McBRIDE v WALTON

[1994] NSWCA 199

Court of Appeal (NSW)|1993-10-11|Before: Kirby P, Handley JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

1993-10-11

Before

Kirby P, Handley JA

Source

Original judgment source is linked above.

Judgment (783 paragraphs)

[1]

McBRIDE v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

[2]

KIRBY P, HANDLEY and POWELL JJA 5-6, 11 October 1993, 15 July 1994

[3]

MEDICAL PRACTITIONERS - professional misconduct - practitioner "not of good character - removal of name from Medical Register - experienced senior obstetrician and gynaecologist - extensive audit of over ten years of obstetrics practice - numerous particularised complaints dismissed - one particular of misconduct only (leaving patient without proper arrangements) found proved - Tribunal orders reprimand as appropriate order - extensive further hearing relating to alleged "scientific fraud'" - medical practitioner in reports of research dishonestly records and reports experiment on rabbits concerning expected teratogenetic qualities of drug - practitioner had earlier detected and reported teratogenetic qualities of Thalidomide as causing deformations in the human foetus and neonates - numerous other allegations of "scientific fraud" rejected or found not proved or not proved as deliberate - Medical Tribunal unanimously finds dishonest report of experiment and persistence therein establishes that practitioner is "not of good character" for the purposes of the Medical Practitioners Act 1938, s28(1)(f) - proceedings deemed to be brought by way of appeal under Medical Practice Act 1992 to Court of Appeal - appeal limited to decision of Tribunal with respect to a point of law and exercise of disciplinary powers of the Tribunal - held:

[89]

Complaints 9 and 10 asserted that Dr McBride had published false and misleading statements in an Article published in the Australian Journal of Biological Science (1982) 35: 173 titled "Effects of Scopolamine Hydrobromide on the Development of the Chicken and Rabbit Embryo" (the Article) and in a subsequent Note elaborating this article (Australian Journal of Biological Science (1983) 36: 131) (the Note). The allegedly false and misleading statements were thus subdivided, for the purposes of the complaints, into those relating to the Article and those relating to the Note. The Article reported the results of experimentation involving the administration of Scopolamine Hydrobromide (also and hereafter known as Hyoscine) to hen eggs and rabbits. The Tribunal found that none of the particulars of complaint concerning the experimentation with hen eggs had been proved. However, it found that some, but not all, of the particulars relating to the rabbit experimentation had been proved. It found that some of the statements in the Article were intentionally false. Some of the statements had been made with reckless indifference to their truth. Some of the statements were false, but not intentionally so. According to the Tribunal, most of the false statements did not affect the thesis or conclusions stated in the Article. They amounted, in effect, to a gilding of the scientific lily. They were included in the Article, where intentionally false, to convey an impression of greater scientific rigour in the conduct of the experiments than was in fact present. The most important of the false statements contained in the Article was, to the effect, that Hyoscine had been orally administered to eight rabbits of which two produced malformed litters. In fact, Hyoscine was administered to only six rabbits of which one produced a malformed litter. Thus, the Article represented a rate of malformation of 25% rather than 16.6%. In short, the report of the experiment was distorted to overstate the extent of the malformation caused by the drug.

[117]

The "good character" referred to is good character in the context in which that phrase appears in the Act. It is, therefore, not appropriate to apply a test of "good character" according to irrelevant or idiosyncratic notions of what "good character" may be in other contexts. Thus, the fact that a person, who happens to be a medical practitioner, occasionally cheats at cards when playing with family or friends would, without more, have nothing to do with his or her "good character" for the purpose of a complaint directed at the practitioner's removal from the Medical Register. There are some in our community who regard the slightest partaking of alcoholic beverages as demonstrating a want of good character. Doubtless they would regard such consumption as doubly reprehensible in the case of a medical practitioner. But such minority views could not be relevant to the expression "not of good character" in the context in which it appears in the Act. A sizeable minority of the community might consider that certain sexual practises, in a medical practitioner's private life, would demonstrate a want of good character. But unless these practices lead to a criminal conviction, involve patients or otherwise interfere in the performance of the medical practitioner's medical practice, they would have nothing to do with the reference to "good character" in this statutory context. It is important not unduly to enlarge the legislative reference to "good character". It appears in the Act at the end of a list of matters having an appropriate degree of specificity and relevance to medical practice. It must be understood in that context. Thus the "good character" which is required, the absence of which may give rise to complaint leading to sanctions, must be a "good character" relevant to the purpose for which the complaint is entertained, viz for the making of an order affecting the practice of the medical practitioner concerned as such. Neither the Board nor the Tribunal are well constituted to become moral guardians of medical practitioners, save in their professional respect. Nor is the Tribunal well constituted, or apt, to become the guardian of academic integrity in the conduct of research by medical practitioners, separate from the performance of their duties as such practitioners.

[499]

In the course of his reasons, Deane J, after indicating his view that the Order for Mr Smith's disbarment could not stand, continued3: "There is one further matter which I would mention. It is that nothing in this Judgment should be read as supporting a proposition that the Court of Appeal can never, in disciplinary proceedings, make or act on a finding that the practitioner concerned gave deliberately false evidence before it. To the contrary, it appears to me that circumstances could arise in which it would border on the absurd if the Court were precluded from making or acting upon such a finding. If, for example, the practitioner conceded under cross examination, that he or she had deliberately lied in his or her evidence in chief about critical matters, the Court would clearly be justified in allowing an amendment of the particulars of complaint to include that misconduct and, having give the practitioner the opportunity of being heard in relation to it in taking account of it in determining the appropriate order in the circumstances of the case. As I have sought to make clear, my conclusion that the Order that the Appellant's name be removed from the roll of barristers must be set aside is based on the view that there was, in all the circumstances, a denial of procedural fairness. In the particular circumstances of this case, procedural fairness required that the Court of Appeal not make an order for disbarment which was partly based on a finding that the evidence which it rejected was deliberately false without relisting the matter and extending to the Appellant an appropriate opportunity of being heard in relation to the justification and implications of such a finding. In a context where no such opportunity was extended to the Appellant, he was entitled to be accorded an appropriate opportunity of being heard, including an opportunity of leading evidence, in relation to those questions when the Court of Appeal was required to consider them afresh. This he was denied. "