Professions and Trades - Medical and related professions - Medical practitioners - Discipline and removal from and restoration to the Register - Infamous conduct or misconduct in a professional respect - Test to be applied - What constitutes.

Qidwai v Brown [1984] 1 NSWLR 100; Ex parte Meehan; re Medical Practitioners' Act [1965] NSWR 30; Medical Board of Queensland v Cooke [1992] 2 Qd R 608; Law Society of Tasmania v Turner and Kench [2001] TASSC 129; (2001) 11 Tas R 1, applied.

Professions and Trades - Medical and related professions - Medical practitioners - Discipline and removal from and restoration to the Register - Procedure, evidence and appeal - Tasmania - Jurisdiction of Tribunal - Relevance of inquiry to matter of complaint.

Medical Practitioners Registration Act 1996 (Tas), ss51 and 52.

Judgment Number: [2004] TASSC 31

WALTER RAIMUND KUDELKA v MEDICAL COMPLAINTS TRIBUNAL

1 On 29 August 2003, the Medical Complaints Tribunal ("the Tribunal") ordered (inter alia) that the appellant's name be removed from the Register of Medical Practitioners kept by the Medical Council of Tasmania pursuant to the Medical Practitioners Registration Act 1996 ("the Medical Act"), s33. Pursuant to the power conferred by that Act, s61, the appellant has appealed from that order to this Court. The issues on the appeal should be defined by the grounds set out in the notice of appeal, but as the appellant was self-represented, the issues raised in submissions were slightly broader than those set out by the grounds of appeal. In summary, the issues are:

* whether the Tribunal erred in categorising the conduct of the appellant as professional misconduct;

* whether the Tribunal had jurisdiction to make a finding of professional misconduct with respect to one matter of complaint;

* whether the appellant was denied an opportunity to present certain evidence; and

* whether the impugned order amounted to a penalty that was manifestly excessive.

2 In the exercise of the obligations conferred by the Medical Act, the Medical Council referred the following matters to the Tribunal by notice dated 23 January 2001, namely that the appellant was guilty of professional misconduct in that:

* between May 1999 and June 2000, he prescribed narcotics for seven patients for a period in excess of that authorised by an authority issued pursuant to the Alcohol and Drug Dependency Act 1968 ("the Act"), s22;

* between the same dates he prescribed narcotics for the same seven patients, being persons who, in his opinion, were suffering drug dependency, without lawful authority to do so, contrary to the Act, s19; and

* the appellant failed to keep an approved narcotics register as required by the Poisons Regulations 1925, reg12.

3 Each of these matters of complaint was made out; in respect of the ss19 and 22 breaches, in the case of five patients. In the case of each matter of complaint, the Tribunal concluded that the appellant was guilty of professional misconduct.

4 The notice dated 23 January 2001 also referred two other matters to the Tribunal. The first was that the appellant was guilty of professional misconduct by failing to exercise a reasonable standard of care and diligence for the security of his prescription stationery and drugs with adverse consequences on ten separate occasions in 1998 and 1999. The second was that the appellant was guilty of professional misconduct in failing to furnish the Department of Health and Human Services with requested reports from specialist practitioners used to support applications for authority to supply narcotics to a patient.

5 With respect to the lack of diligence matter, the Tribunal found that there had been a lack of diligence in some respects, but that it did not amount to professional misconduct. There is no reference to the remaining matter in the Tribunal's very detailed and closely reasoned reasons for making the impugned order, and I infer that it was withdrawn or otherwise not before the Tribunal.

6 Before the hearing commenced, the Medical Council referred further matters to the Tribunal. By a notice dated 23 August 2002, six matters of professional misconduct were alleged, two of which included a total of 14 particulars. In the main, the second notice arose from a statement made by Ms X, a woman with whom the appellant had a sexual relationship. It is unnecessary to set out all the matters referred to in the second notice, as many of them were not established to the Tribunal's satisfaction, and consequently are not justiciable on this appeal. The matters that were established in whole or in part, to the satisfaction of the Tribunal, were that the appellant was guilty of professional misconduct in that:

* between dates unknown commencing in late 1997 until November 1999, the appellant paid for the sexual services of Ms X, a prostitute, who was, at the same time, a patient of the appellant;

* on a date unknown in about February 1999, at his surgery, the appellant observed Ms X perform, at the request of the appellant, sexual acts with another woman, and in payment supplied her and the other woman with narcotics;

* on a date unknown between February 2001 and July 2002, the appellant gave to a patient of his, Ms W, two blank prescriptions pads and permitted her to retain them at her home;

* the appellant prescribed narcotics after he had been advised by notice dated 22 January 2002 that his authority to prescribe such drugs was withdrawn.

7 With respect to the first matter of complaint, the Tribunal was not satisfied that the appellant paid for any sexual services provided by Ms X, but was satisfied that from 4 November 1999 until 12 October 2002, when Ms X tragically died in a house fire, the appellant was in an intimate sexual relationship with her and, at the same time, she was his patient. With respect to the second matter of complaint, the Tribunal found that a lesbian sex act was performed in front of the appellant who was naked at the time, but was not satisfied that the appellant paid for this act by the supply of narcotics. The remaining two matters of complaint were found to be proved as charged. With respect to each of these four matters of complaint, the Tribunal found that the appellant had been guilty of professional misconduct.

8 In order to deal with the issues on this appeal, it is convenient first to set out each matter of complaint that was found to be proved and then deal with any ground of appeal that relates to it and any argument that was put with respect to it and second, deal with the question of whether the order removing the appellant's name from the Register was a manifestly erroneous order.

Breaches of the Act, ss19 and 22 and the Poisons Regulations, reg12

9 All these matters of complaint can be dealt with together because there was no dispute with respect to the material facts. Although no ground of appeal attacked the Tribunal's findings with respect to these three matters of complaint, the appellant contended in argument that the Tribunal erred in categorising his conduct as professional misconduct.

10 The Act, s22, provides, in effect, that in order to lawfully prescribe (inter alia) narcotic drugs, it is necessary to obtain an authority from the Secretary of the Department of Health and Human Services. Subsection (6) provides that the authority shall specify the period for which the drugs may be "made available".

11 The prescribing history of the appellant was as follows:

12 In the case of the remaining two patients, the evidence showed that no application for authority had ever been applied for and, consequently, there was no breach by prescribing in excess of the permitted period.

13 The Act, s19(1) provides:

"19 - (1) Except in accordance with an authority given under section 22 a medical practitioner shall not make drugs available for the use of any person who, in his opinion, suffers from drug dependency."

14 With respect to the s19 matters, there was evidence of the appellant's certification of drug dependency in the case of five patients prior to the period charged. In the absence of evidence from the appellant to the contrary, the Tribunal quite properly inferred that during the period charged, the appellant held the opinion that those five patients were drug dependent. Accordingly, the matter of complaint was made out.

15 The Poisons Regulations, reg12, required a medical practitioner to keep a narcotic substances register. By reference to Pt1 of Sch3, subreg(5) prescribed the form in which the narcotics register must be kept. It appears that some time in about 1999 the appellant's narcotics register was stolen and he never got around to replacing it. The Tribunal made a finding, which is not challenged, that for a period of at least five months, the appellant carried on practice without a narcotics register kept in accordance with the Regulations.

16 The table of s22 breaches, set out above, shows that the appellant's offences were not occasional isolated lapses, for the period of offending extended over a considerable period. In his written and oral evidence, the appellant blamed his failures to comply with the Act, ss22 and 19, on pressure of work, and a scepticism that the procedure prescribed by s22 was appropriate. The appellant's evidence also made it clear that his non-compliance was, in part, due to his antagonism towards the Chief Pharmacist in the Department of Health and Human Services. With respect to the narcotics register, the appellant said that after his register was stolen, he noted down the narcotics supplied in various places until he eventually bought an exercise book in which to note the relevant details. With respect to his failure to replace the register with another in the prescribed form, the appellant told the Tribunal:

"I'm that kind of guy, right? I don't bow to the people that are running the big offices ... no, I wasn't prepared to go hunting around wasting time looking for some nebulous kind of drug register book, that's the way I am ...".

17 In Ex parte Meehan; re Medical Practitioners' Act [1965] NSWR 30, Sugerman J considered the meaning of "infamous conduct in any professional respect". He said, at 35, "infamous" meant "disgraceful" or "dishonourable" or "shameful" in the context of "strong reprobation of professional brethren of good repute and competence". At 35 he said that infamous conduct:

"... refers to conduct which, being sufficiently related to the pursuit of the profession, is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence."

18 Subsequent to Meehan's case, the legislation in New South Wales was changed, and the expression "misconduct in a professional respect" was substituted for the expression "infamous conduct in any professional respect". Notwithstanding this change, in Qidwai v Brown [1984] 1 NSWLR 100 the New South Wales Court of Appeal held that both expressions bore the meaning ascribed to the latter in Meehan's case. In Adamson v Queensland Law Society Inc [1990] 1 Qd R 498, Thomas J said, at 507:

"The test to be applied is whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency."

See also Medical Board of Queensland v Cooke [1992] 2 Qd R 608. In the Law Society of Tasmania v Turner and Kench [2001] TASSC 129; (2001) 11 Tas R 1, Crawford J considered the meaning of "professional misconduct" and "unprofessional conduct" as enacted in the Legal Profession Act 1993, s56. Like the Medical Act, s45(2), the definitions in the Legal Profession Act are inclusive, not exclusive. Crawford J said, at par45:

"Apart from the statute's inclusionary meanings, professional misconduct consists in behaviour on the part of a legal practitioner which would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency. In re a Solicitor [1912] 1 KB 302 at 311, 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288, 289; Re Thom; ex parte the Prothonotary (1963) 80 WN (NSW) 968 at 969; Re Veron; ex parte Law Society of New South Wales (1966) 84 WN (Pt1) (NSW) 136 at 143; In re Three Solicitors [1949] VicLawRp 13; [1949] VLR 72 at 73; Re a Solicitor [1960] VicRp 96; [1960] VR 617 at 620. That definition or test has been accepted in unreported decisions of this Court which concerned complaints made under the Legal Practitioners Act 1959. See, for example, In re a Legal Practitioner Serial No 105/1982 at 9; Law Society of Tasmania v Walker Serial No 56/1988, per Cox J at 22. It is derived from a case which concerned a member of the medical profession. Allinson v General Medical Council [1894] 1 QB 750. It is not an exhaustive definition. See Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 207."

19 The Tribunal was constituted by a senior legal practitioner as Chair, a lay-person and two medical practitioners. Although the Tribunal did hear some evidence of reprobation from two medical practitioners, the common law is clear that such evidence is not necessary before the Tribunal can make a finding of professional misconduct. See Qidwai v Brown (supra); Law Society of Tasmania v Turner and Kench (supra); Medical Board of Queensland v Cooke (supra).

20 In its reasons for decision, the Tribunal said at pars7 and 8:

"The concept of 'professional misconduct' as used in the Medical Practitioners Registration Act 1996 is such conduct which would reasonably be regarded as disgraceful or dishonourable by, or would reasonably incur the strong reprobation of, medical practitioners of good repute and competence; see Qidwai v Brown [1984] 1 NSWLR 100 at 105, The Law Society of Tasmania v Walker Serial No 56/1988 at p21, The Law Society of Tasmania v Turner & Kench [2001] TASSC 129 at par [44] [(2001) [2001] TASSC 129; 11 Tas R 1]. Because of the use of the words ... 'would reasonably be regarded ...' and the composition of this Tribunal, we take the view that we are entitled to determine this matter for ourselves without the need for any relevant evidence from practitioners of good repute and competence.

Evidence in the nature of 'reprobation' or strong disapproval from other medical practitioners is we think, unnecessary in order to achieve the objectives of the legislation. In Re Somes & Legal Practitioners Ordinance (1979) 32 ACTR 53, the Full Court of the ACT heard evidence from practitioners of good repute and competence in support of the practitioner concerned, but were ... 'not persuaded that their approach [was] the correct one'; see p70. On the other hand, the Tribunal can be informed of the acceptability or otherwise of certain practices or conduct, and the existence of 'majority' and 'minority' viewpoints of acceptable conduct; Qidwai v Brown at 102."

21 Accordingly, the Tribunal correctly directed itself with respect to the meaning of professional misconduct and the means by which it needs to be established. With respect to the Act, ss22 and 19 breaches and the failure to keep a narcotics register, the Tribunal noted the obvious legislative intent, namely, that society expects people to be protected from exposure to the harm associated with illicit drug use by the implementation of legal controls, and noted that the appellant's conduct involved repeated and sustained offending. The Tribunal referred to evidence that the Chief Medical Officer had written to the appellant pointing out the importance of compliance with the legislative regime. The Tribunal also noted the evidence from Dr Pitt, a general practitioner, who said that even though there were often difficulties in dealing with the required paperwork, he would consider reprehensible a persistent failure to comply with these statutory obligations over a considerable period of time. The Tribunal said, at par 25:

"... the practitioner has clearly shown a resistance to compliance, bred from a contemptuous and superior attitude to, and intolerance of, the regulators and the regime."

That finding was clearly open on the evidence and the conclusion that the breaches constituted professional misconduct was entirely appropriate.

The Tribunal erred in determining that the appellant was guilty of professional misconduct by reason of his relationship with Ms X in that the Tribunal exceeded its jurisdiction

22 This is ground 1(i) of the appellant's notice of appeal. It relates to the Tribunal's finding that the appellant commenced and maintained a sexual relationship with Ms X over a long period of time, so that she remained both his intimate partner and his patient from 4 November 1999 until about the date of her death.

23 The Council received in evidence a detailed statement made by Ms X on 7 December 2001. As mentioned, Ms X died in a house fire on 12 October 2002 and, accordingly, could not be cross-examined upon this statement. The statement made many allegations against the appellant. They involved prostitution and illegal drug supply and resulted in the making of the many matters of complaint set out in the notice dated 23 August 2002. As Ms X's statement could not be tested in cross-examination, the Tribunal took the approach that except where its contents were agreed to or admitted by the appellant, either wholly or in part, or there was "cogent supporting independent evidence", its contents could not be relied upon.

24 According to Ms X's statement to the police, she first met the appellant in 1997 and between then and the summer of 1999, she saw him about twice a week. According to the appellant he was first consulted by Ms X in November 1998. There was other evidence that made it clear, that with respect to dates, Ms X's statement was about 12 months out in virtually every respect. The statement asserts that she provided sexual services to the appellant and that he paid for these services with prescriptions for drugs. This was the basis of the first matter of complaint in the notice dated August 2002.

25 The appellant said that when she consulted him, Ms X told him she was a prostitute and an illicit drug user. She also told him about her troubled background and that her present relationship with a named man was unsatisfactory. The appellant said that he arranged for her to have a chat with another patient of his, Miss W, because she was "a good listener, to see if she [could] boost up her self esteem a little bit".

26 The appellant said that in October 1999 he was at Miss W's home when Ms X was there. He said that on this day he agreed to engage Ms X's services as a prostitute, but said that no sex took place. He said that he only talked to her for about an hour and paid her $140. The appellant said that this was the only time he engaged the services of Ms X as a prostitute and denied that he ever gave her drugs or prescriptions for drugs as she alleged in her statement.

27 Accordingly, the Tribunal was not satisfied with respect to the first matter of complaint as drawn in the August notice. However, the evidence of the appellant on this matter did establish that he entered into an intimate sexual relationship with Ms X commencing on his birthday on 4 November 1999 and that this relationship persisted until about October 2002. The evidence also established that during this time, Ms X was the appellant's patient. The appellant said that Ms X was his partner and his patient, both on the day she made her statement to the police, and on the day the Medical Council issued the second notice of complaint. He had no idea that she had made this complaint about him. His evidence was that from time to time after the Medical Council issued the second notice of complaint, he and Ms X conjectured as to who might have been responsible for making the complaint. His evidence was that shortly before Ms X died, there had been some arguments about money between him and her and in result, she had spent some time apart from him, although it appears from his evidence that at the time of the fire the separation was not permanent.

28 The Tribunal found from uncontroversial evidence that the timeframe set out in Ms X's statement is at least 12 months earlier than was actually the case.

29 The submission put on behalf of the appellant in the Tribunal, and repeated by him on the appeal, was that upon a charge of professional misconduct in that:

"between dates unknown commencing in late 1997 until November 1999 the practitioner paid for sexual services of a prostitute who was, at the same time, a patient of the practitioner"

the Tribunal did not have jurisdiction to find him guilty of professional misconduct in that he:

"maintained a sexual relationship with [Ms X] over a long period of time, so that she remained both his intimate partner and his patient from 4 November 1999 until about the date of her death."

30 This submission was restricted to a question of jurisdiction. It was not contended, either in the Tribunal or on the appeal, that there had been any procedural unfairness in that the appellant did not have proper notice of the facts which gave rise to the finding, nor any lack of opportunity to deal with the facts that gave rise to that finding. Indeed, the appellant did not contest those essential facts, but submitted he was not charged with the offence in respect of which he was found guilty.

31 Whether or not the Tribunal had jurisdiction to make the impugned finding principally depends upon the terms of the Medical Act which created the Tribunal and conferred jurisdiction upon it. The Medical Act, s44(1), provides that a person who is aggrieved by the conduct of a medical practitioner may complain to the Council. By virtue of s3(1), a complaint means a complaint made under s44. Subsections (2) and (3) provide, in effect, that complaints may be made against a person who has ceased to be a registered medical practitioner or whose registration has been suspended.

32 The Medical Act, s46(1), provides that a complaint is:

* to contain particulars of the matter complained of;

* identify the registered medical practitioner against whom the complaint is made;

* be lodged with the Registrar of the Medical Council.

33 Section 46(3) requires the Registrar to place a complaint before the Council without undue delay. Section 47(1) requires the Council to refer each complaint to the Tribunal unless it is frivolous or not sufficiently serious as prescribed by subs(2). However, s47(3) contemplates a different procedure. It provides:

"(3) The Council, on its own motion, may refer to the Tribunal any matter that could be grounds for a complaint against a registered medical practitioner."

34 Section 49 concerns prescribed matters that are defined to mean:

"(a) a matter giving rise to a complaint against a medical practitioner; or

(b) a matter that the Council considers could be grounds for a complaint against a medical practitioner."

The subsections set up a regime to empower the Council to enquire into prescribed matters and to deal with them at that level if they are not serious. However, s49(9) provides:

"(9) The Council must refer a prescribed matter to the Tribunal if -

(a) the medical practitioner concerned fails to appear before the Council as required by a notice served under subsection (2) or, before the date of appearance specified in the notice, requests in writing that the matter be so referred; or

(b) in the course of giving an explanation of the prescribed matter the medical practitioner concerned requests, orally or in writing, that the matter be so referred; or

(c) after or in the course of hearing an explanation of the prescribed matter the Council determines that the matter is sufficiently serious to warrant an inquiry; or

(d) in a case to which subsection (8) applies - the medical practitioner concerned disputes his or her guilt."

35 The jurisdiction of the Tribunal is firstly conferred by s51 which provides:

"The Tribunal must conduct an inquiry into each complaint that is referred to it by the Council and each matter that is referred to it by the Council under section 47(3)."

36 It is secondly conferred by s52, which sets out the actions that the Tribunal may take on "concluding an inquiry". One such action is that taken by the Council in this case.

37 The notice dated 23 August 2002 is headed "Notice of Referral" and provides:

"TAKE NOTICE that pursuant to the Medical Practitioners Registration Act 1996, sections 47(1), 47(3), 49(9)(a) and 49(9)(c), the Medical Council of Tasmania has referred the following matters of complaint to the Medical Complaints Tribunal for inquiry;"

38 Consequently, it seems to me the Tribunal had jurisdiction to enquire into the question of whether the appellant was guilty of professional misconduct in that:

"Between dates unknown commencing in late 1997 until November 1999, the practitioner paid for the sexual services of a prostitute who was, at the same time, a patient of the practitioner."

39 That enquiry was duly conducted, and upon its conclusion, the Tribunal found that between 4 November 1999 until about October 2002, the appellant maintained a sexual relationship with Ms X and she was at the same time his patient. That finding of fact has never been in issue. In consequence, and in consequence of other findings made by the Tribunal, one of the powers conferred upon it by s52 was exercised.

40 Clearly, the Tribunal acted within its jurisdiction. The Medical Act, Sch3, cl 3(d), obliged the Tribunal to observe the rules of natural justice. There is no suggestion that it did not do this. Chan v Medical Board of South Australia (1986) 41 SASR 434 was referred to by the Tribunal but, as the Tribunal observed, that case was quite different from the present case. Chan's case concerned a complaint made by a patient about the administration of a drug to which the practitioner knew she was allergic. Cox J held that that complaint did not entitle the Medical Board to enquire into whether the dosage administered was generally appropriate. In the present case, the matter referred required the Tribunal to inquire into whether:

41 The Tribunal made an enquiry into those four issues and found that (1) and (3) were indisputably established on the evidence. The fact that the enquiry revealed that the period during which the doctor/patient relationship and the intimate relationship persisted was different from the dates alleged, raised an issue of fairness, not jurisdiction. Dates are not generally an essential part of a charge or matter of complaint. There were not in this case. The appellant did not suggest that there had been any unfairness. He was not in a position to do this, as he never disputed that he was both doctor to and lover of Ms X between November 1999 and about October 2002.

The appellant was deprived of the opportunity to present evidence as to all the circumstances of his relationship with Ms X and in particular, evidence of the well being of Ms X, the lack of exploitation of Ms X and the lack of any compromise of proper medical treatment of Ms X by the appellant

42 This is ground 1(ii) of the notice of appeal. It is not established. The hearing before the Tribunal commenced on 18 December 2002. The appellant was then self-represented. It continued on the following day and was then adjourned to 23 December 2002. On that day, senior and very experienced counsel was given leave to appear for the appellant. On 23 December 2002 the hearing was adjourned until 7 May 2003. It continued on 8 and 9 May, 12 to 14 May, and concluded on 20 August 2003. The decision was handed down on 18 June 2003. The appellant was given every opportunity to present whatever relevant material he wished to present.

43 On the hearing of the appeal, the appellant sought to hand up his prescribing records of Schedule 9 drugs (narcotics) which he had obtained from the Department of Health and Human Services. The appellant said that he had been unable to obtain these records in time to put them before the Tribunal. He submitted that they would show that the allegations made by Ms X in her statement to police on 7 December 2001 about his misuse of narcotics was false and, further, would demonstrate that his drug prescription for her was perfectly proper. The material was received, but is irrelevant to the issues on this appeal because the Tribunal did not accept any of Ms X's allegations about the appellant's misuse of drugs. As already mentioned, the Tribunal declined to accept the untested statement of Ms X, except where it was admitted, wholly or in part, by the appellant or was supported by cogent independent evidence. Accordingly, the majority of matters of complaint in the notice dated 23 August 2002 were dismissed.

44 At the hearing on the appeal, the appellant maintained that his objective was to "clear his name". He said that during the course of the hearing before the Tribunal, the media published parts of Ms X's statement and he suffered adverse publicity. This Court only has jurisdiction to determine the issues raised by the appeal and cannot engage in the exercise that the appellant wanted it to engage in. It will not enter into a wide-ranging challenge to evidence that was not accepted by the Tribunal simply because publicity was given to that evidence. The Court's task is to determine each of the grounds of appeal.

The Tribunal failed to consider all the circumstances of the appellant's relationship with Ms X and in particular, the well being of Ms X, the lack of exploitation of Ms X and the lack of any compromise of proper medical treatment of Ms X by the appellant

45 This is ground 1(iii) and can be considered in conjunction with ground 2 that provides:

"That the Tribunal erred in determining that the appellant's relationship with Ms X amounted to professional misconduct."

46 On the question of whether the appellant's intimate sexual relationship with Ms X while she was his patient, the Tribunal referred to Re A Medical Practitioner [1995] 2 Qd R 154 and Stewart v Secretary, Department of Health, New South Wales Court of Appeal, 6 August 1986. To those decisions might be added Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545.

47 All of the authorities emphasise that the doctor/patient relationship is one that puts the doctor in "a position of special trust towards, and power over a patient", per Dowsett J in Re A Medical Practitioner (supra) at 163. Of particular relevance to this case is the following passage taken from the judgment of Kirby P (as he then was) in Stewart (supra) at 20:

"... it is unacceptable for advantage to be taken of a position of trust, particularly to do harm to the patient, including emotional harm whilst the patient remains in the care of the medical practitioner. Equally unacceptable is it to deprive the patient of the advantage of dispassionate diagnosis and treatment because the relationship between the medical practitioner and the patient has become charged with emotion (whether sexually based or not) which prevents the practitioner from offering objective professional judgment and skill, or the patient from receiving it, to the patient's best advantage."

48 At 48 of its reasons for judgment, the Tribunal directed itself that:

"It is well established that, although the circumstances of each relationship need to be examined, prima facie at least, an ongoing sexual relationship with a current patient, is professional misconduct;"

49 The Tribunal received evidence from two general practitioners that regardless of the circumstances, it would be reprehensible for a medical practitioner to maintain a doctor/patient relationship whilst there was also a sexual relationship. The Tribunal clearly considered the well being of Ms X, the lack of any compromise of her medical treatment and lack of exploitation. It said, also at 48:

"The fact that this was not a relationship for Dr Kudelka's mere sexual gratification should be taken into account, but it does not serve to fundamentally change the complexion of the matter."

50 It is important to bear in mind that the purpose of the disciplinary powers in the Medical Act is the protection of the public. See New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183 - 184; applied in Craig v Medical Board (supra) at 554. The Tribunal correctly identified as important factors:

* the instigation and maintenance of the intimate relationship by virtue of, or arising out of, the professional relationship;

* the serious risk of exploitation of the patient's vulnerability;

* the serious risk of compromising proper objective medical treatment of physical and emotional problems.

51 As the Tribunal pointed out in the following passage in its reasons for judgment at 49, the last two dot points were of particular relevance in this case:

"The inevitable conclusion that is to be drawn from the factual material is that at the time of the commencement of the relationship and for its duration, [Ms X] was a most vulnerable person and in a position of real dependency. She had a long history of psychiatric disorder, emotional instability, and the abuse of both prescription and illegal drugs. She suffered from anxiety to the extent that Dr Kudelka saw it necessary to prescribe her 30mg of Valium per day for the whole of the relevant period. For a time, she also suffered severe abdominal problems, necessitating hospital admissions and Dr Kudelka administering pethidine and some morphine."

The Tribunal erred in determining that the incident on a Saturday at the surgery involving Ms X and Ms G amounted to professional misconduct

53 This is ground 3 of the notice of appeal. It relates to the matter of complaint that on a date unknown in about February 1999, at his surgery, the appellant observed Ms X perform at the request of the appellant, sexual acts with another woman and in payment supplied her and the other woman with narcotics.

54 According to Ms X's statement to police dated 7 December 2001, on a day "around February 1999", the appellant invited Ms X to his surgery for a few drinks. She asked if she could bring her friend, Ms G with her. The two women went to the appellant's surgery where they and the appellant started to drink whiskey. The statement continues that the three of them then decided that the two women would perform a lesbian act in return for drugs. The allegation was made that the appellant then went to the chemist and returned with the drugs. According to the statement, the two women injected the drugs intravenously and then performed "our act". The proceedings came to a close when Ms X's former partner started knocking at the door.

55 In his written and oral evidence, the appellant denied that he had paid for a lesbian "act" with drugs, but did admit to the occurrence of an act on a Saturday afternoon in his surgery in the early part of 2000. He said that at that time Ms X was helping out in his surgery. He said that at the conclusion of Saturday morning surgery, he was drinking alcohol in his rooms. Ms X had been there during the morning. He said that he fell asleep and some time in the afternoon he was woken by Ms X. He said that Ms G "appeared in the room". At that time, Ms G was one of the appellant's patients. He said that on awakening, he felt hazy and groggy. Ms X and Ms G started to strip and dance about to music. He said that he undressed after Ms X had told him to do so. After about 10 minutes, Ms X's former partner knocked on the window and the episode came to an end. The appellant agreed that he could have stopped "the act" at any time after he first woke up, but did not do so.

56 The Tribunal did not accept that the episode only lasted 10 minutes, nor that the appellant was "groggy" for most of that time, but otherwise accepted the appellant's version in preference to that given in Ms X's statement. That this episode constituted professional misconduct is beyond doubt. At that time:

* the appellant was then in an intimate sexual relationship with Ms X;

* Ms X was an occasional employee in the appellant's rooms;

* Ms G was also an established patient of the appellant.

57 In those circumstances, for the appellant to take his clothes off and watch his two female patients perform some kind of act, presumably to provide him with sexual titillation or gratification, is conduct that would undoubtedly attract the severest condemnation from medical practitioners of good repute.

The Tribunal erred in determining that leaving two blank prescription pads in a locked safe at the home of Ms W amounted to professional misconduct

58 This is ground 4 of the notice of appeal. It relates to the following matter of complaint. On a date unknown between February 2001 and July 2002, the appellant gave to a patient of his, Ms W, two blank prescription pads and permitted her to retain them at her home.

59 The appellant did not dispute that he left two of his prescription pads in a safe at Ms W's home. At that time, she was one of the appellant's patients and a person for whom he prescribed narcotics. From time to time the appellant had stayed at Ms W's home. Ms X was a friend of Ms W and from time to time, she also stayed at Ms W's home. Access to the safe was gained by means of a key. Ms W had one key and the appellant had another. There was reason to suspect that Ms X may also have had a key, for there was an occasion when she got into the safe and took from it "pills" that were apparently kept there at the time.

60 Upon the hearing of the appeal, the appellant did not dispute the Tribunal's finding of fact about this matter of complaint, but submitted that those findings did not warrant the conclusion that he was thereby guilty of professional misconduct.

61 The appellant was a close friend of Ms W. He explained that he left the prescription pads in her safe because Ms W often needed medication for her children and couldn't come to the surgery. He said that he had not left a prescription pad at any other patient's home, but had done so in this case because there were many times when Ms W needed morphine and it was convenient not to go to the surgery for a prescription pad. The appellant said that he trusted Ms W and Ms X, even though to his knowledge, they were both drug dependent.

62 The Tribunal received evidence from a medical practitioner that he regarded leaving a prescription pad or pads with a drug dependent patient as reprehensible conduct. The risk of those pads being used unlawfully to supply narcotics to drug dependent persons was very high. Indeed, as I have noted, it appears that Ms X gained access to the safe, presumably with a key that she managed to have cut. The appellant's conduct clearly warranted the conclusion reached by the Tribunal. The fact that Ms W was a close friend of the appellant and, like Ms X, sometimes helped out in the surgery, does not, contrary to the appellant's submission, mitigate against that conclusion. Ground 4 is not made out.

The Tribunal erred in finding that the prescribing without authority amounted to professional misconduct

63 This is ground 5 of the notice of appeal and relates to the matter of complaint that the appellant prescribed narcotics after he had been advised by notice dated 22 January 2002 that his authority to prescribe such drugs was withdrawn.

64 With respect to this ground, the appellant did not challenge the Tribunal's findings of fact, but submitted that they did not amount to professional misconduct. Upon the recommendation of the Chief Pharmacist, the appellant's authority to prescribe Schedule 8 drugs, other than in three very restricted circumstances, was withdrawn by a notice dated 22 January 2002. Two days later this notice was sent by registered mail to the appellant.

65 Between 1 February 2002 and 25 May 2002, the appellant prescribed Schedule 8 drugs for the patients who were the subject of the ss19 and 22 charges, and an additional seven patients. One of these patients was prescribed an almost daily dose of methadone over the whole of that period.

66 In the Tribunal, the appellant claimed that he did not open the letter that revoked his authority and did not therefore know that his authority had been revoked. The Tribunal rejected that claim. In the course of its reasons for doing so, the Tribunal said at 62:

"It would plainly be professional misconduct in our view to continue to prescribe Schedule 8 substances when the right to do so had been specifically revoked. It would constitute a serious breach of the Poisons Act."

67 Plainly, no other view of such conduct by a medical practitioner is tenable and ground 5 fails.

69 Grounds 7 and 8 can be dealt with together. They are:

"7 That the removal of the appellant's name from the Register was manifestly excessive.

8 That the Tribunal erred by applying the incorrect test by focusing on punishment of the appellant, rather than protection of the public in the future."

70 For the reasons that I have already given, the primary object of the disciplinary process is to protect the public.

71 The Tribunal reconvened on 20 August 2003 and heard submissions from counsel on behalf of both the Medical Council and the appellant with respect to the exercise of the powers conferred by the Medical Act, s52.

72 Upon the reconvened hearing, the Tribunal was given a bundle of letters and a petition signed on 2 and 4 August 2003 by approximately 220 people. The Tribunal expressed the view that this material was entitled to "significant weight". On behalf of the appellant, it was contended that this material should be given more than "significant" weight because the authors of the testimonials were aware of the findings of misconduct which the Tribunal had made. The appellant repeated this submission upon the hearing of this appeal. With respect to it, the Tribunal said that there were 98 testimonials. Two were given by one person, and one was written by the appellant's son. The Tribunal then found, at 67:

"... only 12 make particular reference to some knowledge of either the misconduct originally alleged or the findings of professional misconduct made. None of those 12 instil any confidence that the authors have full knowledge of the matters before us. Some are plainly wrong; one refers only to one unspecified 'incident'. Some defend Dr Kudelka's general position on the basis that his private life is his own. This completely misses the point as to the inappropriate relationship issue, and completely ignores the balance of the matters. Of the remaining testimonials, we are simply left to total speculation as to what level of actual knowledge the author has of the matters we are considering. The same comment applies to the petition."

73 Upon the hearing of the appeal, the appellant contended that this finding was erroneous because the proceedings in the Tribunal had attracted widespread media attention. There was no evidence of the extent of that media attention, nor for that matter, of any media attention at all. More importantly, assuming that the hearing in the Tribunal had been widely reported by the print and electronic media, there was no evidence that the written findings of the Tribunal were published by the media and no evidence that any of the authors of the testimonials, nor the signatories to the petition, were aware of the ultimate conclusions of the Tribunal or the evidence upon which they were based. The appellant's submission on factual error is misconceived.

74 In addition to the foregoing material, the Tribunal received an affidavit from the parents of Ms X which testified to an improvement in her general condition during the time she was in a relationship with the appellant. The Tribunal accepted that fact, but pointed out that during the material time, Ms X was involved in illicit drug use with consequential financial difficulties with drug dealers, and from time to time engaged in prostitution to pay for drugs. It was not contended that the appellant was unaware of the prima facie view that it is professionally reprehensible to enter into a sexual relationship with a patient. Accordingly, it ought to have been obvious to him that it certainly would be reprehensible to enter into such a relationship with a patient who was as vulnerable as Ms X and who used illicit drugs of the kind that the appellant was authorised to prescribe.

75 It was submitted that the Tribunal focused on punishment rather than protection of the public. That submission has to be rejected. The Tribunal referred to authority which, in turn, referred to the proposition that the principal purpose of disciplinary proceedings was for the protection of the public. There is nothing in the Tribunal's reasons to indicate that it did not properly focus on the appropriate issues.

76 The Tribunal referred in some detail to the circumstances of the appellant that had been urged upon it by his counsel and took into account the totality of the conduct in respect of which adverse findings had been made. The order that the appellant's name be removed from the Register was one that was plainly open to the Tribunal. With respect to the role of this Court upon an appeal from such an order, I respectfully adopt the following passage from the judgment of the learned Chief Justice in Walters v The Nursing Board of Tasmania [2003] TASSC 122 at par12:

"In the determination of an appropriate penalty for members of their own profession, disciplinary tribunals made up substantially of members who belong to that profession are in a better position to assess the appropriate penalty than a court (Mercer v Pharmacy Board of Victoria [1968] VicRp 9; [1968] VR 72 at 93 - 94 and McMillan v Pharmaceuticals Council of Western Australia [1983] WAR 166 at 174). In deciding what is a proper penalty, it has been said 'a court must accord considerable weight to the order of the Tribunal to which the original responsibility was given' (Beaumont v Beesley [1973] 2 NSWLR 341 per Reynolds JA at 350). See also Skinner v Beaumont [1974] 2 NSWLR 106 at 112, where Samuels JA said in respect of an appeal by a medical practitioner from an order of the tribunal established under the Medical Practitioners Act 1938 (NSW), directing that his name be removed from the Register:

'Against this background, I turn to consider whether this Court should interfere with the penalty which the tribunal has imposed. The appellant bears, of course, the usual appellant onus of persuading this Court that the penalty was too severe. It is right to give weight to the fact that the tribunal is an expert body specifically charged with the task of policing its own profession.'

That is not to say that this Court should not interfere where the discretion to impose an appropriate sanction has clearly miscarried."

77 There is no material on this appeal that suggests that the discretion miscarried. The appeal is dismissed.