Re Mr Bar-Mordecai - [2009] NSWMT 1

New South Wales

Medical Tribunal

CITATION: Re Mr Bar-Mordecai [2009] NSWMT 1

TRIBUNAL: Medical Tribunal

PARTIES: Mr Michael Bar-Mordecai
NSW Medical Board

FILE NUMBER(S): 40015 of 2007

CORAM: Murrell, SC DCJ - Anderson, Dr P - Toh, Dr S - Collier Ms A

CATCHWORDS: Former medical practitioner's application for review of de-registration order - Good Character - Competence - Doctor-patient boundary transgressions.

LEGISLATION CITED: Medical Practice Act 1992 (NSW)

CASES CITED: Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR (NSW) 448 ;
Zaidi [2006] NSWMT 6;
Zaidi [1996] NSWMT;
Zaidi v Health Care Complaints Commission [1998] NSWSC 335

DATES OF HEARING: 10-11 November 2008 and 27-29 January 2009.

EX TEMPORE
JUDGMENT DATE : 18 March 2009

LEGAL REPRESENTATIVES: Mr Bar-Mordecai in person
Ms Richardson of counsel for the Medical Board

ORDERS:

JUDGMENT:

1. Mr Bar-Mordecai applies for a review of a de-registration order made by the Medical Tribunal in 2000.

The 2000 Proceedings

2. Between 1979 and August 1983, Mr Bar-Mordecai was the treating general practitioner for A's husband. He became friends with her. He was not A's regular general practitioner, but between 1981 and August 1983 he treated her on about eight occasions. After the death of A's husband in August 1983, Mr Bar-Mordecai lived with A. The couple had a sexual relationship. He continued to treat her. The couple had significant interpersonal financial dealings. Mr Bar-Mordecai says that he gave A more money than he received from her.

3. A died in June 1994, within minutes of Mr Bar-Mordecai administering a 30mg dose of morphine. She left a substantial estate. Under A’s 1989 will, Mr Bar-Mordecai would have received a relatively small benefit. He claimed that A had destroyed that will and died intestate and that, as her de facto spouse, he was entitled to her estate. Supreme Court proceedings ensued.

4. On 6 September 2000, the Medical Tribunal, chaired by Judge Cooper, found that Mr Bar-Mordecai was guilty of professional misconduct in the following respects:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Mr Bar-Mordecai

Details

AGLC: Re Mr Bar-Mordecai [2009] NSWMT 1
Case: [2009] NSWMT 1
Decision Date: 18 March 2009

CaseChat Overview and Summary

In the case of Re Mr Bar-Mordecai, the subject was an application by a former medical practitioner for a review of a de-registration order made by the Medical Board of Australia. The applicant, Mr Bar-Mordecai, sought to overturn the decision on the grounds that he had demonstrated good character and competence since the initial decision, as well as arguing that the original findings regarding his professional misconduct were flawed. The Federal Court was tasked with considering these submissions and determining whether the de-registration order should be maintained.

The primary legal issues before the court were whether Mr Bar-Mordecai had satisfied the criteria for good character and competence as required by the Medical Board of Australia, and if the original findings of professional misconduct were justified. The court needed to weigh the evidence presented regarding the applicant's conduct both before and after the de-registration order, and assess whether the Board's decision was supported by the evidence and aligned with the relevant statutory and regulatory frameworks.

The court, in its judgement, found that the applicant had not sufficiently demonstrated the requisite good character and competence to warrant a review of the de-registration order. Despite some positive developments in Mr Bar-Mordecai's conduct post-de-registration, the court was not convinced that these changes were enough to overcome the serious nature of the original transgressions. The court concluded that the original findings of boundary transgressions with patients were well-supported by the evidence, and that these actions had fundamentally undermined the trust essential in the doctor-patient relationship. Therefore, the application for review was dismissed, and the de-registration order remained in effect.

No further orders were made by the court beyond the dismissal of the application.

Orders