HEALTH CARE COMPLAINTS COMMISSION v LITCHFIELD

HELD: By the Court, dismissing the cross appeal and allowing the appeal: (1) The plea of autrefois acquit was not available to the doctor in the disciplinary proceedings. Although both the Director of Public Prosecutions and the Commission are servants or agents of the Crown there was no identity of parties to establish a res judicata estoppel. Re Mulligan Ex Parte Isidoro [1979] WAR 198 doubted and distinguished; Wynyard Investments Pty Ltd v Commissioner for Railways (1955) 93 CLR 376 applied; Haines v Tempesta (1995) 37 NSWLR 24 referred to. (2) Because of the different onus in civil and criminal proceedings an acquittal does not prevent disciplinary proceedings arising out of the same facts. Helton v Allen (1940) 63 CLR 691, Redlek v McElroy (1965) 112 CLR 517 applied; Papadimitropoulos v The Queen (1957) 98 CLR 249 referred to. (3) The Act contemplated that disciplinary proceedings could be brought before or after criminal proceedings and regardless of their outcome. Medical Practice Act 1992, s56 considered. (4) The purpose of proceedings before the Tribunal was purely protective and no element of punishment was involved. The Tribunal erred in treating the stress on the doctor from the criminal trial and the disciplinary proceedings as a relevant consideration. Clyne v NSW Bar Association (1960) 104 CLR 186 and NSW Bar Association v Evatt (1968) 117 CLR 177 applied. (5) The Tribunal also erred in relying on the lapse of time since the earliest complaint and the delay since the last complaint. The Tribunal could not assume that the doctor had become a reformed person. Ex Parte Tzirtiolis (1966) 67 SR (NSW) 448 applied. (6) The order that the doctor submit to a psychiatric assessment during the suspension was inappropriate because neither the Board nor the Commission could take appropriate action if the assessment showed the doctor was unfit to practice. (7) The paramount duty of the Tribunal and the Court in cases such as this was to protect the public, and particularly female patients, from the abuse by doctors of the power they possess over patients in the course of their practice. Richter v Walton (Court of Appeal, 15 July 1993, unreported) overruled.

Gleeson CJ, Meagher and Handley JJA The Health Care Complaints Commission has appealed to this Court against orders made by the Medical Tribunal in disciplinary proceedings against the respondent medical practitioner

(the doctor). The Tribunal ordered that the doctor be suspended from practising medicine for nine months, commencing on | December 1996, and that he attend for assessment by a psychiatrist appointed by the Medical Board, who was to report to it within the period of suspension. The Tribunal also directed that for the following 12 months the doctor should practice in a position approved by the Board. The Commission seeks an order that the doctor's name be removed from the Register.

S90(1)(b) of the Medical Practice Act 1992 authorises an appeal by the complainant to the Supreme Court against the exercise of the Tribunal's disciplinary powers under Division 4 of Pt4 of the Act. Although such an appeal is not limited to questions of law and is a rehearing, this Court is not entitled to question the factual findings of the Tribunal in relation to the complaint or complaints. See Bannister v Walton (1993) 30 NSWLR G99 at 734-5.

The complaints before the Tribunal relate to inappropriate conduct of a sexual nature by the doctor in the course of professional consultations with three female patients aged between 20 and 30. Evidence was also given about an incident involving another female patient, DM, which was not the subject of a formal complaint. The facts, as found by the Tribunal, were as follows.

The first patient, JT, was seen by the doctor in his surgery at Woolgoolga on G May 1987 for the purpose of having an inter-uterine contraceptive device fitted. After the patient sat up on the examination table, the doctor placed her hand on his clothing over his erect penis. JT's friend, DM, was the next patient admitted to the doctor's surgery that day. She had attended to drive JT home and to have a pap smear. After this procedure, the doctor asked whether she had had a recent breast examination. She said she did not "really bother about it". While she was still on the examination table the doctor, standing behind her, put his hand inside her dress and bra and held one of her breasts. DM said she did not want this and sat up quickly.

NM, who was then 20, consulted the doctor at the Warringah Mall Medical Centre, Brookvale on 27 March 1992 complaining of flat feet. He examined one foot and one lower leg, and then informed her that she was due for a breast examination and pap smear, and asked her to get on to the examination table. She did so. She was not wearing a bra and the doctor handled her breasts. Earlier, the doctor had initiated a personal conversation, unrelated to her flat feet, about her boyfriend, her contraceptive precautions, and what he described as her unusual tan. The Tribunal were convinced, to the necessary degree of satisfaction, that the doctor's examination of this patient was carried out for sexual gratification.

The last complaint related to LW, who saw the doctor at the Chatswood 24 Hour Medical Centre on 2 November 1992. She was complaining of loss of appetite, nausea, vomiting and sleeplessness. After minimal history taking, the doctor pulled up her upper garment and palpated both breasts with his fingers. After pressing both sides of her stomach down as far as the groin, he then resumed his examination "of her breasts" and, after discussing acu pressure points, he demonstrated these on her upper chest wall above each nipple and on her perineum between her vagina and anus. He then carried out an irregular vaginal examination. The Tribunal concluded:

"Tt seems most improbable that this examination was for any genuine medical purpose and we are satisfied that it was at least in part motivated by a desire for some form of sexual gratification".

WREALTH CARE COMPLAINTS COMMISSION v LITCHFIELD (Gleeson CJ, Meagher an@ Handley JJA)

The doctor filed a notice of contention which sought to support the Tribunal's orders on the ground that it had erred in considering the complaint relating to LW because the doctor had been acquitted by a jury on charges relating to the same conduct. A notice of contention is appropriate where a respondent does not seek, and does not need to seek, a variation in the orders made below, but wishes to support those orders on one or more grounds which were either rejected or not decided below (SCR Pt51 r14).

The respondent's notice of contention was misconceived because although it alleged an error of law by the Tribunal in hearing and determining the complaint in respect of LW, it did not seek an order setting aside that part of the decision which found this complaint proved. This Court was being asked to rule that the Tribunal's finding on this complaint was wrong in law, and to ignore it when determining the Commission's appeal, but to leave that finding standing on the record of the Tribunal. This was an impossible result.

While this finding remained in force, it gave rise to issue estoppels, and probably a cause of action estoppel, binding on the parties and the Court. These estoppels would require the Court to determine the Commission's appeal against the disciplinary orders on the basis that this complaint had been established.

It was therefore necessary for the doctor to raise this challenge by a cross appeal which, if successful, would entitle the Court to set aside the finding and dismiss this complaint. During argument Mr Porter QC for the doctor came to accept this and sought leave to cross appeal out of time which was granted. The grounds taken in the notice of cross appeal were that the Tribunal had no jurisdiction to hear this complaint, that if it did have jurisdiction, it should have excluded any evidence that challenged the correctness of the acquittal, and that the verdict of the jury prevented the Tribunal from finding that this complaint had been proved.

The cross appeal must be considered first because if it succeeded the Court would be bound to order a rehearing on the remaining charges. The grounds of the cross appeal depended on Mr Porter's proposition that the complaint in relation to LW contravened the rule against double jeopardy. He did not rely on a defence of autrefois acquit, which clearly was not available. He referred to The Queen v Storey (1978) 140 CLR 364 where the rule against double jeopardy based on an earlier acquittal was applied, although a plea of autrefois acquit was not available. The relevant principles were stated by Barwick CJ at 372-3:

"... the citizen must not be twice put in jeopardy, that is to say, as relevant to the present discussion, must not be placed at the risk of being thought guilty of an offence of which he has been acquitted, or of in any sense being treated as guilty. It is the use of the evidence given on the prior occasion to canvas the acquittal which, if allowed, would offend the rule against double jeopardy, giving that rule a generous application. The principle that the accused in the subsequent trial must be given the full benefit of the acquittal thus might be regarded as akin to but not a mere extrapolation of the principle of autrefois acquit, both being grounded upon the protection of the law against double jeopardy. But, to my mind, they are distinct principles". (emphasis supplied)

"The principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon. In its application in this fashion res

judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognised fully and without qualification for all purposes in criminal proceedings'. (emphasis supplied)

It is clear that the principles established in The Queen u Storey only apply in criminal proceedings between the Crown and an accused, and have no direct application where the double jeopardy relied on arises from disciplinary proceedings heard after an acquittal. Mr Porter, however, referred to Friedland, "Double Jeopardy", 1969 at p319-p320 which supported his submission (although the author noted "the law appears to be otherwise"), and to Re Mulligan Ex Parte Isidoro [1979] WAR 198.

In Re Mulligan the Director of Fisheries refused to renew a fishing boat licence because the licensee had refused to allow a search of his vessel to the satisfaction of an inspector. The former licensee appealed to a Court of Petty Sessions, but while this appeal was pending, the Director prosecuted him for refusing to allow a search of his vessel but this charge was dismissed. The appeal against non-renewal of the licence then came on for hearing. The Director relied on the evidence that had been led in the prosecution and the appeal was dismissed. The Full Court quashed this decision and granted a mandamus requiring the appeal to be heard and determined according to law.

Burt CJ referred to The Queen v Storey and held that the former licensee was "entitled to the full benefit of and to a full and unqualified recognition of his acquittal". Most of the evidence led on behalf of the Director was therefore inadmissible because its only relevance was to show that the former licensee was guilty of the offence of which he had been acquitted (201-2).

This decision is distinguishable. Summary proceedings for a criminal offence are between subject and subject. See Munday v Gill (1930) 44 CLR 38 at 86 per Dixon J; and John L Pty Ltd v Attorney General (1987) 163 CLR 508. The parties to the appeal were therefore the same parties as those in the summary proceedings. The requirement for res judicata estoppels, that there be identity of parties, (no question of privies arose) was therefore established.

It is strongly arguable that there is no identity of parties in this case. The criminal proceedings were conducted by the Director of Public Prosecutions on behalf of the Crown. See Director of Public Prosecutions Act, s7. These proceedings have been conducted by the Commission, which is a statutory body representing the Crown. (Health Care Complaints Act 1993, s75 (2).) The Director and the Commission are both servants or agents of the Crown (Wynyard Investments Pty Ltd v Commissioner for Railways (1955) 93 CLR 376), but it does not follow that there is identity of parties. The Crown Proceedings Act 1988 s5(1), which prevents proceedings being brought against the Crown for a claim against a statutory corporation representing the Crown, may make them separate parties for present purposes. Compare Haines v Tempesta (1995) 37 NSWLR 24, Spencer Bower & Ors, "Res Judicata", 3rd Ed, 1996, p116-p117, and Re A Medical Practitioner [1959] NZLR 784 (CA).

Even if, in this case, the parties in both proceedings are the same there is still no res judicata estoppel. These are civil proceedings in which the civil onus applies as explained in Briginshaw v Briginshaw (1938) 60 CLR 336. See Bannister v Walton (1993) 30 NSWLR 699. Even if the factual questions were identical, the difference in the onus of proof prevents the issues being the same. Whether particular conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Thus an acquittal does not bar civil proceedings against the accused

WREALTH CARE COMPLAINTS COMMISSION v LITCHFIELD (Gleeson CJ, Meagher an@ Handley JJA)

arising out of the same facts. See generally Helton v Allen, (1940) 63 CLR 691, Redlek v McElroy (19G5) 112 CLR 517.

In any event the factual questions before the jury were not necessarily the same as those before the Tribunal. The issues in the criminal proceedings may have included the existence of an honest belief by the doctor that he had the consent of the patient, whether he was reckless in believing that she consented, and whether she did in fact consent, perhaps because she thought that the doctor had medical reasons for doing what he did. Compare Papadimitropoulos v The Queen (1957) 98 CLR 249 where the appellant was not guilty of rape although he had induced the victim to consent to intercourse by fraudulently representing that they were married.

For these reasons the issues in the two proceedings relating to LW were not the same. It follows that the issues in Re Mulligan were not the same either, if only because of the difference in the onus of proof The relevant observations of Burt CJ were not necessary for the decision in that case, but in any event we would, with respect, decline to follow them. See also Maxwell v IRC [1962] NZLR 683 (CA).

Disciplinary proceedings consequent upon a conviction in criminal proceedings are not barred by autrefois convict or any wider principle of double jeopardy. See Re Weare [1893] 2 QB 439, and Law Society v Bannister (1993) 4 LPDR 24 at 27 per Sheller JA. The converse is also true and adverse disciplinary action does not bar later criminal proceedings arising out of the same facts. See Lewis v Mogan [1943] KB 376; R v Hogan [1960] 2 QB 513; and Wigglesworth v The Queen (1987) 45 DLR (4th) 235 at 256, a decision of the Supreme Court of Canada.

The proposition that an acquittal does not inhibit disciplinary proceedings arising out of the same facts is well established in other common law jurisdictions. See Re Stinson (1911) 22 Ont LR 627; Re A Medical Practitioner (1959) NZLR 784 (CA); Bodna v Deller [1981] VR 183 at 196-8; Basser v Medical Board [1981] VR 953 at 971-2; and Saeed v Inner London Education Authority [1985] ICR 637. It is also sound in principle because both the onus of proof and the purpose and focus of the proceedings are different.

There is nothing in the Medical Practice Act which supports the doctor's case that the complaint in relation to LW subjected him to double jeopardy. S56 enables a complaint to be referred to the Tribunal and dealt with "even though the practitioner concerned is the subject of... current criminal... proceedings relating to the subject matter of the complaint". S62(2) provides that the Tribunal is not to impose a fine "if a fine or other penalty has already been imposed by a Court in respect of the conduct". S71(1) provides that a Court which convicts a medical practitioner of an offence must cause a certificate of that conviction to be sent to the Registrar of the Board, and Schedule 2 cl4 enables the Tribunal to treat as evidence a certificate of conviction, the verdict or findings of a jury, and the judgment and findings of a court, civil or criminal.

S56 does not deal directly with the effect of an acquittal but it authorises the Tribunal to hear and determine disciplinary proceedings although criminal proceedings are pending. This demonstrates that disciplinary proceedings are not to be governed by the result in the criminal proceedings.

S159 which defines the jurisdiction of the Tribunal to conduct an enquiry into a complaint does not contain any express limitation of the nature contended for by Mr Porter and there is no justification for implying any such limitation. The Tribunal has a duty, and not a discretion, to conduct the enquiry. A medical

practitioner is entitled to be protected from double jeopardy arising from earlier proceedings in the Tribunal (Walton v Gardiner (1993) 177 CLR 378) and there is power to stay proceedings in the Tribunal for abuse of process. In this case the first principle is not relevant and the second was not invoked. These exceptions do not support the principle contended for by Mr Porter.

There is no principle of double jeopardy available to the doctor in this case and the cross appeal must be dismissed.

The Commission's appeal is from the exercise of a judicial discretion or its equivalent and it attracts the principles in House v The King (1936) 55 CLR 499 at 505. Mr Joseph SC for the Commission submitted that the Tribunal's reasons for its orders disclosed errors of principle and that the orders themselves showed that there had been a failure to properly exercise the discretion.

The first matter referred to by the Tribunal was that the events were of "considerable antiquity". The oldest complaint dated back over 9 years and the others 4 years or more. Some 2 years and 6 months of this period was occupied with the criminal proceedings relating to LW. A further 1 year and 5 months elapsed between the initiation of proceedings in the Tribunal and its final orders. There was therefore no relevant delay in relation to the LW complaint but the delay since the 1987 incident was over 5 years.

In a case such as this the lapse of time takes on another aspect. The findings of the Tribunal establish that the doctor engaged in inappropriate sexual conduct with 3 female patients in 3 different practices at different times over a period of 53 years. The doctor denied that he had committed the conduct alleged and the proceedings were strongly defended. No explanation was offered which made it unlikely that the conduct would occur again.

Moreover there was nothing to suggest that the doctor had become a changed person during the 43 years since the last of the incidents. The nature of his defence precluded any admission of guilt or expression of contrition. In these circumstances the long period between the first and last complaints was a factor which operated in favour of an order for removal. There was no claim that these incidents reflected "some isolated or passing departure from proper professional standards amounting to something less than proved unfitness". See NSW Bar Association v Evatt (1968) 117 CLR 177 at 183.

In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461:

"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".

Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.

Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper

WREALTH CARE COMPLAINTS COMMISSION v LITCHFIELD (Gleeson CJ, Meagher and Handley JJA)

professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance and the Tribunal erred in relying on it as they did.

The Tribunal referred to the effect of the criminal and disciplinary proceedings on the doctor and their cost "in money and emotional stress". These matters would be highly relevant if the purpose of these proceedings was punitive, but their purpose is entirely protective. In Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-2 the Court said:

"Although it is sometimes referred to as 'the penalty of disbarment' it must be emphasised 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".

Later in NSW Bar Association v Evatt (1968) 117 CLR 177 at 183-4, the Court said:

"The power of the court to discipline a barrister is... entirely protective and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved".

Mr Porter submitted that the Tribunal's statement should be understood as a finding that, for the reasons given, the doctor was not likely to re-offend. He relied on the Tribunal's second reference to the stresses on the doctor which appears in their reasons immediately before their conclusion that the public would be adequately protected by a suspension. However if the Tribunal had intended to make a finding to this effect, it would have been very easy to have said so. We are not persuaded that the remarks relied upon should be understood in that way.

The Tribunal next found that the first two complaints were "relatively minor matters". We cannot so view these complaints on the Tribunal's findings and it was not appropriate for the Tribunal to compare them "with many cases that are dealt with in this Tribunal'. The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. The approach of the Tribunal in this case stood the proper principle on its head.

Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9:

"The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean

power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest".

The Tribunal said that they viewed the complaint in relation to LW "very seriously indeed" and that if all three "breaches" had occurred within a shorter period and been dealt with expeditiously, deregistration would have followed almost as a matter of course.

We have already held that the period of 5% years between the first and last instance is an aggravating and not an extenuating factor and that there was no relevant delay after the incident involving LW in November 1992. In these circumstances the proper view of the doctor's conduct during the second and third incidents in 1992 is that it revived the earlier misconduct of May 1987 and demonstrated his propensity to re-offend.

"However in the light of all the circumstances, including the very great mental, emotional and financial stresses under which he has laboured - and we believe still labours - we believe that the public will be adequately protected by a significant period of suspension followed by the imposition of conditions upon his registration".

The period of suspension protected the public while it lasted, but not thereafter. The Tribunal must have had misgivings about the doctor's future behaviour because of the conditions it imposed. The condition requiring the doctor to submit to psychiatric assessment was inappropriate in a final order. The Tribunal may have had no power to make an interim order suspending the doctor from practice (see s164(2), s64(1), and s92(1)(a)) but it may have been able to make an interim order imposing conditions on his registration (s61(1)(c)). What was to happen if the psychiatric assessment suggested that the doctor was likely to re-offend? The Tribunal has power to review a suspension on the application of "a person" (s92(1)) but on one view the only competent applicant is the person suspended. Even if this is not so the Tribunal's powers on a review (s94) do not include the power to increase the period of suspension or make an order for deregistration.

The condition for the doctor's psychiatric assessment was therefore both inappropriate and ineffective because neither the Board nor the Commission could take effective action if the assessment proved adverse to the doctor. This condition did nothing to protect the public and the Tribunal misdirected itself in thinking otherwise.

It is apparent from the foregoing that the exercise by the Tribunal of its discretion in making protective orders seriously miscarried. The Tribunal's orders must be set aside and this Court must re-exercise the discretions conferred by s60-s64. The proper order is that the doctor's name be removed from the Register.

Mr Joseph submitted that we should overrule the decision in

Richter v Walton (15 July 1993, unreported) where this Court by majority set aside an order of the Tribunal removing the appellant's name from the Register and substituted an order imposing conditions prohibiting the appellant, except in the case of an emergency, from seeing a female patient except in the continuous

WREALTH CARE COMPLAINTS COMMISSION v LITCHFIELD (Gleeson CJ, Meagher an@ Handley JJA)

presence of a female chaperone. The majority thus found that the appellant could not be trusted to observe proper professional standards in his conduct towards female patients unless a female chaperone was present throughout. With the greatest of respect the necessity for imposing such conditions on the appellant's registration demonstrated that he was unfit to practice medicine and in those circumstances the only appropriate order was one dismissing his appeal. The dissenting judgment of Priestley JA was entirely correct, and the majority decision should be overruled. The following orders should be made:

(3) Order of the Tribunal of 15 November 1996 set aside and in lieu thereof order that the name of Bruce Litchfield be removed from the Register of medical practitioners.

(4) The respondent is to have a certificate under the Suitors' Fund Act in respect of the costs of the appeal.

Counsel for the Appellant: M Joseph SC Solicitor for the Appellant: D M Swain Counsel for the Respondent: C A Porter QC/E Pike