Edelston v MPBV [2001] VCAT 906

1. The hearing conducted before the Tribunal on 21 February 2001 was further to Orders made by the Supreme Court of Victoria (Nathan J) on 11 December 2000.

2. The proceeding had been before the Supreme Court further to an appeal by Geoffrey Walter Edelsten ("the Applicant") to that Court from a decision of the Tribunal, as presently constituted, made 19 June 2000. The Tribunal decision made 19 June 2000 had affirmed an earlier decision of the Medical Practitioners Board of Victoria ("the Board") made 2 September 1999 refusing the Applicant's application for restoration to the medical register.

3. The Orders of Nathan J were in the following terms -

2. The orders of the Victorian Civil and Administrative Tribunal (Mr Baker-Smith D.P., Mr Levine D.P. and Associate-Professor J. Davis, M) made 19 June 2000 affirming the decision of the Medical Practitioners Board of Victoria of 2 September 1999 and dismissing the application for review, are set aside.

3. The proceeding be remitted to the Victorian Civil and Administrative Tribunal for rehearing on the issue of the Applicant's contrition and remorse with respect to all of his conduct as a medical practitioner from 1978 to 1991 and as an applicant before the New South Wales Medical Tribunal, the Medical Practitioners Board of Victoria, the Victorian Civil and Administrative Tribunal and the Court of Appeal of the Supreme Court of Victoria.

4. The Tribunal is to be constituted for the rehearing by the same members who made the original orders.

5. Both the Applicant and the Respondent are at liberty to rely upon any further evidence in relation to the issue in dispute".

The Hearing Before The Tribunal On 21 February 2001.

Preliminary Procedural Matter -The Nature And Scope Of the Rehearing

4. Ms Tate of Counsel, who appeared for the Board, referred to the Orders of Nathan J, and in particular to Order 3 thereof, and submitted that the proceeding had been remitted to the Tribunal solely on the issue of contrition and remorse. The Applicant agreed.

5. It is clear that the compass of the proceeding is as per Order 3 of the Orders of Nathan J. We consider that the material before us when we last heard the proceeding was part of the global material that we were to consider for present purposes. Further to Order 5 of the Orders of Nathan J, both parties were at liberty to put further material and call further evidence in relation to the issue of the Applicant's contrition and remorse.

6. The only person to give evidence at the rehearing was the Applicant. That evidence included evidence to the following effect -

* He had in recent years endeavoured to improve himself by extensive study.

* He had assisted intellectually and physically disabled children by sponsoring sporting clubs where such children participated. His sponsorship had enabled the children to travel to various places throughout Victoria to participate.

* He had without financial reward taught paramedical personnel, particularly weight loss counsellors, to develop new skills so that they could assist doctors in the treatment of obesity. Prior to the removal of his brain tumour he had volunteered to World Vision and Medicins Sans Frontieres.

* He stated "I have not in the past made the unambiguous statement that I am guilty of the offences, I am guilty of not being entirely truthful or not stating things previously before tribunals". He further stated "foolish considerations, advice, legal advice that was not appropriate has meant that it has taken 10 years for me to do so. I do this now".

* His health was not robust and his working life was limited. He wished to contribute back to the community.

* He had, with some qualifications, admitted that before VCAT in 1999 he had offered explanations designed to justify his previous behaviour. He had tried to paint himself in the best possible light. He was wrong to do that, regretted it and would never do it again.

* He admitted that he solicited Flannery to assault Evans. He admitted that he performed laser treatment on Flannery for the purpose of securing an adjournment of Flannery's murder trial.

* He was referred to the following passage in paragraph 12 of his statement dated 7 December 1999 namely "There has been no behaviour by me which could be impugned in any way since my criminal convictions in 1990", and also to a similar statement in paragraph 21 of his affidavit of 3 March 2000. In this context he was referred to the following finding "It is an unavoidable conclusion ... that Dr Edelsten has a gross disregard for the truth" (Board Reasons For Decision 15 October 1998). He admitted that this was a finding of dishonesty and impugned his conduct. He was also referred to the finding that "... there is no other explanation than that which we have concluded namely that Dr Edelsten deliberately sought to mislead this Tribunal as to his involvement in the circumstances leading to his convictions and did so to enhance the prospects of his application for re-registration succeeding." (paragraph 47, VCAT Reasons, 18 February 1999). He now treated that finding as a matter which had impugned his conduct, acknowledging that it had called the honesty of his conduct into question.

* He accepted that paragraph 21 of his affidavit of 3 March 2001 was not as accurate as it could have been. He said it should have referred to professional conduct and not all conduct and should be interpreted in that way otherwise it did not make sense.

* He acknowledged that he had told this Tribunal at this hearing that the exculpatory story that he had told the Supreme Court of New South Wales and VCAT in 1999 that he had contacted Flannery solely in order for him to ascertain the identity of his harasser was a lie.

* He said that he could not recall his conduct in relation to the events the subject of the criminal proceedings in New South Wales in 1990 and that "wise people have concluded that these events occurred".

* He accepted his guilt. He wanted to move on. He could not do anything more. He believed he was entitled to be re-registered. He was guilty, he was contrite and he was remorseful.

7. We had the benefit of both written and oral submissions from the parties.

8. It is clear from paragraph 38 of the Authenticated Reasons of Nathan J that we are required to -

" . . . consider whether the contrition and remorse expressed adequately addresses the wrong; whether in fact, it would cure what are said to be character deficiencies so as to entitle Dr Edelsten to re-registration; whether, in fact, there arises an entitlement to registration should contrition be so found".

9. Ms Tate submitted that the Applicant carried the onus to persuade the Tribunal that his character had reformed. Support for that proposition is to be found in 2 cases to which we were referred by Ms Tate. We refer particularly to Re S (a Solicitor) [1986] VicRp 75; [1986] VR 743 at 744 and also to the following passage in Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 at 366. -

"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he is known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant. See Ex Parte Clyne; Re Bar Association of NSW [1962] NSWR 709; [1962] S.R. (NSW) 436, at p. 441, and cases there cited".

10. We have also had regard to Medical Practitioners Board of Victoria v McGoldrick (unreported, Court of Appeal, Tadgell, Phillips and Buchanan, JJ.A., No 7476 of 1998, 17 December 1999), and particularly paragraphs 19 and 20 of the Judgment which deal with the question of "onus" in the context of section 7(2) of the Act. We do not consider that there is an onus on the Applicant to establish that there were no grounds under section 7(2) of the Act which might form a basis for the refusal of registration. We also note the statement of Nathan J at paragraph 37 of the Authenticated Reasons that "In his submissions to the Tribunal, Dr Edelsten raised the issue of contrition. Although the onus is upon him to establish such, that submission must be dealt with by the Tribunal". We consider that we must examine all the material before us and determine from that material whether the Applicant's stated contrition and remorse is genuine.

11. Ms Tate submitted that an adverse finding of the Applicant's contrition and remorse had already been made by the Tribunal in our earlier decision. At paragraph 33 of the Authenticated Reasons Nathan J stated in part -

"... it is apparent that the Tribunal simply backed away from making any positive finding one way or the other as to contrition and remorse. That is, whether the same was genuinely motivated or was, in fact, contrived or manufactured. Rather, the Tribunal specifically says that it makes no finding. These matters were the only new matters which were before that Tribunal. The Tribunal was entitled to refer to the findings of the previous tribunals concerning Dr Edelsten's handiness with the truth, his inability to face reality and his coyness in dealing with his own criminality. However, it was also obliged and bound to deal with his present day expressions of remorse and contrition."

12. In making these observations Nathan J was referring to paragraphs 51 and 52 of our Reasons for Decision of 19 June 2000 which were in the following terms -

"We have outlined at some length the evidence and submissions on the question of remorse. The Applicant stated in his evidence before us that he did not demonstrate any remorse or contrition in 1992, and that in 1994 he was still trying to have the convictions set aside. In his written submissions to the Board in August 1999 he asserted that in the 20 months since his last application for registration there had been `a most significant change in my position'.

We had the benefit of seeing and hearing from the Applicant in the witness box. We do not consider we are in a position to find, as submitted by Mr Lacava, that the Applicant's expression of remorse and contrition are not genuine. We are however equally not in a position to find that these expressions are genuine. We are not in a position to discount the possibility that the stated expressions of remorse and contrition flow from a view by the Applicant that a failure to do so would be unhelpful to his attempts to be re-registered".

13. Further to paragraphs 51 and 52 above, and consistent with the statements of Nathan J, we do not accept the submission of Ms Tate to the effect that we had already made an adverse finding against the Applicant on the basis of contrition and remorse.

14. At paragraph 58 of our Reasons for Decision published 19 June 2000 we expressed our conclusions in the following terms -

"Having regard to the material before us, and our observations and findings as detailed above we have concluded -

(a) that the character of the Applicant is such that it would not be in the public interest to allow the Applicant to practise as a registered medical practitioner;

(b) that the Applicant has been found guilty of an indictable offence in Victoria or an equivalent offence in another jurisdiction; and

(c) that the Applicant has been found guilty of an offence where the ability of the Applicant to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the Applicant to practise because of the finding of guilt".

15. These conclusions were based upon certain of the matters that section 7(2) of the Medical Practice Act 1994 provides as the grounds upon which the Board, and thus this Tribunal, may refuse to grant registration. As stated, we concluded that the character of the Applicant was such that it would not be in the public interest to allow him to practise as a registered medical practitioner and that he had been found guilty of an offence where his ability to practise was likely to be affected because of the finding of guilt or where it was not in the public interest to allow him to practise because of that finding of guilt. It followed from these findings that we affirmed the decision of the Board.

16. The Orders of Nathan J were to the effect that we were required to reconsider these matters further to making a finding as to the Applicant's contrition and remorse with respect to his conduct.

17. The Applicant submitted that his expressions of contrition and remorse, particularly in his evidence before us on the rehearing, "prove powerfully that I have been redeemed". He contended that having regard to the affidavit filed for this hearing and his oral evidence at the rehearing that "this contrition and remorse has been strongly put and ... one could be in no doubt that it was genuine". In this context we reproduce paragraphs 9, 10 and 11 of the Applicant's affidavit of 29 January 2001 -

"I again unreservedly express contrition and remorse in relation to all my impugned conduct in the past.

This is no time for evasions, denials, excuses or justifications. I do not evade nor deny the truth and I proffer no excuses or justification for my conduct. I fully accept responsibility and I am truly sorry for my actions.

I have wrongly in the past tried to tread a fine line between trying to justify my conduct and accepting that which had been found to be unacceptable, untruthful or plainly wrong. This was the situation at the previous hearings before VCAT. I had done this to enhance my prospects of re-registration. I will never do so again".

18. The Applicant referred to various passages in the Authenticated Reasons of Nathan J including the statement "No person is beyond redemption". We respectfully agree with that statement.

19. The Applicant referred to the observations of Nathan J in the appeal hearing (at page 46 of the transcript of that hearing) that " . . . the concept of contrition has 3 elements, an admission of the wrongdoing, an expression of contrition for it and a determination to rehabilitate", submitting that he had admitted his wrongdoing, expressed contrition for it and expressed a determination to rehabilitate, and the evidence was that he had attempted to do that. At page 8 of his written submission he stated -

"Rehabilitation has been shown by efforts to improve self such as an extensive post graduate studies, teaching and charitable donations to intellectually and physically disabled children to enable them to participate in sport. In addition the applicant volunteered to work with Medicins Sans Frontieres and World Vision".

20. The Applicant stated "I believe that my most significant obstacle has been the admission of wrongdoing and expressions of contrition and remorse that you can accept. I believe that they have been cured today".

21. In the context of the public interest, the Applicant referred to the period that he had worked as a medical practitioner between his conviction and sentence in 1990, and to such work in Victoria subsequent to his release from prison until his deregistration as a medical practitioner in Victoria in 1992.

22. He submitted that if a person had been convicted of indictable offences, been punished and had rehabilitated the public interest was served by allowing that person to pursue his vocation. In this context the Applicant referred to a series of authorities including Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279.

23. It is clear that a conviction for an indictable offence is not an automatic bar to registration. We respectfully agree with the statement of Nathan J at paragraph 36 of the Authenticated Reasons that the Applicant's previous criminal behaviour was something which might ultimately be overcome. It is necessary to have regard to the circumstances of the offences. See Cichello v Estate Agents Licensing Authority (1998) 13 VAR 177.

24. However, the convictions imposed on the Applicant in 1990 are, of course, not the only matters before the Tribunal in relation to the Applicant. As stated by Nathan J at paragraph 33 of the Authenticated Reasons, we are also entitled to refer to, among other things, the "findings of the previous tribunals concerning Dr Edelsten's handiness with the truth, his inability to face reality and his coyness in dealing with his own criminality. However, it was also obliged and bound to deal with his present day expressions of remorse and contrition". As stated by Nathan J at paragraph 36 of the Authenticated Reasons "The fact of lying to tribunals of fact in transit might be something which can be overcome". These matters, including the finding of this Tribunal in 1999 that the account given by the Applicant to this Tribunal in 1999 as to his involvement in the two offences for which he was convicted in the Supreme Court of New South Wales was false, are particularly serious matters to which we must have regard.

25. It is clear that the role of the Tribunal is protective not punitive. In our earlier decision at paragraph 26, we referred to the Applicant's submission that the character evidence before the Tribunal demonstrated that the public did not need protection from the Applicant, but may benefit very greatly from his services. We were referred to Re Khoosal v Medical Practitioners Board (1996) 11 VAR 82 and various annual reports of the Board and its predecessor.

26. In the context of the protection of the public, Ms Tate referred us to McGoldrick and to the following passage of the Judgment of Buchanan J at paragraph 28.

"The purpose of the decision reviewed by the Tribunal was not punitive, but protective. In Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 C.L.R. 186 at 201-2, the Court said:

`Although it is sometimes referred to as `the penalty of disbarment', it must be emphasized that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege'.

In my view a like jurisdiction was being exercised in the present case. The question was not whether the respondent had been sufficiently punished, but whether at the time the Tribunal was conducting its review the respondent's character was such that the public needed to be protected from him. The length of time spent out of practice by the respondent could not determine the proceeding if he was still not fit to practise. In this context it was significant that the respondent had recently given false evidence in an effort to deny or minimize his earlier conduct. His testimony showed that there was no reason to suppose that he had become a changed man since the last of the incidents of unauthorized treatment in October 1995. His approach to the application precluded an acknowledgment of guilt or expression of contrition".

27. Ms Tate also referred us to the following passage of the Judgment of Buchanan J at paragraph 24 in McGoldrick concerning the importance of a medical practitioner having the quality of honesty -

"The fact that the respondent gave false evidence is a grave reflection upon his character. It was dishonest and disclosed a readiness to break the law when it suited him. Medical practitioners occupy a position of considerable trust, and it is in the public interest that they should merit that trust. Accordingly, it is to be expected that medical practitioners will be scrupulously honest in their dealings with patients, with other doctors and those in related professions such as nurses, radiologists and technicians and support staff and with the government departments with which they deal in the course of their practice. In my opinion the Tribunal was bound to have regard to the fresh instances of the respondent's dishonesty constituted by his false testimony".

". . . it is the importance to be placed upon the giving of false evidence which is a matter which ... this Tribunal ought to pay considerable regard to because ... the evidence that has been given by the Applicant, both in terms of his affidavit material... and in the oral sworn evidence that he gave before this Tribunal in April 2000, and the oral evidence that he gave to this Tribunal today, that on the basis of that material this Tribunal ought to infer that it cannot trust the honesty of Dr Edelsten to demean himself properly as a medical practitioner".

29. In support of this submission Ms Tate referred to the Applicant appearing in evidence to "give crystal clear, unadulterated bald admissions of his criminal conduct", admitting that he had solicited Flannery to assault Evans, and admitting that he had performed medical treatment on Flannery to secure the adjournment of his murder trial. Then, at a later point in his evidence, having stated he had no recollection of the events.

30. Ms Tate also submitted that the answers given by the Applicant in cross-examination before the Tribunal in April 2000 included answers to the effect that his previous position had not been one in which he attempted to minimise his blameworthiness. Further that at the re-hearing before us, the Applicant had told the Tribunal that he accepted that his previous position had been one in which he tried to justify his wrongdoing.

". . . the Tribunal was right to decide that the Applicant has not discharged the onus upon him to show that his character has reformed. The recent appearance of contrition that have seen from the Applicant in my submission should be seen for what it is, that is contrived, superficial, inadequate and adopted solely for the purpose of increasing his prospects of success for re-registration. The Applicant has not demonstrated a change of such magnitude as to warrant a finding in his favour and it is my submission that the Applicant's character is not reformed and that he remains manifestly unfit to be restored to the register".

32. We consider that we are to assess the matter of contrition and remorse at the present time.

33. We are not satisfied that the Applicant's contrition and remorse is genuine. Further, in the words of Nathan J reproduced at paragraph 8 of these Reasons, we do not consider that "the contrition and remorse expressed adequately addresses the wrong", and does not "cure what are said to be character deficiencies so as to entitle Dr Edelsten to re-registration".

34. In so concluding, we have found aspects of both the documentary material filed by the Applicant and his oral evidence before us to be unsatisfactory. We accept the submissions of Ms Tate to the effect that the Applicant has demonstrated a readiness to manipulate the truth when the circumstances suit him. We have found aspects of the Applicant's evidence to be unreliable. In this context we refer particularly to the change in position in his evidence before us as to his admissions concerning the criminal offences from at one stage, in effect "I did it" to at a later stage, in effect "I don't remember". We also refer to what we consider to be the clear false statement in the affidavit of 3 March 2000 that "there has been no behaviour by me which could be impugned in any way since my criminal convictions in 1990".

35. We are also disturbed by the Applicant's admission before us that the exculpatory story that he had told the Supreme Court of New South Wales and this Tribunal in 1999 that he had contacted Flannery solely in order for him to ascertain the identity of his harasser was a lie. We understand that admission to be further to the Applicant's admission earlier in his evidence before us that he had solicited Flannery to assault Evans which, as we have detailed, was in later evidence before us varied to his not being able to recall what he had done.

36. We consider this evidence reflects adversely on the issue of the Applicant's contrition and remorse and supports the submissions of Ms Tate that the Applicant has a readiness to manipulate the truth when the circumstances suit him.

37. It is clear from the passages that we have quoted from McGoldrick that the giving of false evidence in an effort to deny or minimise earlier conduct are significant matters for us to consider. See paragraph 26 above. It is equally clear from McGoldrick that the giving of false evidence is a grave reflection upon a person's character. We attach considerable weight to these matters.

38. It necessarily follows, in our view, that the conclusions in our Reasons for Decision of 19 June 2000 ought be affirmed. In other words we have concluded that the character of the Applicant is such that it would not be in the public interest to allow the Applicant to practise as a registered medical practitioner. As a matter of record we also confirm our conclusion that the Applicant has been found guilty of an indictable offence in Victoria or an equivalent offence in another jurisdiction. We also conclude that the Applicant has been found guilty of an offence where the ability of the Applicant to practise is likely to be affected because of the finding of guilt or where it is not in the public interest to allow the Applicant to practise because of the finding of guilt.

39. Having regard to our finding on the question of remorse it was not necessary for us to consider the further submission of Ms Tate that even if the Tribunal found that the Applicant's remorse was genuine, then that remorse if genuine was not adequate.

40. We order that the decision of the Board of 2 September 1999 is affirmed, and the Application for Review is dismissed.