems (at 285-286), Mr Rodda could not ‘command the confidence and respect’ of the Court or of his fellow practitioners.

[28] More significantly, the offences indicate that Mr Rodda lacks qualities that are essential for the conduct of legal practice. The offences involve a serious breach of the law, even though they might be regarded as impulsive and isolated. Mr Rodda took advantage of a vulnerable and immature young woman. That being so, Mr Rodda cannot be regarded as a person in whom clients, especially vulnerable persons, could place their complete trust. Nor could he command the respect of clients.

[29] There is another factor. The reputation and standing of the legal profession in the public eye are important. Public confidence and trust in the legal profession is important to the effective functioning of the profession. That confidence and trust rest in part on the reputation and standing of the profession. The public could not view with respect, and have complete confidence in, a person with such serious and recent convictions. Were the Court to continue to hold Mr Rodda out as a fit and proper person to remain a member of the profession, the standing of the profession as a whole would suffer. The public would rightly doubt the standards of a profession which permitted a person who has recently committed such serious offences to remain one of its members.

[30] In summary, Mr Rodda's offences damage his ability to maintain professional relationships with other members of the profession. They disclose character defects that affect his capacity and fitness to be a practitioner. The public could not be expected to put complete trust in him. The offences are of a nature and seriousness such that the public would rightly consider that a profession that occupies the position of the legal profession, and maintains the high standards that it does, could not properly continue to regard Mr Rodda as a member of the profession.”

46 Besanko J agreed with Doyle CJ in respect of both the issue of the indecent assaults and the practise without a certificate. Williams J agreed in relation to the sexual offences but thought that the solicitor’s practice without a certificate was also appropriately the basis for removal from the roll.

47 In A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1, whilst not dealing with the MPA or indeed any statute but rather the inherent power of the Supreme Court, it is instructive that the High Court rejected the proposition that the solicitor’s indecent assault constituted professional misconduct.

48 A medical practitioner does not have any special obligation in relation to children who are not his patients and who are not in need of urgent medical attention, beyond the obligations placed on every citizen.

49 Childs , Roylance , Reyes , Cummins and Hamman are all authority for the proposition that misconduct relating to the professional activity of the practitioner is not limited to the precise medical, dental or legal work which the practitioner is engaged to perform. Provan and Stephanopoulos (and see also Re Dr Richard Byron Collins [2003] MPBV 10 overturned on appeal: Collins v Medical Practitioners Board [2003] VCAT 1755) and obiter dictum in Roylance , to which we have referred, point to a conclusion that misconduct outside of the professional’s practice can be professional misconduct. York is a case in which pornography offences, including involvement in sale and distribution, led to the view that the nurse was unfit to practise. In Fitzgerald (child pornography) and Cullen (attempted sexual offences) neither practitioner was deregistered.

50 It is important to note that the Medical Practice Act 1994 (Vic) defines “unprofessional conduct” in markedly different terms to the NSW MPA . Whilst the approach taken in these cases may well be relevant to the second question that the Tribunal needs to decide, ie whether Dr Wingate is a fit and proper person to practise medicine, the present question is whether conduct of a medical practitioner that does not occur during or in connection with the practice of his profession or as a result of information or trust gained during the doctor patient relationship (see Childs for example), falls within ss 36 and 37 of the Act or not. In our view the statute by s 36 does not include as “unsatisfactory professional conduct” a matter that is unconnected in any way with the practice of medicine.

51 Section 36 requires there first to be “unsatisfactory professional conduct” and s 37 requires that that unsatisfactory professional conduct be of a sufficiently serious nature. We think that only underscores the point that ss 36 and 37 are not concerned with some wider view of professional misconduct of the type adverted to in obiter dicta in Roylance . What Dr Wingate did does not fit within the description of “unsatisfactory professional conduct” since it is not professional conduct at all.

52 As mentioned earlier, s 36(1)(d) specifically details the offences, conviction for which constitute “unsatisfactory professional conduct”, and the offence under s 578B(2) of the Crimes Act is not one of them. Section 64 specifies the four heads of complaint in respect of which deregistration may follow and given that s 64(1)(c) and (d) both permit attention to be given to the circumstances of the crime of which the practitioner has been convicted (ie offences of any kind even those outside of those enumerated in s 36(1)(d)) we can see no warrant for reading s 36(1) more widely than its express words.

Conclusion on Unsatisfactory Professional Conduct/Professional Misconduct Complaint

53 In short then, Dr Wingate’s conduct did not fall within any part of s 36(1) of the MPA and therefore was not capable of being professional misconduct within s 37 of the MPA . It follows that the Unsatisfactory Professional Conduct/Professional Misconduct Complaint has not been made out.

Circumstances of the Offence Complaint

54 We have described the offence with which Dr Wingate was convicted. The 66 images were extracted from approximately 600 images contained on an external hard drive attached to a computer at Dr Wingate’s home. The 66 were regarded as the most “obvious” examples of children apparently under the age of 16, and involved not only still shots but also sequential images in which the young persons were depicted in sexually explicit acts.

55 When Dr Wingate learnt that police were at his home with a search warrant for child pornography, he informed them that they would find material on the external hard drive. That “advice” has led to a complication in this case, because although the police confiscated Dr Wingate’s two computers and the external hard drive and retained possession of that equipment until after the Local Court proceedings, it was not appreciated that other images falling within the description of child pornography were located on the internal hard drives of both computers. It was only shortly before the computers were to be returned to Dr Wingate that a further 10,000 images were discovered (out of a total of 14,000 images) that met the description of child pornography as defined in s 578B of the Crimes Act . 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.

56 Dr Wingate in the course of cross examination in this Tribunal made a number of admissions about his conduct and about himself. It is necessary before dealing with this material to set out an issue of terminology that became apparent in the expert evidence of Dr Allnutt, a psychiatrist to whom Dr Wingate was referred by the Medical Board and who gave evidence on behalf of the HCCC, and Dr Baron, a clinical psychologist (with a doctorate) who Dr Wingate was required to see as part of the imposition upon him of the good behaviour bond to which we have earlier referred, and who gave evidence on behalf of Dr Wingate.

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: T24.15-24. 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: T182.10. Part of the difficulty in categorisation is that some cultures and societies do not regard sexual contact by males with sexually mature females below the age of 16 as inappropriate. 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 is prohibited in this state. A person with a hebephilic interest may also have a paedophilic interest: T51.52-4.

58 Dr Wingate has always denied that he has any paedophilic interest. He explains the presence on his computer of images of pre-pubescent males as a result of inclusion by the website to which he subscribed and from which he downloaded material, of a small number of such images as part of an attempt to encourage further purchasing by him. To Dr Allnutt in January 2005, Dr Wingate presented himself as a person with homosexual interests who was interested in young adult males over the age of 18 years: see p 4 of Dr Allnutt’s report; Exhibit “B” Tab 13. We note that he was more frank with Dr Lennings: see para 21 of his report of 17 November 2004.

59 Dr Wingate advised the Medical Board that he had been charged with the offences under s 578B and the Medical Board set up a Section 66 Inquiry to consider what course should be taken (the resulting report is found at Tab 4 Exhibit “B”). At that time, 29 October 2004, a plea had not been entered.

60 The following summary is found (Section 66 Inquiry 29/10/04, Tab 4 Exhibit “B”):

“Dr Wingate discussed his sexuality. Dr Wingate told the delegates that he currently lives alone and is not in a relationship at present. He has in the past had intimate relationships with both men and women. He stated that he had had a conservative background and had been somewhat ambivalent about his sexuality as a teenager. He has been married and has had relationships with women. However after he attained sobriety in August 1985 he closely examined his sexuality and came to the view that he was ‘stuck in the middle’. Following this period of reflection Dr Wingate did embark on a relationship with a man. He stated however that he decided he was a person who should not have sexual relationships because he was undecided about his sexual orientation.

Dr Wingate was candid in discussing these matters. He stated that he was brought up to believe homosexuality was a crime and he determined that he must sublimate any homosexual urges he felt. He stated that he did that by becoming an ophthalmologist, focusing on his work and also involving himself in music and photography. Dr Wingate stated that he had ‘kept to himself’ and had done so for the last twenty years. He stated that there were two aspects of his life that he had wished to remain private. They were his alcoholism and his confused sexuality. He was upset that both these matters had now been made public.

Alleged Criminal Activity

The delegates questioned Dr Wingate in relation to the alleged crime of possessing illegal child pornographic material. Dr Wingate stated that he had accessed one such website on his computer. He acknowledged that a number of images had been displayed. These were images of children. No couples were involved nor were the children depicted as performing sexual acts. However the delegates understood that the children were naked. Dr Wingate stated that he had been using the internet to look for images of young men. He had found such images on one site and downloaded the images. He stated, in response to questioning, that he had done this out of curiosity. He denied being sexually excited by children and stressed that the images he downloaded were relatively harmless. He stated they involved post pubescent children, mostly male, and he described them as ‘funny’. He stated that they were funny because the children were prancing around and doing child like things. Dr Wingate stated that he had not made his own images nor had he taken his own photographs of children in pornographic circumstances. He stated that he had downloaded images from one site on the internet over a short period. He was unsure how many images he had accumulated, but felt that the total number could be around 66.”

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: see T84.42-44; 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: see T174.34-40, T174.39, T187, T7 and Tab 10 Exhibit “1” Dr Baron’s report p 2.

62 Dr Wingate now explains his lack of candour and misdescriptions to the delegates on the basis that he was very stressed, almost suicidal, about his exposure, the media interest and his ability to continue in practice. He also points out that he did not want to reveal the existence of more images and face further charges: T104-106; see T114-116.

63 When Dr Wingate saw Dr Allnutt he did not reveal the existence of the many more instances of child pornography beyond that with which he had been charged. Given his fear of further incriminating himself that is not surprising but he hid his hebephilic interest from Dr Allnutt.

64 The comments of the Victorian Board of Psychologists in Re James Benedict Anton Provan [2005] PRBD (Vic) 3 set out at [32] above, Evans LJ in R v Fellows [1997] 2 All ER 548, the Ontario Court of Appeal in Stroempl , and the Medical Practitioners Board in Stephanopoulos , all point to a recognition that users and purchasers of child pornography encourage the continuation of a serious blight in the community and that their conduct is not extricable from those who solicit or compel such degradation of young persons.

65 The question with which the Tribunal is now faced is whether the circumstances of the offence render Dr Wingate unfit in the public interest to practise medicine. In this connection the matters described in Provan and Roylance v The General Medical Council [1999] UKPC 16 are of importance.

66 We have made reference to A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1. In that case the High Court, having determined that the approach of the Court of Appeal was flawed, went on to consider whether the solicitor should be removed from the roll. Having regard to what it described as the isolated nature of the offence and the powerful subjective case made on the solicitor’s behalf, and even allowing for the serious breach of candour on the part of the solicitor in failing to advise of conviction on the second set of charges, the High Court held that the solicitor should not have been declared unfit to practise. The original charges to which the solicitor pleaded guilty were four indecent assault charges (involving two victims) – yet notwithstanding “hands-on” offences the solicitor was not regarded as unfit to practise.

67 The High Court indicated in A Solicitor that these cases “turn upon a close consideration of their own facts”, but the High Court was of the view that commission of four “hands-on” sexual offences was not sufficient to lead to removal from the roll. There seems to be a significant tension between that conclusion and the conclusions in Provan and Rodda , which cannot be wholly explained by the different nature of the professions.

68 Dr Wingate in cross examination agreed that his conduct in relation to the downloading of child pornography had been disgraceful and immoral – these descriptions are relevant to the question of whether conviction for an offence should lead to deregistration because it diminishes the reputation of the medical profession, a matter which was emphasised in Rodda and Ziems .

69 The object of the MPA is to protect the health and safety of the public. It has always been accepted that the role of the Tribunal is not to punish the practitioner. It is clear that the standing of the profession is a matter of significance, so that all understand that coupled with the considerable rights and benefits that come with the ability to practise an important profession come significant obligations. Maintenance of the standards of the medical profession and public confidence in the medical profession are matters that the Tribunal must take into account as part of the consideration of protection of the public: Gayed v Walton (unreported, NSWCA, 31/7/1997, BC9708087). Deterrence is a relevant matter: see Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911), and Gayed v Walton .

70 It is necessary however to have regard to the circumstances of the offence and whether they render Dr Wingate unfit to practise. In coming to a view as to Dr Wingate’s fitness to practise, there are two risks with which the Tribunal is concerned, arising out of the circumstances of the offence. The first is the risk of Dr Wingate re-offending, that is, committing another offence under s 578B, and the second is the risk of interference or inappropriate sexual advances being made to a patient. The Tribunal received evidence from Dr Lennings, Dr Allnutt and Dr Baron. Dr Allnutt and Dr Baron gave oral evidence and were cross examined. Dr Allnutt and Dr Baron did not entirely agree on how the risk should be enunciated but both agreed that there was a low prospect of any hands-on offence being committed by Dr Wingate. This in part was based on the absence of any past hands-on offence and other factors which included consideration of matters forming part of the history given such as personal relationships and the fact that he had overcome his addiction to alcohol. Both agreed that the prospect of Dr Wingate re-offending (by internet downloading) was low to moderate. Of course internet downloading does not affect the patients of Dr Wingate. Given the prohibition on direct contact with children in the course of employment imposed by the legislation as a result of conviction, and assuming that the Tribunal can reinforce that requirement by a condition (to which we refer below), we are of the view that the limited prospect of any hands-on offence being committed by Dr Wingate on a patient is in effect reduced to negligible.

71 As noted earlier, s 578B is not one of the offences referred to in s 36(1)(d) MPA . The Child Protection (Prohibited Employment) Act 1998 contemplated not only that persons engaged in health care could continue to work even if they had been convicted of an offence such as s 578B (provided they do not see persons under 18 years of age without an adult present and do not work in hospitals where children are patients), but there is even facility for application to permit “employment” in such circumstances notwithstanding the fact of conviction for offences of that type or even “hands-on” offences. Once again we note that in A Solicitor , the fact that the solicitor had committed hands on offences was not sufficient to lead to his removal from the roll, although there is clearly a difference between the work of a solicitor, which would rarely if ever involve seeing a young person other than in the company of an adult, and a medical practitioner who might well do so, particularly in a hospital environment.

Not of Good Character Complaint

72 The issue of whether a person is “not of good character” has been considered in a number of High Court and NSW Court of Appeal cases: McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907); Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1; Re Davis (1947) 75 CLR 409; Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911).

73 We summarise the principles that can be derived from those cases as follows:

(1) Good character involves a test of “ethical fitness” which in turn involves enduring moral qualities (per Dixon J in Re Davis (1947) 75 CLR 409 at 420) and moral standards, attitudes and qualities, not just general reputation: Tziniolis and per Handley JA in McBride at 7. It is not just a summation of acts alone but relates to the qualities of a person: Tziniolis at 301. “The judgment as to character must be arrived at by giving due weight to all features”: at 300-301.

(2) The public interest, ie protection of the public from harm, is paramount and the relationship of doctor and patient is “one which touches matters such as trust, confidence, confidentiality and right conduct”. “It is necessary that the public be protected against those who, though having the appropriate clinical skills, do not have the character appropriate for the opportunities and privileges which the right to practise gives”: per Mahoney JA in Bannister v Walton at 11. This links to the point that “Medicine was to be an honourable as well as a skilled and learned profession” per Handley JA in McBride .

(3) Reputation of a person is relevant but not the exclusive test. “Good” is used also in the sense of moral strength and “a man’s conduct in respects known only to his intimates can evidence his character”: Tziniolis at 330.

(4) The burden of establishing that the practitioner is not of good character rests on the complainant. With matters asserted in mitigation the onus rests on the practitioner.

(5) The standard of proof which is required for a finding that a practitioner is not of good character is “comfortable satisfaction” on the balance of probabilities, to indicate a level of satisfaction that takes into account the serious consequence of an affirmative finding: Bannister v Walton at 711. If it is a matter in mitigation the standard imposed would be, we infer, on the balance of probabilities, but without requiring “comfortable satisfaction”.

(6) Consideration must be given as to the nature, extent and seriousness of the impugned conduct, whether for example it is abhorrent and whether it was an isolated incident or involved conduct over a long time.

(7) Having classified the impugned conduct, the Tribunal should then look at all the other evidence relevant to character – evidence of good fame and character, and service to the community past and present.

(8) In coming to a conclusion as to whether or not the practitioner is “not of good character in the context of fitness to practise medicine”, the Tribunal must consider:

“(a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other conduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.”

Handley and Powell JJA in McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907) approved of the approach taken by the Tribunal whose words we have cited above: see Handley JA at 25-26, Powell JA at 52.

(9) It was said by Kirby P (as he then was) in his dissenting judgment in McBride , that:

(a) good character has to be assessed in the context of a medical practitioner and in relation to removal from the register and morality is relevant only so far as it relates to the person’s performance of the duties of medical practitioner;

(b) not every flaw of character, even a flaw relevant to a medical practitioner’s entitlement to practise, will lead to a finding of not of good character;

(c) a single act or even a connected series of acts, even if pertinent to medical practice, may not be sufficient to establish lack of good character;
(d) wrongdoing by a practitioner extraneous to his or her profession may demonstrate want of good character, but only if the conduct in question showed what can be taken to be a characteristic of the individual rather than an isolated lapse which is uncharacteristic to the practitioner or irrelevant to the practice of the profession.

74 The observations in [72](8) may be seen as emphasising that personal morality, for example sexual promiscuity, is not the type of character defect with which the Tribunal is concerned. The statements, particularly (a) and (d), however, could be seen as sitting uncomfortably with the principles in (1), (2) and (3); and if that is so we regard the principles outlined in (1), (2) and (3) as binding on this Tribunal, rather than what was said by Kirby P in dissent.

75 In McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907) the Court of Appeal (Handley JA and Powell JA, Kirby P dissenting) held that the appeal from the Tribunal’s decision to deregister Dr McBride because of his lack of good character (based upon his engaging in false and deliberate reporting of scientific experiments and persisting with those claims) should be dismissed. At 30-31 Handley JA said, having indicated his agreement with the approach of the Tribunal, and in dealing with the course regarded as appropriate by the dissenting member of the Tribunal and Kirby P, namely not to remove Dr McBride from the register notwithstanding a finding of “not of good character”:

“I find myself unable to take this course. Parliament made a legislative judgment that persons who were not of good character should not become registered as medical practitioners. It also provided that lack of good character should be a ground of complaint against a registered medical practitioner. In these circumstances I have difficulty in seeing how the Tribunal could properly decide to leave a medical practitioner on the Register after it had found that at the time of its decision he or she was not a person of good character in the context of fitness to practise medicine.”

CITATION:	Re Dr Richard Wingate [2007] NSWMT 2
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Richard Wingate
FILE NUMBER(S):	40001 of 2006
CORAM:	Rein, SC DCJ - Giuffrida, Dr M - Ng, Dr J - Napier, Ms L
CATCHWORDS:	Medical practitioner found guilty of possession of child pornography as defined by and in breach of s 578B Crimes Act - whether circumstances of offence rendered practitioner unfit to practise medicine - whether not of good character - whether commission of offence was "professional misconduct"
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998 Commission for Children and Young People Amendment Act 2005 Crimes Act 1900, s 578B Crimes Act 1958 (Vic), s 70 Health Care Complaints Act 1993 Medical Practice Act 1992, ss 2A, 36, 37, 39, 64, 154 Medical Practice Act 1994 (Vic)
CASES CITED:	A County Council v W (Disclosure) [1997] 1 FLR 574; A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1; Bannister v Walton (unreported, NSWCA, 30/04/92, BC9201911); Childs v Walton (unreported, NSWCA, 13/11/90, BC9001755); Collins v Medical Practitioners Board [2003] VCAT 1755; Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408; Dental Board of Queensland v Cullen [2006] QHPT 004; Dilworth v Stamps Commissioner [1899] AC 99; Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30; Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357; Gayed v Walton (unreported, NSWCA, 31/7/1997, BC9708087); Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Law Society of South Australia v Rodda (2002) 83 SASR 541; [2002] SASC 274; McBride v Walton (unreported, NSWCA, 15/7/94, BC9402907); Medical Board of Queensland v Fitzgerald (Queensland Health Practitioners Tribunal, 27/04/06); Myers v Elman [1940] AC 282; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; New South Wales Bar Association v Hamman (1999) 217 ALR 553; [1999] NSWCA 404; Qidwai v Brown [1984] 1 NSWLR 100; R v Fellows [1997] 2 All ER 548; R v Stroempl (1995) 105 CCC (3d) 187; Re A Solicitor [1960] VR 617; Re Anthony York (Nurses Tribunal of NSW, 12/08/98); Re Davis (1947) 75 CLR 409; Re Dr Abraham Stephanopoulos [2006] MPBV 12; Re Dr Motum (Medical Tribunal NSW, 4013/99, 2/08/00); Re Dr Richard Byron Collins [2003] MPBV 10 ; Re James Benedict Anton Provan [2005] PRBD (Vic) 3; Re Mueller (Psychologists Tribunal of NSW, 6/09/05); Re Woolcock (NSW Medical Tribunal, 14/09/95); Reyes v Dental Board of South Australia (2002) 83 SASR 551; [2002] SASC 239; Robinson v Local Board of Barton-Eccles (1883) 8 App Cas 798; Roylance v General Medical Council (No 2) (1999) 47 BMLR 63; [2000] 1 AC 311; Roylance v The General Medical Council [1999] UKPC 16; Van Lan Ha v Pharmacy Board of Victoria [2002] VSC 322; BC200204549; Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
DATES OF HEARING:	20-23 November 2006
DATE OF JUDGMENT:	5 April 2007
LEGAL REPRESENTATIVES:	G Farmer (HCCC) M Higgins (Dr Wingate)
ORDERS:	The Tribunal orders: (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.