Young v Medical Board of Australia
[2010] VSC 584
•16 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
SCI 2010 05623
| DR RICHARD GEORGE YOUNG | Applicant |
| v | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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JUDGE: | MUKHTAR As J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 November 2010 | |
DATE OF JUDGMENT: | 16 December 2010 | |
CASE MAY BE CITED AS: | Young v Medical Board of Australia | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 584 | |
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APPEAL ― Question of law ― Appeal from disciplinary tribunal ― Misconduct by medical practitioner ― Previous episodes of impropriety and disciplinary action ― Rejection of psychiatric evidence about low prospects of repeat behaviour ― Disqualification from registration ― Leave to appeal refused
EVIDENCE ― Opinion evidence ― Psychiatrist’s opinion of prospects of repetition of improper conduct ― No contrary opinion ― Challenge to opinion ― Whether opinion was uncontradicted and reasonable and inherently probable ― Whether Tribunal bound to accept opinion
EVIDENCE ― Opinion evidence ― Rule in Browne v Dunne ― Whether rule infringed
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REASONS FOR DECISION
APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr J Noonan SC | Monahan + Rowell Lawyers |
| For the respondent | Mr J Bourke SC | Minter Ellison |
HIS HONOUR:
The applicant, Richard George Young is a medical general practitioner. He is 42 years old. He completed his medical degree in 1992 and began work at age 24 as a Doctor in Medicine.
In circumstances I shall describe later, he was suspended from practice in August 2000, in July 2001, and in May 2008. In September this year the Victorian Civil and Administrative Tribunal (constituted by Member R. Davis and two medical practitioners, Drs Clarke and Burge), acting on a referral from the Medical Board of Australia, cancelled his registration under the Medical Practice Act. There were two “charges” but the allegations dominantly under consideration concerned sexual acts with a female patient. The Tribunal cancelled his registration as a doctor, and disqualified him from reapplying for registration until 1 July 2011. He seeks leave to appeal that decision, and to have it set aside.
The grant of leave to appeal is discretionary. Under the VCAT Act, the applicant must show a question of law relevant to the relief sought on the appeal. He need not yet establish that the Tribunal erred on that question of law (that being for the appeal, if leave be granted), but must show there is a real or significant argument to be put on that question to the extent of casting sufficient doubt on the correctness of the decision.[1] Under rules of court, leave may be refused if the applicant does not have prima facie case on appeal.[2]
[1]See the Hulls Case (1999)3 VR 331 and the Myers Case (2007)18 VR 48 at 55, [28]ff.
[2]Se Chapter II, rule 4.09.
For the reasons that follow, I would refuse leave to appeal. The decision is not attended with sufficient doubt. I realise great care must be taken in this type of case as there is an ignominy, possibly enduring, in being disqualified from practising a chosen profession. Therefore, this application requires in all fairness to both parties an exposition of the facts, the applicant’s troublesome history which led the Tribunal to view him as a “repeat offender”, some of the psychiatric evidence concerning that history, and some of the evidence in the Tribunal.
But first, I give a summary of my reasons. Ultimately, as facts were not really in dispute, the decisive question on this leave application was whether the Tribunal had (arguably) erred in law in not accepting opinion evidence from an eminent psychiatrist, Professor Burrows. His opinion in essence was that Dr Young had matured dramatically, had insight into his problems, and could now control himself. He said he was 95 to 99 per cent certain that “the public now has nothing to fear”.
I think that the question or, more accurately, the evaluation and judgment to be made about the risks of re-offending and the causes of past improprieties, going as it did to penalty, was not a question of law. The Tribunal (partially constituted by two doctors) was entitled to make its own judgment whether Dr Young was still a risk for repetition of his conduct, taking into account Professor Burrows’ view, and the interests of the profession and the public.
I would reject as unsustainable the argument that the Tribunal was bound to act on Burrows’ opinion as a matter of legal requirement. On principle, if there was a reason not to accept the opinion, and that reason was disclosed (as it was), then there was no legal error. His opinion may not have been contradicted by an opposing opinion adduced by the respondent, but he was certainly challenged. He may not have relented, but that does not mean the Tribunal could not form its own views about the calibre of his evidence or the reliability of his opinion. Further, in my view, a prediction by him whether someone will repeat past conduct cannot be said to be something that is by nature inherently probable or inherently reasonable so as to legally require its acceptance.
Finally, I see no sustainable basis for an argument that the proceedings were procedurally unfair because the rule of practice (in judicial proceedings) in Browne v Dunn[3] was not observed. That is, the evaluation the Tribunal made did not have to be put to Burrows, in specific terms, beforehand for him to comment. But in any case, the gravamen of the cross examination (and the ultimate finding) was to cast natural doubt on whether Burrows truly could come to such a near absolutist view about expected human behaviour, given a history that did Dr Young no credit, and seeing as he had only nine consultations with him, and seeing as Dr Young did not call his two other treating psychologists to give evidence. They had been seeing him for over two years.
The facts
[3](1893) 6 R 67 (HL).
In March 2004, a female patient AB consulted the applicant at the clinic where he worked, with other doctors, for a sexual health check. The patient was a sex worker. On one occasion before this consultation, Dr Young had gone to a brothel where she worked, and had sex with her. In the clinic on this occasion, he performed various medical checks. The patient provided a urine and blood sample which, by arrangement, a pathology service would analyse for $50. As the patient was leaving the clinic, Dr Young asked her if she would give him oral sex for $50. She agreed. Dr Young and the patient returned to the consultation room where he obtained what he had asked for, and paid $50. At this time he was bound to an undertaking he had given to the Medical Practice Board of Victoria to not have any sexual or personal relationship with a current or former patient.
For completeness I shall describe the second incident involving patient AB. This occurred on 19 September 2006. Another doctor at the clinic held a permit to prescribe methadone for her heroin addiction. He was not available on that day so she was seen by Dr Young. She told him she had a chest complaint and a sore back. She asked for a prescription of MS-Contin which is a narcotic pain killer. Dr Young believed that his fellow practitioner had been prescribing that to her. He accepted he should have known that the other doctor had the methadone permit and that she was drug dependent, but he was adamant he did not actually know. When a pharmacist telephoned Dr Young and queried whether MS Contin was appropriate for a patient on methadone, he immediately told the pharmacist that under no circumstances should she be given the medication.
For a patient on methadone (itself an opiate), the use of MS‑Contin would be extremely dangerous. The evidence was that there were other treatment options available for back pain which did not require an opiate prescription. The choice of a high dose of a long acting opiate as a first line treatment would not be regarded as generally appropriate.
On this allegation, Dr Young admitted that he ought to have known of the relevant facts when he wrote the prescription in 2006 and should have been more careful. He conceded by his counsel that his conduct was unprofessional conduct.
When the proceedings went before the Tribunal, Dr Young was already under suspension. And, as I shall explain later, he had been in the hands of a psychotherapist and psychiatrist since 2008.
On the first allegation, the Tribunal decided that what occurred with patient AB was not “infamous conduct in a professional respect” under the Medical Practice Act. That expression is used to mean conduct that is reprehensible, shameful, dishonourable or disgraceful: see Basser v Medical Practice Board of Victoria.[4] But as had been conceded, it was unprofessional misconduct of a serious nature and professional misconduct, and the Tribunal so determined.
[4][1981] VR 953.
By his counsel, Dr Young had urged the Tribunal to suspend, not cancel, his registration from the time that registration was already suspended (15 May 2008) to the time of the hearing. The difference between the two sanctions is significant. A cancellation of registration sends a clear message of unsuitability to practise. It means the doctor must re‑apply and must satisfy the Board that registration is appropriate. Suspension may be thought to indicate confidence in the doctor’s future inability to practise once the period of suspension is served: see Honey v MPBV. [5]
[5](2007) VCAT 526.
The Tribunal cancelled his registration and disqualified him from applying for registration before July 2011. In doing so, the Tribunal applied the hallowed view that the penalty in such cases must reflect the importance of protecting the reputation of the medical profession, the maintenance of its standards, the creation of a deterrence effect on other practitioners, as well in a serious enough case, to protect the public.
As for the second allegation, the Tribunal was satisfied this was a one‑off incident and concluded that it fell within the description of unprofessional conduct of a serious nature within the meaning of s 45A(1)(a) of the Medical Practice Act. On this allegation, Dr Young was reprimanded by the Tribunal. There is no application for leave to appeal from that finding.
The applicant’s history
It is necessary to expose, but not copiously, the prior improprieties, as I shall call them, of Dr Young because it all formed part of the conduct of the case below, went directly to the question of the appropriate penalty, and more pertinently for present purposes, went partially to the acceptability of Professor Burrows’ opinion.
Dr Young was before the Medical Practitioners Board of Victoria on two previous occasions. The first was on 31 July 2001 when he was found to have engaged in unprofessional conduct of a serious nature. This case concerned two patients Ms X and Ms Y. They were sex workers, a fact which I mention again not as an extenuation factor, but because a mild point to that effect seemed to have been made of it in the 2010 proceeding.
Ms Y attended as his patient and the mother of his patient in February or March 1999. She was a beautician. He made comments to her and asked questions of a personal nature when it was inappropriate, asking her what she did for a living, if she would be interested in being a beautician in his practice, giving her his home phone number and asking her to ring him to make an arrangement to demonstrate her beautician products. He attended Ms Y’s home for a facial and hand massage. He had discussions with her about possible business arrangements for her to treat his patients before and after surgery. Sexual intercourse occurred at her home on that occasion or at a subsequent occasion. Sexual relations were ongoing from February to April 1999. In April 1999, sexual activity at the surgery occurred, including oral sex in the toilet. On another consultation inappropriate sexual bi‑play occurred.
Sexual relations also occurred with another patient, Ms X. This was between March to April 1999, about the same passage of time as his sexual relationship with patient Y. He made comments to this patient of a personal nature during consultations and suggested they meet for a social purpose. She attended his home in March 1999. Various acts occurred including placing her hand on his exposed penis and masturbating him. He subsequently contacted her asking if “no” really meant “yes” and whether she was playing sex games. He asked for a second chance and asked if she would see him again.
On 22 May 2000 the Medical Practitioners Board told Dr Young it intended to conduct a formal hearing into his conduct with patient X and Y. After an attendance at the Board, Dr Young gave a signed undertaking that he would not consult with female patients without having a registered nurse present as a chaperone, that he would not consult with female patients other than in a medical setting, that he would notify the Board of the chaperone’s name, and that he would not have contact with female patients and former patients outside of medical practice.
Dr Young breached the first undertaking on seven occasions. The first breach occurred within six days of signing the undertaking. I should say there is no evidence or finding that he had sexual relations with any patient; it was more the case that he had consultations with female patients without a chaperone being present. Because of that, a letter from the Medical Practitioners Board in August 2000 suspended Dr Young from practice.
When the allegations concerning patients X and Y went to the Medical Practitioners Board of Victoria on 31 July 2001, the Board said there was insufficient evidence that Dr Young had acted in a predatory, exploitative or physically aggressive way. It said the activities could be described as consensual. The Board concluded there was no evidence of a formal psychiatric illness, but a personality defect and associated problems affecting Dr Young would benefit from psychological treatment which may well include psychoanalysis.
The Board determined to suspend him for 15 months, but that the period of suspension served by Dr Young since 4 August 2000 was to be deducted from the total period of suspension. Various conditions were imposed on the resumption of his practise including that he not consult with female patients unless a chaperone was present. He was also not to have a sexual or personal relationship with a current or former patient. And he was to undergo examination by a psychiatrist before recommencing practise, remain under the care of a psychiatrist of his choice and approved by the Board, and that he be responsible for ensuring that the treating psychiatrist provided the Board with six monthly reports.
When the applicant recommenced practice, a special condition was placed on his registration on 23 December 2003 that he not have any sexual or personal relationship with a current or former patient. Yet his sexual encounter contact with patient AB in March 2004 in which he paid $50 for oral sex was in breach of that special condition (but came to light, and was prosecuted much later).
Then there was an incident leading to a second hearing before the Board. It concerned a patient, Ms SU. On 13 November 2004, Dr Young performed a gynaecological internal examination on patient SU and a pap smear. This required manual dilation of her vagina and the insertion of a speculum. There were conflicting versions of evidence. There was a finding that vaginal digital penetration had occurred when it was not medically required and when performing the dilation, and he had made certain remarks such as “Holy mackerel you are small” and “You’re really small which is great for…”.
That was not presented as a case of sexual misconduct. The Board concluded that his conduct did not constitute professional misconduct or infamous conduct. It found it was unprofessional conduct of a serious nature. He was reprimanded and required to undergo counselling regarding appropriate communication skills between doctors and patients, and required to undertake further education with respect to pap smears.
The third hearing was the hearing in VCAT concerning patient AB which is the subject of this application for leave to appeal. The Board was not notified of the events concerning patient AB until March 2008. His registration was suspended as from 15 May 2008 and was subsisting at the time of the third hearing.
The psychiatric evidence
The Tribunal had regard (as it had to) to the psychiatric evidence that was adduced before the Board in the 2001 hearing. By that time Dr Young had been seeing Dr Horgan for treatment since June 2000 on a fortnightly basis. He had also undergone a psychiatric assessment from Professor Ball. In essence he was assessed as being narcissistic, having a risk taking personality, and was blasé about rules. Dr Horgan said that Dr Young needed psychoanalytical therapy, that he should continue to see him for 5 years, and that supervision should be imposed for a reasonably prolonged period for the protection of the public.
But Dr Young, who gave evidence at the Tribunal, did not accept that he was unwell at the time, or that he needed psychiatric treatment. He rationalised that he thought the patients were aggressive sex workers who had seduced him. In evidence before the Tribunal in the present case, he said the sessions with Horgan were “gentle and conversational …[I] often derailed it … talk about golf and football…and they weren’t efficacious in the slightest “. After about 6 months of the 2001 hearing he ceased to be under psychiatric care, and the Board accepted Dr Horgan’s view that psychiatric care probably was not necessary.
But, come 2008 Dr Young said he realised he was psychiatrically unwell; that he had built up defences to try and be omniscient, and had been using his intellect “to smokescreen my internal dysfunction”. He said that since receiving treatment from a psychotherapist, Ms Nathan, and treatment and medication from a consultant psychiatrist, Dr Anasson, and since consulting more recently Professor Burrows, he no longer has these traits, he now realises that he had a problem but that he no longer has the problem.
It is important, I think, to understand the involvement of Ms Nathan and Dr Anasson. Ms Nathan had been giving him treatment for about two years before the hearing. He had three sessions per week with her. That is about 300 sessions. Yet, before the Tribunal, she did not present a report, nor did she give evidence. It was said that she had only agreed to help him on the basis that she would not be required to become involved in any disciplinary proceedings. Counsel therefore decided it was not appropriate to subpoena her.
Before the Tribunal there were two reports from Dr Anasson dated May and August 2009. From their contents they appear to have been prepared to ask the Tribunal previously for an adjournment of the hearing. Nevertheless, Dr Anasson reports that Dr Young was on medication for general anxiety and panic and, in a positive tone, says he was engaged proactively to his therapy with Ms Nathan. But he makes the following statement (the last sentence is important):
For his part Dr Young has shown remarkable proactivity and determination in seeking psychological assistance in order for his own well being and for the benefit to his behaviour in society. While some medical treatments can be conceptualised as brief or medium term treatments, psychotherapy in Dr Young’s case is a process of some years’ duration. Although he has been engaged in this process for some time , in my view he is only just beginning to enter a more productive and solidifying period of treatment.
Dr Anasson was not called to give evidence.
I turn now to Professor Burrows. He was not consulted until 18 February 2010. There were four subsequent consultations 4, 18 March and 30 April 2010. He prepared a draft report on 17 March 2010 (the day before the third consultation) which he sent to the applicant’s lawyers on 15 April 2010. The signed report before the Tribunal, dated (mistakenly it was said) 17 March 2001, says in essence:
(a)Dr Young was in a relationship with his partner, Sarah and was working as a restaurant owner, but wished to return to medical practice and wishes if possible to be involved in more cosmetic medicine which would involve seeing women.;
(b)he formed the opinion that Dr Young has gained a great deal from his psychological and psychiatric treatment and that he is much more stable and more insightful and has learned a great deal;
(c)he formed the opinion that he did suffer from anxiety and depression;
(d)Dr Young says the offences will never occur again, and in the past had never happened with non sex workers.
Professor Burrows then said this in culmination:
I formed the opinion that the general public now has nothing to fear from him. I believe his prognosis is very good in view of the treatment he has received and I formed the opinion that he is now fit to practise as a medical practitioner. He has also agreed if necessary to continue therapy with whoever the Board felt could be of benefit to him. Of course, the cynical approach may be to believe that he may be only trying to satisfy but I am of the opinion that this is honesty having spent a significant time with him and do not have any hesitation in recommending that he return as a Medical Practitioner.
In all, by the time of the Tribunal hearing, there had been nine consultations with Professor Burrows.
In the course of his examination‑in‑chief, a number of additional things were said by him. I shall abbreviate the evidence as follows (as expressed, they are Professor Burrows’ opinions):
(a)when he had committed the previous improprieties, “he was at that stage just a big adolescent and now he has matured and he is an adult … then he got into proper therapy and in the last three years has gained a lot and certainly in the last two and a half years he has gained exceptionally – very much”;
(b)the previous therapist (that is Dr Horgan) never really took a detailed full history, and Dr Young wasn’t really prepared for therapy and really wasn’t being insightful or understanding of the need for therapy and “he really resisted doing things with them”;
(c)people change, and Dr Young does not have the same risk taking behaviour as he had years ago;
(d)“He wasn’t psychologically minded or insightful at the time of the offences, and he is now”;
(e)having seen him on nine occasions, and taken a lot of history, he is able to reach his opinion;
(f)there are still certain characteristics of his personality which is partly narcissistic, and they don’t go; but he has a much better understanding of his own personality and he’s learnt how to control himself;
(g)he had come to the conclusion that Dr Young was genuine.
He was cross-examined by counsel, as well as questioned by the Board. It was not so much an attack on Dr Burrows’ expertise but, as I read the transcript, more a case of exposing or posing a number of objective matters which might lead an assessor to doubt whether an absolutist view could be formed about the prospects of re‑offending. This was the gist of it:
(a)he had formed his view after only nine consultations, yet Dr Young had seen Dr Horgan for about 12 months leading up to the 2001 hearing and for an other year or so after that hearing;
(b)it was not credible to say that Dr Horgan had not obtained a full history after so many visits (yet according to Professor Burrows, he, Burrows, could reach a strong view because he had taken a patient history);
(c)a full history may not have been obtained only because the patient may not have been willing to give it;
(d)he accepted it was “quite right” to say that it “was terribly difficult” to form a definite view about whether Dr Young was suffering from depression and anxiety 11 years earlier but, said Professor Burrows, “I listened to the symptoms and the behaviour since then, and still believe I was right”;
(e)his letter written in April 2010 was only after five consultations;
(f)someone may be cynical about an opinion concerning Dr Young in 1999, “but I’m telling you I believe it”.
He was asked if there was a risk that Dr Young might become unhappy with his personal relationship or not content with his sex life, and if that would give rise to a risk of re‑offence. Professor Burrows asserted that he did not believe so. When pressed, he said he did not believe so because of “clinical experience”.
All in all, when looking at the transcript of the questioning it is plain to me that Professor Burrows was given every opportunity to deal with these general adverse contentions: how could he form an opinion in 2010 that a man was suffering depression in 1999 and 2000? How could he after five or 9 sessions come to such an unequivocal view? Was he saying that he could only really come to that view because he had taken a patient history, believing that those who treated Dr Young previously had not? How could anyone be so certain that if Dr Young’s personal life took a turn for the worse, he would not relapse into his instabilities?
This gives, I think, a better understanding of the Tribunal’s reasons and of the approach to the issues on this application.
The Tribunal accepted that Professor Burrows was an eminent and well-respected psychiatrist in Australia and worldwide. But, they said, correctly I would presume to say, that the psychiatric evidence was unsatisfactory. Ms Nathan was not called yet Dr Young had consulted her about 300 times. Likewise, Dr Anasson was not called. Therefore, it was unsatisfactory, so the Tribunal said, that the only evidence came from Professor Burrows.
The Tribunal said it was difficult to accept that one could be 95 to 99 per cent that Dr Young would not relapse. Looking at Dr Young’s history, and even allowing for the possibility that he might have changed, the history shows he had no respect for the Board’s authority and there was still a risk for repetition of his previous conduct. The Board said:
While we have regard to the fact that Professor Burrows said that he was 95% to 99% certain there would not be a relapse, we feel that that statement is somewhat extravagant. Particularly, in light of the fact that social factors in the respondent’s life are good at the moment but if things do change, the respondent may relapse into his previous conduct. Professor Burrows denied this but, in our view, it is very difficult to determine.
It is surely correct, as a matter of ordinary human experience or common sense, to say that an expectation of future behaviour is difficult to determine. Judgments are made. Sentencing Courts, for example, have to do it all the time in criminal cases. The Tribunal also thought it surprising that Professor Burrows could be so certain after only nine sessions of treatment. Thus, the Tribunal’s conclusion was that it could not be satisfied that the risk of re‑offending is as low as that put by Professor Burrows. They said it simply was not possible to be satisfied to that point of certainty. The Tribunal then said:
We hold the view that it is important to protect the reputation of the medical profession and deter other medical practitioners from engaging in such conduct. In a case like the present where the respondent is a repeat offender, in our view, anything less than cancellation would be sending a wrong message both to the profession and to the members of the public. That would have the effect of other members of the profession not being properly deterred from such conduct and the public losing confidence in the profession.
I turn now to the legal issues.
Question of law?
The gist of Mr Noonan’s submission was that the Tribunal was, as a matter of law, bound to accept Professor Burrows’ opinion unless that evidence is in itself so incredible and so unreasonable that no reasonable Tribunal could accept it. Much reliance was placed on a decision of Anderson J in Hardy v Gillette.[6] In that case, his Honour adopted the following passage in Richards v Jager[7] where Madden CJ said:
But I feel sure that where there is evidence sworn to prove one side of the issue, and there is no evidence whatever sworn on the other side to contradict it, the court is bound to accept it unless that evidence is in itself so incredible and so unreasonable that no reasonable man could accept it. If for any reason which recommends itself to the minds of the Bench to deal with a matter they think fit not to accept the evidence of the witness who is the only witness before the court, and are founding their decision on their disbelief of him, they are bound to disclose it. If they do not, then they are deciding in the teeth of the evidence without showing why they do so, and I do not think that is reasonable in any court of justice, or according to the principles applied by the courts of justice.
[6](1976) VR 393.
[7](1909) VLR 140 at 147.
Thus, we have the general principle: where uncontradicted evidence, which is uncontradicted, reasonable, inherently probable and conclusive of the matter, has been given, it can only be rejected for relevant reasons, which a court is obliged to disclose.[8] See also the decision of Marks J in Read v Nerey Nominees Pty Ltd.[9] and the Victorian Court of Appeal in R v AWF.[10]
[8](1976) VR 392 at 396.
[9](1979) VR 47.
[10](2000) 2 VR 1 at 10.
There is no doubting such a principle. But two questions arise. This principle is applied in cases where a court has to determine a question of fact as part of the adjudicative process. Secondly, the principle lends itself to application where it can truly be said that the evidence concerning the fact in issue was uncontradicted, reasonable, inherently probable and conclusive of the question.
Was the Tribunal here determining a question of fact? The Tribunal was conducting a task of examining facts and opinions to determine the appropriate penalty. Two cases are relevant here. The first is R v AWF [11] a decision of the Victorian Court of Appeal. In that case, on a plea to a criminal charge of sexual abuse, the offender led expert evidence that there was a connection between his conduct and his own sexual abuse as a child. The sentencing judge said that the offender’s childhood experience was irrelevant to sentencing considerations. The Court held that was a sentencing error. The expert evidence that established on the balance of probabilities that the offender’s conduct was at least partly explained by his childhood experience was, so the Court held, uncontradicted, inherently reasonable and probable and conclusive of the matter.
[11](2000) 2 VR 1.
This case demonstrates the need to ask: what was the factual inquiry being undertaken by the court or tribunal in this case? In R v RWF the question was, on the balance of probabilities was the appellant’s offending conduct explained by his childhood experiences? That is a question of fact. In dealing with that question, if a court receives evidence, including opinion evidence, which was uncontradicted, inherently probable, reasonable and conclusive of the matter, then on legal principle the court is bound to apply it, or should not reject it without giving some reason for rejecting it.
To the same effect is the decision of the Victorian Court of Appeal in S v Crimes Compensation Tribunal.[12] That was an application for statutory compensation by the victim of a crime. The question was whether, on the balance of probabilities, the applicant’s medical conditions truly did arise from a crime, or more likely, were attributable to some other non‑compensatable act? That question, so the Court accepted, was a question of fact, not law. And, it was accepted in that case that a fact‑finding tribunal may in a proper case choose not to accept unchallenged expert opinion, assuming there is a proper ground for rejecting that opinion. That case was another example where the Court at first instance was looking into the question whether a causal link existed between two events.
[12](1998) 1 VR 83.
The Tribunal’s task in the present case was not to tackle a fact in issue for the purposes of fact-finding in an adjudicative or decision-making process. The Tribunal was concerned with the question of penalty and in that regard had to consider not only the gravity of the misconduct concerning patient AB but also, and I think irresistibly, had to have regard to Dr Young’s history of previous hearings before the Board, previous sexual encounters, and previous breaches of undertaking. Then, it had to consider the prospect of a recurrence. When looking for a correlation between his actions and his psychiatric condition, that task was factual.
Thus the only question is whether as part of that factual exercise, the Tribunal arguably failed to observe the legal requirement to act on evidence that was uncontradicted, reasonable, and inherently probable. And the corollary principle is important: such evidence can be rejected for relevant reasons as are disclosed.
Debate may take place about the meaning of “uncontradicted”. At the very least a witness may be challenged in questioning about evidence (especially opinion evidence) in a way that exposes its unreasonableness or shows it to be questionable or not deeply rooted. Or it may be to expose something unappealing about the witness in an impalpable way, be it demeanour or conviction or impartiality, which a Court or Tribunal weighs up when assessing the calibre of the evidence. What can be said here is that the respondent, the Board, certainly did not accept the evidence. It was challenged.
In my view it simply cannot be said that Professor Burrows’ view was “inherently probable” or “conclusive of the issue”. One might be optimistic that a person who has seen the error of his ways, and to set himself straight has a very strong incentive not to re-offend. But 95 to 99 percent certain? The prospect of a human being behaving in a certain way in the future is not a subject of “inherent probability”. Much depends on the enquiry, the person’s propensities and the person’s history and some prognostication about the future and what life holds in store.
Nor do I think it possible to say that his evidence was “reasonable”. That is in no way to cast aspersions on the pre‑eminence of Professor Burrows. But, as the Tribunal said, it was one opinion after nine consultations in circumstances where two practitioners who had been seeing Dr Young for a long time were not called to give evidence. Moreover, Dr Anasson’s report had unequivocally stated the need for longer term psychiatric help.
Thus, I would analyse this case as follows. Dr Young sought to adduce the evidence of Professor Burrows for a dual purpose. It was to establish that Dr Young’s history was explicable to suffering anxiety and depression and a narcissistic personality trait. So viewed, it would be said the Tribunal ought be less concerned about the prospects of re‑offending especially as, so Professor Burrows opined, with the benefit of the psychotherapy he had overcome his problems, had grown up, and there was little to no risk of him re‑offending.
But the law permits the Tribunal not to accept that evidence. It must consider the evidence, and if it is to reject it must disclose its reasons for doing so. In this case the Tribunal has done precisely that. It has said, pointedly and in my view with justification, that Professor Burrows’ evidence was unsatisfactory coming as it did after only nine sessions on a matter which was by nature incapable of such a definitive view. And, it had not heard from Anasson or Nathan. What is more, there were grounds for truly being concerned about the prospects of re‑offending. What prevails is the need for protection of the public and standards of the profession.
Not a lot need be said on the rule in Brown v Dunne. In essence, a witness must be told the respects in which the witness’s evidence is not to be accepted: see generally Cross on Evidence.[13] The principle in Brown v Dunne as originally stated, was recited by the Victorian Court of Appeal in Herald & Weekly Times v Popovic[14] as follows:
To my mind nothing would be more absolutely unjust than not to cross‑examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they had deposed to.
[13]7th Australian edition at [17435].
[14](2003) 9 VR 1 at 73 [357].
I see no force at all in the Brown v Dunne point. It is apparent from the transcript that questions or propositions were put to Professor Burrows to in effect challenge his opinion. I cannot accept that the conclusions reached by this Tribunal were on matters about which Professor Burrows had not been cross‑examined or, in one way or another, had not been given an opportunity on which to state his view. This was not a case where a version of facts was in contest. It is apparent from the general manner in which this case was conducted that there was a clear and obvious question about the ability of Professor Burrows to reach such an absolutist view. It is not necessary for detailed probing of apparent improbabilities, inconsistencies and incredibilities. This is more so I think when the matter is before a specialist tribunal constituted by two doctors who presumably have been chosen for their skill and expertise in the medical field and able to better assess opinions.
Nor is there a basis, mentioned in argument, for contending the Tribunal’s reasons did not explicitly analyse the evidence in a way to properly demonstrate fair grounds for rejecting the evidence of Professor Burrows. The Tribunal has a statutory direction to act with informality and expedition. That would not excuse a tribunal, particularly in cases such as this, from excusing itself from an analysis of the evidence and revelation of its reasons to enable a party to know why it has “lost”. If I may say so, the reasons given by the Tribunal are both methodical and conscientious.
One cannot tell from reading the transcript, but to the extent that the Tribunal had reached its conclusions based upon the demeanour of Dr Young, then that is beyond interference by this Court. The only possible basis of attack is an inappropriate emphasis on demeanour whilst a substantial body of other evidence is overlooked.[15] But the only favourable evidence was from Professor Burrows.
[15]See Fox v Percy ( 2003) 214 CLR 118 and State Rail Authority of NSW v Earthline Constructions Pty ltd (1999) 73 ALJR 306.
On applications of this nature, apart from the clinical examination of the issues, the Court asks whether it is just to grant leave. To my mind, it cannot be said that there was any injustice or unfairness in the way this case was conducted, or reasoned, to the point of attracting judicial intervention.
It is for those reasons that I have refused leave to appeal.
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